Director of Public Prosecutions v Crawford (a pseudonym)
[2017] VCC 105
•17 February 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HARRIS CRAWFORD (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 February 2017 | |
DATE OF SENTENCE: | 17 February 2017 | |
CASE MAY BE CITED AS: | DPP v Crawford (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 105 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J. Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr L. Gwynn | Furstenberg Law |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol to ensure there is no possibility of identification of the accused, victim and family or witnesses.
HER HONOUR:
1 Harris Crawford[1], you have pleaded guilty to one charge of incest. The maximum penalty applicable to that offence is 25 years’ imprisonment. You have also pleaded guilty to three charges of sexual penetration of a 16 or 17 year old child under your care, supervision or authority. The maximum penalty applicable to each of these charges is ten years’ imprisonment. You have also pleaded guilty to one charge of attempted rape, with a maximum penalty of 20 years’ imprisonment.
[1] Harris Crawford is a pseudonym.
2 These crimes arise out of events which took place between 13 June 2008 and 24 February 2015, with some gaps in between, with Charges 1 to 4 inclusive being course of conduct charges. The complainant involved in this offending is your stepdaughter, Meagan Allison[2].
[2] Meagan Allison is a pseudonym.
3 It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. Your offending, in summary, was abhorrent and repugnant and the impact of it has had lasting consequences on Meagan.
4 There are a number of aggravating features of your offending. The gross breach of trust involved, not only of the complainant, but also the mother of the complainant. Also you told Meagan not to tell anyone of your sexual abuse of her. Also your penile penetration involved you not wearing a condom (see R v Khem[3]), which I discussed with your counsel. Your offending also involved periods of time when you did not offend, however you re-commenced, as apparent in the dates of the charges and as I also discussed with counsel. Your offending also involved bribery, coercion and control in order to ensure Meagan’s compliance with your perverted sexual demands.
[3] (2008) 186 A Crim R 465
5 There is no doubt the victim of your offending has suffered considerably as a result of it and I shall return to pass some remarks on that later.
6 I turn to a brief summary of your offending.
7 The complainant, Meagan Allison, was born on 13 June 1996 and your offending against her occurred when she was between 12 to 18 years of age, specifically charges when Meagan was between 12 and 14, Charges 2 to 4 inclusive, 16 to 17, and Charge 5, 18 years of age.
8 You were legally Meagan’s step-father between 23 October 2005 to 22 February 2013.
9 Your offending commenced when you were married to Meagan’s mother, Juliet Watt[4], and when living in the family home in Sunbury. The offences continued until you and Juliet Watt separated in April when you left the family home.
[4] Juliet Watt is a pseudonym.
10 Following that, Meagan did not see you very often between 2010 and 2013 when you were living with your parents. Meagan then began to communicate more regularly with you in late 2012, as she was not getting on very well with her mother.
11 Meagan moved in with you and your parents in 2013. No incidents of sexual offending by you involving Meagan occurred when you were living at your parents’ home.
12 Despite your earlier offending (Charge 1), you again built up Meagan’s trust only to abuse her again.
13 For a few months in 2013, following a house fire which destroyed your parents’ home, you and Meagan lived in a motel in Sunbury and your sexual offending against her re-commenced and continued until after she moved into a home in Diggers Rest with you in late 2013 until 24 February 2015.
14 Meagan reported your sexual offending to police on 27 February 2015.
15 By way of background to your relationship with Meagan, you commenced your relationship with Meagan’s mother in 2000 when Meagan was 4. You and Juliet Watt married in 2003.
16 You took on the role of father of Juliet’s then two children, Meagan and Rebekah[5]. Both children knew you as their father and had a very close relationship with you. Later there were two children born of your relationship with Juliet Watt.
[5] Rebekah is a pseudonym.
17 In 2008 you began to sexually abuse Meagan when she was just 12 years of age.
18 Turning to Charge 1, incest, a course of conduct charge, between 13 June 2008 and 24 April 2010, that is over approximately 22 months. Your sexual abuse of Meagan involved penile/vaginal penetration on a regular basis. You would bribe Meagan to engage in sexual favours by offering her chocolate or a drink of Coke. You also told Meagan not to tell anyone of it or you would get into trouble.
19 On 24 April 2010, you and Juliet Watt separated and you moved out of the family home. During that separation, both Meagan and her sister saw less of you.
20 In October 2010, Juliet met a new partner and then moved to Kyneton in July 2012. By that time Meagan was 16 and had begun to make contact with you again, as there was friction between she and her mother. You sympathised with Meagan’s problems and Meagan again began to trust you.
21 Meagan decided to live with you in Sunbury, a decision not discussed with her mother. Meagan moved in with you to your parents’ home in early-2013, and she started Year 11.
22 As I have previously noted, nothing sexual occurred between you and Meagan whilst living with your parents.
23 Also as previously noted, in mid 2013, you and Meagan lived in a motel in Sunbury for several months following a house fire at your parents’ home.
