Director of Public Prosecutions v Chester (a pseudonym)

[2018] VCC 1713

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARREN CHESTER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	26 September 2018
DATE OF SENTENCE:	18 October 2018
CASE MAY BE CITED AS:	DPP v Chester (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1713

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle
For the Accused	Mr P. Kilduff

HIS HONOUR: 

1Darren Chester[1] in July 2018 you stood trial on an indictment which alleged nine charges of incest and four charges of doing an indecent act with or in the presence of a child who was under 16.  You were convicted by jury verdict on two charges of incest and one indecent act charge.

[1] A pseudonym

2The complainant is your daughter, who was born in 1988.  The charges on which you were acquitted went back to a time when she was eight years old, and Charge 5, on which you were found guilty, concerned a period which was said to span from about March 1999 to 31 December 2002, when she was 11 to about 14.

3On that occasion, you drove your daughter, to whom I shall refer to as ‘A’ for reasons of anonymity and privacy, to Melbourne.  She was seated on the front passenger seat.  As you drove you placed your hand on her knee, prompting her to say to you, "Don't do it.  You can't do it here".  You responded that no one was going to see.

4You then pulled the vehicle over to the side of the road and stopped the engine.  She recalls that no one was around.  She recalls that you were somewhere around Toorak, and remembered crossing a nearby railway crossing.  You placed your right hand up her leg and inside her pants, inserting your finger into her vagina and then rubbing quickly.

5When the offending you told her, "It's our little secret.  Don't forget about it".

6On another evening during this same period, when was aged between 11 and 14 years old, she was asleep in her brother's bedroom and you climbed into the bedroom through the window and jumped into bed with her.  You then began rubbing her breasts.

7You were later standing up as this conduct continued.  You repeatedly said to her phrases to the effect:

"Does it feel nice?  Do you like it?  This is how we make love.  This is how we love each other.  Families love each other this way.  This is how it's meant to be.  This is how we make love, and this is how I'm getting closer to you".

8You then placed your hands down her pants and inserted your finger into her vagina.  She eventually pushed you away and retreated to her own bedroom to escape your abuse.

9The final charge to which you were found guilty relates to an occasion sometime between March 2002 and 17 March 2004, when A was between 13 and 14 years of age.  She was in her bedroom when you entered and immediately placed your hand inside her pants.

10Believing you were going to try and insert your finger into her vagina as you done in the past, she grabbed your hand before you could put it in her underwear, and she told you that if you kept going, she would tell her mother and report you to the police, upon which time you then left the bedroom.

11Your daughter has provided a statement.  In this victim impact statement she writes of the physical hurt experienced and the broken trust which was just as damaging.  She experiences flashbacks, and everyday events can trigger very bad memories.  She has struggled with relationships and her social life is still curtailed by anxiety and fear.  She was still wetting her bed until the age of 18 because she was petrified.

12She has left places of employment due to anxiety and depression, and these matters caused anger and distrustful tension with her mother, and her likely symptoms of post-traumatic stress disorder have played a major role in her life.  She told you to desist on many occasions, but you did not listen, telling her instead this was how people loved each other, and this was a cruel deceit.

13Your daughter suffers from a moderate intellectual disability and some developmental impairments.  She attended a special school from age eight until age 17, and needed an integration aide in her early years.  Her sleep patterns were disrupted because of fear of you and your physical interference of her.  Her bedwetting up until the age of 18 was primarily related to the fear engendered by your behaviour.

14Professor Brewer in a neuropsychological report of January 2017 into her state, concluded her learning development was equivalent to a ten-year-old child.  She exhibits features of post-traumatic stress.  This description of her capacity as a child is an aggravating feature of your offending.

15She was a vulnerable child, entitled to the protection, nurture and love of her father, but by your actions you violated this fundamental trust in the most egregious manner.  Your offending is abhorrent because of this breach of trust, her age, her intellectual disability, and you facilitated your own sexual gratification by adopting persuasion and explanations to deceive your own child in acceptance of your molestation.  Sustained it by a veil of lies and deceit about the nature and reason for your behaviour, you took advantage of her innocence and naivety.  You took advantage of your power over her as an adult male and as her father, and you damaged her physical integrity and sense of security.

