Director of Public Prosecutions v Curtis (a pseudonym)

[2023] VCC 1422

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC CURTIS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 August 2023
CASE MAY BE CITED AS:	DPP v Curtis (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 1422

REASONS FOR SENTENCE
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Catchwords: Incest; Indecent act with a child under the age of 16

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr C. Fraser	OPP
For the Accused	Mr A. Buckland	Woods Legal Pty Ltd

HIS HONOUR:

1Eric Curtis[1], you have pleaded guilty to two charges of incest and two charges of indecent act with a child under the age of 16.  One of the incest charges is a rolled up count, and both of the indecent act charges are rolled up accounts, and I am aware they are all in relation to that.

[1]A pseudonym

2You pleaded guilty and must get the benefit of it.  I accept from your counsel that the plea of guilty is accompanied by appropriate remorse and you must also of course get the utilitarian benefit of that plea of guilty.  It saved the need for a trial, and it is clear that in literally all these situations, the acknowledgement by the accused of guilt is of some assistance at least to the victim in the healing process.

3I take into account that plea of guilty is made at the time of Worboyes, and there must be a discount given for that.  I understand also, that the sentence will still be subject to COVID conditions that sometimes apply and I take that into account as well.  There has also now been a considerable delay, and whilst that is not of great assistance, I take it into account, in this sentencing process.  The offending is historic, but of course that's often the case.  You do have prior convictions for criminal matters but nothing of a sexual nature.

4A summary of the Crown opening is that the complainant in the matter, Hanna[2], was born in 1997 and at the time of the offending was aged roughly between the ages of 6 and 12 years.  You had met her mother in 2000 and began dating in around 2002.  You moved into the house when the complainant was about five years of age.  She said she felt uneasy while living at that first address, because of the way you would stare at her.

[2]A pseudonym

5In early 2004, the group of you moved to a house in Pakenham.  The first incident that the victim recalls is on a camping trip at Walhalla, with you, her mother and her younger brother.  She was about seven or eight years old.  She was sleeping on a blow up mattress and you were sleeping next to her, sleeping on the other side of you, with her mother and the younger brother.  She woke up during the night and you began - you put your hand inside her underwear and began to touch her vagina.  You said, this is our secret.  She pretended she was asleep, but you rubbed, continued to rub, or continued to touch her vagina, and rub her clitoris for approximately 10-15 minutes. 

6The following day, I don't need to go into that detail I don't think.  There were again, and it was later on from that, a situation where you were showing her pornographic books and those matters are simply there as uncharged acts, to say that these weren't totally isolated incidents by any way, shape or form.

7On another occasion, around about 2005/2006, you got out of the shower and thrust your hips around, causing your penis to flop around and told her that was called the willy dance.

8In the middle of 2008, the family moved to another home in Catani and you initially did not go with them, but moved in from late 2007 and 2008, sorry late 2008.  On occasion at that address you slept beside her on the couch, pulled her underwear to one side and inserted your finger in her vagina, rubbing her vagina including her clitoris.  She vividly remembers that incident as your hands were rough and hard, with frayed skin near the nails.  That is part of the rolled up charge of incest.

9Charge 2, as part of rolled up charge, rolled up charge, is one of indecent act.  At  the Pakenham Hotel, the victim was left at the hotel with you, while her mother had to go somewhere.  Within five minutes you were touching her over the top of her clothing, on her vagina.  You pulled her onto you and began to grind or rub your body against hers.  You were grunting and the bed squeaking and you apparently said, 'We can't be too loud as someone might hear.'  The incident stopped because her mother was returning.

10Later on, the family moved again to Rawson - sorry, might be later on.  One stage the family moved to Rawson and you came into her room that night, put money under her pillow for the tooth fairy and started touching her vagina over her pyjamas.  She pretended that she was asleep and you left.  You told her at that address, she should buy crotchless underwear so it would be easy for you to get to her vagina.  You also told her that she could not let her mum know, as you would get into trouble.

11Charge 3, is an individual incest.  In that situation, you were home alone with her.  You were on a couch, you began rubbing her vagina over the top of her underwear.  You then turned her around, so that her knees were on the couch and you were - her tummy was up against the backrest.  You then removed her skirt and underwear and told her that you were going to show her something.  You kneeled in front of the couch and began to perform oral sex on the complainant.  Your tongue went inside her vagina and you were licking her clitoris.  She recalls that you had a tongue piercing and you said to her, 'Your cunt looks so good.'

12She felt uncomfortable, scared, threatened and embarrassed, as she did, by reason of the victim impact statement throughout much of her teenage years.

13The next incident I'll refer to is at Catani, where you rubbed your erect penis against her vagina over the top of her clothing, and you invited her to perform oral sex on you but that did not occur.  On other occasions you touched her over her underwear, which are uncharged acts and part of rolled up Charge 4, was when on another specific occasion she can recall, where you did that but this time it was different, you were trying to wake her up, shaking her gently on the shoulder.  You put your hands down her pyjamas and touched her vagina over the top of her underwear.  So, again she pretended to be asleep and you left the room.  And on other occasion you pulled your penis out of the leg hole of your shorts, in a blow up pool, and showed it to her.

14In 2009, she began to try and avoid contact with you, as a result of the offending.  Eventually told her mother about it, but at that point in time was unable to take it any further and then refused to talk to her mother anymore and she said that she had made it up.  Clearly, she had not.

15By 2019, she attended the Eltham police station.  There was a recorded pre-text call made and in that pre-text call to your credit, you were profusely apologetic, acknowledged the seriousness of what you had done wrong, and I do accept what your counsel says that, that that remorse is genuine and that you pleaded guilty to all these matters effectively to try and, at long last at least to do the wrong thing, to do the right thing, sorry.

