Director of Public Prosecutions v DAR

[2015] VCC 922

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00332

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAR

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JUDGE:	HIS HONOUR JUDGE PILGRIM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 June 2015
CASE MAY BE CITED AS:	DPP v DAR
MEDIUM NEUTRAL CITATION:	[2015] VCC 922

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Ballek
For the Accused	Mr R. DeVolle

HIS HONOUR:

1DAR., you have pleaded guilty to four counts of committing an indecent act with your daughters; one, of course, being AR, and one being MR.

2Now, for the purposes of the recording, those names will not come up.  They will just come up as AR and MR to protect them from any form of identification, and your name will simply come up as DAR; they are your three initials.  I am simply preserving the anonymity of what has occurred, particularly in relation to your two young girls.

3You have heard the learned prosecutor tell this court the maximum sentences that can be imposed for these offences.  In relation to the indecent acts - and there is four of those - the maximum gaol sentence is that of ten years' imprisonment.  For the two counts of incest, on each count the maximum gaol sentence is that of 25 years' imprisonment, and for the production of child pornography the maximum gaol sentence is, again, ten years.

4Obviously the offences are very serious, and you have heard your counsel concedes that today.  The 25 years as a maximum should tell anybody within the community that incest, in particular, is a very serious matter.  The terms of imprisonment fixed for sentences are not fixed by prosecutors, police officers, or judges.  Those sentences are fixed by those who we elect into Parliament.  The Parliamentarians, when making those laws, arrive on what the community says is the appropriate level as a maximum.

5For having plead guilty I will impose a lesser sentence than I otherwise would have imposed.  In other words, you receive a discounted sentence for having plead guilty.  These offences were committed over an eight year period, as I understand.  I have done that by looking at the age of AR, and then looking at the age of MR.  Looking at the age of AR, and then looking at the age of MR, there is a gap of at least six years, if not seven years, so somewhere in that vicinity a period of offending has taken place.

6

These offences were committed, as I say, over that period between 2006 or 2007, and 2014.  As has been said, they have been committed on your biological daughters; AR and MR.  At the time of these offences in relation to AR, at that time she was nine years of age, having been born on

26 May 1967.

7AR is now aged 17, approaching 18.  At the time of the offences relating to MR; that little lady was nine.  She is now 12 years of age, having been born in July of 2002.  As you heard Mr DeVolle say this morning, she is now aged 12.  They are sisters and both your biological daughters.

8You are now aged 40, having been born on 28 June 1974.  At the time of this offence you were aged between 31 and 32 - that is, in relation to AR - and 37 and 40 in relation to MR.  The girls lived with you and their mother and two brothers in the family home in Ringwood East during the period of this offending, and over this period you worked as an interstate truck driver.  You would often be away for extended periods and would return to the family home irregularly, which is the nature of interstate truck driving.  Each of the offences are alleged to have occurred in the family home.

9

The offending against MR occurred between 4 July 2011 and

23 September 2014.  During this period you sexually assaulted MR on numerous occasions by lingual and penile penetration of her vagina, masturbating and ejaculating onto her body, and placing your penis against her anus, and further, taking pornographic photographs of her.

10The offending against AR occurred between 26 May 2006 and 25 May 2007, when you sexually assaulted her by touching her over her clothing whilst you were naked.  You were touching her upon the vagina.

11The offences came to light when AR told a Department of Human Services protection worker on 1 October 2014 that you, her father, had sexually assaulted her.  On that same day police officers spoke with other family members and VARE interviews were conducted.  VARE interviews are where young people are interviewed by skilled, trained police interrogators, and it is all filmed, then those films are played in evidence.

