Director of Public Prosecutions v Derbyshire, Andrew
[2012] VCC 1924
•26 November 2012
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW DERBYSHIRE |
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JUDGE: | HIS HONOUR JUDGE PILGRIM | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 November 2012 | |
CASE MAY BE CITED AS: | DPP v Derbyshire, Andrew | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1924 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A.J. Moore | |
| For the Accused | Mr C. Morgan |
HIS HONOUR:
1 Andrew Derbyshire, you have pleaded guilty to four counts of sexual penetration of a child under the age of 16. You have heard the learned prosecutor, Mr Moore, tell this court that the maximum sentence for each of those counts is 10 years' imprisonment. For having pleaded guilty I will impose a lesser sentence than I otherwise would have imposed. That is, you receive a discounted sentence for having pleaded guilty.
2 You heard the prosecutor, Mr Moore, tell this court that these four counts are representative counts. Mr Derbyshire, the Victorian Court of Appeal said in the case of R v. CJK [2009] VSCA 58, when speaking of representative counts they said this:
"A representative count is achieved by the accused agreeing with the prosecution that in order to reduce the number of charges faced, there will be a plea of guilty to a count which is representative of other uncharged acts. The consent to the representative count must be express and unequivocal."
That comes from Kingswell v. R [1985] in the High Court; 159 CLR 264. If I pause there for a moment, and I am not being flippant or in anyway offensive to you or to the girl who I will call Ruth,[1] but the offending taking place over a period of two years it would be virtually impossible to count up the number of offences taking into account it was a continuing event. So it is a very tidy way, and a good way, for you to be dealt with in the sense of being dealt with as representative counts so instead of being hundreds of counts there is four and as you well know they represent four different types of penetration.
[1] Ruth is a pseudonym.
3 To understand representative counts, the observations made by Batt J in SBL v. R [1999] 1 VR 706, it is helpful to hear what Batt J said. Batt said this, and I quote him directly:
"Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed...", that is of course Batt J, "...about agreed representative counts, regard may be had to the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.
4 To the same effect, the statement of Nettle JA in DPP v EB [2008] VSCA 127, demonstrates that an offender sentenced for a representative count may be denied any leniency that might have been permitted on the basis that the offence was an isolated event, or likely to be repeated." That eminent judge went on to say:
"The fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context."
5 Mr Derbyshire, the complainant, Ruth, moved from Queensland to Benalla to live with her mother. Ruth's mother was a member of a church that you, sir, were also a member of and you befriended Ruth and her mother. You attended their house for lunch and from that day on you began a relationship with Ruth which later developed into a sexual relationship.
6 The four counts on the indictment span the time of the offending which comprise sexual penetration of Ruth's vagina with your penis; penetration of her mouth with your penis; penetration of her vagina with your finger and your tongue.
7 Mr Derbyshire, after frequent socialising with Ruth and her mother at their home where it is said that you were seen to be flirting with Ruth, touching her on the arms and legs and smiling and winking at her, this behaviour continued for several months with you kissing and touching Ruth on numerous occasions. You later invited Ruth to your house where this type of behaviour continued.
8 I quote directly from the prosecution opening where it is said just prior to Ruth's 14th birthday, you invited Ruth to your house. You kissed Ruth while you sat on the couch. You then led the complainant, Ruth, to your bedroom, took off her panties and underwear and spread her legs and inserted your penis into her vagina. Ruth says that she told you to stop and that it hurt but you continued.
9 Following this, Ruth would attend at your house almost everyday. You had regular sex with her and always used a condom. You did not want to get her pregnant.
10 Ruth believed that each of you were now in a relationship and she spent more and more time with you before moving in with you. You were supplying Ruth with cigarettes and alcohol during this time.
11 Mr Derbyshire, you set up a bedroom in your house for Ruth and told everybody that it was her bedroom. Ruth never slept in that bedroom and always shared the same bed with you.
12 In April 2001, you had vaginal sex with Ruth and the condom broke on this occasion. You sent Ruth to attend at a local doctor to get the morning-after pill. Ruth attended the doctor and took the morning-after pill.
