Director of Public Prosecutions v EC
[2013] VCC 1168
•21/08/2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EC |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Ballarat | |
DATE OF HEARING: | 16/08/2013 | |
DATE OF SENTENCE: | 21/08/2013 | |
CASE MAY BE CITED AS: | DPP v EC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1168 | |
REASONS FOR SENTENCE
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Subject: Plea – sentencing
Catchwords: Incest
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:
Sentence: 7 years' imprisonment, minimum term 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr T. Lavery Mr J. Harper | Jeremy Harper & Associates |
HIS HONOUR:
1 I indicate at the outset that in the interests of privacy, in particular for the victim and her family and in accordance with current County Court practice, in the edited version of this sentence and sentencing remarks, the references to the names of all the parties will be anonymised.
2 EC, you have pleaded guilty to nine charges of committing an indecent act with a child under the age of 16 and two charges of sexual penetration of a child under the age of 16.
- Indecent act with a child under the age of 16 carries a maximum penalty of 10 years’ imprisonment.
- Sexual penetration of a child under the age of 16 in the present circumstances carries a maximum penalty of 15 years’ imprisonment when the child was under the care, supervision or authority of the offender, as is the case here.
3 A more detailed summary of your offending has been set out in the prosecution opening, exhibited on your plea as Exhibit A. I do not intend to recite the particulars in detail. The factual circumstances were accepted by your counsel as accurate for the purposes of sentencing and I accept and incorporate those details into these sentencing remarks.
4 In summary, the victim was your step-granddaughter. The victim's mother, AR, is the daughter of EC. You and EC married on 23 February 1997. AR relied on EC and you to babysit the victim on a regular basis including having the victim stay overnight in the house owned by both you and EC.
5 The victim's mother made arrangements for the victim's grandmother, EC, and you to care for the victim while she and her husband were working. EC would also ring up on occasions and ask if the victim could come for a sleepover. AR did not always know when EC was working, which would leave the victim to be cared for alone by you. The care usually involved overnight stays and weekend stays. When the victim got older, the victim would make contact with EC and organise to come and stay for a night.
6 From the age of 7 to the age of 16 years, the victim was sexually abused by you. You participated in acts of sexual penetration and acts of indecency with her.
7 Between 19 December 2003 and 25 October 2004, when the victim was aged 7, you committed various acts of indecency with her. These included touching her on the vagina with your finger whilst in the shower, making her wash you, licking her on the vagina, getting her to wash your penis until erection and ejaculation and touching her on the breast area whilst in bed with her. These acts are represented by Charges 1, 2, 3 and 4 and are representative charges themselves of other uncharged acts.
8 Between 1 January 2007 and 30 December 2010, when the victim was aged between 10 and 14, your acts with the victim included showing her pornographic videos, touching her breasts, kissing her breasts, getting her to masturbate your penis, licking her vagina, touching her on the vagina with your finger and penetrating her vagina with your finger. These acts are represented by Charges 5, 6, 7, 8 and 9 and again are representative acts of further uncharged acts.
9 Between 26 October 2010 and 25 October 2012, when the victim was aged between 14 and 15, your acts again involved inserting your fingers into her vagina and her masturbating you. These acts are represented by Charges 10 and 11.
10 The first person that the victim told about these offences was her friend. This happened in November 2012. That same day the victim told her mother.
11 On 16 January 2013 the victim confronted you with the allegations of sexual abuse in front of her mother and father. You made immediate admissions.
12 You were interviewed by police on 17 January 2013 and made full admissions of acts of sexual penetration and indecent acts. You admitted to possessing and showing the victim pornographic videos. You admitted to occasions of sexual conduct between yourself and the victim beyond those which she had described.
13 You stated that when the victim was between 12 and 15 years old the following scenario would occur:
§ The victim would be at your house for a sleepover.
§ It would be late at night.
§ A pornographic movie would be played on the TV by you in the lounge room.
§ The victim would be in the lounge room with you.
§ The victim would say "Do you want to have a play?"
§ You would say "Yes."
§ You would go over to the victim and touch her on the vagina, including sexually penetrating her vagina with your fingers.
§ You would continue to do this until she had an orgasm.
§ Then the victim would say words to the effect of, "Let me do it to you now". The victim would then touch you on the penis and move her hand up and down until you ejaculated.
14 You admitted that this sexual penetration of the victim's vagina with your fingers and the indecent act of causing the victim to touch your penis with her hands occurred five, six or seven times when she was 12 years old, five, six or seven times when she was 13 years old, four or five times when she was 14 years old and four or five times when she was 15 years old. You asserted that the victim was compliant and complicit in the conduct and on occasions instigated it. You also admitted that on occasions you offered her money for various acts.