24 I turn to a brief summary of Charges 2 and 3, also course of conduct charges. Charge 2 is referrable to penile/vaginal penetration, and Charge 3, penile to mouth. That offending occurred over approximately eight months.
25 Whilst living at the motel in Sunbury, you sexually abused Meagan, on occasions bribing her with money for sex. You regularly made Meagan perform oral sex on you, regularly penetrated her vagina and mouth with your penis. Meagan described your offending as “This kind of became his daily routine and I just became familiar with his routine.”
26 The abuse occurred so often Meagan was unable to particularise it, as it was the same thing each time.
27 In late 2013 you and Meagan moved into a unit in Diggers Rest, where your sexual abuse of her continued on a regular basis, involving penile/vaginal and penile/anal penetration.
28 Charge 4 involved that anal penetration of Meagan, also a course of conduct charge. That sexual abuse continued on a regular basis over the same approximate eight months after the move to Diggers Rest. Meagan said that offending also occurred almost daily.
29 You controlled Meagan’s money and bribed her for sexual favours. You became more forceful and aggressive with her sexually when at Diggers Rest and she became scared of you.
30 Charge 5 related to specific offending on 24 February 2015 when Meagan was 18 years of age.
31 On that occasion, Meagan was in her bedroom using her mobile phone. You entered the room, sat next to her and started touching her on her vagina and breasts. Meagan said “No” and pushed you away. Not deterred, you removed her leggings and underwear and when she struggled, you became forceful, attempting to force your penis into her vagina.
32 Meagan decided she wanted to leave the house, however due to her lack of clothing, waited in the lounge room until she had an opportunity to collect her clothes and leave. At one stage Meagan tried to run past you, however you physically grabbed her and whilst struggling with her, attempted to insert you finger into her vagina and I note that is not a charge before me.
33 Meagan continued to struggle and you finally let her go. She went to her room to find her clothes. You followed, grabbing her and pinning her arms down. Meagan was crying hysterically.
34 Meagan managed to lock herself in the toilet and called a friend. She then left the house and never returned, staying with her friend until 27 February. On the evening of 27 February 2015, Meagan received a phone call from her mother and she told her mother of your offending. Juliet then drove Meagan to the police station. At the police station, Meagan disclosed what happened on 24 February, although at that time did not make a formal statement due to her emotional state. A formal statement was made by her at a later date, after your first interview with police.
35 In the first interview on 27 February 2015, you were questioned regarding Charge 5, attempted rape. You said you often "play-fought" with Meagan and during the play-fight would hold her down. You said Meagan had started to cry and you let her go, thinking you were holding her too tight. You could not explain why Meagan left the house and did not return home.
36 You said there had been consensual sex with Meagan some weeks prior on one occasion only. You said it was Meagan who came into your room unexpectedly for a cuddle and that she was the instigator. That had happened when Meagan was 18 and you "thought" your penis went into her vagina.
37 A second interview was conducted on 21 August 2015, following further allegations by Meagan regarding your sexual offending. You did not make any admissions. In particular, you specifically denied any such offending.
38 You do not have any prior court appearances. You therefore come to this court as a person of previous good character. I was not advised of any subsequent or pending matters.
39 You have pleaded guilty to these charges and you are entitled to have that fact taken into account in your favour and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses, in particular Meagan, have been spared the need to give evidence upon your trial.
40 Further, I take into account you intimated early your intention to plead guilty to these charges. Following the matter being initially listed before me as a plea of guilty, your new solicitor sought further time to explore whether or not the matter be a plea of not guilty and the hearing was then adjourned to obtain that advice. Following advice, you abandoned any intention to plead not guilty.
41 You have, I accept, pleaded guilty to these charges at an early stage. I accept your pleas of guilty indicate some remorse for your offending, although I have concerns regarding the extent of your remorse, given your continued denials of your offending in the second record of interview until recently.
42 Following terms of imprisonment being imposed on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3, 4 and 5 on the indictment. I direct that it be entered into the records of the court, you have been sentenced as a serious sexual offender on Charges 3, 4 and 5.
43 When sentencing as a serious sexual offender, in determining the length of sentence, I must regard the protection of the community from you as the principle purpose for which the sentence is imposed (s.6D(a) and (b) Sentencing Act 1991). The prosecution was not seeking a disproportionate sentence and I am also of the opinion that I am able to appropriately sentence you without the need to impose a disproportionate sentence. Section 6A Sentencing Act 1991 also refers to cumulation of sentences and I shall refer to that later in these sentencing remarks.
44 Further, following your pleas of guilty to the charges on the indictment, the Sex Offenders Registration Act 2004 applies. Charges 1 to 4 inclusive are Schedule 1, Class 1 offences and Charge 5 is a Schedule 3, Class 3 offence, although, consistent with s.34(4)(a), it is deemed a Class 1 offence. Therefore, pursuant to s.34(1)(c)(i), it is mandatory you report for life, pursuant to that Act.