13 During this period of time, Ruth 's mother was attempting to get Ruth to return to her home. Ruth's mother contacted the police and the Child Protection Authority in an attempt to make Ruth return. You, Mr Derbyshire, told Ruth to tell anyone who asked you that you were just friends. You bought Ruth gifts and would tell her that you would start a family once she was legal.
14 Over the period that you and Ruth lived together sex, nudity and oral sex was always happening. Ruth recalls that you would penetrate her vagina with your finger and then you started going under the sheets and licking her vagina. About a week later you pulled down your pants exposing your penis and during oral sex you ejaculated into her mouth.
15 Over the period of the charges you took Ruth, a couple of times, to your sister's house in Montrose. You told your sister that Ruth was a friend and that she was living with you as Ruth had problems with her mother. On one of these occasions you and Ruth were playing pool while the rest of the family members were inside the house. You approached Ruth and said "I am hard. Suck my dick." Ruth then performed oral sex on you.
16 You lived at Lake Rowan and you took Ruth there to visit, again telling your mother that you were just helping Ruth out and giving her somewhere to live. During this visit you took Ruth into the paddocks and touched her breasts and vagina over her clothes before putting your penis into her vagina.
17 In early 2002, Ruth got sick of the abuse by you. Ruth then left your house however she did return a few days later and on her return, yet again, you had penile vaginal sex.
18 Ruth finally disclosed the offending to her church and then the police in 2010. As a result of this disclosure you were interviewed by the investigating police officers. You chose, as is your right, to make a no comment record of interview.
19 Mr Derbyshire, you are now aged 44 having been born in Benalla on 16 February 1968. You attended primary school at Devenish and then secondary school at Benalla Secondary College where you completed most of Year 11. You left school so that you could help run the family farm and help your mother.
20 Mr Derbyshire, you have two younger sisters. You have a good relationship with them however only intermittent contact occurs. No doubt they are living a busy life. You stated as a young child that you had a good relationship with your parents. Your father died when you were 14 years old and this placed considerable pressure on you to help your mother with the family sheep farm. It also placed significant emotional pressure on you as your father's death was at his own hand.
21 As I mentioned earlier, you left school to assist your mother run the family farm. Mr Derbyshire, your consultant psychologist, Mr Chris Kelly, in his report dated 10 November 2012, among other things, reports this - and I quote at lengthy from Mr Kelly. Mr Kelly says this when speaking of you:
"He attended primary school at Devenish and secondary school at Benalla Secondary College where he completed most of Year 11. He stated he left half-way through Year 11 so he could help on the farm shearing sheep. At the age of 21 he essentially took over the running of the family farm upon 475 acres at Lake Rowan between Benalla and Yarrawonga. He stated the farm consisted of some cropping however it ran several hundred head of sheep. Mr Derbyshire stated he worked on the farm for some ten years until 2000. However, due to economic hardship caused by the drought he and his mother moved to Benalla. At this stage
Mr Derbyshire's employment history consisted of engaging in a number of jobs. He stated at this time he held down three jobs, packing at Coles, working with the sheep and cutting paddocks; I assume 'cutting paddocks' is cutting hay. He then obtained work at the abattoirs in Benalla and worked there for eight years. Following this he obtained work at the Benalla spinners and worked there for four years. Unfortunately he was retrenched in November 2011 due to downsizing of the complex."
I will speak again later of this employment, there are references from both of those organisations.
22 Mr Derbyshire, having met Ruth and formed this most inappropriate relationship, you groomed and coerced this young girl so that in effect she became your sex toy from whom you received sexual gratification to satisfy your lust. Young persons, that is those under 16 years of age, have the protection of the legislature to protect them from activities such as yours and in some instances to protect them from themselves.
23 Your clinical psychologist refers to your instructions in that this young girl wanted to be involved with you. You, sir, should have put an immediate end to such involvement. I infer, however, that you actively encouraged Ruth to become your sexual mistress.
24 I again return to Mr Kelly's report and he says this:
"Mr Derbyshire states he fully recognised that his actions were wrong, that he is remorseful for his actions and he wished he did not find himself in the vulnerable position that he has placed himself in. He recognised he was sexually immature, not having been in a sexual relationship before.
