Director of Public Prosecutions v Edmonds (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT WODONGA
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

ANDREW EDMONDS (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Wodonga
DATE OF HEARING:	31 July 2019
DATE OF SENTENCE:	21 August 2019
CASE MAY BE CITED AS:	DPP v Edmonds (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1320

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

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Moore	Office of Public Prosecutions
For the Accused	Ms A. Burnnard	Sally Wilson

HIS HONOUR:

Andrew Colin Edmonds[1], you have pleaded guilty to:
·sexual assault of a child under the age of 16 years. The maximum penalty for this offence is 10 years' imprisonment;
·sexual penetration of a child under the age of 16 years. The maximum penalty for this offence is 15 years' imprisonment.
[1] A pseudonym
The first charge is a representative charge taking into account two occasions.
I must have regard to the fact that the standard sentence scheme applies to these charges and in imposing sentences upon you. I shall return to the operation of that scheme later in these sentencing remarks.
You have no prior convictions.
The prosecution tendered the amended summary prosecution opening as Exhibit A. A brief summary of your offending is as follows.
You have been in a relationship with Melissa Edmonds[2] since late 1999. Ms Edmonds has five children from her previous relationship. Since late 2012 you and Ms Edmonds were granted guardianship by the Family Court of Australia of three grandchildren; including the complainant in this matter Abby Torpy[3].
[2] A pseudonym
[3] A pseudonym
Abby Torpy was born in June 2005. She was 12 years old at the time of your offending. In addition to being your grandchild (by marriage), she was quite clearly in your care as you had been granted guardianship. Moreover, Ms Torpy has a mild intellectual disability.
The charges to which you have pleaded occurred over two days (but the Crown concedes within a 24-hour period) on the weekend of 26 / 27 May 2018. In that time, the following occurred:
You were at home with Abby whilst your wife and the younger girls went shopping in Wodonga. The conversation between you and Abby turned to 'how babies are made'.

In your record of interview, you told police the conversation then turned when Abby stated that her pubic hair stuck out of her underpants. You offered to trim her pubic hair. You told her to pull her pants down which she did. You then shaved her pubic hair.
The following day your wife again left the house with the other grandchildren to visit her son, again, you are left at home alone with Abby. Abby said that she was 'itchy'. You both again went into the kitchen, she pulled down her pants and sat on a chair and you again shaved the pubic area using a different razor. The two occasions of shaving the victim’s pubic area constitute Charge 1.
After this you went with the victim into the bedroom she pulled down her pants and lay on the bed. You took out a silver vibrator, put batteries in it, placed a lubricant on the vibrator and turned it on. You gave the vibrator to the victim. She placed it between the lips of her vagina as you watched.
The following day, the victim complained to the school educational support worker about your offending. She was examined by a paediatrician who observed the recent shaving and bruising to the victim’s labia; consistent with attempted penetration with the vibrator.
You were interviewed by police on 28 May 2018. You made admissions to all of the offending. You told police that the victim complained about her pubic hair and indicated she could not shave it off so you offered to trim it for her. He claimed on the second occasion that you were 'conned' into doing it for her again. You agreed that giving the victim the vibrator was inappropriate but then said to police inexplicably, that you 'thought it might have helped her'.
I accept however that you identified the inappropriateness of your behaviour to your wife before attending at the police station and also in your answers to police. In this respect, I accept that you demonstrated early insight into the wrongfulness of your behaviour.
You have spent a total of 21 days excluding today in pre-sentence detention.
I turn now to a consideration of the standard sentencing scheme:
·The scheme provides for a standard sentence of four years on Charge 1 and six years on Charge 2;
·The standard sentence takes account only of the objective factors affecting the seriousness of the offence in question and is marked as the middle range of seriousness for that offence;
·Objective factors exclude consideration of matters personal to you as an offender or to a class of offenders. Rather it is determined wholly by reference to the nature of the offending;
·
In determining the appropriate sentences for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing.

