Director of Public Prosecutions v Cross (a pseudonym)
[2020] VCC 191
•28 February 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMON CROSS (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 February 2020 | |
DATE OF SENTENCE: | 28 February 2020 | |
CASE MAY BE CITED AS: | DPP v Cross (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 191 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — indecent act with a child under 16 — sexual penetration of a child under 16 — course of conduct — protracted offending — plea of guilty — victim impact statements — breach of trust — profound effect on victims — lack of remorse — rehabilitation — time in custody more difficult — general deterrence — denunciation
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:R v Verdins (2007) 16 VR 269; Lyon v The Queen [2019] VSCA 251
Sentence:Total effective sentence of 4 years with non-parole period of 2 years and 10 months
Section 6AAA declaration: 6 years with non-parole period of 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S Coombes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr R Lawrence and Mr L Cameron | James Dowsley & Associates |
HER HONOUR:
1 Damon Cross,[1] you have pleaded guilty to one charge of indecent act with a child under 16 (charge 1), for which the maximum penalty is a term of imprisonment of 10 years. You have also pleaded guilty to one charge of sexual penetration of a child under 16 (charge 2), for which the maximum penalty is a term of imprisonment of 10 years. Both charges are course of conduct charges.
[1] A pseudonym.
2 You have a criminal history, but for driving offences only, and your last appearance before a court was in July 2006. This appearance therefore predates the offending for which you now fall to be sentenced. I regard your criminal history as irrelevant for the purposes of sentencing you.
3 Tendered on the plea as exhibit 1 was an ‘Amended Summary of Prosecution Opening’ dated 18 February 2020.
4 In brief, the circumstances of your offending were as follows.
5 In 2008, when you were 21 years old, you were employed by Nelson Long[2] and Mona Parsons[3] at their business.
[2] A pseudonym.
[3] A pseudonym.
6 Nelson Long and Mona Parsons were the parents of three children. Nelson Long had a daughter from a previous relationship, Antonia Long,[4] born in 1996, and Mona Parsons had a daughter and a son from previous relationships. Her daughter Elsie Parsons[5] was born in 1996.
[4] A pseudonym.
[5] A pseudonym.
7 When Nelson Long and Mona Parsons married in 2009, Antonia and Elsie became stepsisters.
8 You developed a relationship beyond that of employer and employee with Nelson Long and Mona Parsons. You became friends and you moved into their family home with them and their children in 2008.
9 You committed sexual offences against both Elsie and Antonia between 2009 and 2010, when both girls were aged 12–14. Throughout this period, you were living with the family, enjoying the trust, support and friendship of the girls’ parents.
Charge 1 — Indecent Act with a Child under the Age of 16 (Course of Conduct) — Elsie Parsons
10 In respect of Elsie Parsons, from 1 January 2009 to 30 November 2010, you committed indecent acts against her on 14 different occasions that she has been able to particularise.
11 Your sexual abuse of Elsie included rubbing her vagina, on one occasion with your toes; getting her to touch and to masturbate your penis; rubbing your penis on her face; and touching and kissing her breasts. You discussed taking Elsie’s virginity and told her you would let her get on top so she could decide how deep your penis would go into her vagina. But your abuse of Elsie stopped short of sexual penetration.
Charge 2 — Sexual Penetration of a Child under 16 Years (Course of Conduct) — Antonia Long
12 With Antonia, you engaged in regular penile–vaginal intercourse late at night from 1 January 2009 to 31 December 2010. During this period, you penetrated Antonia’s vagina with your penis approximately once to twice a month.
13 There are four incidents that Antonia has been able to particularise.
14 On one occasion, Antonia entered your bedroom, after which you walked her to the balcony in the hall, kissed her on the mouth, neck and collarbone, and turned her around and stood behind her. You then pulled down her underwear and bent her over the railing, rubbed her vagina from the front and penetrated her vagina with your finger and then penetrated her vagina with your penis from behind.
15 Antonia tried to pull away without success and, after suffering bleeding from her vagina, you told her to go and clean it up, which she did. She then hid her underpants in the rubbish the following day.
