Director of Public Prosecutions v Churchill (a pseudonym)

[2023] VCC 300

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN CHURCHILL (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2023
DATE OF SENTENCE:	7 March 2023
CASE MAY BE CITED AS:	DPP v Churchill (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 300

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW      

Catchwords:          Sentence after trial upon conviction for two charges of incest; Offending occurred in 2005; Significant breach of trust and impact on victim; Whether personal circumstances of offender justify significant disparity between head sentence and non-parole period; Whether sentence should be moderated by reference to sentencing practices at the time of offending.

Legislation Cited:         Crimes Act 1958 (Vic); Crimes (sexual offences) Act 1991 (Vic); Criminal Procedure Act 2009 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:R v Verdins & Ors (2007) 16 VR 269; Stalio v The Queen (2012) 46 VR 426; DPP v Dalgliesh (a pseudonym) [No 1] [2016] VSCA 148; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP (Vic) v Dalgliesh (a pseudonym) [2017] VSCA 360; R v VN (2006) 15 VR 113; R v DD (No 2) [2008] VSCA 15; R v King (2011) 34 VR 106; R v MG (2010) 29 VR 305; Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170; DPP (Vic) v Tewksbury (2018) 271 A Crim R 205; Thrussell v R [2017] VSCA 386; Grantley v The Queen (2018) 272 A Crim R 340

Sentence:  Total effective sentence of 8 years and 6 months’ imprisonment, non-parole period of 5 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Kounnas	Office of Public Prosecutions
For the Accused	Ms A. Beech with Ms K. Ballard	Galbally Parker Lawyers

HIS HONOUR:

Introduction

1Ryan Churchill,[1] on 12 September 2022 a jury found you guilty of two charges of incest contrary to s 44(2) the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991. The maximum penalty for that offence is 25 years imprisonment.

[1] A pseudonym.

2The victim of your offending, Isla Murphy,[2] was born in August 1992 and was aged 13–14 years at the time these offences occurred between July and October 2005. You were 36 or 37 years of age at that time.

[2] A pseudonym.

3In 2003 you entered into a de facto relationship with the mother of the complainant Rachel Russo.[3] About six months later Ms Russo and her three daughters including the complainant moved in to your home at in Templestowe.

[3] A pseudonym.

4During 2005 Ms Russo fell pregnant. One evening late in her pregnancy you entered the complainant’s bedroom and sat down on her bed. It seems that the rest of the family had by this stage gone to bed. The victim told you that she wanted to go to sleep. You told her she was an attractive girl. She again told you she wanted to sleep however you became upset and pulled down her bedcovers.

5You then climbed on top of her pulled down her pyjamas and inserted your penis into her vagina. You continued to penetrate her for two or three minutes until you ejaculated outside her vagina. The next morning the complainant noticed that she had been bleeding. She was unable to say whether or not you had worn a condom.

6On 15 October 2005 Ms Russo gave birth to her fourth child and remained in hospital for a further four or five days. During that period the complainant and her sisters stayed at home with you. On one occasion during that period you were seen by the complainant at the doorway of the bathroom watching her whilst she was showering. She told you to get out but you responded by saying that you owned the house.

7That evening you went into the complainant’s bedroom when she was in bed listening to music. You again lay on top of her and inserted your penis into her vagina. You did this for several minutes. It is not clear whether you ejaculated on this occasion.

8Isla Murphy stated that she was in pain during that act of penetration.

Contested factual issue

9On the plea, Ms Beech on your behalf, suggested that you should not be sentenced on the basis that you had made a threat to secure the complainant’s silence. The prosecutor, Mr Kounnas, submitted that the jury should be taken to have accepted that a threat was made and that the making of that threat aggravated your offending.

10In her first account to police provided in her audio visual statement, the complainant alleged that at the time of the second incident you had told her that you were going to ‘go after’ her sisters.[4] In a subsequent police statement she suggested that statement was made after the first incident. Indeed it was suggested that the making of that threat enabled the complainant to distinguish between the two incidents.

[4] VARE, 14 September 2018, questions 241–245.

11At the Special Hearing the complainant suggested that the comment as to going after the sisters was made on both occasions. When cross-examined as to the discrepancy the complainant stated:

“… It may have been incorrect … The best way I can explain it to you is, my psychologist told me, trauma survivors do not have memories, they have symptoms. I have a lot of symptoms, I do not have a lot of memories.”[5]

[5] Special Hearing, 5 October 2021, 54, ll 6–11.