12The counts on this presentment are serious, and as I said earlier, you heard the learned prosecutor tell this court - and he mentioned it again this morning - that some of these counts are representative counts, so that you understand that, I say this.  I must tell you that the sentence I impose on each count must relate only to the specific offence charged.  A representative count enables that offence to be seen in its full circumstantial context.  I quote from the case of R v SVL [1991] 1 VR at 706. Mr Justice Batt said this:

"A representative count enables the offence to be seen in its full circumstantial context.  An offender is not, by loading of the sentence, to be punished for the representative offences, but the sentence for the representative offence may reflect the fact that it occurred in a wider context.  Regard may be had to the adverse effects upon the victim of the whole conduct."

13In the same case, Mr Justice Ormiston said this:

"In other words the whole of the circumstances relating to each count must be given proper effect and recognition for the purposes of imposing a just sentence, paying due regard to the recognised principles of proportionality and totality."

14All of that means not only must I not load the sentence in respect of representative counts by sentencing for a representative count, but I must not sentence twice for the one offence.  Count 1 relates to offending in relation to AR.  This is a count of indecent act.  I quote directly from the summary that was provided by Mr Ballek.  It said this:

"It was alleged that the first time you touched AR sexually she told the police the offending occurred when she was aged nine, and was starting to go through puberty.  You asked her to come to your bed for a cuddle.  She got in willingly and didn't know any better.  You were naked and she was wearing clothes, or pyjamas or a nightie.  You cuddled her for some time and asked her questions like, 'How are you?  How's school going?'  Each of you were lying on your sides and you were lying behind AR with your arm around her.  You rubbed her vagina on the outside of her underpants.  When questioned by police about this allegation you said you could not recall the incident, but did not deny it happened as AR had described."

15One other occasion AR stated the offending was the same as in the previous occasion, but went on for a bit longer.  It went on for five minutes or so.  You were naked and grabbed AR's private parts over her underpants, and you rubbed AR by moving your finger in a circular motion on the outside of her undies.  AR moved your hand away and started to squirm.  She said to you that she did not like it, and after that, when you tried to touch her, AR would resist, and you would not persist.  Again, you said you could not recall the incident, but you did not deny it happened.

16The second count, again a representative count, relates to MR.  You admitted to police the first time you engaged in this offending with MR was when she was aged nine.  You took MR into the shower with you and you each sat naked on the floor of the shower recess, facing one another.  You washed her entire body with soap, including the vaginal area.  You became aroused and got an erection, and you then masturbated in front of her and ejaculated onto her vaginal area.

17This occurred on 11 other occasions.  You admitted the same conduct occurred.  The second time was about a week after the first, and you said that sometimes you ejaculated onto MR to make her wash herself.  You enjoyed it and could not stop yourself from doing it.  By the last occasion MR had started to develop pubic hair and breasts.

18Count 3 - that is the count of incest, when you licked MR's vagina - occurred after January of 2014.  You took MR into your bedroom and closed the door.  You told her she was a pretty girl and took off her clothes.  You then laid down on the bed and licked MR's vagina; describing it as trying to masturbate her orally by stimulating her clitoris with your tongue.  You stopped doing it after a couple of minutes, and you did it to try it out, as your wife was not interested in doing it.  It happened after an occasion of masturbating with MR in the shower.  On other occasions you admitted the same thing occurred on one other occasion.

19Count 4; again a representative count.  On the weekend morning in early September of 2014 you took MR into your bedroom for a cuddle.  Your wife was out.  You took off MR's pyjamas and your dressing gown and you got into bed naked.  You lay for a while cuddling under the covers.  You become aroused and got an erection, and you then stood next to the bed and masturbated over MR while she lay on the bed.  You ejaculated onto her vaginal area.  You later told police:

"She is a beautiful little girl.  It was not meant to be sexual at all, I just love cuddling my kids.  I just cuddled up to her and got aroused."

20MR told police he said "very bad stuff to her" - that is, to MR - and that if she told anyone he would "go away forever".  MR said she tried to push him away but you got angry with her.  There were at least three other occasions where the same thing occurred on three separate occasions.  You told police it was no different on those occasions, it was routine.