45 Mr Gwynn, who appeared on your behalf at your plea hearing, provided a written outline of submissions, which I have read and he addressed those during his oral submissions.
46 Mr Gwynn did not take issue with the summary of the prosecution opening (Exhibit A), and I discussed aspects of it with him.
47
In court during your plea hearing to support you, was your mother and second step-father, who had also written some references. From all the references,
I accept you have the support of your immediate family and friends.
48 Mr Gwynn referred to your pleas of guilty at the contested committal and that a committal was therefore not required and that Meagan did not have to give any evidence, or any other witness for that matter. I am aware of that
49 I discussed with Mr Gwynn the adjournment of the previous plea hearing when you were seeking a second opinion in relation to your pleas of guilty. As I was told, you had obtained that advice and maintained your pleas of guilty to these charges and as I have previously stated, I accept therefore, that your pleas of guilty were entered at the date of the contested committal hearing on 31 August 2016 and that your offending resolved on that basis of the charges before me.
50 In his written submissions, Mr Gwynn referred to the offences before the court as serious and he is, without doubt, correct. Your offending was repugnant and sustained. He submitted the imposition of a term of imprisonment was the only appropriate sentence and such, in my opinion, was a realistic and sensible concession.
51 Mr Gwynn conceded general deterrence and denunciation were essential sentencing considerations for this offending. He is correct.
52 Turning to the aggravating features of your offending, Mr Gwynn conceded there was a clear breach of trust. I discussed with he and the prosecutor my concern that you recommenced sexual abuse of Meagan at one stage following you having regained her trust. Mr Gwynn conceded the duration of your offending, which spanned a significant period of time as outlined in the charges, was significant. I agree. He also noted, as do I, the young age at which your offending began when Meagan was 12. Mr Gwynn also conceded that matters of coercion, control and bribery were also aggravating features of your offending.
53 I discussed with Mr Gwynn the number of opportunities you had to desist from re-offending, only to commence again.
54 Mr Gwynn referred to what he described as an "immediate" apology by you in relation to Charge 5 on the Indictment. You did apologise and I am aware of that, however, the circumstances in which you proffered your apology are different from that stated and accepted in the prosecution opening (Exhibit A).
55 Mr Gwynn referred to a number of matters he urged in mitigation of sentence and relevant to your prospects of rehabilitation.
56 He, as I said, relied upon your pleas of guilty at an early opportunity without any evidence needing to be called and the utilitarian benefit of your plea.
57 In that regard, he further referred me to the decision of Reid v R[6] and also to Harris v R[7]. Your pleas of guilty, I accept, recognise your acceptance of the truthfulness of Meagan’s allegations.
[6] (2014) 42 VR 295
[7][2015] VSCA 247
58 Mr Gwynn referred to your pleas of guilty as demonstrative of a “degree” of remorse. I agree, a “degree”, however in my opinion, there are limitations regarding the extent of your remorse. In particular, I refer to the two records of interview and your denial of the majority of your offending, also that the description you gave of your offending relevant to Charge 5 was different from that now accepted by you in Exhibit A. That is, it cannot be said you were remorseful at the time you were interviewed by police and even in the intervening six-month period between the first and second interview, that did not prompt you to admit your offending at that time.
59 When you did acknowledge some sexual activity (record of interview No.1), you cast blame onto Meagan, describing her in essence, as the instigator of it.
60 Mr Gwynn submitted your pleas of guilty were relevant to your prospects of rehabilitation and that is so. However your rehabilitation involves a consideration of other matters as well, including those to which I have just referred. I also note you have not attempted to obtain any counselling in relation to your sexual offending involving Meagan. While you have seen a psychologist three times, that had only been to address issues of depression and thoughts of suicide. It is difficult to assess your degree of insight regarding this offending.
61 Mr Gwynn submitted you had the capacity and desire to engage in appropriate treatment when in custody and I certainly hope you do. You will be offered programs in custody and I urge you to participate. You should also seek out other programs to assist your rehabilitation. Your rehabilitation prospects, in my opinion are guarded, however I do note you do not have any prior criminal history, as I have already said, nor is there anything subsequent or pending and that you are otherwise of good character.
62 Mr Gwynn had also referred to you having a history of employment and that is so. You also intended, you said, to participate in courses and training in custody to assist your ability to resume employment upon your eventual release and I urge you to do that.
63 As a result of this offending, you said you would no longer be able to work as a security guard.
64 You also said you had the ongoing support of immediate family and friends, as contained within the references to which I shall shortly refer.
65 I was also told you have complied with your bail conditions and intervention orders that have been issued as a result of these charges.
66 Mr Gwynn referred to your offending having resulted in you being separated from your two biological children and you had found that particularly difficult. You understood it may be difficult for you to resume contact with them in the future.
67 I was told more of your personal history. You are 44 years of age at sentence. Your mother is 63 years of age and worked until retirement in 2013. Your father is a retired truck driver and you have had very little contact with him throughout your life, that is your biological father.
