Director of Public Prosecutions v Daniels (a pseudonym)

[2024] VCC 1854

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

RUBEN DANIELS (A PSEUDONYM)

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	31 October 2024
DATE OF SENTENCE:	18 November 2024
CASE MAY BE CITED AS:	DPP v Daniels (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1854

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing

Catchwords:              sexual penetration of a child under 16 years – indecent act with a child under 16 years – incest by step-parent – delay – plea of not guilty – found guilty at trial – current sentencing practices

Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)

Cases Cited:Clarkson v The Queen [2011] VSCA 157; Stalio v The Queen (2012) 46 VR 426; Azzopardi & Ors & the Queen (2011) 35 VR 43.

Sentence:                  Total effective sentence of 7 years and 6 months’ imprisonment, with a non-parole period of 4 years and 6 months. Reporting to the Sex Offenders Register for life.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Mr D. Bloetz (solicitor)	Heinz Law

HER HONOUR:

1Mr Daniels[1], on 21 August 2024 a jury of 12 found you guilty of two charges of incest (charges 5 and 7), three charges of sexual penetration of a child under 16 (charges 1, 2 and 3) and two charges of indecent act with a child under 16 (charges 4 and 6). 

[1] A pseudonym.

Circumstances of the offending

2The victim of your offending is Julianne Newton.[2] Julianne, the daughter of your partner and then step-child.  She was aged between 6 and 8 at the time of the offending. When Julianne was about two and a half years old, you commenced a relationship with her mother Nanette Stevenson[3] and moved in together. In June 2014 you married Ms Stevenson and Julianne became your legal stepchild. 

[2] A pseudonym.

[3] A pseudonym.

3Julianne gave evidence during a VARE taken on 23 March 2015 and over the course of two special hearings, on 22 March 2017 and 11 April 2024.  Her evidence was broadly consistent with the prosecution opening of 28 January 2024.

Charge 1 – Sexual penetration of a child under 16, at the time, under 12 (between 27 August 2013 and 27 August 2014)

4Julianne recalled an occasion when she was about six years old[4] .  She was in her own bed, at night, and you were in bed with her.  Her brother Finn,[5] your son, was also in the bed.  She stated that you said that you were hugging her when ‘he actually was putting his privates right into mine and it felt really uncomfortable and he took his jocks off (at [41]).’  She then stated that you put your penis in her vagina.  Question [237] ‘did dad put his doodle inside your hole of your fanny? Yep, in the middle.’  At the first special hearing she gave evidence ‘it didn’t hurt but it was very uncomfortable’[6] .

Charge 2 – Sexual penetration of a child under 16, at the time, under 12 (27 August 2013 and 31 Dec 2014)

[4] VARE 23 March 2015 [49].

[5] A pseudonym.

[6] VARE 22 March 2017 page 147 line 28.

5Julianne gave evidence that you would give her piggyback rides and that you would go under her shorts – ‘underneath and then he puts his fingers in the side of my undies and inside the hole[7] .’  At [108] ‘… he puts his finger in the middle and starts rubbing and he thinks I don’t notice and he creeps me out.’  At [319] ‘how do you know he went inside – because I felt it.’ (see also [229]-[236]). 

Charge 3 – Sexual penetration of a child under 16, at the time, under 12 (between 27 August 2013 and 20 March 2015)

[7] VARE 23 March 2015 [103].

6Julianne gave evidence of an occasion when you were on the couch with her watching television and you were massaging her.  She stated, at [161] ‘I lied down – down on his legs and my legs were spread behind him and he just started rubbing and then went into there[8] .’  She stated that on this occasion you were using your fingers (at [170]). 

Charge 4 – indecent act with a child under 16 (same occasion as charge 5)

[8] VARE 23 March 2015 [161].

7Charge 4 occurred while you and Julianne stayed at the hotel in Bendigo, before Christmas ‘last year’ (referring to 2014)[9] . It was just the two of you on this particular gold detecting trip. In her first VARE she made plain that she didn’t want to talk about what happened in Bendigo but also said [378] ‘he manipulated me to make me put my mouth on his doodle’ and [428] then I put my mouth on his doodle.’ She later again indicated that her mouth was on your penis, being on her lips, and not into her mouth (see, [487]-[488]).

