Director of Public Prosecutions v Clements (a pseudonym)
[2022] VCC 457
•1 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLES CLEMENTS (a pseudonym) |
---
JUDGE: | His Honour Judge Hannebery | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 March 2022 | |
DATE OF SENTENCE: | 1 April 2022 | |
CASE MAY BE CITED AS: | DPP v Clements (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 457 | |
REASONS FOR SENTENCE
---
Subject:CRIMINAL LAW
Catchwords: Incest – indecent assault – very serious example of the offence – plea of guilty – COVID-19 – delay
Legislation Cited: Crimes Act 1958 (Vic); Crimes (Sexual Offences) Act 1980 (Vic); Sentencing Act 1991 (Vic); Sex Offenders Registration Act2004 (Vic)
Sentence: total effective sentence of two years and six months' imprisonment. I order that 12 months of the sentences is to be suspended for a period of 18 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R. Pirrie | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms D. Caruso (For plea) Mr J. Behan (For sentence) | Stary Norton Halphen |
HIS HONOUR:
Introduction
1Charles Clements,[1] you have pleaded guilty to an indictment containing two charges being indecent assault[2] and incest.[3]
[1]A pseudonym.
[2]Contrary to section 44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980, and in operation between 1 March 1981 and 4 August 1991.
[3]Contrary to s 52(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences Act) 1980, and in operation between 1 March 1981 and 4 August 1991.
2The maximum penalty for indecent assault during the relevant period of this charge was five years' imprisonment. The maximum penalty for incest during the relevant period of this charge was 20 years' imprisonment.
Circumstances of Offending
3An amended summary of prosecution opening was tendered[4] and read aloud on the plea. Your offending can be summarised as follows:
[4]Prosecution Exhibit 1.
4
You are the biological father of the victim, Calista Paterson.[5] You are 81 years old at the time of sentence, and at the time of the offending you were between
43 and 46 years old.
[5]A pseudonym.
5In the early 1970s you had a relationship with the victim’s mother.
6Prior to 1985 you had a limited relationship with your daughter, Ms Paterson, as you were serving a lengthy term of imprisonment.
7
You re-entered your daughter’s life upon your release from prison in May 1985.
Ms Paterson was between the ages of 11 and 13 when you sexually abused her.
8At the time of the offending Ms Paterson was living with her mother and siblings. You were living in a caravan park.
9Ms Paterson would sometimes stay overnight in your caravan.
Charge 1: Indecent Assault – Course of Conduct Charge
Incident 1
10
Incident 1 occurred when Ms Paterson says that when she says she was
approximately 10 years old she spent a weekend with you and two of her siblings at the caravan park. At night they slept in the caravan. When they were all in bed you told Ms Paterson to get into bed with you. Ms Paterson initially told you, 'No'. You told her that you would leave town if she did not comply.
11Ms Paterson got into your bed. You moved your hand under her underwear and started to touch her vagina. You rubbed her vagina with your fingers. When you stopped, Ms Paterson then went back to her own bed.
12Soon after that weekend you moved your caravan into the front yard of a friend. Ms Paterson continued to visit you after the caravan was moved.
Incident 2
13On a second occasion in about August 1985, Ms Paterson had an argument with her mother and moved out of home. She went to live with her maternal grandmother for a couple of months, then she moved in with you. By that time you were living in a house in a suburb some significant distance from her mother.
14
On the first night Ms Paterson stayed in your house you called her into your bedroom. Ms Paterson got into your bed. You started to touch her breasts and kissed her on the mouth. You then moved your hand under her clothing.
You rubbed your hand on her vagina.
Incident 3
15There is a third incident in early 1986 when you and Ms Paterson had moved into a new house in a different suburb. You continued to sexually abuse your daughter by rubbing your hand over her vagina.
16On one occasion Ms Paterson asked you if she could stay home from school the following day. You asked her what you would get in return. You called her into your bedroom. Ms Paterson got into bed with you. You moved your hand under her underwear and rubbed her vagina.
