Director of Public Prosecutions v Douglas (a pseudonym)
[2021] VCC 893
•1 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCO DOUGLAS (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 June 2021 | |
DATE OF SENTENCE: | 1 July 2021 | |
CASE MAY BE CITED AS: | DPP v Douglas (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 893 | |
REASONS FOR SENTENCE
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Subject:Criminal law - Sentence
Catchwords: Charge of incest and indecent act with a child of 17 years under his care, supervision and authority – breach of trust – less serious example of a serious offence – no relevant prior criminal history – burden of imprisonment - registrable offender – reporting obligations 15 years
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:
Sentence: Three years, two months’ imprisonment with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Devlin | Office of Public Prosecutions Victoria |
| For the Accused | Mr S. Kelly | Ann Velos Criminal Law |
HER HONOUR:
1Marco Douglas,[1] following a judge alone trial before me, you were convicted[2] on 3 May 2021 of two offences committed by you between 2-3 June 2017:
(a) wilfully committing an indecent act with or in the presence of Mary Casey,[3] a 17-year-old child to whom you were not married, and who was under your care, supervision or authority contrary to s49(1) of the Crimes Act 1958 (‘the Act’), the maximum penalty for which is five years; and
(b) taking part in an act of sexual penetration with Mary Casey, knowing her to be your step-child, contrary to s44(1) of the Act, the maximum penalty for which is 25 years’ imprisonment.
[1] A pseudonym.
[2]Pursuant to s420E of the Criminal Procedure Act 2009.
[3] A pseudonym.
2You were born in 1974. In 2009 you met Teresa Douglas.[4] You were married in 2012 and became the step-father of the victim, Mary Casey who was Ms Douglas’ daughter from an earlier relationship. You lived together as a family in Koo Wee Rup.
[4] A pseudonym.
3At the time of the offending, you were 45 years old. Mary Casey was born in 2000 and was 17 years old. You were a father-figure to Ms Casey and she called you ‘Dad’.
Summary of offending
4I now turn to the facts of the case.
5You fall to be sentenced on a basis consistent with my findings and my verdict following the judge alone trial.[5]
[5]Cheung v the Queen (2001) 2009 CLR 1.
6On 2 June 2017, you were at home with Teresa Douglas and Mary Casey. Teresa Douglas went to bed between 7.00 and 7.30 pm. She had taken a sleeping tablet as she needed to wake early to go to work.
7
That evening, Ms Casey had her boyfriend, Ed Parks[6] over for tea. He then left the house and went home. After this, Ms Casey lay on the three-seater couch in the lounge room to watch television. She was wearing clothes, including
track-suit pants that had previously belonged to her grandmother. The tracksuit pants had an elastic waist band. By midnight, Ms Casey was lying face down on the couch and falling in and out of sleep.
[6] A pseudonym.
8You came and sat on the left-hand side of the couch and placed Ms Casey’s legs across yours. You began massaging her legs on the outside of her clothing. You then put your hand underneath her tracksuit pants from the bottom of the pants and massaged up her leg. Ms Casey felt uncomfortable but said nothing.
9You then began massaging her upper body, and rubbed the side of your hand between her breasts, in the area of her cleavage and whilst doing so, touched the top curve of her breast tissue with your hand. This is the conduct that constitutes Charge 1 – indecent act.
10You then brushed your hand over Ms Casey’s stomach and then put your hand under her tracksuit pants and then under her underwear. You then placed your thumb inside the outer lips of her vagina (the labia majora), by ‘a couple of centimetres’[7]. This is the conduct that constitutes Charge 2 – incest.
[7]Evidence of Ms Casey, T18, L4-9.
11At that point, Ms Casey jumped up from the couch and said, ‘What the fuck are you doing?.[8] She then ran to her bedroom.
[8]Ibid, T18, L25-26.
12Ms Casey tried to phone her boyfriend, Ed Parks. When she finally spoke with him, she was too upset to tell him what happened. She sent him a text message at 12.55 am on 3 June 2017 that read, ‘I think my dad tried to molest me’.[9]
[9]Ibid, T21, L14.
13You tried to open the door to Ms Casey’ bedroom to apologise, but she told you to get out.
14Ms Casey was picked up by her boyfriend and his mother, Judy Parks.[10] She received a text from you. She skimmed the message and saw, ‘I’m sorry…’ but did not read it further and did not reply to you.
[10] A pseudonym.
15When she arrived at the Parks’ house, Ms Casey told Ed Parks that you started off massaging her on the thigh, then moved closer to her vagina. At that point, Ms Casey stopped talking about the incident.
16The next morning, Ms Casey contacted her mother to tell her where she was, saying she would talk to her mother but not over the phone.