15 Charges 8 and 10 are representative charges of the sexual penetrations referred to by the victim and admitted by you.
16 Charges 1, 2, 3, 4, 5, 6, 7, 9 and 11 are representative of the indecent acts referred to by the complainant and admitted by you.
17 You are aged 66, having been born on 2 January 1947. During the period of the offending you were aged from 55 to 65.
18 I now turn to your personal circumstances.
19 You have no criminal record and you are now retired.
20 You had a disrupted early life. Your father was an alcoholic and your parents separated when you were aged around eight. Your mother became involved with another partner whom you have described as a drunk and you witnessed episodes of domestic violence. You lived with your father for a couple of years until you were 17. Unfortunately your father died of alcoholism and throat cancer when you were 18.
21 Your schooling was interrupted by frequent time away from school, accompanying your father to the Peter McCallum cancer care centre. You left partway through sub-intermediate when you were 14 and commenced work. Thereafter you have maintained stable employment throughout your life, sometimes working two jobs. You worked for a Ballarat company as a spray painter for 34 years, retiring in 2012.
22 You have two adult sons from a first marriage but you no longer have any contact with them. You married your current partner, the victim's grandmother, in 1997. You have had no children together. Because of the circumstances of the current offending you and your wife have now separated, and you have recently transferred your share of a jointly owned property to your wife as well as a cash sum, reflecting the possibility of divorce and also her care whilst you are in what you accept is inevitable custody.
23 Two reports were tendered from Mr Jeffrey Cummins, a clinical psychologist. Mr Cummins first noted that you were tending to rationalise, minimise and deny the level of sexual exploitation, believing that your behaviour was somehow made more legitimate by what you perceived as the victim's cooperation. Significantly, you have not been assessed as suffering any mental health or personality disability or any condition of general paedophilia.
24
Subsequent to Mr Cummins' initial assessment you have attended further consultations, including some in the company of your estranged wife.
Mr Cummins reports that through counselling you have begun to develop victim empathy, express remorse concerning your offending and accept the gross breach of trust in which you engaged. You have come to more readily accept your responsibility in the offending.
25 Mr Cummins further confirms his initial view that your risk of re-offending is low and that you will be responsive to rehabilitative courses which will be available whilst you are in custody.
26 Despite your previous good character in other respects in your life, your behaviour towards the victim was appalling. She was a very young child when you first began to abuse her and you were in a trusted place as her step-grandfather. You breached not only that trust but also the more practical trusted place as a carer for her whilst her parents either worked or allowed the victim to stay with you for a sleepover. Your breach was to exploit fragile child and adolescent vulnerability for your own selfish sexual gratification and as a result a young woman has had her normal childhood development manipulated and her early sexual experiences wickedly distorted.
27 Your offending is compounded by the young age at which the offending began, by the regularity with which it occurred and by the extended period of years over which it continued. Over a period of eight years encompassing the ages of 7 to 15, you perpetrated this abusive activity. In my view it is aggravated also by the production on regular occasions of pornographic video material.
28 The absolute prohibition on sexual activity with a child under the age of 16 protects children from the harms which premature sexuality causes, thereby protecting children from their own immaturity. The absolute prohibition presumes that sexual activity which occurs before children reach an age at which they can give meaningful consent causes them harm which is longlasting and serious and may manifest itself both in physical and psychological forms. Therefore harm is presumed, irrespective of whether a child consents. It is absolutely no excuse or mitigatory element that a child may appear compliant, complicit or even an initiator of sexual conduct. A child is just that. They are vulnerable and need to be protected.
29 The victim impact statement prepared by your victim and tendered at your plea provides eloquent affirmation of the sense of those principles and the damage that can be wrought. The guilt, shame and self loathing, and the long maintenance of secrecy, has caused anxiety, self harm, panic attacks, suicide ideation and unhappiness. The victim's parents are themselves victims, experiencing sadness and self blame for themselves, and anguish and anxiety at observing the effects on their daughter.
30 The very unfortunate fact is that sexual offences against children are not uncommon in our community, and are often committed within families and often by offenders who are otherwise law-abiding citizens of otherwise apparent excellent character. The principle of general deterrence, which intends to make an example of the current offender in order to deter others, assumes importance in the sentencing balance. Principles of denunciation, punishment and specific deterrence also require appropriate emphasis.