16 On another occasion, after you and Antonia were engaged in foreplay, you then engaged in penis–vagina sex on your bedroom floor.
17 On a further occasion, you and Antonia were at home together during the day, and you penetrated her vagina with your penis from behind. You ejaculated into your own hand, as you did on other occasions.
18 Finally, there was an occasion when Antonia came to your bed. You put your hand over her clothes. You kissed her and rubbed her nipple. You then pulled her pants and underwear off, rubbed her vagina, and penetrated her with your penis. You eventually removed your penis and ejaculated onto her.
19 During the time you were abusing Antonia, you would say, ‘It’s our little secret, no one would understand’. Antonia thought it was the same type of relationship that all children her age were having.
20 The offending against both Elsie and Antonia ended when you moved out to live with your then girlfriend at the end of 2010.
21 Elsie and Antonia both visited you at this home a number of times, and you continued to work for their parents until you moved to New South Wales in 2011.
22 In August 2011, Mona Parsons contacted police and reported that Elsie had disclosed being in a sexual relationship with you.
23 In 2016, Antonia rang you and demanded to know why you had engaged in a sexual relationship with her when she was a child. You said, ‘What do you mean?’ and ‘You never complained’. You ended the call by saying, ‘Fuck you’.
24 Between 23 March 2018 and 10 April 2018, Elsie and you exchanged Facebook messages, during which Elsie wanted to know why you engaged in a sexual relationship with her when she was a child.
25 In the messages, Elsie stated, ‘I was 12–14 with you’. You stated, ‘Thought u were older’. She stated, ‘Nope. I was a kid’. You stated, ‘Time to hang myself’.
Arrest and Interview
26 You were arrested and interviewed on 20 September 2018, during which you provided an account of your involvement with the victims during the time of the offending. You denied allegations of sexual activity with the victims.
27 On 23 October 2018, you participated in a further record of interview in which you told police that your relationship with the victims ‘nearly’ became sexual.
28 In broad terms, you told police that both victims had initiated and enjoyed sexual contact with you. You stated that Antonia was ‘at least 14 to 16’. In respect of both victims, you stated, ‘I cannot clarify or recall fuckin’ either girl, period. I didn't care. I let them do what they wanted’.
29 You pleaded guilty to the charges on the indictment prior to the committal hearing listed in September 2019. This is an early plea. It has saved the victims and the witnesses the trauma of giving evidence, and has saved the community the cost of a trial. Your plea has utilitarian value and I will take this into account in sentencing you. By way of your plea, you have accepted full criminal responsibility for your conduct.
30 Mr Lawrence, who appeared on your behalf, did not submit that your plea was attended by remorse; nor could he, given your statements to forensic psychologist Dr Dion Gee, who spoke with you on 28 January 2020 and prepared a report tendered upon your plea. You told Dr Gee that your plea was expedient and made only to minimise the time you would have to spend in custody away from your own young daughter.
Victim Impact Statements
31 Tendered on the plea were victim impact statements made by Mona Parsons, Antonia Long and Elsie Parsons.
32 Mona Parsons speaks of the deep sense of betrayal she feels, having allowed you into her own home only for you to abuse her daughters. She speaks of the devastating effects of your offending upon her daughter Elsie.
33 The victim impact statements of Antonia and Elsie both speak of the devastating and ongoing effects of your abuse.
34 Antonia says your sexual abuse of her has affected all the relationships in her life, including her relationship with her parents. She has turned to drugs and casual sexual relationships in adult life. Antonia says your abuse negatively impacted on her education and destroyed her ambition to do well at school and to go into her desired profession. She says she was isolated by you in her teenage years and grew up without experiencing normal teenage life.
35 She says she struggles with PTSD, anxiety and depression. She says the toll your abuse has taken on her mental and physical health cannot be undone.
36 Elsie says that when she was being abused by you, she believed she was in a relationship with you. As an adult, she now understands that she was a victim of child sexual abuse, but she says, ‘My inability to segregate a child’s feelings with an adults understanding causes deep shame in my being’.