21

This is a standalone count of incest.  This count occurred between

29 July 2014 and 22 August 2014, when you placed your penis between the lips of MR's vagina.  You took a photograph of this on your mobile phone.  You told police that you took photographs of your penis in contact with the outside of her vagina, but you denied penetration.  The photographs spoke for itself.

22And last but not least, this is a standalone charge of on one occasion between 29 July and 22 August you placed your erect penis against MR's anus and took photographs of this on your mobile phone.

23Not only did you defile your young daughters, you took graphic photographs of your despicable behaviour towards MR in particular.  Between 29 July 2014 and 22 August 2014 you took a number of photographs of MR which were discovered by the police on your phone, and on your laptop.  You told police a number of times that you took these photographs of MR.  Those photographs consist of 12 Category 1 images.  Those categories are determined by virtue of what is occurring on the image, being ten photos of MR's vagina and two photos of MR's buttocks.

24There are four Category 3 images - that is non-penetrative - being two photos of MR's vagina covered with ejaculate and two photos of your penis pushed up against MR's anus, and there are four Category 4 images - penetrative - being four photographs of your penis penetrating her vagina.  I pause there for a moment.  I have viewed those photographs and they are, indeed, as they are described; just shocking.

25On 4 October 2014 you were arrested and interviewed by the investigating police officers.  At this time you denied this offending.  Five or six hours later you presented the investigating police officers with a written confession and a statement setting out these events, then a second record of interview was conducted.  You admitted the conduct alleged to have occurred by each of your young daughters.  You have heard your counsel his morning say that contained within that written confession there were most certainly remorseful remarks made by you about what you had done to your children.

26To your credit, you disclosed significant further offending upon MR which this young girl had not revealed in the VARE tape that was conducted with her.  You have remained in custody since the confessional statement and the second record of interview.  You heard your counsel again say this morning, when one did an analysis of the fact that you were no longer permitted to be in the home with those two young girls, that you were then virtually homeless, and your bail was consensually revoked and you have been in custody ever since.

27

You are now aged 40, as I mentioned earlier, having been born on

28 June 1974.  In a few days' time you turn 41.  I am told that your parents sold their home recently so as to become what we affectionately know as "grey nomads", and no doubt they are enjoying their retirement.  Unhappily, your mother is undergoing treatment for cancer at the present time.  I am sure the emergence of these facts and circumstances have caused them great distress.

28You have instructed the consultant psychiatrist, Dr Clare McInerney, that you enjoy a good relationship with your parents.  Apparently as a young lad you were sexually abused by the father of one of your school friends.  Your parents discovered this abuse when you displayed, at a young age, sexualised behaviour towards your sister.  Your parents endeavoured to have that man who abused you prosecuted; unhappily, at that time, to no avail.  You have told Dr McInerney that your parents moved your family to another suburb so as to avoid this wretched, abusive individual.

29If I pause there for a moment.  Mr DAR you would be amazed, I am sure, the number of times - if you sat in court every day, as I do - to hear those who are offending have been sexually abused as young people, and sadly, nothing is done about it for all sorts of reasons.  Sometimes the young people are just overwhelmed by what has occurred, they have a guilt feeling themselves, and they do not have the confidence to tell whoever they should tell of that offending.  You did at least have the courage to reveal what was occurring to your parents, then it seems the authorities let you down by not pursuing it.  It is the sort of thing that there are royal commissions being conducted at present, and there has been a huge amount of publicity, which you may have seen in Ballarat, emanating from sexual abuse committed on - unfortunately, it seems - hundreds of young people; many of whom have not done anything about it.

30There is other material where sometimes those who are sexually abused do not offend by becoming sexually abusive themselves, but they lash out and commit other serious crime.  One of those serious crimes that is well documented is young males who have been sexually abused as young persons' lashing out and committing arson.  Lashing out against society because of what is happening is not the way to do it.  You have got to go to counselling and you have got to attend to it, and you are in that position where it must be attended to.  Even now you might find it embarrassing to discuss, but it has got to be attended to.