12Acceptance of this aspect of the complainant’s allegations would clearly aggravate the offending and increase the penalty to be imposed. I need therefore to be satisfied beyond reasonable doubt that the statement was made.[6][7]

[6]Cheung v R (2001) 209 CLR 1 at [14] per Gleeson CJ, Gummow and Hayne JJ.

13In my assessment of the evidence I cannot be so satisfied. In my view, this aspect of the complainant’s evidence was particularly uncertain and should not therefore form part of the factual basis for sentence. That finding is by no means inconsistent with the jury’s verdict, which was not dependant on acceptance of this assertion. You will be sentenced however, on the basis that the jury otherwise accepted the complainant’s account.

Victim Impact

14Victim impact statements were submitted by Isla Murphy and her mother Rachel Russo. Your counsel raised some concerns and as to the weight that should be attached to some of the assertions made in those statements. In particular the implicit, if not explicit, suggestion that all of the complainant’s mental health difficulties were attributable to your actions.

15As I indicated to counsel it is unnecessary for these purposes to embark on an exercise attributing causation to the various aspects of the complainant’s psychological ill-health. Rather, it is important to take a practical approach acknowledging the imprecision associated with describing the impact of this kind of offending, but at the same time recognising the very real harm that it causes.

16As to the latter, there can be little doubt that your offending has had a devastating effect on Isla Murphy. As a young person she appears to have been quite vulnerable and psychologically fragile. At the very least this offending exacerbated that fragility and contributed to a significant deterioration. Its impact has been wide ranging in that it has compromised, her ability to get on socially, to enjoy relationships, to perform well academically, to take advantage of career opportunities and to attain some financial security. To this day, she constantly feels fearful, angry, anxious and uncertain. She says she longs to heal and to no longer feel so burdened. In essence, the impact on the victim has been very significant.

17Her mother Rachel Russo harbours enormous guilt because she feels that she failed to protect her daughter. She says she was ‘broken’ by the realization that her daughter’s innocence was lost. Throughout, she has struggled to keep her family together and provide the intensive support and care her daughter needs. That struggle continues.

Personal History

18You were born in September 1968 and are now 54 years of age. You committed these offences when you were 36 or 37.

19Your parents, now both in their 70s, were present during the trial and at your plea hearing. They have each written detailed personal references confirming their unconditional support for you in spite of the jury’s verdict.

20You were the eldest of three children and grew up in the eastern suburbs of Melbourne in what amounts to quite unremarkable circumstances.

21You did not experience any violence, mistreatment or substance abuse in the family home. On the contrary your home life was happy and stable. You developed normally and did not suffer any major physical illnesses or injuries during your childhood.

22You attended the local primary and secondary schools in Croydon. According to a close friend, who provided a personal reference, you were an outgoing, popular student who was well liked by both teachers and students. You did reasonably well academically and completed Year 12.

23During your schooling you completed work experience at the ANZ bank and developed an interest in banking and finance. After finishing school you commenced full time employment with the ANZ bank as a teller. Over the following 18 years you worked hard such that you were ultimately promoted to the position of associate director of private bank credit, a position which involved managing the funding of multi-million dollar projects.

24You left that position to establish your own financial brokering company however, you found that you were not happy working alone and so took up a position with Westpac Bank in the commercial and business banking department. You worked there for three years until you were taken on as a senior manager in the corporate banking sector of the National Australia Bank. You were with another major bank for over 16 years, only to voluntarily resign in the wake of your conviction for these offences.

25Your counsel described the loss of your career as extremely distressing for you and a form of extra-curial punishment.

26Six character references were put forward in support of your plea. Aside from your parents and friend, your two younger sisters, your brother in law and your niece all attested to your good character. Collectively, the picture they paint is of a person who has otherwise conducted themselves impeccably – considerate, respectful, generous and caring.

27For completeness I note you were dealt with for a charge of theft at Prahran Magistrates’ Court in June 1987. I was told that as an 18-year-old you stole a bottle of vodka and that the fine imposed for that offence was without conviction. In my view, that matter has no relevance to this sentencing exercise.

28An important feature of your personal circumstances is the fact that you suffer from Becker Muscular Dystrophy which is an hereditary condition that was first diagnosed in 2005. The disease has caused muscle wastage in the lower legs and weakness in your hands such that your ability to grip, to walk and to run is considerably impaired.