17When Teresa Douglas woke on 3 June 2017, she saw that she had received two text messages; one from you and the other from Ms Casey. The text message from you was sent at 5.11 am, and included the words, ‘… i am so sorry. I have gone and fucked things up really bad’.[11] Ms Douglas rang you at work but you said you would talk to her later.
[11]Exhibit 2.
18After speaking with her daughter, Teresa Douglas drove to the Parks’ house. Ms Casey told her that you had sexually assaulted her, but did not go into detail. Ms Casey was very upset.
19When you returned home after work, you spoke to Teresa Douglas. You asked her what Mary Casey had told her. Ms Douglas said, ‘worry about what you are going to tell me’.[12] After telling Teresa Douglas you massaged her legs, Ms Douglas told you to leave the house.
[12]Evidence of Teresa Douglas, T44, L 13-14.
20On 7 June 2017, Ms Casey attended the Pakenham police station with her mother and spoke to the police. The police were shown a text message you sent to Mary Casey on 3 June 2017 at 1.03 am, which read:[13]
‘Mary I am so so sorry I have fucked up big time please think about how really bad this is and I cannot be any more sorry for what I have done there is no excuse. Just please think about how this will ruin all of, I know that this is my fault, but I hope that you and I can get through this somehow’.
[13]Exhibit 5.
21Ms Casey did not proceed with her complaint in 2017 as she was completing VCE and was concerned about the impact of the incident on her mother’s relationship with you.
22Ms Casey returned to police on 14 March 2019 and requested that her complaint be investigated.
23You were interviewed by police on 2 May 2019. In that interview, you made partial admissions, stating:[14]
‘…It was just rubbing her legs and just working up her legs and then before I knew it, my hand was in her – in her underpants and – and then that’s when she sorta stopped, yeah. That’s when she stopped and kicked…’.
[14]ROI, Q&A 124.
24You said you knew nothing about putting your hand between her breasts or putting your fingers inside her.[15]
[15]ROI, Q&A 321.
Offence gravity and Impact on victims
25I now turn to comment on the nature and gravity of your offending conduct.
26The offence of incest is rightly viewed as a serious offence, as gauged by the maximum penalty of 25 years’ imprisonment. You were a father figure to the victim who you had known since she was 10 years old. Inherent in your offending is a breach of that fundamental relationship of trust. She was entitled to feel safe with you and in her home. You took advantage of her when she was alone with you in the loungeroom and was falling in and out of sleep on the couch. You exploited the opportunity that presented for your own sexual gratification.
27Your offending not only breached Ms Casey’ trust in you but also that reposed in you by Teresa Douglas when you became her partner and the step-father to her daughter. From that time, you had a position of responsibility to care for and to protect Ms Casey from harm. You betrayed that responsibility by your offending. Although Ms Casey was in her teens and was not a young child, there was still a significant age disparity between you and, as I stated, she viewed you as a father.
28The victim impact statements I have read attest to the harm caused by your offending. Ms Casey states that she ruminates on the events of that night and experiences anger and frustration for the way it impacts on every facet of her daily life. She feels uncomfortable interacting with older males. She has sought psychological assistance to deal with the trauma and the impact it has had on her relationship with her mother and with authority figures.
29Teresa Douglas also provided a victim impact statement. She states that she struggles to cope with the situation and has become depressed, anxious and suffers severe, frequent panic attacks. She describes feeling a loss of confidence, self-esteem and has difficulty trusting others. She says she has become reclusive. I have taken into account the impact of your offending on the victims.
30In assessing the objective gravity of the offence of incest, it is necessary to consider ‘the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurs, each of which can increase the objective gravity of the offending, the culpability of the offender and the damage to the victim and the victim’s family.’[16] I have already referred to aspects of your offending that are relevant to that assessment. I now turn to others.
[16]Dalgliesh [No.1] [201] VSCA 148 [73].
31This was an isolated incident of offending. There is nothing to suggest your offending was premeditated or pre-planned. Rather, you acted impulsively; taking advantage of the opportunity that presented after you began massaging Mary Casey, who was half asleep, to engage in the offending conduct. The offending conduct was relatively brief, albeit interrupted by the action of the victim. I accept the submissions of Mr Kelly that the offending was not accompanied by aggravating features such as threats or violence directed towards the victim, beyond that inherent in the penetrative offence. It is not alleged she suffered physical injuries as a result of your conduct.
32The non-consensual digital penetration of your 17-year-old step-daughter is an objectively serious offence. I agree with the prosecution’s characterisation of the objective gravity of your offending as a less serious instance of an inherently serious offence. Your moral culpability for your offending is not insignificant but must also be viewed in light of your personal circumstances, to which I now turn.