31As I mentioned earlier, you were born in 1974, at which time you were living in the Keilor district.  You attended local primary schools before then going onto Year 12 in high school, where you completed a Year 12 certificate.  You have informed Dr McInerney that you were not very good academically, that you had poor numeracy skills, but good literacy and computer skills.  You enrolled in an advanced certificate in information technology at TAFE, but you did not complete this course as you left academia to get paid employment.

32Apparently you held various employed positions in, for example, data entry, information technology - and at some point in your younger life you attempted to join the army, but this failed on some sort of psychological testing grounds.  After a period of unemployment you obtained your driver's licence and started work as a courier driver, and then long distance truck driving.

33In the six years leading up to your arrest for having committed these offences, you have been working as an interstate transport driver, which meant you were frequently away from home.  You have been married to Nicole for 20 years and there are four children from this union.  You have two daughters; the victims of your offending, and two sons; one aged 15 and the other one aged nine.

34Apart from receiving some counselling from back at the time when you were sexually abused as a youngster, you have not had any other involvement with psychiatrists or psychology until going into prison.  You certainly, way back, had some form of counselling for troubled kids, and also relative to the time when you suffered that sexual abuse.  That has got to recommence so that you can return to a proper normality in terms of what is happening to you.

35You do not use illicit drugs and you ceased drinking alcohol when you took up driving as a profession.  As has been conceded by the prosecution, you have no prior convictions for anything of this nature.

36I now quote directly from Dr McInerney's report.  She said this of you:

"Mr DAR did not endorse a preference for young sexual partners and appeared unable to explain the events that occurred.  He reported that he believed the offences had typically happened when he was feeling depressed and down on himself.  I was unable to clarify further the nature of this depression, and he reported he did not seek any treatment for mental illness at the time."

37Dr McInerney goes on to say:

"He went on to say that he thought perhaps he had become depressed due to a challenging job, as well as frustration at his lack of success in helping a female teenage friend of his son's.  Mr DAR stated that while he continued to have a sexual relationship with his wife, he believed it had been limited during the time that he had sexually assaulted his daughters, adding, 'Nicole wasn't very interested in me at that time.  I don't know why.'  With regard to the photos he had taken of his children, he told me that these were for personal gratification for use, and alone in his truck.  He denied having shared those photos with others."

38Dr McInerney reports that you have engaged in offending behaviour programs, and further, you were not accepted into the mobile forensic health service whilst at the Melbourne Remand Centre.  Often the demand is so heavy that you cannot get into these programs, and often persons want to pursue rehabilitation programs and you are defeated by the overwhelming number of those who are lining up to get into the program.  Your counsel, on your behalf this morning, says that you have undergone those that you can whilst in custody.

39Again, I quote directly from Dr McInerney, who says this as to her opinion and recommendations:

"I find no evidence that Mr DAR has, or has previously had, a major mood or anxiety disorder, or a psychotic illness.  I find no evidence from my interview of significant substance or alcohol misuse.  He has reported a history of childhood sexual abuse, and I note that some perpetrators of sexual violence report having themselves been victims of sexual abuse."

40That is what I was speaking about earlier; it emerges all too often.  If it had been attended to properly years ago, we do not know whether you would sit where you sit now or not, but there it is.  You have just got to do something about it.  Dr McInerney goes on to say:

"I find no evidence of a mental illness at the material times.  I find no evidence that any mental illness contributed to the offending.   Mr DAR does not currently require mental health treatment.  He may benefit from offence specific psychological treatment in the future."

41What that is talking about is whilst in custody there are various programs; one is called the sex offenders program.  I can tell you now that you have no option but to undergo that, and you must do so.

42You have heard your counsel, Mr DeVolle, concede that these are indeed serious offences; particularly the two counts of incest.  All seven of the offences were committed, as you know, on your biological daughters.  Mr DAR, the maximum sentences I mentioned earlier for incest is that of 25 years' imprisonment.  The other offences attract ten years' imprisonment.  Those sentences, of themselves, indicate how serious the matters are.