16This was repeated conduct of a demeaning and opportunistic nature, which carries in my view high moral culpability in the context of objectively serious offending.

17The maximum penalty for incest is 25 years, but it is an offence which can cover a large spectrum of offending.  I have mentioned aggravating factors above.  The maximum reflects Parliament's assessment of the gravity of the offence, and it is a good starting point as a guide to the sentence to be imposed, but it is an indirect guide, as sentences must be determined according to the particular circumstances of the offending.

18Similarly, current sentencing practice is just one factor amongst others to be considered in reaching a just sentence.  Recent decisions in Dalgliesh [2017] HCA 41 and Kilic [2016] HCA 48 demonstrate the sentences must reflect the objective gravity of the offending and the moral culpability of the offender.

19The wide range of offences encompassed by incest also means that other features such as the ones outlined in Reid [2014] VSCA 145 are absent. Some of the more obvious, like pregnancy, use of objects, video or photographs of the victim, are obviously absent here. However, this was not isolated or transitory offending.

20Sexual penetration of a child by its nature is an act of violence, accompanied by emotional coercion and exploitation, leading to long-term distress and disturbance.  The community also is perturbed by this offending against a child with disability, and the court in recognising this consternation must endeavour to denounce the behaviour in no uncertain terms.

21General and specific deterrence are foremost considerations, even despite your lack of prior criminal history.

22I take your personal circumstances into account.  You are 62 years of age, and I take into account that age in considering that this will have been your first experience in reclusion. 

23Your personal background and circumstances were dealt with briefly during your plea, primarily by reference to the report of Dr Simon Vincenzi, a clinical forensic psychologist at Forensicare, who provided a report dated 21 August 2018 at my request.

24You were there said to have been born in Melbourne and lived in rural Victoria for most of your life.  Your mother had epilepsy and your father was physically abusive towards you.  You reported being bullied at school, and you left school in form three. 

25You left to work, which you did in various roles.  You have a very good work history, with some 32 years spent at the Toyota plant spot welding and material handling.

26You have in effect no drinking or drug abuse problems.  You have been twice married.  Your first wife, A's mother, you met in your late 20s.  There was described by you a history of conflict in that relationship, which extended to unsatisfied sexual life.

27Fifteen years ago you met your current partner.  You have no children together, but your partner has grandchildren who live in Hobart, where you plan to move to.

28Mr Vincenzi covers psychiatric sexual history in his report.  He administered a number of psychological tests.  You are currently, and due to your situation, moderately depressed and seriously anxious.  He made an assessment of risk for future reoffending, including sexual offending, and on the basis of a number of criteria and tests, he opined you were placed at a moderate risk of sexual recidivism.

29Some of the comments in the reports are notable.  Mr Vincenzi noted your comments about allegations made by your sister at paragraph 7 and paragraph 15, your categorical denial of the offences, and noted partial evidence of some sexual deviance with the possibility of a paedophilic disorder limited to incest, perhaps related to sexual frustration at the time of the offending.

30He acknowledged that the offending may not have been motivated by attraction to children or family members, but by deviant sexual interest - paragraph 41.

31He recommends offence-specific treatment.

32Overall this opinion indicates some concerns which will need to be addressed both while incarcerated by programs and thereafter.  Some matters raised upon your plea I should mention briefly.  It was submitted that:

"These were isolated incidents, very strange occurrences which occurred long ago without explanation in unusual circumstances and out of the blue".

33Each of those assertions I rejected, and do so now.  The nature of the trial, dealing as it did with a large number of allegations, meant that the jury had to consider each separately.  It was said this left a verdict, "With a lack of opacity".  Perhaps what was meant was that they lacked clarity rather than opacity, or that in fact the verdict was clear in itself.

34Irrespective of that particular conundrum, in my view the verdict does not call for any comment from me.  The offending for which I am to sentence you were not, as I have said, isolated incidents.  Neither were they strange.  Nor did they occur in "unusual circumstances".