Mr Kelly goes on to say:
"He described feeling ashamed, extremely uncomfortable and again he regrets his involvement with Ruth. Mr Derbyshire describes himself as a Christian and does not drink alcohol or smoke any substances. He is committed to his faith, being a member of the Seventh-day Adventist Church which he has been a part of for the past six years."
25 Since this offending you ceased, over nine years ago at least, you have now married and your partner brought one child into that union and you each have now a child of your own. Not surprisingly your wife is finding this time in your life difficult. Mr Kelly reports again, and I quote:
"At the time of the interview he said he was having some marriage problems as his wife suffered depression and anxiety due to her mental health problems. He stated he was putting the effort required into his marriage, helping his wife through her difficulties and providing for his children."
26 You have no prior convictions or court appearances and there are no outstanding matters.
27 You have an excellent work ethic. Mr Mundy, in his reference amongst other things says of you, and I quote from Mr Mundy who is apparently here today:
"I have found Derby to be punctual, extremely hardworking and diligent."
Mr Mundy goes on to say:
"These attributes together with a pleasant personality, honesty and dependability are paramount reasons why management have had no hesitation in re-employing Derby on various occasions throughout his employment history with this company."
Mr Leon Dyer mirrors the comments of Mr Mundy. He says:
"Andrew was a reliable and dependable employee."
Mr Neville Amery also speaks highly of your work ethic. Mr Amery goes on to say:
"He is a very kind, caring, thoughtful, gentle and overall nice bloke."
28 I have a further six references from your Church Padre, parishioners, friends and family all attesting to your good character. It is apparent from some of these references you, from the age of 17 or thereabouts, lost it and became in my words "A wild child". One of those referees speaks of those early days and that referee recognised that apparently was the case when the offending started. I see no need to summarise what was said by Mr Milner or Mr Hughes. Both of those gentlemen are totally consistent with all of the other references that I read and re-read over the weekend.
29 Mr Derbyshire, the victim of your offending, Ruth, has filed a victim impact statement. Ruth says that she now suffers post traumatic stress, anxiety, fearfulness and depression. She now finds it hard to trust people. She goes on to say that she has low self esteem. She has lost confidence and pride in herself. Apparently Ruth suffers relationship difficulties since these events occurred.
30 Would you stand up please. Mr Derbyshire, I assure you that I have taken into account all that has been said on your behalf by your counsel, Mr Morgan. I take into account your early plea, your remorse and your prospect for rehabilitation. Your plea of guilty is an expression of your remorse. Your counsel, Mr Morgan, again on your behalf expresses your remorse to this court. Mr Kelly the consultant psychologist, as I noted earlier, mentioned how you wished this had not happened and that you were remorseful.
31 Your Pastor, Mr Malcolm Reid, says in his reference:
"Andrew is sorry for what he did and he demonstrates his remorse."
32 Your prospects for rehabilitation has to be excellent. You have an excellent worth ethic. You have the continued support of your family and friends and you regularly attend the church of your faith.
33 Mr Derbyshire, I also take into account the delay that has occurred since this offending occurred and now the time for you to attend this court. There is a period of over ten years.
34 Habersberger J, in the case of R v Tezer and R v Davis [2007] VSCA 123 handed down on 13 June 2007, analysed many cases touching upon delay. His Honour quoted many cases one of which was R v. Miceli [1998] 4 VR 588. Tadgell J said in that case, and I am quoting directly from Tadgell:
"There is no doubt that proper sentencing principles dictate that undue delay in the disposition of a charge should work in favour of a prisoner being sentenced. Most particularly is the matter of delay between the commission of an offence and the imposition of a sentence for it to be taken into account when rehabilitation is a real prospect; and it is no less so when the person to be dealt with has been at large and has ordered his affairs during the period of the delay with a view to reorganizing his life
35 Later in the same decision, Habersberger J quoted the President of the Court of Appeal. Maxwell J, that is in the case of R v Merrett, Piggott & Ferrari, said this:
"On a proper analysis, the significance of delay as a sentencing factor cannot depend on whether or not there is a satisfactory explanation for the delay. The relevance of delay lies rather in the effect which the lapse of time – however caused – has on the accused. Delay constitutes 'a powerful mitigatory factor'. In particular, it focuses attention on issues of rehabilitation and fairness."