37 The inner conflict, shame and self-hatred that she describes in her victim impact statement, to which I cannot do justice in these sentencing remarks, has had disastrous consequences for her as an adult. She has suffered psychotic illness, requiring involuntary admissions into psychiatric facilities, as well as numerous attendances with psychologists and counsellors. She has been unable to form successful adult relationships. She cannot work and lives off a job seeker allowance of $265 a week. She fears she will never be able to buy her own home. At present, she is trying to resume her education and has been studying at university for almost a year.
Personal Circumstances
38 I turn now to your personal circumstances.
39 You were born in 1987 in New South Wales. You have a younger biological brother. You were placed into foster care at the age of six in 1993 and you were adopted in 1994 by Janis[6] and Guillermo Cross,[7] who lived in New South Wales.
[6] A pseudonym.
[7] A pseudonym.
40 You have scant memories of your biological parents and have no contact with them. Your adopted parents are supportive of you.
41 You went to primary school in a small town in New South Wales. School has always been difficult for you. In 1997, your parents adopted their daughter Tanya.[8] The family moved to a different town in 2000. You had started high school in one town and continued your high school education in a different town until year 10. You were not successful academically, nor were you good at sport. You had few friends.
[8] A pseudonym.
42 In 2003, you left home. You had some short-term jobs. You ended up homeless and living on the streets of Canberra until the following year, 2004, when you moved back to New South Wales to live with a girlfriend.
43 You worked at a factory and a recycling centre.
44 In 2006, you served one month in prison in respect of your last appearance before a court for driving while disqualified.
45 In 2007, you moved to Melbourne.
46 You met the victims’ parents and began working for them and living with the family in 2008, until 2010.
47 In 2010, you were contacted by a woman called Josephine Drake,[9] who told you that you were the father of her 7–8 year old daughter Molly.[10] After this revelation, you moved out of the family’s home and lived with Ms Drake, Molly, and Ms Drake’s son.
[9] A pseudonym.
[10] A pseudonym.
48 In 2011, Ms Drake gave birth to another son, Mario[11] (you are not Mario’s father). After this, you, Ms Drake and the children moved to New South Wales, where you got a job at a shop.
[11] A pseudonym.
49 You separated from Ms Drake after a short time and returned to Melbourne. You remain uncertain whether Molly really is your daughter.
50 In 2014, you were living in Frankston and began a relationship with Lula Washington.[12] In 2014, your daughter Jean[13] was born. Ms Washington also had a son, Gregory,[14] who lived with you.
[12] A pseudonym.
[13] A pseudonym.
[14] A pseudonym.
51 In 2015, you began work at a company. Your employer has written a reference, which was tendered at the plea. He says that you are a good worker, and a devoted father to your daughter and to your stepson Gregory. Your employer says you will always be welcome to work for him.
52 In 2016, Ms Washington left the relationship. You were left to care for both Jean and Gregory. Subsequent to your arrest, both children have been taken into foster care. You have some supervised contact with Jean, but no contact with Gregory, and you are unaware of his present circumstances.
53 In addition to your employer’s reference, a reference was tendered from your employer’s partner, who says that she regards you as a friend. She says that you are good with children and are a devoted father to Jean.
54 Jackson Farley[15] also wrote a reference for you. He says he knows you as a co-worker, that he has observed you to be a loving father to your daughter, and that you have helped him through difficult times.
[15] A pseudonym.
55 There was also a letter tendered from Samantha Stevens from Mentis Assist, a service that, since January 2018, has assisted you with 60 hours of mental health support annually via the Mental Health Community Support Service, to improve your emotional regulation and your mental health.
56 Finally, there was the report of Dr Gee of 4 February 2020. Dr Gee gives the opinion that your childhood and formative years were characterised by a significant degree of social and emotional disruption and disadvantage. Dr Gee gives the opinion that a possible explanation for your offending is your lack of prosocial experiences during your transition into adulthood. According to Dr Gee, you do not meet the diagnostic criteria for either a paedophilic or paraphiliac disorder. You were assessed as a moderate risk for sexual reoffending but, with psychological or psychosocial intervention, Dr Gee assessed your prospects for rehabilitation as fair to good. Dr Gee found you to be suffering a depressive disorder of mild to moderate severity.