43Unhappily, many, many cases of this nature come before the courts regularly.  I will quote directly from a couple of them.  In the case of R v Wayland the Court of Criminal Appeal, as it then was - prior to the Court of Appeal, as it now is - on 14 September 1992 Mr Justice Crockett, when sentencing an individual for the sexual abuse of a child, said this:

"The undoubted fact that in recent times there has been evidence of a rising tide of public indignation that such crimes had been committed can be seen to be anything but infrequent occurrences.  The courts, and particularly this court, I consider bound to respond to the legitimate community concerns, with the response placing emphasis on the need, in particular, to have sentences that give effect to specific and general deterrence."

44A year later, in 1993, Mr Justice Marks in R v Sposito, again in the Court of Criminal Appeal, on 8 June 1993, said:

"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.  The offence of incest is particularly erosive for human relations, and casts doubts upon the assumption that parents are the 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, a gross breach of trust placed in the offender by the victim, and the community, and the irreparable fundamental damage to the victim."

45Subsequently, in R v Wakime [1998] 2 VR at 385, the President of the Court of the Appeal, Mr Justice Winneke, referred to the tide of the community anger and resentment towards crimes which involved the despoliation of children. His Honour said this:

"This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to be receive condign punishment.  Such conduct is not only destructive of family values, and all that they stand for, it is now well know that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle."

46Mr DAR, it can only be said that you are a disgrace.  The two young girls - who no doubt had the utmost trust in you - you have breached that trust in gross and disgusting circumstances; particularly to your daughter MR.

47Mr Justice Vincent in DPP v Twomey [2006] VSCA at 90 said lots of things, and I will only quote part of it:

"From the victim's perspective, an apparent failure with the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation.  It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator.  Frequently the damage will be profound, and a long time will pass before it can be addressed at all."

48That is what happened to you.  Six years of age when it happened, and here you are 40 and nothing has been done.

"In the meantime childhood will be destroyed, self-esteem damaged, educational and career opportunities lost, and the capacity to form and maintain relationships seriously impaired.  The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights, and the attribution of responsibility based on moral culpability.  The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly."

49It is those sort of comments from that judge - a very imminent judge; Mr Justice Vincent - that prompted my inquiry as to how these two young girls are going.  It does seem that AR is doing well.  We do not know where MR is at at this time.  It is to be hoped that she can follow her sister and perhaps recover well.

50Mr DAR, I assure you that I have taken into account all that has been said on your behalf by your counsel, Mr DeVolle.  I take into account your early plea of guilty; that is, an indication of your remorse.

51Your counsel, Mr DeVolle, again - as you heard here this morning - emphatically endorses your remorse to this court.  He also reminds me publically, in this place, that on the day that you provided your confessional statement to the police officers you had remorseful indications therein, and then, further, you indicated remorse to the appropriate person from the Department of Human Services that was looking into these matters, no doubt in the interests of your children.

52As to your rehabilitation, you have a good work ethic.  You have undertaken at least one course whilst in prison.  You have attempted to refer to another health program and apparently have been frustrated, as I said earlier, because the cue is so long and difficult to get into.

53As I also understand, and I am sure Mr Ballek will let me know, at this point in time there are no victim impact statements.  I am not being critical when I say that.  It seems that your wife, and your father in particular, have adjusted to remain supportive, which is very positive for you.  They, perhaps, have a better knowledge and a better understanding of those dreadful events that happened when you were a six year old that may be heavily involved in your offending all those years later.  It is to be hoped, of course, that - as I understand it - AR is very supportive, and perhaps so too will MR.  We do not know at this time as she is too young.

54It must be understood - and you heard Mr Ballek mention it this morning - there are aggravating circumstances that have occurred.  Mr DeVolle concedes those aggravating circumstances.  For the record, I mention them.

55I have already mentioned the gross breach of trust in offending in the way that you have on your two biological daughters.  There is also the aggravating feature that it was not a one off event; it was over a period of years.  There is some doubt as just to when, because there was offending when AR was nine, or thereabouts, and certainly six years later the same offending is re-emerging with MR.