Charge 5 – Incest (same occasion as charge 4)

[9] VARE 23 March 2015 [335].

8Charge 5 immediately follows from charge 4 and is part of the one incident. Julianne stated that she grabbed your penis and put it in her undies. At [455] Julianne was asked during the VARE ‘so you said that you put his doodle in your undies and in your fanny. Did you put it in your fanny or did he put it in there?’ Answer – I did.’ She stated that you were ‘fake sleeping’ at the time but she knew you were not asleep ([457]-[458]).

Charge 6 – Indecent act with a child under 16

9Charge 6 is the occasion between 31 December 2014 and 1 January 2015 when you touched Julianne’s vagina over her clothing.  She gave evidence that it was on New years and that she was sleeping in your room.  You came up to the room and jumped in the bed, wet.  She stated that you started rubbing and demonstrated how you were rubbing her legs, gesturing to her groin area.  You did it on the outside of her shorts.  You were only in bed with her for a very short time before her mother came in[10] .   

Charge 7 – incest

[10] VARE 11 April 2024 p 26.

10Charge 7 relates to an incident of digital penetration that occurred in the swimming pool on the 15 February 2015.  On an occasion when others were in the area, including a friend of Julianne’s mum, and her little boy, you were in the pool with her and put her on your back.  You then ‘started touching down there.’  She stated, ‘he put his fingers inside of the middle of my private part’ and that she could feel it[11] .   

[11] VARE 23 March 2015 [158]-[159].

Victim Impact

11Julianne has provided a statement in which she speaks of the profound impact of your offending and how it has affected many different parts of her life.  She struggled academically, was terrified of men growing up, was plagued by guilt, and would self-harm.  Under ‘Impact on my life’ she states – ‘had my childhood ripped from me and was forced to mature so young.’ and ‘ruined my view on the world on such a young age.’ 

12Ms Nanette Stevenson, Julianne’s mother and your ex-wife, also provided a statement in which she speaks of the significant impact of your offending[12].  She refers to how she has lost trust in people and to her feelings of betrayal, immense hurt and devastation.  She, along with the children, have had to restart their lives, from very little.  She is hopeful that now, with closure, ‘Julianne can move on and be happy’[13].    

[12] See redacted statement.

[13] See redacted victim impact statement of Ms Stevenson.

13I take into account the impact of your offending.

Gravity of offending

14Mr Daniels, your offending is plainly serious.  In particular, sexual penetration of a child is a very serious offence.  In your case, charges 1, 2 and 3 are punishable by 25 years' imprisonment, given the aggravating feature that was alleged and proven, that is, that Julianne was aged under 12 at the relevant time.  Charges 5 and 7 are also punishable by 25 years' imprisonment. These prescribed penalties clearly indicate the seriousness with which the legislature, on behalf of the community, regards such offending and ‘reflects the community’s abhorrence of sexual crimes against children.’

15Your Counsel properly acknowledges that your offending is inherently serious and that general and specific deterrence, denunciation and just punishment must loom large in the instinctive synthesis. Your Counsel submits that while serious offending it does not fall at the top end of the spectrum of seriousness for such matters.  I accept that there are more serious examples of offending of this kind, involving for example, a longer period of offending, overt violence or even more degrading and depraved acts. 

16Your offending however is still serious, representing a gross breach of trust and an abuse of your position of trust and responsibility towards Julianne.

17At the time of your offending Julianne was aged between approximately 6 and 8 years old and you were aged between 33 and 35 years old. There was a significant age disparity between you and Julianne was particularly young and vulnerable.  You often offended against her in her own home and certainly with regard to Charge 7, your offending was particularly brazen. 

18The total period of offending spanned between August 2013 and February 2015. 

19In assessing the objective gravity of your offending, I also take into account its frequency and persistence and that it involved unprotected penile penetration.  In all the circumstances, I assess your moral culpability as high and I infer that you offended against Julianne for the purpose of your own sexual gratification. 