57 Mr Lawrence submitted, on the basis of this diagnosis, that imprisonment would be a greater burden on you than someone in robust mental health. This submission was accepted by the prosecutor. I therefore take this into account in sentencing you and give some weight to the fifth limb of Verdins.[16]
[16]R v Verdins (2007) 16 VR 269.
58 Mr Lawrence also submitted that your separation from your young daughter will weigh heavily upon you during a term of imprisonment and, again, I accept this submission and take into account the anguish your separation from your daughter will cause you in custody.
Objective Gravity of Offending and Moral Culpability
59 Your offending against both victims was objectively very serious. It involved a gross breach of trust of their parents, who welcomed you into their home. You repaid their support by sexually abusing both their daughters simultaneously. Your offending against each of the victims was protracted and seems only to have come to an end when you met a girlfriend and left the family’s home.
60 The effect on the victims has been profound. I accept the submission of your counsel that you could not have understood this when you were only 21–23 years of age. Indeed, as I remarked at the plea, the devastation wrought by childhood sexual abuse has not been widely understood in the community at large until recent times.
61 Your moral culpability is high. However, I must take into account that you were only 21–23 years of age at the time of your offending, and your youth at the time of your offending has a moderating effect on the sentence that I will impose.
Sentencing Principles
62 I turn now to relevant sentencing principles.
63 In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 (Vic) prescribes the purposes, indeed, the only purposes for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation, and protection of the community. A custodial sentence must only be imposed as a last resort.
64 I must take into account the effect your crime has had on your victims, and I must have regard to current sentencing practices and to maximum penalties.
65 I was referred to, and have had regard to, the case of Lyon v The Queen,[17] in which sentences of five years and four years were imposed on charges of sexual penetration of a child under 16 (course of conduct). The case involved regular penile–vaginal sexual penetration, over two years, of a 12–13 year old complainant. A total effective sentence of seven years with a non-parole period of five years was imposed. On appeal, this was held not to be manifestly excessive. In that case, the accused was convicted after a jury trial and therefore was not, unlike you, entitled to a sentencing discount by virtue of a plea of guilty.
[17] [2019] VSCA 251.
66 In your case, you have not expressed any remorse, nor shown any insight into your behaviour. Remorse and insight are often linked to an offender’s prospects of rehabilitation. In your case, although you lack remorse and insight, it is nevertheless the case that you have not offended in any way since this offending, and that is now almost 10 years ago. You have become a law-abiding and worthwhile member of society. Your rehabilitation has in effect been demonstrated, and I take that into account in sentencing you. Specific deterrence has no real role to play in circumstances where you have not reoffended since these offences.
67 General deterrence and denunciation remain paramount sentencing considerations in this case, as in all cases involving the sexual abuse of children. The sentence I impose must give expression to the community’s abhorrence of the sexual abuse of children and young people, and must serve to deter others who would behave as you did.
68 On charge 1, indecent act with a child under 16 (course of conduct), you are convicted and sentenced to a term of imprisonment of two years.
69 On charge 2, sexual penetration of a child under 16 (course of conduct), you are convicted and sentenced to a term of imprisonment of three years.
70 I direct that charge 2 is the base charge, and I direct that one year of the sentence imposed on charge 1 be served cumulatively upon charge 2.
71 This makes a total effective sentence of four years. I am directing that you must serve a period of two years and 10 months before you are eligible for parole.
72 Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you not pleaded guilty, you would have been sentenced to a total effective sentence of six years with a non-parole period of four years.
73 Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
74 You have been sentenced on a class 1 and a class 2 offence. You are therefore a registrable sex offender. Pursuant to s 34(1)(c)(ii) of the Sex Offenders Registration Act 2004 (Vic), the reportable period is life.
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