56Whether a pattern continues or not through that period only you and those girls know, but it certainly happened over a period of time, and you know, and you concede - and Mr DeVolle concedes on your behalf, and I mentioned it in one of those judgments I read - there is a disparity of age between both you and your daughters.  Not only are you the father that should be supportive and there for help, you have abused that, and it is done because the adult/child relationship you dominate; they do not.

57The other aggravating feature specifically addressed by Mr Ballek this morning is you did threaten young MR.  All of those things are aggravating and make your offending so much worse.  As you know, both of these young women were vulnerable to your lust and desire.  The exploitation of AR and MR - MR in particular - is just shocking; particularly taking pornographic pictures of MR is appalling.

58As to Count 1; that is the count of indecent assault - you are convicted and sentenced to 18 months' imprisonment.  Six months of that sentence - I am going slow so that your barrister and the prosecutor can write these down - Count 1; 18 months' imprisonment.  Six months of that sentence is to be served concurrently with Count 5; that is the offence alleged against AR.  The rest of the offences all are alleged against MR.

59Count 2; again, indecent act.  You are convicted and sentenced to 18 months' imprisonment.  That sentence is to be served concurrently with Count 5.

60Count 3; incest.  You are convicted and sentenced to five years' imprisonment.  Four years of that sentence is to be served concurrently with Count 5.

61Count 4; you are convicted and sentenced to 18 months' imprisonment.  That sentence is to be served concurrently with Count 5.

62Count 5; you are convicted and sentenced to five years' imprisonment.

63Count 6; you are convicted and sentenced to 18 months' imprisonment.  That sentence is to be served concurrently with Count 5.

64Count 7; that is the pornographic matter - you are convicted and sentenced to 18 months' imprisonment.  Six months of that sentence is to be served concurrently with Count 5.  That should total eight years' imprisonment.

65The offender is to serve a minimum term of five and a half years' imprisonment before being considered as eligible for parole.

66Pursuant to s.464ZF the prisoner is to provide a forensic sample.

67Pursuant to s.34(1) of the Sex Offenders Registration Act, the prisoner is to be registered for life.

68I will now go back to the beginning.  Having announced on Count 1 and Count 2 that the prisoner has been sentenced to terms of imprisonment, he was to be sentenced on Counts 3, 4, 5, 6 and 7 as a serious sexual offender.  I take into account the provisions of s.6C and s.6D of the Sentencing Act in making that announcement.

69So after Count 1 and Count 2, where sentences of imprisonment were imposed, he is now to be sentenced as a serious sexual offender, and I also say, pursuant to s.6F, that having made those orders pursuant to the Sentencing Act, that that must be recorded in the court records in accord with the provisions of s.6F.

70And I think the only thing I have not announced so far is the section - I beg your pardon, there is an order for disposal to be made in relation to the phone and the computer notebook.  Those orders will be made, if they have not already been made.

71MR BALLEK:  I think they were made on the prior occasion.

72HIS HONOUR:  I think I made them on the previous - yes.  And I think the 464ZF was made then?

73MR DeVOLLE:  Yes, Your Honour.

74HIS HONOUR:  But I announce it again so that it goes on this record.  Had it not been for the plea of guilty, I believe I would have imposed a prison term of nine and a half years with a minimum term of six.  Are there any other orders sought?

75MR BALLEK:  Just confirming Your Honour declared the pre-sentence detention of 260 days?

76HIS HONOUR:  Of course.  Two hundred and sixty days, isn't it?

77MR BALLEK:  Yes, Your Honour.

78HIS HONOUR: Pursuant to s.18 of the Sentencing Act, the prisoner is to be given credit for having served 260 days of imprisonment.  No other orders sought?

79MR BALLEK:  No other matters, Your Honour.

80HIS HONOUR:  Thank you.  Thanks, Mr DeVolle.

81MR DeVOLLE:  Thank you, Your Honour.

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