Incident 4
17The fourth incident was on another occasion when Ms Paterson was living with you. You came into her bedroom late one night after you had been out. You got into her bed and moved your hand under her clothing and fondled her vagina.
18These four specified incidents comprise the course of conduct that is the subject of Charge 1, indecent assault.
Charge 2: Incest
19
Later in 1986 you moved with Ms Paterson back to the suburb where her mother was located. At the time you were driving interstate trucks. On occasion,
Ms Paterson would travel with you on your interstate trips.
20In about October 1986 Ms Paterson went on an overnight trip to Adelaide with you. During the evening you pulled over to the side of the road. You had sex with your daughter in the cabin, specifically, you penetrated her vagina with your penis.
21
In about November 1986 you reconnected with another of your daughters,
Elaine Bartlett.[6] Ms Bartlett was about eight years older than Ms Paterson and was a daughter from a relationship that you had prior to meeting Ms Paterson’s mother. From about November 1986 Ms Bartlett lived with you. She was always around when Ms Paterson was present with you. In 1987 you, Ms Paterson and
Ms Bartlett moved to Melbourne to live together. In September 1987 Ms Bartlett sent Ms Paterson to live with her mother.
[6]A pseudonym.
22
In December 1987 Ms Paterson made a statement about the sexual abuse she suffered from you. The allegations made in that statement were not dealt with in Victoria prior to your arrest in Queensland on charges of incest against
Elaine Bartlett. As a result of those Queensland charges, you served a lengthy prison term.
23At around the time you were due to be released from prison in Queensland, detectives from Victoria asked Ms Paterson if she wanted to proceed with the allegations made in her 1987 statement. At that time she declined and instead signed a 'statement of no complaint.'
24No further action was taken until 2017. At this time Ms Paterson contacted police and told them that she now wished to proceed with the criminal allegations against you. A fresh statement from Ms Paterson was obtained and police re-opened their investigation into the matter.
Record of Interview
25
You were interviewed by police in 2018 admitted that you, 'mucked around'; with
Ms Paterson a couple of times. You initially denied that you had sexual intercourse with her.
26
Later in the interview, you admitted that you had sexual intercourse with
Ms Paterson once in your truck when driving to Adelaide but that you did not ejaculate.
Impact on the Victim
27
In the course of the plea, Ms Calista Paterson[7] read her Victim Impact Statement,[8]
dated 31 January 2022.
[7]A pseudonym.
[8]Prosecution Exhibit 2.
28Ms Paterson’s statement articulated the severe and ongoing impact that your criminal actions have had on her life. She was 14 when she first made a statement to police. She is now 48 years old. She says you have destroyed her life. She says you caused post-traumatic stress disorder and insomnia. She cannot go into crowds. She does not have a life beyond going to work and coming home. She is constantly anxious. She has had counselling on and off since the age of 16.
29The impact of a crime upon its victim is a matter that I take into account pursuant to s 5 of the Sentencing Act 1991. There can be no doubt that your crimes have had a profound and terrible effect on Ms Paterson.
Nature and Gravity of Offending
30
I am conscious that you are to be sentenced for offences committed almost
four decades ago, according to the sentencing standards applicable at that time. Whilst the understanding of the devastating impacts of child sexual abuse had not yet evolved to its present position, the maximum penalty applicable for incest at the time of the offending was 20 years' imprisonment. Incest was then, and remains now, an inherently serious offence.
31You committed an act of sexual intercourse with your biological daughter. She had only just turned 13. You were 45 years old. She was alone with you on an interstate trip. She was vulnerable. Rather than care for her, you instead took advantage of that vulnerability. You grossly breached the trust she had in you as her father.
32Charge 2, incest, is a very serious example of an inherently serious offence.
33The offence of indecent assault of a child under the age of 16 had the comparatively reduced maximum penalty of five years' imprisonment at the time of your offending. The equivalent conduct committed now would subject you to a maximum penalty of 10 years' imprisonment. I am conscious that you are to be sentenced subject to a prevailing view of the inherent seriousness of the offence reflected in that lesser maximum penalty.