68 Your mother married your first step-father when you were 3 and separated from him when you were 14. You described a positive relationship with him with ongoing contact.
69 Your mother married your second step-father when you were 15 and you also described a good relationship with him.
70 There are two half-brothers from your mother’s first marriage, both in employment. You have contact with them both and they are aware of your offending.
71 You were educated to Year 9 at Gisborne Technical College, although there were difficulties with maths and English and were subjected, at times, to bullying. At times you needed an integration aide to assist you.
72 Thereafter you obtained employment at a sawmill, and for a short period of time worked in a supermarket.
73 You underwent neurological testing at the age of 17, referred to in the report of Ms Matthews.
74 Between the ages of 16 and 20 you obtained casual employment as a carpet layer and described, during that time, being subjected to sexual abuse by your then employer.
75 The bulk of your employment history had been working as a security guard. The last 20 years you have been involved in that work and for the last four years, employed with Dome Security, your hours varying between eight and 40 per week.
76 You hold both a forklift licence and heavy vehicle licence, which will hopefully assist you to obtain employment in the future, as will any courses of course that you undertake whilst in custody in that regard.
77 I turn to the report from Ms Pamela Matthews, Forensic Psychologist, dated 31 January 2017. You said you understood your offending was morally wrong and illegal, given Meagan’s age. You said you did not anticipate the impact of your offending on Meagan, although I find that surprising, given your appreciation that it was morally wrong and illegal and that your offending started when she was just 12. Her report contained further details of your background.
78 You first met your biological father when you were 15 years of age, but did not see him often, as I have previously said.
79 Reference was made in her report to your education and employment.
80 Regarding substance use, you began consuming alcohol at the age of about 18 and maintained a consistent drinking pattern since then, although it would seem, not to excess. Apart from trying cannabis on one occasion, you had never been involved with other illicit drugs.
81 You did not have any major physical health issues nor were you receiving medication.
82 You described depression since separation from Juliet Watt and that you had seen a psychologist on three occasions through Centrelink, following that separation.
83 You had recently commenced seeing a psychiatrist or psychologist at the Sunbury Medical Centre to address your own sexual abuse.
84 Regarding your social life, you reported having a small friendship group who were aware of these offences.
85 You last saw your children in February 2015 and stopped seeing them after being charged.
86 You presented with depression and anxiety and reported your mood as "up and down". You also felt suicidal due to this court hearing. You reported you had very little sleep at night from the first time you were taken to the police station.
87 Since being charged, you said you recently started experiencing flashbacks and dreams of your own past sexual assault.
88 Reference was made to a report of Dr Sujeevan, dated 27 October 2016, who then diagnosed you with adjustment disorder with depression and some anxiety symptoms. Reference was also made to a report of Dr Peter Dowling, dated 8 February 1990, when you were 18 years of age, indicating a full-scale IQ of 83.
89 Ms Matthews conducted her own testing, referable to your intellectual ability and that produced a full-scale IQ of 98, placing you within the average range of ability.
90 Turning to a risk assessment, Ms Matthews utilised the Risk of Sexual Violence Protocol Assessment Tool (RSVP). She concluded your risk of re-offending in a similar manner was moderate. She did note, however as do I, your offending involved behaviour consistent with privilege, favour and affection, such as offering chocolate, Coke, a drink that is, and other forms of psychological coercion, such as telling Meagan "not to tell anyone, or Daddy will get into trouble”. Further, she noted as do I, you struggled with forthright admissions in your record of interview and as such there was difficulty, she said, with minimisation and denial present.
91 Ms Matthews noted your repeated offending with Meagan and therefore that chronicity of behaviour was evident. There was also evidence, she concluded, of escalation of your sexual violence towards Meagan, in a move from consensual sexual activity to attempted rape. Further, she observed physical coercion regarding the single charge of attempted rape, with you chasing Meagan and pulling her pants and underwear down. You also presented, she said, with limited insight in regard to factors or processes that placed you at risk of sexual offending. As previously stated, to date you have not undertaken any counselling to address this offending and matters such as insight into it.
92 Ms Matthews described your offending as "opportunistic" and of you having poor psycho-social boundaries.
93 Turning to her conclusion and opinion, crucial to your behaviour was your self-esteem. Ms Matthews suggested it was likely you suffered persistent depressive disorder, which at times deepened episodically into major depression. Her opinion was, it was likely there was some mood-related disturbance to your clear thought and judgement during the period of your offending behaviour, although to what degree, she was unclear. Further, your consumption of alcohol in the past may have also impacted upon your clear thinking. I again note, however, you were able to desist for periods of time from your offending. You would likely, once incarcerated she said, collapse in your mood state with increased thoughts of suicidal ideation, which would require management until you stabilised.