35They did not occur out of the blue, as some other evidence demonstrated, particularly the assertions by the complainant, which I would be satisfied about beyond reasonable doubt that you used your fingers inside her vagina on very many occasions, see the VARE at Question 396; and that you engaged in some sexualised behaviour with her, including the use of pornography, which you denied in your interview.

36There was some debate as to taking some uncharged acts or context evidence into account, those which could be said to be general in nature and unconnected directly with charges upon you were acquitted.  I want to make clear that I do not rely on any such acts to determine the seriousness of the offending.

37I accept there was delay in this case.  Delay in this type of cases is not unusual.  I will take this delay into account, particularly the long delay between your interview of 2015 and being charged in early 2017.

38It should be noted that you have not offended in the period between the first complaint in 2003 and 2018.

39It is also the case that the complainant had complained to her mother, who did not act upon it at the time.  However, it should also be understood that while I will account for the delay and the impact upon you, in particular post police interview, that the second limb of delay is missing here.  The rehabilitative limb is totally absent.  I will sentence you, in effect, as an unrepentant offender who did not plead and show any remorse.  The impact of delay would have been greater as an ameliorating factor, clearly, if that further aspect was present.

40It was conceded the offending was serious, but it was submitted that beyond locating the offences "in the mid-range", this was not at the top or high end of that range.  Beyond accepting that this falls within the mid-range of offending, a classification I would not have otherwise used as necessary to describe the objective gravity of the offence, which is very serious, in my view any further categorisation within that range is unnecessary.

41I was referred to some comparable cases and to the Sentencing Advisory Council snapshot No.217 of 2018, which have some limited value and require a cautious approach, but which nevertheless help to ensure some consistency by the identification and application of some unifying principles in those cases, and the generalised field of statistical values contained in the snapshot.

42I have had reference to McCray [2017] VSCA 340; Carter [2018] VSCA 88; Reid [2014] VSCA 145; AWP [2012] VSCA 41; Thrussell [2017] VSCA 386; Grantley [2018] VSCA 112; Crawford [2018] VSCA 113; and Phillips [2018] VSCA 114.

43I take also into account that your wife is ill as a result of a tumour having been removed surgically, and at the plea she remained hospitalised.  This is a burden as her carer, which you were, you will no doubt carry into prison, and will render your period in prison more burdensome.  This may require a variation of the order in place restraining your funds from a redundancy, so that she may be properly cared of.  This may also effectively prevent her from anything more than phone contact with you, and she will no doubt have difficulties in self-care.

44Please stand.

45On Charge 5 of incest you are convicted and sentenced to six years' imprisonment.

46On Charge 6 of incest you are convicted and sentenced to six years' imprisonment.

47On Charge 13, indecent act with a child under 16, you are convicted and sentenced to one year imprisonment.

48I order one year on Charge 7 and two months on Charge 13 cumulative on Charge 5 and on each other, making a total effective sentence of seven years and two months. 

49I order a non-parole period of four-and-a-half years.

50I note for the records of the court and declare that you have served 98 days by way of pre-sentence detention.

51Because of the charges in relation to Charges 5 and 6, you are to be sentenced as a serious sexual offender by me on Charge 13.  I will impose no disproportionate sentence, a sentence which was not called for by the prosecution, but keep in mind the principle of community protection in imposing the penalty that I do.

52You will also be subject to the obligations under the Sex Offenders Registration Act.  It does not form a part of my sentence, but it is triggered by it.  Your reporting period is for life due to the nature of the offending.  The Registration Act provides for significant obligations for you to abide by.  There will be a document that will be printed, and I am sure that it will be explained to you at some point, but you should make a point of reading it.  It will require ongoing obligations when you are released.

53Are there any other orders that I need to make?

54MR DOYLE:  There was a forensic sample.

55HIS HONOUR:  Yes, I have signed that order.

56MR DOYLE:  Yes, Your Honour.

57HIS HONOUR:  I have also signed an order that you undergo a forensic procedure for the taking of a scraping from the mouth, which is not a painful procedure, so that your DNA can be placed on the database.  If at the time that an authorised officer makes a request for the taking of that, you do not consent, then that officer is authorised to use reasonable force to obtain a blood sample from you.  Do you understand?

58HIS HONOUR:  Sine die.

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