29You were assessed by a psychologist, Dr Matthew Barth, for the purposes of your plea in mitigation. You appear to have had a normal relationship and sexual history. You adamantly denied any sexual attraction to children and according to Dr Barth expressed prosocial views regarding children and sex. Your denial of the offending means that it is not possible for Dr Barth to reach any definitive conclusions about your sexual functioning but it is apparent that specialist sex offender treatment is required to assist you in gaining insight into your behaviour and addressing the matters that led to this offending.

30In Dr Barth’s view you represent an overall risk of sexual recidivism that falls into the “low-moderate risk” category, although he suggests that risk could be reduced with the completion of a specialist sex offender treatment program.

31With respect to your mental health more generally, until your conviction you had never had reason to seek professional assistance from a psychiatrist or a psychologist. However you appear to have suffered an intense emotional reaction to being charged with these matters and being found guilty of them. Dr Barth identified significant emotional distress and depressive symptoms which were sufficiently severe to warrant a diagnosis of “adjustment disorder-with depressed mood”. In his view there is an appreciable risk that your mental health could deteriorate under circumstances of further stress and that you require ongoing professional treatment.

32Further, in Dr Barth’s view you are likely to be a vulnerable prisoner due to your limited coping skills for your depressive symptoms and your physical impairment. He considers that it is likely that you will find the process of imprisonment to be quite arduous when compared to an individual of normal health and that you are at risk of further deterioration in custody.

Defence submissions

33Whilst acknowledging the inherently serious nature of this offending your counsel submitted that it should be viewed as being relatively limited. You have been convicted of two discrete episodes of penile/vaginal penetration that must have occurred within the space of a month or two. No other misconduct was alleged and whilst the fact that the offending took place in the complainant’s own home in her own bed involving a significant breach of trust, it was, when compared with other cases of incest, “no worse than the norm”.

34Counsel further argued that you ran your trial “in a manner that affected a swifter course of justice than would otherwise have been the case”.[8] It was also submitted strongly that your otherwise good character, lack of subsequent offending and family support, meant that your prospects for rehabilitation should be assessed as being excellent. In that light specific deterrence and protection of the community did not require particular emphasis.

[8] Outline of plea submissions on behalf of the accused, 8 November 2022, [12].

35As I have indicated you voluntarily resigned from your employment after your conviction. Whilst this offending was remote from your employment the consequence of conviction has meant that you have lost your career and that constitutes significant punishment beyond the sentence that will now be imposed.

36Counsel noted that this will be your first time in custody and that you are likely to find that particularly burdensome. That is so for the reasons set out by Dr Barth namely that you will need to serve your time in protection, you have acquired an adjustment disorder and you suffer from Becker Muscular Dystrophy which renders you more vulnerable. In those circumstances the fifth and sixth propositions derived from Verdins were engaged.[9]

[9] R v Verdins & Ors (2007) 16 VR 269.

37Finally it was submitted that in addition to present-day sentencing practice it was permissible and appropriate to have regard to sentencing practices at the time of the offending in the manner explained in Stalio.[10]

[10] Stalio v The Queen (2012) 46 VR 426 (‘Stalio’) [52].

38In light of all of those matters, it was submitted that there ought be a significant disparity between the head sentence and non-parole period imposed in your case.

Prosecution submissions

39The prosecutor emphasised the inherent seriousness of this offence which is manifest. You preyed upon a young vulnerable person whose care had been entrusted to you.

40Isla Murphy was entitled to feel safe in her own home and you grossly breached the trust placed in you by her and her mother. Moreover you breached that trust on two separate and distinct occasions and in so doing caused devastating harm to the victim.

41The objective gravity of this offending and your moral culpability, it was submitted, were very high and strong emphasis on general deterrence and denunciation was required.

42Your offending warranted nothing less than condign punishment.

Consideration

43In considering these submissions I have had regard to a number of comparative cases which bear some similarity to the facts of this case. They may be placed into two categories - pre-Dalgliesh and post-Dalgleish.[11] In the first category are VN,[12] DD (No 2),[13] King,[14] MG[15] and in the second category, Carter,[16] Tewksbury,[17] Thrussell[18] and Grantley.[19]

[11] DPP v Dalgliesh (a Pseudonym) [No 1] [2016] VSCA 148, [44]; DPP (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP (Vic) v Dalgliesh (a pseudonym) [2017] VSCA 360.

[12] (2006) 15 VR 113.

[13] [2008] VSCA 15.

[14] (2011) 34 VR 106.

[15] (2010) 29 VR 305.

[16] (2018) 272 A Crim R 170.