Procedural history

20The procedural history of your case is important and is helpfully summarised in the prosecution supplementary opening of 30 October 2024.  The salient dates are as follows:

(a)   The 15 February 2015 marks the end of the offending period. 

(b)   On 20 March 2015 Julianne made a disclosure to her mother and the matter was subsequently reported to police. 

(c)   On 23 March 2015 Julianne was taken to the police station and participated in a VARE.  On the same day, you were contacted by police, attended at the station, arrested and interviewed and you denied the offending. 

(d)   On 8 December 2016 you were committed to stand trial on the charges. 

(e)   On 22 March 2017 the first special hearing was conducted when Julianne is 9 years of age.

(f)    On 2 June 2017 the (then) Director of Public Prosecutions filed a Notice of Discontinuance. 

(g)   On or about the 9 October 2023 you were directly indicted and summonsed on a new indictment, namely the trial indictment (G11518889.1). 

(h)   On 13 March 2024 you applied for a permanent stay of the proceedings based on the reinstitution of proceedings after discontinuance.

(i)    On 15 March 2024 a judge of this Court refused the application. 

(j)    On 11 April 2024 the second special hearing was conducted when Julianne was 16 years of age.    

(k)   On 14 August 2024, after a number of other procedural hearings, your trial commenced.

(l)    On 21 August 2024 a jury convicted you of all charges.

Delay

21Your Counsel relies on the significant delay in this case, submitting that it enlivens both ‘limbs’ as outlined in the relevant authorities[14].  He submits (at [19, submissions 29 October 2024):

(a)   You have had this matter hanging over your head as a ‘Sword of Damocles’ for somewhere in excess of 9 years of your life; and

(b)   You have not reoffended in any way since your interview, therefore demonstrating your effective rehabilitation. 

[14] Tones v The Queen [2017] VSCA 118; R v Merrett, Piggot & Ferrari [2007] VSCA 1.

22The authorities make clear that significant delay between the time an offender is charged and ultimately sentenced can be a powerful mitigating factor. I accept that both the unfairness and rehabilitation limb are relevant in your case. Given the unique procedural history of this matter I accept that the delay has caused you anxiety and stress.  I also accept that, notwithstanding there is no acknowledgment of your offending, you have not reoffended over a substantial period of time and have otherwise been a working and contributing member of the community.   

23The delay here has been substantial, through no fault of your own.  As already referred to, you were originally interviewed in March 2015.  There was a contested committal in December 2016 and further procedural dates followed.  A special hearing was commenced in March 2017 but not completed because of Julianne’s apparent distress.  Further mentions followed to give the prosecution opportunity to consider discontinuance. In June 2017, the matter was discontinued.  You were then directly summonsed in October 2023 and there were a number of further Court dates before the matter ultimately reached trial.  While this is not in any way a commentary or a reflection on the reasons for discontinuance or the later decision to directly summons you, what has resulted is a disjointed, lengthy and protracted legal process.  I regard the delay in this case as a powerful mitigating factor that must be reflected in the instinctive synthesis.     

Personal circumstances

24Your personal circumstances were canvassed by your Counsel and in the report of forensic psychologist Ms Laura Fleming. 

25In brief summary, you are now 44 years of age and you have lived most of your life in country towns in Western Victoria. Your parents separated when you were a baby and you have several siblings. While your father was not involved in your upbringing, you have always enjoyed the support of a loving family, in particular from your mother and older sister.  Your mother re-partnered when you were 3 and you report having had a good relationship with your stepfather and as recognising him as your father until he passed away in 2007. 

26You were raised in Ararat before your family relocated to Maryborough and Melbourne for your parent’s employment.  Your stepfather worked as a concreting contractor.  When you were 12 your family settled and remained in Ararat. 

27Your relationship with your mother is a good one and you were residing with her before your remand.  You report having had no contact with your father up until approximately 12 months ago when you reconnected, facilitated by your mother reaching out to him on social media. 