Merrett, Piggott & Ferrari is to be found at (2007) 14 VR 392 in Paragraphs 34 and 35 in particular.
36 I assure you I have taken into account these principles. You have moved on since these offences were committed. You have married and acquired a family.
37 Mr Derbyshire, there are some very concerning features of this offending:
· Firstly, that you knew Ruth's mother as a parishioner and friend from your Church. I infer you were aware of this lady's struggles with addiction. You abused her trust in your offending with her daughter, Ruth.
· Secondly, you well knew Ruth's age and in turn you abused this girl's trust by taking advantage of her.
· Thirdly, you invited this young girl into your home or house. Most, if not all, of the offending took place at your address. This home should have been a safe sanctuary for Ruth. It was not.
· Fourthly, being aware of the apparent difficulties, that is your age and Ruth's age, you established a falsehood in the bedroom, often referred to in the material as "The purple room", it was set up as a bedroom so that a fiction could be set in place. That is, that Ruth had her own room. This was deceitful to all persons. Ruth did not occupy this room. She slept with you and to quote Shakespeare, Cleopatra said to Mark Antony: "I comfort your bed." That is what this girl did for you. She should not have.
· Fifthly, you coerced or caused Ruth to tell any person enquiring as to the living arrangements at your house for Ruth to insist that she had her own room and slept therein and there was no mischief afoot. In particular, this deceit was perpetrated upon Ruth 's mother, the police and the Department of Human Services. I must be careful in saying what I now say so I emphasise: I do not know sufficiently of this deceit. Without being critical of others, on the face of it it would appear that the actions of the Department of Human Services, and perhaps the police officers, was lamentable in allowing Ruth to remain at your home without a thorough investigation.
· Sixthly, you supplied this young girl with alcohol and cigarettes while she occupied your premises, not to mention gifts. All in all, these aggravating features do not paint a good picture.
38 Mr Derbyshire, this type of offending is not to be tolerated in our community. In the case of R v. WEF [1998] 2 VR 385 it was said by the Appellant Judges:
"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.
39 In DPP v VH (2004) 10 VR 234, Callaway J, with whom Buchanan and Eames agreed said:
"The sexual abuse of children by persons in a position of trust is intolerable."
40 Marks J in R v. Sposito, an unreported decision of 1993, said this:
"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate."
41 (a) On Count 1 of the Presentment, you will be convicted and sentenced to 30 months' imprisonment. That is a base sentence.
(b) On Counts 2, 3 and 4; on each count you will convicted and sentenced to 24 months' imprisonment.
(c) On Count 2 I direct that six months of the sentence be cumulated with the sentence imposed on Count 1.
(d) On Count 3 I make the same order. I direct that six months of that sentence be cumulated with the sentence imposed on Count 1.
(e) On Count 4, again I direct that six months of that sentence be cumulated with the sentence imposed on Count 1.
That means that the total sentence imposed this days is four years' imprisonment.
42 I further make an order that you are to serve a minimum of two years' imprisonment before being eligible for parole.
43 Pursuant to s.464ZF(2) of the Crimes Act, I order that a forensic sample be ordered. I also order that a Sex Offence Registration Order be made, which is mandatory, and that the reporting condition be for life.
44 I was in error in not saying this earlier, but I am sure it does not matter where I say it, having been sentenced on the second count to a term of imprisonment I formally declare that you be sentenced as a serious sexual offender. The Crown prosecution, as you heard, do not ask for a disproportionate sentence so I make the formal order that you be sentenced as a serious sexual offender pursuant to s.6B of the Sentencing Act.
45 Further, pursuant to s.6AAA, had it not been for your plea of guilty I would have imposed a sentence, I think, of six years' imprisonment with a minimum of four years' imprisonment.
46 Last but not least, I am directed by s.6F of the Sentencing Act to make this announcement; it says this:
"A court that sentences a serious offender for a relevant offence must, at the time of doing so, cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for it as a serious offender."
That is the effect of s.6B of the Sentencing Act.
47 Are there any other orders sought, Mr Moore?
48 MR MOORE: No, Your Honour.
49 HIS HONOUR: Thank you. Adjourn the court.
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