Director of Public Prosecutions v Eastwood (a pseudonym)

[2017] VCC 1739

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LINCOLN EASTWOOD (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	23 November 2017
CASE MAY BE CITED AS:	DPP v Eastwood (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1739

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 P. Triandos	The Office Of Public Prosecutions
For the Accused	Mr S. Kennedy	Tyler Tipping & Woods

HIS HONOUR:

1Lincoln Eastwood[1], you have pleaded guilty to three charges of an indecent act with a child under the age of 16 years.  Those crimes carry maximum penalties of ten years' imprisonment.  I am aware that Charge 3 is a representative charge, and is therefore not to be treated as in isolation.

[1] A pseudonym.

2You pleaded guilty to a settled indictment, and must get the benefit of that.  The matter was resolved in circumstances where there is, in my view, a significant utilitarian benefit.  The two girls would have been traumatised by a trial, and you have at least avoided the need for that.  Remorse might be more problematical in your situation, but I do take that into account.

3The offending is alleged to have occurred now some 15 years ago, so I also take into account delay.  You are now 50 years of age, and were around about 35 years of age at the time of the offending.  At that point, you did have prior convictions, but none of a sexual nature, and they are now something in the order of a quarter of a century old.  Accordingly, for these purposes, I do not regard you as having significant prior convictions.

4Because of the sentences that I am going to impose on Charge 3 you are to be sentenced as a serious sexual offender.  I am aware that community protection becomes the principal sentencing purpose, so the sentence on charge 3 is to be cumulative unless otherwise ordered, and I am not going to give a disproportionate sentence, because the Crown simply have not asked for one, and I would not have given one in any effect.  Because of the nature of the matter and because of the circumstances, I will be ordering partial cumulation.

5Because of the offending you will be placed on the Sex Offenders Register, and I must advise you that the reporting conditions will be for life.  If you could just go down with my associate, Mr Kennedy, while he acknowledges this?

6MR KENNEDY:  Thank you Your Honour.

7HIS HONOUR:  Yes.  All right, I direct that he is being sentenced as a serious sexual offender be placed in the court records.  A summary of the offending has been exhibited.  I will go through it in a degree of detail.

8The complainants, are your daughters.  The period of the alleged offending was between 2000 and 2002.  Victim 2 was between ten and 12 years, Victim 1 between five and seven years.  You were married to their mother, and separated in around August of 2000.  You had, in fact, three children together. 

9After separation, you had regular access to the children, and you were employed at that time on farms around the Gippsland area, milking cows as I recollect.  You had fortnightly, weekend access to the children until February 2002. 

10You commenced a relationship with another woman around the end of 2002 and then commenced another relationship with the victims’ mother, who died in 2011.  The charges, as they were described, firstly by Victim 1, which is Charges 1 and 2.  Victim 1 said that around the age of eight you were sexually harassing her, and when she and her brother would stay with you.

11On one occasion, you called her into your bedroom.  She got into bed with you, you pulled the blankets over you.  You were naked, put her hands on your penis, and said to her "Just tell me if you don't want me to do this to you".  She then pulled her hand away.  She said she did not say anything because she was too scared.  That gives rise to Charge 1 of indecent act.

12Charge 2 of indecent act involved another occasion where she was in bed and woke up feeling cold.  Her underwear had been removed, the blanket pulled down, and you were licking the outside of her vagina.  She was very scared.  When you noticed she was awake, you stopped and left the room.

13So far as Victim 2 is concerned, which is Charge 3, the representative one, she says that when she was about 12, and she made her VATE, as it was then, statement, she said that you had sexually abused her during access sleepovers. 

14She said on one occasion she had been sleeping on a mattress in the living room, and you had encouraged her to sleep without underwear.  She woke up in the middle of the night lying on her side, and you were lying behind her, pushing your groin repeatedly against her bottom and touching her groin area.  You were in effect "humping" her from behind.  That gives rise to Charge 3.

15There were three other similar incidents of you getting into bed with her and rubbing yourself against her in that way.  I do not need to detail those in this situation.

16In 2002, they disclosed the offending to their mother.  In her police statement, dated 2003, she said that they thought, basically, that you had been trying to have sex with them.  She decided not to report the allegations to police at that time.  She simply stopped access.

17In any event, there was then a situation with your subsequent partner, and then ultimately police became involved.  You were interviewed, denied the allegations, and were subsequently charged.  You then went through the committal process, and you ultimately resolved it, which as I have said already, is to your credit.

18The offending is serious, and calls for the application of general deterrence, specific deterrence in your case are probably problematic, because the situation - I will be somewhat stunned if anything like this ever happened again.