28Your childhood was a stable and nurturing one and you were not exposed to any forms of abuse or trauma.  Given your family’s early history of re-locating you did attend a number of different primary schools which caused you some difficulty and challenges in adjusting and forming friendships.  However, you did not appear to struggle academically. You left school after commencing Year 11 to pursue a trade. 

29You completed a Certificate IV in Automotive at Federation University in Ballarat.  You chose not to go on to complete an apprenticeship in Mechanics and instead commenced working in campervans and motorhomes for 18 months before moving on to working in a traffic equipment company for eight years.  You started as a general labourer in this company.  You then moved your way up to Production and Supply Chain Manager and held these positions for several years.  You left the company in the context of it relocating to Melbourne.  You then returned to working in the caravan and campervan production company. Prior to your remand, you were working full time as the Head Engineer and Manufacturing Supervisor. 

30You have had several intimate relationships, including with Ms Stevenson, Julianne’s mother for a five year period. You also have a son from this relationship with whom, given the nature of these charges, you have no current contact.  There was an allowance for some supervised visitation but apparently this could not practically be accommodated.  This is a source of grief for you, and you are hopeful that one day you will rebuild a relationship.

31You have no history of mental health contacts or interventions.  While you report some limited use of cannabis in your past and of consuming alcohol, you do not present with any current substance abuse issues.

32On Ms Fleming’s assessment there was no evidence of personality disorders or traits, mental illness or any medical or neurological problems. 

33You have a limited prior criminal history.  You have no history for sexual offending and have never been sentenced to a term of imprisonment.  

Prospects of rehabilitation

34Your Counsel submits that you present with good prospects of rehabilitation, particularly in light of your lack of offending since your original interview with police. 

35The prosecution suggests the need for some caution given that while there are no identifiable risk factors in your case, the offending before the Court is serious and significant. 

36Ms Fleming administered the Sexual Violence Risk-20 (Version 2) tool (SVR-20 V2) and found overall that you presented as a ‘low risk of future reoffending’, requiring ‘a low level of intervention’ to mitigate your recidivism risk for sexual offending.  You continue to deny the offending and therefore the main risk factor that elevates your risk profile is poor insight, denial regarding your offending, which will limit any effect intervention and impair your ability to identify future rehabilitative actions[15] . Ms Fleming makes a number of recommendations from [101] onwards in her report including that you would benefit from low intensity individual offence specific intervention and engaging with a Forensic Psychologist who specialises in treating sexual offenders.

[15] See report of Laura Fleming [85]-[92], [98].

37In my assessment of your rehabilitative prospects, I take into account that you have a strong history of employment. Your current employer provided a written character reference.  She first met you in 1999 and you also developed a friendship.  She refers to you as treating people with kindness and respect.  As to your work ethic, she states ‘I could always rely on [Ruben] to be the first person to turn up to work every day.  To be the person who put more in than anyone else without expectation.’  

38You also have a strong support network of family and close friends, as evidenced by the many people who have previously attended court in support of you.  Your sister and niece have both provided references that speak of your generosity, hard work ethic and of the affection and respect they have for you.

39I also take into account that you have a limited prior criminal history and no history for sexual offending.  Since the offending, which now dates back to 2015, you have not re-offended.

40Your bail was revoked on 21 August 2024 and you have been at Ravenhall Correctional Centre for a period.  You report some stress and anxiety though feel supported by staff and others.  Your future plans are to return to your employment and spend time with your family.

41In all the circumstances, I do accept that you have good prospects of rehabilitation. 

Sentencing purposes

42The purposes for which sentences may be imposed are just punishment, general deterrence, specific deterrence, rehabilitation, denunciation and protection of the community. I have already referred to the importance, in particular, of denunciation and general deterrence given the serious nature of the offending and the need to protect children from sexual abuse and harm[16].

[16] Clarkson v The Queen [2011] VSCA 157.

43I take into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991, where relevant in your case. I note that because of the date of your offending the standard sentence and mandatory sentencing regime do not apply.

44In your case, there is no dispute that the only just and appropriate sentence is one of imprisonment, structured with a non-parole period.