34The indecent assault charge is aggravated by the fact that the conduct was committed against your biological daughter. The offending occurred while the victim was living with you and while she was separated from her mother.
35
Even accepting your contention that the offending could not have commenced until your release from prison in 1985, she was only 11 years old when it started and
13 when it finished. You were between the ages of 44 and 46 at the time.
36The offending involves four separate incidents charged as a single course of conduct. I must sentence within the maximum penalty for the charged offence but must also reflect the totality of your conduct. Each incident included the touching of her vagina. Your actions were a gross breach of the trust she was entitled to have in you as a parent.
37The conduct comprising Charge 1 is similarly a very serious example of the offence.
Circumstances Personal to the Offender
38You were born in Albury in 1941 and are 81 years old. You report that you and your sister were subject to physical and sexual abuse perpetrated by your father. You instruct that this would continue from ages 7 until 13. At age 14 you left the family home and ceased schooling.
39It has been submitted on your behalf that you had a background of, 'emotional hardship, abuse, dysfunction and disadvantage'. Ms Caruso submitted that these matters ought to be given appropriate weight in mitigation of sentence pursuant to the principles in Bugmy.[9]
[9]Bugmy v R (2013) 302 ALR 192
40The events of your childhood do not, in my view, reduce the very high moral culpability you bear for committing sexual offences against your young daughter when you were a mature adult in your mid-40s.
41I do, however, put a very limited amount of weight upon your childhood suffering in mitigation of sentence.
42You commenced working at a dairy farm until you turned 21 years old, whereafter you worked as a truck driver or in logistics. You instruct that this offending occurred whilst you were abusing methamphetamine that you used to stay awake while driving. You instruct you were, 'out of it', during this time in your life.
43You have been married twice. You have two children from your first marriage in the 1960s. You have no contact with these children.
44You have a criminal history that commences in 1960, whilst you were still a teenager. That history includes multiple occasions throughout your life where you have been imprisoned in different states for matters of dishonesty.
45
Significantly for the chronology relevant to this sentence, you were sentenced in
Queensland in 1992 for sexual offences committed against Ms Paterson’s older half sibling, Elaine Bartlett. You received a term of six years' imprisonment. You escaped from prison in 1994. You were recaptured and returned to custody to complete the sentence, plus an additional period imposed for the escape itself.
46You were released from custody in Queensland towards the end of 2000.
47Upon your release you met and married your current wife. You have now been married for 21 years. You have three children from that marriage, all of whom live at your home.
48You are being sentenced now for offending that concluded about 36 years ago.
49There is no sexual offending alleged since your release from custody in 2000. There is an assault matter from 2013 that I am instructed occurred at a golf club.
50You are now 81 years old. Your age is a significant factor in sentencing. As an elderly offender you are more likely to die while serving a period of imprisonment. Any period of imprisonment imposed represents a larger proportion of your remaining life expectancy than it would be for a younger person.
51
You have significant health concerns. You were diagnosed with hypertension in 2021. You have previously been treated for prostate cancer. In 2020 you had
cardiothoracic surgery to repair an aortic valve and have a
coronary artery bypass.[10] I accept that these medical conditions will make imprisonment more onerous for you than for someone not suffering these conditions.
[10]Defence Exhibits 2, 3, 4.
52I also accept that as an older person you are at increased risk from COVID-19 as compared with the average prisoner and that this would be a legitimate source of anxiety for you.
53The prison environment has also become more burdensome due to the pandemic. Whilst the deprivations in areas such as visits and access to programs have eased somewhat from the peak of the lockdowns, the burden of imprisonment is still greater than would otherwise be the case, and I take this into account as a matter in mitigation.
54By a combination of your age and the fact that save for the golf club assault, you have not offended since your release in 2000, I conclude that you no longer pose a significant threat to the community.
