Director of Public Prosecutions v Conrad Leon (a pseudonym)
[2014] VCC 237
•7 March 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.CR-13-01246
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONRAD LEON ( A PSEUDONYM) |
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 November 2013, 24 February 2014 | |
DATE OF SENTENCE: | 7 March 2014 | |
CASE MAY BE CITED AS: | DPP v Conrad Leon (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 237 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Keating for plea Ms B. Moleta for sentence | OPP |
| For the Accused | Mr R. Lawrence | James Dowsley & Associates |
HER HONOUR:
1 The law requires that a victim of sexual offending not be identified[1]. Because of the relationship between the parties in this case, it is necessary to use a pseudonym for the offender to prevent identification of the victim. The name I will use in these remarks is Conrad Leon. For the same reason, I will refer to the victim of the offending as ‘the complainant’, and not refer to any other person in the family by name, only by relationship. I mean no disrespect to anyone in not using their names.
[1]Judicial Proceedings Reports Act, section 4
2 Conrad Leon, you have pleaded guilty to a charge of incest which has a maximum sentence of 25 years’ imprisonment.
3 I sentence you on the basis of the opening which was read by the prosecutor[2]. The victim of your offending is your youngest daughter. The charge represents five occasions of penile-vaginal penetration over the course of one night when your daughter stayed with you.
[2]Exhibit A
4 I am satisfied that the features which make your offending more serious are:
· the gross breach of trust;
· the degree of planning involved, including the use of alcohol which not only disinhibited the complainant, but rendered her more vulnerable;
· the persistence of your offending, both during the night, including when you continued with the sexual activity even after she had vomited from the effects of the alcohol, and the following day when you tried to re-commence the activity;
· the complainant’s age of 15; and
· the difference between your ages.
5 I do acknowledge that there are cases where much longer periods of abuse, younger victims and more disparate ages are involved.
6 I received Victim Impact Statements from the complainant[3], read out in court by her grandmother, and from the complainant’s mother[4], read out by her. No-one could fail to be moved by the depths of emotional turmoil which your offending has caused each of them. I will not attempt to summarise these statements as no words of mine could match their eloquent and heartfelt descriptions.
[3]Exhibit C
[4]Exhibit B
7 What I do want to say though is addressed to the other people affected by your crimes, especially the wider family including your older children. One of the results of your offending has been to effectively cut your youngest daughter off from her older siblings from your previous marriage.
8 Because they have chosen to support you, which is a factor I may take into account in your favour, it has led to the complainant not only feeling unable to access any support from that side of the family, but in fact feeling actively ostracised from that support. Whilst that is the choice of each adult family member, I must have regard to the effect on the complainant. If there is any thought by anyone that she was somehow to blame for these criminal acts being visited upon her by a formerly loved and loving father, let me make it absolutely clear. A child is never, repeat never, responsible for the sexual abuse perpetrated upon them by any adult, let alone by a biological father.
9 However, there are a number of factors that I must balance against the seriousness of your offending, and take into account where appropriate.
10 The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. By your plea, the community has been spared the time and cost of a trial, and the complainant has been spared the ordeal of giving evidence. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
11 You indicated your intention to plead guilty after a contested committal, but some time before the trial was due to start. Since the time of that indication, I infer that there is an acceptance by you of responsibility for the crime and a willingness by you to facilitate the course of justice.
12 However, I find that your plea of guilty reflects only a low level of remorse, for a number of reasons. First, in the recorded telephone call with your daughter on 11 March 2013, just a week after the events, you told her you did not want to talk about it on the phone, told her to forget about it, and to keep it to herself. I am satisfied that these are admissions to the offending conduct. I am also satisfied that nothing in that conversation indicates that you felt remorse for your daughter’s situation at that time.
13 Next, within hours of that phone call, you were arrested, and told the police in your interview that the complainant’s mother had ‘put her up’ to making the allegations and that it was all about money. You also tried to suggest that an inguinal hernia would have physically prevented you from performing the sexual acts. Your answers in the interview again showed a lack of remorse.
14 Next, when interviewed by forensic psychologist Ms Carla Lechner in October 2013, you told her that you had no memory of what occurred, although you apparently expressed ‘immense regret’ and apparent insight into the devastating impact on your daughter.[5] Given the comments made by you in the recorded telephone call with your daughter, what you said to Ms Lechner about your lack of memory was untrue. Ms Lechner provided an Addendum to her report, stating that if your wish was ‘to sweep the matter under the carpet’, in her opinion there was a lack of genuine insight regarding the impact of your behaviour on your daughter, and she considered that some doubt was cast on your stated level of remorse.[6]
[5]Exhibit 1 paragraph 4
[6]Exhibit 1 Addendum dated 16 February 2014
15 I accept that you are extremely ashamed of what you did, as you should be, but it does not reflect well on you that until the entry of your plea of guilty, you attempted to shift the blame, as well as deny the offending. I am satisfied from your attitude after your false lack of memory that you have not shown true insight into the impact on your daughter of what you did to her, but with the reading out of the Victim Impact Statements last week, perhaps you will have begun to realise this.
16 Despite Ms Lechner not being provided with the ‘full Brief’ for her original report, in my view, she was astute to the need for you to have specialist assessment by the Corrections Victoria Sex Offender Program to determine if you have any latent aberrant sexual attitudes or preferences, even though she found no overt sexual disorder. I agree that you should be so assessed.
17 Another aspect about which Ms Lechner was not fully informed was your criminal record. She makes no reference to it in her Addendum, but in the original report on page 1, notes that you have a ’very limited prior history’.