94 Mr Gwynn conceded that there was no evidentiary basis linked to your depression or learning difficulties with a sufficient nexus to decrease your moral culpability. I further questioned Mr Gwynn about whether or not any of the principles stated in R v Verdins & Ors[8] applied. Ultimately, as I understood his submission, he conceded the principles were not activated, however, from the report of Ms Matthews, I am conscious of her opinion that in custody, you were likely to suffer a collapse in your mood state and an increase in suicidal ideation and you would likely require counselling and pharmacological management until you stabilised in the custodial environment.
[8] (2007) 16 VR 269
95 She also referred to your learning difficulties likely to make you socially vulnerable within the prison environment. I also am aware of these matters and such can and have been taken into account by me, consistent with general sentencing principles, albeit not as Verdins principles. I also note this is your first time in custody and that might also impact upon your depression, self-esteem and the matters raised by Ms Matthews.
96 There were a number of references before me. From your mother, dated 2 February 2017. She is aware of the charges. She provided details of your background, that your development was slow. You commenced school at age 6. You had difficulty writing and with mathematics. At age 27, you met and lived with Juliet Watt and her two daughters, Meagan and Rebekah. Since these allegations by Meagan, your mother had not been permitted to see Juliet or any of the children and nor had you.
97 Your mother has spoken to you regarding your offending and you were very remorseful. You had lost your employment with Dome Security as a result of these charges. She continued to support you.
98 There was a reference from your step-father. He first met you in 1988 when you were at school. He described you as an honest person and that you always treated him with respect and were truthful with him. You enjoyed the outdoors and would often take your children and friends on camping trips.
99 There was a reference from Michael Vallance, dated 18 October 2016, who has known you since 1990. He met you while dating your step-sister and remained your friend after that relationship ended. He described you as friendly, helpful and trustworthy. You were part of his family. You had also worked with him at times in his family carpet-cleaning business.
100 There was a reference from Colin and Susan Sutton, dated 14 October 2016, who had known you for 26 years, when you dated their second daughter. You were always polite, well-mannered and respectful. They continued to keep in contact with you. Their other two daughters married your two brothers. They described you as a good father.
101 There was a reference from Paul Roberts, dated 22 October 2016. He had known you for more than 25 years, having met you in late 1989. He described you as popular and well liked. Despite periods of times when he had not been in contact with you, when you did catch up however at social gatherings, he said it was easy to pick up where you left off. He described you as kind, caring and honest.
102 There was a reference from Anne Pedler, dated 13 October 2016, who has known you for nearly 30 years. She found the charges before the court difficult to believe and out of character. She described you as kind, loving and always there for your children. You were honest, highly moralistic and law abiding. Somewhat surprising conclusions perhaps, given your acknowledgment your offending was morally wrong and illegal.
103 There was a reference from Barbara McColley, dated 16 October 2016, who had known you for around 20 years. She described you as an honest and excellent father. She described you as very likeable, honest and reliable. She remained supportive of you.
104 There was a reference from your sister-in-law, dated 15 October 2016. She has known you for 26 years and described you as polite, respectful and caring. Despite the ending of your relationship with her sister, her relationship with your brother bloomed. You had always been part of her life. Her children enjoyed spending time with you. She was shocked and saddened to hear of the charges.
105 There was a reference from Rebecca Boothby, dated 10 October 2016, who has known you for 26 years. She described you as one of her oldest and dearest friends. You had an outgoing personality, a wonderful sense of humour, were honest, hardworking and reliable.
106 I turn to Meagan, the victim of your offending. Meagan and her family have suffered considerably in the manner described in their victim impact statements. In her victim impact statement she said that when she was 12 years of age, she did not understand what you were doing to her was wrong. She was scared, confused and felt she could not tell anyone about your sexual offending. Nor did she know how to make you stop.
107 Meagan said you were like a father to her, as she did not know her real father. Because of that lack of contact with her real father, she could not see that you were not being supportive of her, even though you were harming her and hurting her. As a result of your offending, she has “big trust” issues. Those trust issues continue until now and she found it hard to maintain relationships. She would not talk to counsellors, as she did not trust them. She described feeling like a prisoner after she left her mother’s home and when living in the house with you. She did not have friends and felt lonely.
108 Meagan left school halfway through Year 12, as she had difficulty concentrating and was failing her subjects. She also had difficulty focusing at school, as she knew she would have to go back to the house where you were. She was terrified, knowing what was going to happen to her and what you would make her do.
109 Around that time, Meagan also felt suicidal and started self-harming. She said you had seen those cuts, but did not get help for her, which made her feel more unsafe. She became anxious and lost confidence.
110 Meagan said she was scared of you and had dreams of you finding her. She wakes shaking and scared.
111 When you were present at the time she lived with you, Meagan was scared to shower, get changed or get dressed. She also wanted to hide so you could not do what you were doing to her. She felt abandoned and felt that no one could help her.
112 Meagan described her teenage years as being "robbed" from her and that as a result of your offending she did not have the friendships she should have. She still suffers with anxiety and worries about being judged.