55
You first indicated a plea of guilty to the charges comprising the current indictment on 6 August 2021 and you were arraigned on this indictment on 1 December 2021. There was some delay in the proceedings caused by a change in your representation, some issues with your health and, of course, the pandemic restrictions, but the bottom line is that this matter resolved without any
cross-examination or any witness at committal or otherwise.
56By your plea you have saved the time and resources that would otherwise have been expended on contested proceedings. You have also spared your daughter the additional trauma of having to give evidence.
57It was not contended on your behalf that your plea of guilty should be considered as evidence of remorse. Rather, Ms Caruso very realistically submitted that your plea of guilty, when considered in combination with the admissions you made in your record of interview, indicated a willingness to facilitate the course of justice.
58The utilitarian value of your plea of guilty is very significant, especially having regard to the impact that pandemic restrictions have had on court listings. But for your plea of guilty, your matter may well not have been concluded for a very long time.
59I also accept that there has been a delay in this matter that is not attributable in any way to the conduct of your defence.
60
I accept that you were aware that Ms Paterson had made a statement to the police and fully expected to face prosecution for this matter for a number of decades.
Ms Caruso put on your behalf, and I accept, that you were told when you were nearing the time of your release from the sentence for the offending against
Ms Bartlett, that you would likely face extradition to Melbourne to face these charges.
61That this did not occur at that time was not your fault. It did mean, however, that the spectre of potential prosecution for these matters has lingered over you for a very long time. I consider that this was a form of punishment in itself that must be taken into account in mitigation of sentence.
Sentencing Submissions
62Ms Caruso appeared on your behalf and conceded that a term of imprisonment was appropriate in the circumstances, however, submitted that any term of imprisonment should be wholly suspended.[11]
[11]Defence Exhibit 1.
63
Mr Pirrie appeared on behalf of the Prosecution and submitted that the offending required a term of imprisonment that is to be served immediately. Mr Pirrie further submitted that there should be some moderate cumulation between
Charges 1 and 2.
Sentencing Principles
64Due to your prior convictions, you are to be sentenced as a serious sexual offender whereby protection of the community must be the principal purpose for which sentence is imposed. The prosecution, however, did not seek a disproportionate sentence be imposed.
65I must impose a sentence that serves to deter others from similarly offending. Given your age and lack of recent offending, specific deterrence has little weight in sentencing. For similar reasons, plus the inherent improbability of you reoffending at your age, crafting a sentence in order to facilitate your rehabilitation is not a significant consideration in this case.
66The resources of the parole board are more appropriately directed to assist younger offenders rather than towards somebody in their 80s.
67It is important, however, that the sentence imposed expresses denunciation for your conduct, and represents a punishment that is just in all the circumstances. Notwithstanding the delay in this case and the significant mitigating factors, the court must show that people who offend in this way will be held accountable.
68Balancing all these matters as best I can, I intend to impose a period of imprisonment but to suspend a portion of it.
Sentence
69Charles Clements, I sentence you as follows:
70
On Charge 1, indecent assault, you are convicted and sentenced to
nine months' imprisonment.
71
On Charge 2, incest, you are convicted and sentenced to two years and
three months' imprisonment.
72I order that three months of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 2.
73
That makes for a total effective sentence of two years and
six months' imprisonment.
74
I order that 12 months of the sentences is to be suspended for a period of
18 months.
75
By reason of your offending, you attract the provisions of the
Sex Offenders Registration Act2004. Pursuant to that Act you are a registrable offender with an obligation to comply with reporting conditions for life. I do not require you to sign the Notice of Reporting Obligations.
76Pursuant to s6AAA of the Sentencing Act 1991, but for your plea of guilty I would have imposed a total effective sentence of three years and nine months with a non-parole period of two years and nine months.
77Are there any further orders that are required?
78MR BEHAN: No, Your Honour.
79HIS HONOUR: No, all right. In which case I will adjourn the court until 9 o'clock on Monday.
80MR BEHAN: As Your Honour pleases.
81HIS HONOUR: You can take Mr Clements into custody, thank you.
- - -
0