Personal circumstances.
33You are now 48 years old and have no relevant prior criminal history.[17]
[17]In November 2001 you were sentenced to a 3-year suspended sentence by the Adelaide Magistrates’ Court for the offence of larceny by a servant and ordered to pay compensation of $6032.46. It is accepted by the prosecution that this is not a relevant prior offence.
34You are one of three siblings. Your parents separated when you were young and your mother subsequently remarried. You have a close and supportive relationship with your parents and siblings. Since separating from Teresa Douglas you have returned to live with your parents.
35You completed schooling to Year 11 and since then have had a strong employment history. You have experienced some workplace conflict (including for stealing from an employer over 20 years ago) but you have always been able to find new work, primarily in the conveyor belt industry. For the past five years, you have been employed as a senior belt technician. References provided by the Managing Director and the State Manager of the company each attest to your work ethic, your reliability and your assistance in training new staff. Although you were asked to resign from your job due to these proceedings, you have been assured of future work with the company.
36You were assessed for the purposes of the plea by Dr Luke Hockey, a forensic psychologist, on 22 May 2021. In his report dated 7 June 2021, Dr Hockey outlined your relationship with the victim and Teresa Douglas. You told Dr Hockey that you initially had a good relationship with Ms Douglas, but over time, it was your relationship with the Ms Casey that ‘developed into a deeper level of connection’ and that you ‘strongly and fervently adopted the role of “Dad”’.[18]
[18]Report of Dr Hockey dated 7 June 2021, pg 5 [19].
37You told Dr Hockey that there were periods where you engaged in problematic gambling, substance abuse and the use of pornography. In particular, you reported a pattern of consistent substance use, including drinking alcohol to the point of oblivion. You also told Dr Hockey that you abused the anxiety medication, Xanax, to help control and manage your anxiety.
38Dr Hockey noted that you had few friends and difficulty negotiating interpersonal relationships.
39Dr Hockey undertook psychometric testing in relation to your current levels of depression, anxiety and stress. He reported that your stress levels fell within the moderate category and your depression and anxiety in the mild category. Dr Hockey recorded that these results were inconsistent with his observations and your disclosures during the interview, possibly due to you underreporting symptoms during testing.
40Dr Hockey concluded that you ‘appeared to minimise your responsibility’ for your offending conduct. Despite this, having undertaken a detailed risk assessment, Dr Hockey concluded you are a low risk of engaging in future sexual offending, stating:
'Mr Douglas presents as a low risk of engaging in future sexual offending. Mr Douglas did not present as sexually deviant, nor does it appear he set out to offend against a child. Rather, it appears the offending behaviour occurred in the context of an emotionally distant relationship, increased pornography use and the use/abuse of legal and prescription substances. Further, Mr Douglas’ personality and impaired social function likely lead to significant difficulties understanding social nuances and conventions.'
41Having assessed you, Dr Hockey concluded you presented in a manner consistent with a “Schizotypal Personality Disorder” which he states is a ‘disorder marred by social isolation, odd eccentric beliefs and significant difficulty developing reciprocal relationships with others’. He states that acting on impulse is consistent with this disorder. In addition, Dr Hockey states you suffer from undiagnosed anxiety which has also impacted on your ability to develop and understand social relationships with others.
Matters relevant in mitigation of sentence
Remorse
42Immediately following the incident of offending, you sought to apologise to Ms Casey. You sent her a text message later that morning to apologise for your conduct. However, your apology was not unconditional. It was also a plea to Ms Casey to consider ‘how this will ruin all’ and expressing a hope you could both ‘get through this somehow’.
43At an early stage in the proceedings you offered to plead to a single charge of committing an indecent act with a child under your care, supervision or authority but denied the charge of sexual penetration. I find that you demonstrated a degree of remorse for your conduct, but agree with the assessment of Dr Hockey that you continued to minimise your offending. Your limited remorse is of some relevance in mitigation of sentence. It is also relevant to my assessment of your prospects of rehabilitation.
Previous good character and prospects of rehabilitation
44
Prior to this offending, you had been a person with no relevant criminal history who had otherwise led a modest life with a strong work history. In references provided by your family, you are described as having a strong sense of family and your sense of self-worth has deteriorated significantly since these events. A
long-standing friend describes you as thoughtful and a person who treats others with kindness and respect. This offending is not in character with the person they know and continue to support.
45The absence of relevant priors, the ongoing support of your family and the expert assessment of Dr Hockey that you are a low risk of further sexual offending, are all relevant to my assessment that you have good prospects of rehabilitation. The remorse you have demonstrated, although limited, also contributes to my positive assessment of your prospects of rehabilitation. Treatment to address substance abuse and participation in an offence-specific program will also assist in reducing risk and enhancing your insight into your offending behaviour.