113 There was also a victim impact statement from Meagan’s sister, Rebekah. She was angry hearing about what had happened to Meagan. She was fearful of the future and what could potentially happen to Meagan following this court case. She also had trust issues with people she met. She missed school a lot because of what happened to Meagan, in particular, around the court process.
114 There was a victim impact statement from Juliet Watt, Meagan’s mother. Juliet’s previous longterm depression had been severely aggravated by disclosure by Meagan of her sexual abuse by you. She felt caught between supporting Meagan and Rebekah and the two children fathered by you. Those two children had not been told about your offending and as they were unable to see you, they were undergoing counselling. There was a lot of stress in the family as a result of her feeling caught between both sets of children.
115 Since Meagan told her about your offending, she and Juliet had developed a strong bond. She said there had been a great deal of stress caused by various aspects associated with your offending and the charges.
116 There is no doubt the victims of your offending have suffered considerably in the manner described in their victim impact statement, in particular Meagan. The courts have also referred to the need for social rehabilitation, referable to the effects upon a victim of sexual offending including in DPP v Toomey[9], in which His Honour Vincent J, referred to social rehabilitation, citing DPP v DJK[10] (allowing of course for the differences in the factual circumstances in those cases to this case before me).
[9] [2006] VSCA 90
[10] [2003] VSCA 109
117 Referring to victim impact statements, his Honour stated:
“With respect to those statements, I repeat comments I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who out of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration.”
and further:
“… there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view," His Honour said, "they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation.”
and further his Honour stated:
“This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system.”
118 The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim or victims to swamp the sentencing process.
119 Turning to sentence, as I have said, Mr Gwynn appropriately and realistically submitted the appropriate disposition for your offending involved a term of imprisonment with a non-parole period. Turning to the course of conduct charges, Charges 1-4 inclusive, he agreed when sentencing on such charges, Sentencing Manual 9.3.6.2 was applicable:
“The court must sentence within the maximum penalty for the charged offence, but must reflect the totality of the offender’s conduct. As a result, sentences for course of conduct charges are likely to be higher than for equivalent conduct prosecuted as a single incident on a 'first occasion’ basis. In this respect, sentencing for course of conduct charges will be very similar to the way courts currently sentence for rolled-up charges.”
120 Sentencing on rolled-up charges has been referred to in R v Jones[11] and also I note was cited recently in the decision of Reid.
[11] [2004] VSCA 68
121 I was also handed a decision of DPP v Aparo[12], a decision of his Honour Judge Gucciardo of this court, dated 7 June 2016. His Honour then sentenced on three course of conduct charges, noting the need to reflect the totality of the offending conduct.
[12] [2016] VCC 803
122 Mr Livitsanos also referred in Aparo (paragraph 46) to his Honour’s reference to a similar hiatus during offending as in yours, ie: the continuation of your offending after breaks or within it.
123 I discussed with counsel the serious sexual offender provisions. In that regard, I was referred to RHMcL v R[13], referred to also in other authorities, including DPP v Dalgliesh[14]. Judges must be careful not to compress sentences where an accused is a “serious sexual offender” within the meaning of the Act. In RHMcL, Justices McHugh, Gummow and Hayne observed that the scope for applying the totality principle must be more limited in those cases (I note not eliminated).
[13] (2000) 174 ALR 1
[14] [2016] VSCA 148
124 The court in Dalgliesh, on this issue, referred to Gordonv R[15], in which Court of Appeal Redlich J observed:
“A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure the totality principle is applied in a manner which will not undermine the legislative policy inherent in s.6A of the Sentencing Act 1991. This tension between the policy underlying s.6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s.6E should override the principle of totality.” (paragraph 59 of Dalgliesh)
[15] [2013] VSCA 343
125 From the decision of Dalgliesh, whilst RHMcL constrains the principle of totality where serious offender provisions apply, totality remains an important consideration of sentencing (paragraph 60). There was also reference to this tension in the recent decision of DPP v Hopson[16], where reference was also made to RHMcL and Gordon. Citing from Gordon:
“However, it may at least be said that as the objective gravity of the total offending increases, so will the degree of cumulation which is ordered, thereby producing a total effective sentence which will more closely correspond with both the legislative policy underlying s.6E and the principle of totality.”
[16] [2016] VSCA 303
126 Mr Livitsanos, who appeared on behalf of the prosecution, referring to cumulation, observed the way the course of conduct charges (2, 3 and 4) had been charged. Each had occurred, I note, over the same dates and time period, ie, over approximately the same eight months. The separation of the charges into 2, 3 and 4, reflected the different types of penetration involved over that time and I am also mindful of that.
127 I turn to sexual offending of children. There is no doubt sexual offending against children is serious and such has been stated frequently by the courts.
128 The courts have a special duty to protect children. They are vulnerable and especially vulnerable to abuse of trust. They are immature in their understanding of right or wrong and are dependent upon adults responsible for their care not to abuse that immaturity.