[17] (2018) 271 A Crim R 205.

[18] [2017] VSCA 386.

[19] (2018) 272 A Crim R 340.

44In DD (No 2) the Court referred to the fact that whilst the maximum sentence of the offence of incest had been increased by the time of this offending in 2005, the median sentence imposed over the period 2001–2002 to 2005–2006 ranged from three to four years.[20] However, as was discussed in Carter, and Thrussell and determined by the High Court in Dalgliesh, previous sentencing practice for the offence of incest failed to reflect the objective gravity of that offending.

[20] [2008] VSCA 15, [6].

45Nevertheless, it is necessary to have regard to sentencing practice at the time of the offending because it is relevant to arriving at a sentence which is just in all of the circumstances.[21] The effect in this case will be to moderate the sentence to be imposed so as to recognise the delay of 17 or so years in this matter coming to trial.[22]

[21] Stalio.

[22] See Carter at [59], [62].

46With respect to your counsel’s submission as to the manner in which you conducted the trial, I accept that through your legal representatives all that could be done to facilitate the determination of the issues at trial was in fact done. However, it was not contended, nor could it be contended, that you were remorseful for this offending. You pleaded not guilty and have continued to deny the offences took place.

47Sections 5(2C) and (2D) of the Sentencing Act 1991 cannot, and was not sought to, be engaged as supporting a submission that you were remorseful. Nor would it be appropriate, given the manner in which the trial was conducted, to engage that provision to demonstrate your lack of remorse.

48It may be that the submission is best treated as pointing to an absence of aggravation. That said, there is a strong public interest in encouraging accused persons who plead not guilty to facilitate rather than frustrate the course of justice. Seen in that light, it is appropriate I think to give some weight to the manner in which the trial was conducted, in your favour. Even so, I should make clear that you are not entitled to the substantial reduction of sentence that would ordinarily flow where a plea of guilty is entered.

49Your lack of previous convictions, your previous and subsequent good character and the very tangible support of your family and friends are all matters that tell in your favour, such that you appear to have reasonably good prospects for rehabilitation. I would not characterise those prospects as excellent. That is so because you have not accepted responsibility for your offending and there is therefore uncertainty about how you will address the reasons for your offending.

50You will, I am satisfied, find the experience of imprisonment more burdensome than a person of normal health. You suffer from a debilitating degenerative disease which will make you vulnerable in custody. Moreover your psychological health is parlous and there is a significant risk that it will deteriorate in prison. Accordingly, principles five and six of Verdins will mitigate the sentence that would otherwise be imposed.

51I am also satisfied that the loss of your career, unconnected as it was with your offending, constitutes a form of extra-curial punishment which needs to be taken into account in formulating a just and appropriate sentence.

52In all those circumstances, I will accede to the submission, to allow a reasonably significant disparity between the head sentence and the non-parole period, albeit that disparity should not be so great as to undermine the purposes for which the sentence must be imposed.

53All of that said I cannot lose sight of the fact that incest is a crime of violence which requires substantial emphasis on denunciation and general deterrence. In the time since you committed these offences the community has come to better understand the harm done to the victims of sexual abuse in general, and of incest in particular. In this case, although I have taken a practical approach in considering the victim impact statements, nevertheless it is plain that the harm suffered by these victims demonstrates how far reaching that harm can be.

54As the prosecutor emphasised, Isla Murphy was entitled to feel safe in her own home, and in her own bed. Indeed, her mother was entitled to feel that her daughter was safe with you. Your moral culpability for these offences is very high. The sentence of imprisonment that will now be imposed will denounce and punish the gross violation of the trust that had been placed in you. It may be that your offending approximates “the norm” for this offence. However that should in no way obscure just how grave the law views such a betrayal of parental responsibility.

Sentence

55Taking all relevant matters into account you will be sentenced as follows:

56On Charge 1, incest, you will be convicted and sentenced to a term of imprisonment of 6 years and 6 months.

57On Charge 2, incest, you will be convicted and sentenced to a term of imprisonment of 6 years and 6 months.

58I will order that 2 years of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1.

59That renders the total effective sentence of 8 years and 6 months. I will fix a non-parole period of 5 years.

60Pursuant to s 18 of the Sentencing Act 1991 I will declare that you have served 29 days by way of pre-sentence detention and I will have that declaration noted in the records of the court.

61I will further declare that by virtue of your conviction for the two offences of incest you will be required to comply with the obligations imposed by the Sex Offenders Registration Act 2004 for the rest of your life.