46In my view, the sentencing considerations of general deterrence, just punishment and denunciation are of far greater significance to the sentence I impose, than the need for specific deterrence.
Burden of imprisonment
47I accept that the conditions in custody to respond to COVID-19 will also add to your hardship as a prisoner, particularly as this is your first time in custody. The uncertainty associated with the pandemic at this time and the risk posed to prisoners will add to the anxiety experienced by you in custody.
48Further, I accept the opinion of Dr Hockey that personality traits he describes as consistent with ‘schizotypal personality disorder’ and more particularly, your previously undiagnosed anxiety will ‘be likely to make prison more onerous for you’. While there is no basis to find that imprisonment would lead to a deterioration in a diagnosed mental illness or would make imprisonment ‘significantly more onerous’[19] such as to enliven Verdins Limbs 5 and 6, it remains relevant in sentencing you that your time in custody will be difficult due to the measures taken to respond to the pandemic and for the reasons outlined by Dr Hockey, particularly where your pre-existing anxiety is likely to be heightened in custody.
[19]DPP v O’Neill (2015) 47 VR 395.
Other sentencing considerations
49Both the prosecution and defence counsel made submissions that the offending attracted the baseline sentencing regime introduced into the Sentencing Act 1991 in 2014. Pursuant to the baseline sentencing provisions, the ‘median sentence’ for the offence of incest was intended, at some unspecified time into the future, to be 10 years’ imprisonment. However, in light of the decision of the Court of Appeal in DPP v Daniel Walters (a pseudonym),[20] where it was determined that the baseline sentencing provisions were incapable of being given practical operation, the parties appropriately accepted that these provisions have no practical application to the sentence I impose.
[20]DPP v Daniel Walters (a pseudonym) [2015] VSCA 303.
50I have considered the purposes of imposing a sentence set out in s5 of the Sentencing Act 1991. As indicated, I consider the paramount sentencing considerations in this case to be general deterrence, denunciation and just punishment. In sentencing you, my sentence must operate to deter others who may be inclined to sexually offend against children for whom they stand in the position of a parent and to clearly denounce this conduct.
51I have had regard to current sentencing practices and the authorities to which the prosecution referred me.[21] However, in those cases, unlike yours, the offenders were not being sentenced for an isolated instance of offending but rather offending over a protracted period or were course of conduct charges where the offender was sentenced on the basis the offending occurred on a regular basis over many years. In the event, it was difficult to ascertain current sentencing practices for a single instance of comparable offending.
[21]DPP v Charlie Tewksbury (a pseudonym) [2018] VSCA 38; James Pickford (a pseudonym) v the Queen [2019] VSCA 195.
52On your behalf, Mr Kelly submitted that a combination sentence of imprisonment followed by a community correction order would adequately meet the sentencing considerations to which I have referred. In my view however, the objective gravity of the crime of incest, albeit a less serious instance of this offence, warrants the imposition of a term of imprisonment.
Sentence
53Balancing all the factors to which I have referred, and guided by the maximum penalty for both offences, I sentence you as follows:
54On Charge 1 – indecent act – you are convicted and sentenced to six months’ imprisonment.
55On Charge 2 – incest – you are convicted and sentenced to three years’ imprisonment. This is the base sentence.
56The indecent act of touching Ms Casey between the breasts arose from the same incident and entitles you to a significant degree of concurrency. However it is appropriate there is some cumulation for this distinct offence, whilst taking into account the sentencing principle of totality. I order that two months of the sentence imposed on Charge 1 be served cumulatively upon Charge 2.
57This gives a total effective sentence of three years and two months’ imprisonment. I fix a non-parole period of two years as the minimum period you must serve before you become eligible for parole.
58I reckon 11 days as served pursuant to s18 of the Sentencing Act 1991.
59Mr Douglas, your offending attracts the provisions of the Sex Offender Registration Act 2004 (Vic). Pursuant to s34(3) of that Act, where two or more offences arise from the same incident, they are to be treated as a Class 1 offence where, as here, at least one of those offences is a Class 1 offence. The offences of incest is a Class 1 offence. Accordingly, you are a registrable offender and your reporting obligations under the Act will apply for 15 years. You will receive a document which details your reporting obligations under the Act and the consequences if you fail to observe those requirements. I do not require, in the circumstances, that you sign that document in court.
60One moment, Mr Douglas.
61Mr Devlin and Mr Kelly, are there any other matters?
62COUNSEL: No, Your Honour.
63HER HONOUR: Thank you. We will now adjourn court.
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