129 Regarding the abhorrent nature of sexual offending involving children and in particular, the obligations of parenthood, in PG v R[17] the Court of Appeal stated:
“There are many obligations of parenthood. Those persons who have relevant expertise will also have a greater claim than judges to give detailed consideration to these, but about one obligation there can be no doubt. Parents must refrain from the knowing infliction of unnecessary harm upon their children. The appellant in that case was criminally in breach of this fundamental duty. The gravity of his offending is of particular importance in deciding upon the appropriate sentence.”
[17] [2013] VSCA 9
130 You were, as you acknowledged in your record of interview, as Meagan’s step-father, acting as her parent.
131 I also briefly discussed with Mr Gwynn the decision of Dalgliesh, which referred not only to charges of incest, but also the seriousness generally of sexual offending against children. The court referred to the community’s abhorrence of sexual offending and crimes against children. This is not new. Crockett J in 1992 in R v Wayland[18] (unreported) stated:
“The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect to both specific and general deterrence.”[19]
[18] 14/9/1992 CA Victoria
[19] Paragraph [79] Dalgliesh
132 Similar statements have been echoed in R v Sposito[20] (unreported) in which the court stated:
“A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult. of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim.”[21]
[20] 8/6/1993 CA Victoria
[21]Paragraph [80] Dalgliesh
133 In R v WEF[22], Winneke P stated:
“This court has frequently said that those who engage in sexually abusing young persons who are in their trust, can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for, but it is now well known that it has the capacity to destroy for its young victims. their chances of enjoying a natural and healthy lifestyle.” See those authorities referred to, paragraph 82 of Dalgliesh.
[22] [1998] 2 VR 385
134 In DPP v VH[23], Callaway JA, with whom Buchanan and Eames JJA agreed said:
“The sexual abuse of children by persons in a position of trust is intolerable.” See also paragraph 84, Dalgliesh.
[23] (2004) 10 VR 234
135 And citing Ryan v R[24], Kirby J said:
“Courts must uphold the law which treats sexual offences against children and young persons as extremely serious crimes, particularly where, as is often the case, such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care.” See paragraph 43, also Dalgliesh.
[24] (2001) 206 CLR 267
136 The offending itself and violence was also discussed recently in Dalgliesh:
“Moreover, as this court explained in Clarkson v R,[25] the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.” See paragraph 47, Dalgleish.
[25] (2011) 32 VR 361, 364
and further:
“Offences of this type are, as we have seen, are inherently violent and do long-term harm to the victim. It appears, however, that rape offences have tended to attract higher sentences than offences of incest or sexual penetration of a minor. Decisions on rape sentences typically focus on the overt violence, injuries and use of weapons, which such offending commonly involves. It seems likely that the pattern of lower sentences for incest and sexual penetration of a child is to be explained by the absence of such overt features. As a result, the physical subordination of the victim in such cases is wrongly minimised or ignored.” See paragraph 85, Dalgleish.
137 I note your offending also involved additional violence referred to within the prosecution opening, including pinning Meagan down.
138 There can therefore be no doubt sexual offending against children, particularly involving breaches of trust and those in the role of a parent, are significant and serious offences indeed.
139 I also discussed with Mr Gwynn the recent decision of The Queen v Kilic[26], relevant to current sentencing practices. I note the offences in that were very different, nevertheless, the principles apply. I am also aware of a decision of Stalio v The Queen[27] in that regard.
[26][2016] HCA 48
[27] (2012) 46 VR 426
140 In Kilic, the High Court reiterated that comparable cases were a broad guide and do not limit the sentencing discretion.
141 Mr Livitsanos, on behalf of the prosecution, referred me to Clarkson and Hobson. Your offending, he submitted, was for your sexual self-gratification, with no concern for the impact or effect of it upon Meagan. I agree. You were not concerned with the consequences of your actions upon Meagan. I agree.
142 Mr Livitsanos submitted it was clear you knew your offending was wrong, as acknowledged in your record of interview.
143 Mr Livitsanos referred to the minimisation and denials by you of your offending in the record of interview, and despite the time of the first interview in February and the second in August of 2015, you maintained your denials at the time at the second interview in August.
144 Regarding the principles in Verdins, Mr Livitsanos submitted there was no evidentiary material to enliven Verdins, however, conceded I could take into account, consistent with general sentencing principles, the likely impact your imprisonment will have upon you, as referred to by Ms Matthews and to which I have previously referred.
145 Mr Livitsanos referred to Aparo and the hiatus in your offending, with opportunities to desist from further offending only to re-commence it. He referred to the occasions when you were not having sexual contact with Meagan and submitted there were three opportunities where you could have not continued to re-offend, however did.
146 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation, I must also take into account matters such as deterrence, especially general deterrence, which is of considerable importance in a case such as this.