18 In 1999, you received a community based order for a Commonwealth offence which I find has little relevance to this case. In 1974, you received a two-year good behaviour bond in this court for two charges of what was then known as carnal knowledge of a girl under 16 years. On the face of it, this appears to be very similar offending, involving sexual penetration of a girl under 16 years. However, because of the length of time that has passed, the fact that you were much closer in age to that victim, and the fact that there was no incestuous relationship in that case, I do not treat that offending as being highly relevant to today’s sentence. It remains of some relevance because the fact that you have a criminal record means that you do not come up for sentence as a man who has never been in trouble with the law, or in particular never committed a sexual offence.
19 Returning to Ms Lechner’s report, she was of the opinion that in October last year, you presented with symptoms of major depression, which I accept, but there is no submission before me to take that into account other than by way of your personal circumstances, which I do. However, I find it difficult to accept her favourable prognosis for your rehabilitation as stated in the original report, as it was partly based on the insight she then considered you to have, and your lack of prior history. Therefore, apart from the matters to which I have referred from the report and Addendum, and your biographical details, I do not get much assistance from the report.
20 I was told about your background and personal circumstances, as summarised in the Outline of Submissions and the Chronology provided by your counsel[7]. You are now aged 57 years. You have been in three long term significant relationships, and have a son and two daughters older than the complainant, from your first marriage which you entered at age 19 and which ended after almost 20 years. Your next relationship was with the complainant’s mother, and you separated in 2001 after 8 years when the complainant was aged about 4. A third relationship ended in 2012, shortly before the offending, after about 10 years. Despite their shock at you committing these offences, your older children, and your first and third partners are supporting you, either in court, or through references, or in the case of your son, having you live with him. Their support is vital for your prospects of rehabilitation.
[7]Exhibits 3 and 4.
21 You have had a good work history, employed in a number of positions since the age of 15. In 2008, you suffered an injury at work, which has limited your ability to find employment. On two occasions you moved to Queensland for employment, but returned to Melbourne when that did not work out. The second time you returned to Melbourne, in 2008-9, you re-connected with the complainant, then aged about 11 or 12, and developed a close relationship until you committed this offence.
22 The only possible explanation for your offending is that you were facing a number of problems at the time. Your third relationship had ended, you lost the part time job which you had for the previous year or two, and your previously low consumption of alcohol increased as a result. None of this is put forward as an excuse, but is suggested as an explanation for such serious offending against your own child by you in your mature years and which is said to be out of character.
23 I find that your prospects of rehabilitation are somewhat guarded, because of your lack of insight and low level of remorse. I do accept that you are genuinely ashamed at your offending, and this, together with the family support, increases your prospects of rehabilitation and decreases your risk of sexual reoffending. I am satisfied that you are unlikely to reoffend in the same way with the same victim, but until you have been assessed for, and if necessary, undertaken a Sex Offender program, I think there does remain some risk of you reoffending in respect of an underage female related to you. I take into account that you are prepared to complete such a program.
24 By my sentence, I must seek to deter other fathers from sexually abusing their children. This is known as the principle of general deterrence, and is of major importance in an offence involving sexual offences against a child. Further, I find that while your passage through the criminal justice system and entering into custody for the first time at age 57 will have provided some deterrence to you personally from re-offending, in my view there is still a need for my sentence to reinforce that personal deterrence.
25 Application has been made for the retention of an intimate forensic sample previously taken from you and you have not objected to this. As it is in the public interest that the order be made, and as the seriousness of the circumstances warrant the making of the order, I will now make that order.
26 As a result of my sentence of you today, you become a registrable sex offender. As your crimes were committed against a child[8], and you have a relevant prior conviction for the purposes of registration, you will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life under section 34(1)(c)(i).
[8]Class 1 offence
27 I will now have my associate hand to you a form which notifies you of your reporting obligations. Would you please sign where indicated to acknowledge that you have received this form?
28 This is very serious offending. It has been properly conceded on your behalf that the only appropriate sentence is a term of imprisonment. I take into account that this is your first time in prison, but it is necessary that the court by its sentence, expresses the community’s denunciation of your high level of criminality in sexually abusing your daughter.
29 On the representative charge of incest, you are convicted and sentenced to five years’ imprisonment.
30 I direct that you serve a minimum term of three years before becoming eligible for parole. I have set this non parole period having regard to your age, your physical and mental health, and your lack of recent relevant criminal history.
31 I declare that you have served 12 days in custody including today, and that these will be deducted administratively from your sentence.
32 If you had not pleaded guilty, but been found guilty of five separate charges after a trial, the sentence I would have imposed is seven years with a minimum of five years.
33 Yes, I didn't check with counsel about pre-sentence detention.
34 MR LAWRENCE: I had 11 not including today, Your Honour.
35 HER HONOUR: Yes, just take a seat please.
36 MR LAWRENCE: It's the 24th by my record that he was remanded.
37 HER HONOUR: I make it as 11 counting the 24th.
38 MR LAWRENCE: Yes, counting the 24th, I had five days in February.
39 HER HONOUR: Yes, you're quite right.
40 MR LAWRENCE: And then seven days including today.
41 HER HONOUR: Thank you. 12 days in custody including today. Thank you for that.
42 Yes, nothing further?
43 COUNSEL: No, Your Honour.
44 HER HONOUR: Yes, thank you.
45 Conrad Leon, as is the pseudonym, may be removed.
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