31 In mitigation, I accept that you have no convictions for any previous or other offending, and are a person of otherwise good character. The character reports tendered speak well of your general reputation in the community. Furthermore, you have otherwise been a loving and caring husband and the hardship and sorrow which you have now placed upon your now estranged wife is a source of great sadness and anxiety to you.
32 I also take into account the matters urged upon me by your counsel including:
§ your age at 66 which will mean that time spent in custody is likely to be more burdensome for you than for a younger person;
§ your complete cooperation with the police investigation which resulted in immediate admissions and the confession to further instances of abuse which had not been previously articulated by the victim;
§ your plea of guilty and the very early stage at which it was indicated;
§ your disrupted early life which may have impacted on your own balanced development through the absence of an appropriately nurturing father;
§ that any sentence of imprisonment, however short, is a severe punishment upon a person of previous good character and who has no previous experience of incarceration; and
§ your remorse for your conduct upon the victim which you have finally been able to feel and express after psychological counselling and, in particular, your letter of apology which I accept is heartfelt and genuine.
33 In all the circumstances, as was readily and realistically conceded by your counsel, the purposes for which the sentence is imposed in this case cannot be achieved without your confinement to prison and for a significant term. In constructing your sentence I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances, and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and re-integrated into society.
34 Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offence charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
35 This means that the sentencing task in respect of Charges 3 to 11 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed and to achieve that purpose sentences may be imposed longer than that which are proportionate to the gravity of the offences considered in the light of their objective circumstances.
36 However, because of the circumstances and mitigating factors in your case I do not propose to do so. In particular I have had regard to the fact that your offending was situational to your family circumstances, you are not a general paedophilic risk to the public, your age, the extent of the admissions you made, and the need not to impose what otherwise might be a crushing sentence.
37 Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charges 3 to 11 the sentences I impose are to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered.
38 I note here that the prosecution did not call for a disproportionate sentence as contemplated by s.6D of the Sentencing Act.
39 In balancing the sentencing considerations I have arrived at a total effective sentence slightly less than that submitted as appropriate to the bottom range in the prosecution submission. I have done that to give full consideration to the mitigating circumstances and in particular of your immediate acknowledgment of your offending and full admissions to the police. In my experience this is a factor which goes very far in assisting the recovery from psychological trauma to victims.
40 EC, could you please stand.
41 On Charges 8 and 10 of sexual penetration of a child under 16, you are convicted and sentenced to 3 years’ imprisonment.
42 On Charges 1, 2, 3 and 4 of indecent act with a child under 16 when the victim was seven years of age, you are convicted and sentenced to 2 and a half years’ imprisonment.
43 On Charges 5, 6, 7, 9 and 11 of indecent act with a child under the age of 16 when the victim was aged between 10 and 15, you are convicted and sentenced to 2 years’ imprisonment.
44 Charge 8 is the base sentence.
45 I direct that 2 years of the sentence imposed on Charge 10 and 6 months of each of the sentences imposed on Charges 2, 3, 5 and 6 be served cumulatively on Charge 8 and upon each other.
46 The total effective sentence is 7 years’ imprisonment.
47 I further direct that you serve a minimum term of 5 years’ imprisonment before being eligible for parole.
48 I also direct, pursuant to s.6F of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of Charges 3 to 11 as a serious sexual offender within the meaning of that Act.
49 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 5 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
50 Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty the total effective sentence over all charges that would have been imposed is 9 years’ imprisonment with a minimum period of 7 years to be served before eligibility for parole.
51 There is a further matter to which I also need to attend, you may take a seat for the moment while I articulate this. The offences of which you have been found guilty are registrable offences pursuant to the provisions of the Victorian Sex Offenders Registration Act 2004. By reason of your being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act. As required by s.5(2BC) of the Victorian Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today. In other words the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
52
I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of the reporting period, which in your case is for life. My associate will shortly hand to you the Notification of Reporting Obligations which I have already signed. Your representative in court will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notification form and to return the Acknowledgment to my associate.
53 At the plea hearing the Crown sought an order for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order was unopposed and the making of the order is in the public interest. I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, EC?
54 PRISONER: Yes sir.
55 HIS HONOUR: At the plea hearing the Crown also sought a forfeiture order as to the pornography material, which you also did not oppose, and I have also made that order today. I will just ask now that the appropriate forms for the sex offenders registration can be passed to you by your practitioner. All done? Gentlemen, is there any further - - -
56 MR O'DOHERTY: No Your Honour.
57 HIS HONOUR: Do you need any further time to check those cumulations or anything? All right, thank you. I will just leave the bench now while the next matter is prepared, thank you.
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