147 Despite your lack of prior criminal history, I nevertheless consider specific deterrence to be applicable when sentencing you, given the duration of your offending over an extended period of time and on multiple occasions, particularly having had the opportunity to desist from re-offending.
148
I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re‑offending. In this regard,
Ms Matthews concluded you were a moderate risk of sexually re-offending and that to date, you had not undertaken any sex offender programs. This causes me some concern. However, the need to be concerned about the need to protect the community from you will hopefully improve upon you undertaking appropriate courses.
149 I am also called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
150 In my opinion, the magnitude of your offending demands a sentence of some substance.
151 In sentencing you I have taken into account principles of totality and proportionality, mindful as I am of the decisions of RHMcL and others on that point.
152 Given that you are to be sentenced as a serious sexual offender following imprisonment on Charges 1 and 2, for the sake of ensuring clarity, I will announce the sentence in terms of concurrency, as the legislation requires that in these matters, cumulation applies unless otherwise ordered, which of course reverses the normal presumption that concurrency applies unless directed otherwise.
153 Now can you just confirm, before I go to sentence, that I was right in relation to the penalty in relation to the attempted rape?
154 MR LIVITSANOS: You are, Your Honour.
155 HER HONOUR: I believe I was. I just wanted to check it.
156 MR LIVITSANOS: Yes, Your Honour, yes.
157 HER HONOUR: Excellent.
158 On Charge 1, you are convicted and sentenced to 8 years’ imprisonment.
159 On Charge 2, you are convicted and sentenced to 5 years’ imprisonment.
160 On Charge 3, you are convicted and sentenced to 5 years’ imprisonment.
161 On Charge 4, you are convicted and sentenced to 5 years’ imprisonment.
162 On Charge 5, you are convicted and sentenced to 5 years’ imprisonment.
163 I order the following in relation to cumulation and concurrency.
164 Charge 1 is the base sentence and I direct that 1 year of Charge 2 be served cumulatively upon Charge 1.
165 I direct that 3 years of the sentence on Charge 3 be served concurrently and 2 years cumulatively upon Charge 1.
166 I direct that 3 years of the sentence on Charge 4 be served concurrently and 2 years cumulatively upon Charge 1.
167 I direct that 3 years of the sentence on Charge 5 be served concurrently and 2 years cumulatively upon Charge 1.
168 For clarity, the orders for cumulation are upon each other and upon the base sentence.
169 That results in a total effective sentence of 15 years' imprisonment and I direct that you serve a period of 8 years before you are eligible for parole.
170 Turning to s.6AAA Sentencing Act 1991, this is somewhat difficult to assess, given the nature of the charges before me, ie: Charges 1-4 being course of conduct charges. At trial each single event would be alleged. As best as I can, had you pleaded not guilty to these charges and been found guilty of them, I would have imposed a head sentence of 20 years' imprisonment and a non-parole period of 13 years.
171 Pursuant to s.18(4) Sentencing Act 1991, I declare that you have spent 14 days, I would like that checked - - -
172 MR GWYNN: It is, yes.
173 HER HONOUR: - - - in custody, up to and including yesterday, which was 16 February 2017, by way of pre-sentence detention and I direct that be entered into the records of the court.
174 The prosecution made application for a forensic sample and this was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample and I do that on the basis of the seriousness of your offending. I must advise you, the authorities may use reasonable force in order to obtain that sample.
175 Turning to the Sex Offenders Registration Act 2004, you are a registrable offender and subject to the mandatory registration under that Act. You are to report for life. Such was agreed by Mr Gwynn.
176 Following this sentencing, my associate is going to approach you and ask you to sign some documents about the Sex Offender Registration Act. You are not being asked whether or not you want to be on that register, I have made that order, you are simply being asked to sign for acknowledging receipt of the paperwork. But if you do not want to sign it, so be it. That is all you are being asked to sign. I have already decided you will be on the register.
177 No other orders were sought, as far as I know.
178 MR GWYNN: No, Your Honour.
179 HER HONOUR: No, all right. Now, was the PSD right?
180 MR LIVITSANOS: It is correct.
181 MR GWYNN: Yes, Your Honour.
182 HER HONOUR: Excellent. All right, Ms Jackson is going to go down to the back of the courtroom briefly in a minute to just have these Sex Offenders Registration Act paperwork handed to him.
183 MR GWYNN: If I may be briefly excused to attend with Ms Jackson.
184 HER HONOUR: Sure.
185 MR GWYNN: With my client, Your Honour.
186 HER HONOUR: Yes, yes, yes.
187 MR GWYNN: Thank you, Your Honour.
188 HER HONOUR: I assumed you would.
189 MR GWYNN: Thank you, Your Honour.
190 HER HONOUR: All right, thank you. Anything further?
191 MR LIVITSANOS: No, Your Honour.
192 MR GWYNN: No, thank you, Your Honour.
193 HER HONOUR: These papers are coming back. Anything else? Thank you both for your assistance.
194 COUNSEL: If Your Honour pleases.
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