19The court does call for denunciation, of course, and appropriate punishment, and I have not got it with me, but there is Esposito and other decisions, Vincent J and others have said that sexual offending against your own children has to be treated very, very seriously by the courts indeed.  I will explain why in a moment.  I am not going to actively incarcerate you, but in the normal course of events, that would be the disposition.

20The victim impact statements are indicative of what this sort of offending does to children.  In Victim 1's statement, she describes what occurred, says that crime has made her feel more vulnerable, to feel a victim.  She says she has basically blocked out her childhood.  She says she is numb and disconnected from her feelings.  She says that the offending has caused her to have, she believes, low self-esteem and a lack of self-worth, which are typical consequences of this sort of conduct.

21Her sister Victim 2, who is the victim of the representative charge, goes into some more detail.  She says:

"After each incident, guilt and dirtiness covered me, and I would attempt to scrub it off in burning hot baths, but I could never get the feeling of his body parts off me.  As the abuse continued, I became withdrawn from friends and family.  I cried all the time, for I did not understand why this was happening, and I convinced myself to stay quiet to keep the family together for my brother and sister to keep their dad".

22Because at the time she thought you were good to them, she thought it was just her.  She went on to say:

"I became depressed and suicidal, which greatly affected my attendance at school, and my grades declined.  I struggled to make friends, and I developed fear and mistrust of males and authority figures, damaging the relationship with my stepfather.  I became reckless, began drinking and engaging in risky behaviours like promiscuous sex at the age of 14.  Many times I put myself in dangerous situations because I have little value for myself.  I feel as though I am damaged beyond repair. 

"My relationship with men has been affected.  I have trust issues, as well as areas on my body that cannot be touched, because it is where my father touched me.  The touch of a partner can easily trigger me, resulting in crying, shaking, and even vomiting.  These things have often led to the end of romantic relationships."

23That is what it does, Mr Eastwood, if you are listening.  It is why in the normal course of events I would lock you up.

24Insofar as you are concerned, I take into account that you are now 50.  You had three stepfathers, you went to nine different primary schools, you were sexually abused by an older brother.  At 13, you were in a town, you then went to another town.  You have another child with whom you have had no contact.  Over the years you have been itinerant, you have had various jobs, basically milking cows.  You have described the relationship that you have had with the victims’ mother, and that is about the end of it.

25Insofar as your health is concerned, it seems to me it is the major factor in all this.  You pleaded quite some time ago now, and for the most of that period of time, you have been too ill to be sentenced.  Tendered have been a number of medical reports, and I think they can be dealt with relatively simply. 

26The fact of the matter is you have severe emphysema.  You have Hepatitis-C.  You have over the last year suffered massive weight loss, which is visible to anybody who looks at you.  The doctors have no doubt that incarceration would result in a serious and probably precipitous decline in your house, that you are seriously incapacitated, and that you are losing condition.

27You also have a condition known as Marfan Syndrome, and it is said that the clinical diagnosis is met for that.  That is a condition which affects the connective tissue in the body involving a number of different systems, particularly the heart and musculoskeletal systems, though at the current size can cause separation of the heart, and can cause lung collapse, and in your situation it has.  There is the risk of serious medical complications, including that an aortic dissection is very low.  It is important that you continue to receive specialist review. 

28Those matters have had you hospitalised on a number of occasions in recent times, and I am going to have to take all that into account. 

29You suffer chronic pain from past pneumothorax treatment, and indeed have had four collapsed lungs since we last appeared in court. 

30I have the medical reports, which confirms that those concerns are correct, and that incarceration would be dangerous to your physical health.  I think they would have great difficulty looking after you in a custodial environment.

31Secondly, I think the prospects of rehabilitation is problematic.  The risk of you reoffending I would find would have to be low, bearing in mind your age and your medical condition, and the situational aspects of how all this came about.

32In the end, despite all that, I am of the view that a custodial sentence is, and remains, appropriate.  However, in all those circumstances, it is a situation where the length of the sentence enables me, and I think as a matter of justice, I should wholly-suspend it. 

33Accordingly, on Charge 1 you are sentenced to be imprisoned for a period of three months. 

34On Charge 2, six months, and they are to be concurrent with each other.

35On Charge 3, you are sentenced to be imprisoned for a period of 12 months.  I direct that three months of the six months be served cumulatively on the 12th, which gives a sentence of 15 months.  I direct that that be wholly suspended for a period of two years, and I say to you that should you breach that suspended sentence with this sort of offending, it will be wholly-imposed, and if that did occur, you would quite clearly die in gaol, I cannot put it any more simply than that, Mr Eastwood.

36All right.

37MR KENNEDY:  Thank you Your Honour.

38HIS HONOUR:  Yes, we will just adjourn.

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