16When interviewed you said, 'No comment', I don't need to go down that path.  At the moment having pleaded guilty you have now got, on my calculation 54 days of pre-sentence detention.

17HIS HONOUR:  Yes.  I have had the victim impact statement which the victim courageously read herself, and shows that during her teenage years it was a dreadful experience for her.  She said those years were supposed to be fun, surrounded by friends and being a child, however they were ripped away from her without her consent.  She talks about the harm it has done her and that is why offending, one of the reasons why offending such as this, is regarded so seriously.  Her mother feels guilt from what I read and feels she has failed her daughter as a result of the crime.  That the victim herself is now very conscious of, fear of being attacked again. 

18

The psychological impact of this sort of offending goes on for a long time.  The victim as I have said has shown real courage here and hopefully, with her obvious determination, will be able to eventually overcome the consequences of what you have done to her.  Many years ago in the case of The Queen v Besito,

Justice Marks said,

'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'

19

That was the law then and it is still the law now.  The offending has to be regarded as serious.  Of course the application of general and specific deterrence, denunciation and appropriate punishment.  Because of the nature of the offending you will be - are to be sentenced as a serious sex offender.  Charges 3 and 4 I am aware that community protection becomes the principal sentencing purpose.  I am aware that these sentences are to be served cumulatively on this otherwise order and it will be so otherwise ordering because of reasons of totality and the Crown do not seek a disproportionate sentence.  Again, because of the nature of the offending, you will be placed on the

Sex Offenders Register and I advise you that the reporting conditions will be for life.  And that document will be sent to you at the gaol.

20The seriousness of this is self-evident.  The only possible result could be gaol and parole.  So, I have taken those matters that have been mentioned to me previously, into account and I have also taken into account some very helpful comparative decisions which were provided to me by your counsel, which have been discussed in open court.

21Your history is that you are English and obviously I take into account that you undergo this sentence with the fear of deportation, as you have never been - because you came here when you were four years old.

22The family lived in Western Australia when you were small, and then came across to Victoria and lived on a market garden around Cranbourne.  You went to Cranbourne Primary School, then you went to Cranbourne High.  There was no real dramas.  In your childhood you said your father is a pretty hard man.  Around about 15 you started taking drugs, so there is some aspect of that here, I do not think it plays any part in this offending.  And you left school, you worked as a brick layer, then worked at Monier Bricks. 

23You have been on and off social security, you have had jobs over the years, including fencing, as a chemical compounder, as a foreman in a food additive process.  On occasions you have been in trouble with the police as I accept that, and there is a drug history which explains, to a large extent, although I certainly do not punish you twice for your otherwise criminal offending such as driving whilst disqualified, et cetera.  You were still on drugs when you were interviewed with the police for this matter in 2019.  But I accept that since then, you have endeavoured to try and stay off drugs since. 

24Your relationship with your family members you describe as poor and you do not even know if your parents are still alive, likewise your brother.  You have had a number of relationships which I will not go through, there is about three or four as I understand it, which you had children by.  Because of these charges of course, you are now not allowed to have access to any of those children.  And there is also a child from the relationship with the victim here's mother.  You suffer from emphysema, and I take that into account.  There is nothing involved in that.  You also have a heart murmur, that is nothing involved there that the gaol would not be able to deal with. 

25There is also a report from Mr Farkley, the Forensic Psychologist, which goes into a lot of detail about your circumstances, which I do not think I need to hear.  The circumstances are that I accept in this situation, that you do have a number of, did a list, she diagnosed as borderline personality disorder, which of course I take into account, but is often associated with sexual offending, a major depressive disorder and generalised anxiety.  All matters which would make it more difficult for you in prison, than a person who did not have those conditions.  But otherwise, whilst it might affect general deterrence to a certain extent, this was persistent offending over an extended period of time.

26Taking all those matters into account and operating on the basis that rehabilitation is going to be a matter for you, the risk of re-offending in this way, I think is probably very low, but that will be a matter for the Parole Board at a later date.  I am aware of the principles involved in totality, and it is to avoid a crushing sentence, but unless you have clearly indicated to your counsel, you realise that the day of reckoning for this had to come and unfortunately, it has.  In this situation, I must say that I was impressed by the carriage of your victim, in presenting herself in the way that she did, and I am sure that everybody involved and hopefully you, wish her the best in endeavouring to restore her life.

27In any event, Charge 1, five years.

28Charge 2, 12 months.

29Charge 3, five years.

30Charge 4, 12 months.

31I direct that three months of the sentenced on Charge 2 and three months of the sentence on Charge 4, and two years of the sentence on Charge 3, be served cumulatively upon each other and upon the sentence imposed on Charge 1.  That gives a total effective sentence of seven and a half years.  I direct that you serve a minimum term of five years before becoming eligible for parole.

32I say that pursuant to s6AAA of the Sentencing Act, but for your plea of guilty, you would have been sentenced to imprisonment for a period of 11 years with a minimum term of eight years.  And I direct that 54 days be reckoned as having been served under this sentence.  I also point out that I am aware of the medications and the like that you were taking within prison, and have taken all those matters into account.

33No other orders I need to make, gentlemen?

34COUNSEL:  No, Your Honour.

35HIS HONOUR:  Do you need to talk to your client, Mr Buckland?

36MR BUCKLAND:  Look, if we could do that very briefly.

37HIS HONOUR:  Yes.

38MR BUCKLAND:  I know my instructor's going to speak to him on Monday, but if we could do that briefly, that'd be appreciated, Your Honour.

39HIS HONOUR:  No, that's fine.

40MR BUCKLAND:  Thank you.

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