45I have had regard to ‘current sentencing practices’ which relate to practices current as at the date of sentencing.  The principle of equal justice also requires that regard be had to sentencing practices as at the date of the offence when sentencing occurs after a substantial lapse of time[17] . To this end, your Counsel provided sentencing snapshots for incest covering both periods from 2014-2015 to 2018-2019 and 2017-2018 to 2021-2022[18] .  I have considered these, along with other cases, as one factor, amongst a range of factors, to be taken into account in fixing a just and appropriate sentence. 

[17] Stalio v The Queen (2012) 46 VR 426.

[18] Sentencing Snapshots 242 and 284.

46As I propose to sentence you to terms of imprisonment on charges 1 and 2, you fall to be sentenced as a serious sexual offender on the remaining charges on the indictment, that is 3 to 7 inclusive. By reason of this status, in sentencing you on these charges I must regard the protection of the community from you as the principal purpose for which that sentence is imposed.  The prosecution did not submit that I should impose a disproportionate sentence on these charges and I will not do so. 

47I consider that totality, modified by the operation of s.6E in respect of charges 3 through to 7 is an important consideration and is not ‘obliterated’, as submitted by your Counsel, by the legislation. In assessing the appropriate orders for cumulation I have taken into account a range of factors, including that there is one victim to your offending but that each charge needs to reflect the separate criminality involved. While giving effect to s.6E of the Sentencing Act (on charges 3-7) I must also ensure that the total effective sentence is a just and proportionate one, with ‘proportionality and just deserts defining the outer limits of punishment’[19].

[19] Azzopardi & Ors & the Queen (2011) 35 VR 43.

Sentence

48Synthesising all relevant factors, you are convicted and sentenced as follows:

49Charge 1, four years and four months’ imprisonment.

50Charge 2, four years imprisonment.

51Charge 3, four years imprisonment.

52Charge 4, 14 months’ imprisonment.

53Charge 5, four years and six months’ imprisonment.

54Charge 6, 12 months’ imprisonment.

55Charge 7, four years’ imprisonment.

56The orders for cumulation are as follows, and can I indicate in relation to Charges 3 and 7, I otherwise direct that the relevant periods of concurrency be made.

57Charge 5 is the base sentence.

58Charge 1, nine months; Charge 2, seven months; Charge 3, eight months; Charge 4, two months; Charge 6, one month; Charge 7, nine months.

59Counsel, that should total an effective period of seven years and six months’ imprisonment.

60MR BLOATZ: Yes, Your Honour, I arrive at that figure.

61HER HONOUR: Thank you.

62MR PIRRIE: Yes, Your Honour.

63HER HONOUR: Thank you. The non-parole period you will be required to serve, Mr Daniels, is the minimum period that I consider justice requires you must serve. Having regard to all of the circumstances of your case, the non-parole period must adequately reflect the gravity of your offending and the purposes set out in the Sentencing Act, and also the other factors including mitigating factors that have been advanced on your behalf.

64In all the circumstances, I consider that the appropriate non-parole period that you must serve is a period of four years and six months as the minimum term to be served before you become eligible for parole.

65Pursuant to s18, I declare you have served 90 days’ imprisonment.

66Mr Daniels, you have been found guilty of more than two Class 1 offences and under the Sex Offenders Registration Act you are a registrable offender and your reporting obligations are for life.

67I must inform you that you must register on the Sex Offenders Register and I will ensure that you have forwarded to you at the prison a copy of the documentation. What that does, is it goes through what your obligations are once you are released. There are a number of obligations including annual reports that you will need to understand. Today you will sign that document to acknowledge that you have received it, and it will be returned to the Court. Do you understand?

68ACCUSED: Yes.

69HER HONOUR: Counsel, pursuant to s6F, I cause to be entered into the records of the Court that Mr Daniels was sentenced as a serious offender on Charges three through to seven.

70I also understand there are a number of other people on the link who have been watching and I just wanted to thank everybody for their contribution and participation in this process. Thank you, Counsel. We will adjourn the Court.