In this way, it is an additional factor to consider in the sentencing process;
·Furthermore I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences; and
·This does not limit the matters which I must or may take into account in determining the appropriate sentence. Nor is it intended to affect what is known as the instinctive synthesis process. The standard sentencing scheme may be considered as a guidepost in the sentencing consideration. However it is neither determinative nor a starting point from which I must simply remain, go up or go down in my sentencing consideration.
I now turn to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
The offences of sexual assault against a child under the age of 16 and the sexual penetration of a child under 16 are both of their nature serious offences. This is marked by the maximum penalties of imprisonment applicable to both crimes. It must however be observed that in particular, the crime of sexual assault may be committed in a wide variety of circumstances.
The crimes to which you have pleaded guilty are serious examples of these types of offending. Before I turn to consider the nature of the acts themselves, I say that your offending is made serious by the circumstances in which the offences were committed:
·First, you were not only the victim’s grandfather but also her legal guardian by court order. Your actions were the moral and legal antithesis of your overwhelming duty to protect, nurture and care for this child;
·Second, her age made her particularly vulnerable. As a child enters the age of emerging sexual awareness the duty of a grandparent/guardian never waivers; and;
·Third, her mild intellectual disability provides a further reason why you as a guardian must provide that care, nurture and protection.
This matter was adjourned to enable Abby to read her Victim Impact Statement to the court. Ultimately, it was read by Mr Moore. It was important and remains important for her to feel part of this process. It is apparent that your offending has had a profound effect on the victim and her mother, as well as upon your wider family circle and indeed upon the wider community in which you live. Returning however to Abby, I note the fact that she and her mother have moved far away from their lifelong local area, home and family. The courage and tenacity of Abby in wanting to be present and part of the court process must be acknowledged. I note the impact of your offending on this young teenaged girl.
In these matters, your actions represent a gross and egregious breach of trust.
It was submitted on your behalf that there is no evidence that you acted for your sexual gratification. In the first instance you stated that you were helping out the victim because she complained her pubic hair was sticking out of her underpants. Thereafter, you stated that you were trying to help out the victim. Later you stated that you do not know why you did it. Quite frankly your explanations to police of helping the victim are just unbelievable.
Ultimately, I assess your actions in shaving your granddaughter’s pubic area as a serious form of sexual assault on this child. Your so-called 'offer to help' put you in visual and physical proximity to her vagina for a period of time under the guise of helping her. It required a measure of touching and looking at her exposed genital area, but under the guise of doing what she wished. This is a devious and deceitful form of this crime.
As for the second charge, although you did not physically penetrate your granddaughter yourself, you entirely facilitated and watched as she placed the vibrator between her vaginal lips. Although Dr Rechtmann referred to it as an attempted penetration, there was penetration within the meaning of the law. Moreover this was evidenced by the petechial bruising to her vaginal lips.
Your moral culpability and responsibility for these crimes is high. I do not accept as an adult, grandfather and legal guardian, that you were somehow 'conned' into these actions by your 12-year-old granddaughter with a mild intellectual disability.

The bonds of family and the boundaries around these issues must remain strong.

It is the obligation of every adult to guide children in their care; never to take advantage of their inexperience, age, curiosities, naïveté or frailties.
Your actions deserve the disgust, abhorrence and denunciation of all right minded members of the community. Your crimes must be met by principles of deterrence and denunciation.
I turn now to your personal circumstances.
You are 64 years of age and were born in October 1954. You were 63 at the time of the offending.
You were brought up in Corryong where your parents worked on the family dairy farm. You were one of eight siblings. Two siblings have now died and you have only limited contact with two of your remaining siblings.
You were educated to Year 10 Corryong High and commenced work on your

16th birthday. You have had a long and varied work history; commencing work at a furniture store then moving to droving, cattle work, labouring, sawmilling, logging, truck driving, farming, concreting, earthmoving, hay contracting and then finishing your working life by purchasing a property which you planted with almond trees. In the course of your working life you have been severely injured on two occasions. In the first instance you lost part of your right hand in a sawmilling accident. Then, in 1995 the left leg below the knee was amputated after a log fell off a truck you were driving.
You currently suffer Type 2 diabetes, hypertension & gastric reflux. You’ve had severe back pain which has since settled in recent times. Your counsel submitted that you did not want to submit that your time in custody would be made more onerous by your ill-health.
Until your offending, you had been regarded as a good partner to your wife Melissa, guardian to your grandchildren and contributor in your local community. You have been in a relationship with Melissa since 1999 and you and Melissa have cared for three of her grandchildren since 2010.
You are known for your contribution to the local community. Since this offending you have lost all community positions and your reputation and trust.
The references tendered on your behalf speak of the previous regard and esteem in which you are held and of your referees’ shock and disbelief at the nature of your offending. Further, you have been unable to live at home and you’ve been required to live with your son. When you were living with your son, you had to move out and live with your sister on the occasions that your son has custody of his children. You have been forcibly separated from your wife. I was told that you have some limited contact with her. In any event, it is clear that your actions in that 24-hour period have caused you to be shunned and isolated from your wife, family and local community; perhaps for the rest of your life.
On your behalf, Ms Burnnard submitted the following factors should be taken into account in mitigating your sentence:
·First, the plea of guilty in this case was made at the earliest opportunity. In combination with your admissions to your wife and expressions of insight to the police in the record of interview conducted shortly after your offending, the plea of guilty has not only utilitarian value but also should be taken as an expression of remorse;
·Furthermore, your shame and remorse is expressed in the references provided to me;
·You have no prior matters and nothing outstanding;
·You have good prospects for your rehabilitation; and
·You are realistic and realise that a period of immediate imprisonment must be served.
Ms Burnnard submitted that I should conclude your offending was not premeditated; that there was no evidence of any sexual gratification gained on your part and, whilst the breach of trust was conceded, and whilst the offending was no doubt serious, the objective gravity of the sexual penetration charge was not at the highest level.
Ms Burnnard submitted that by reference to the cases of Moulder and of Greene,

I should conclude (for the purpose of determining scale of your offending) that it was in the low range or low to midlevel of seriousness.
Mr Moore on behalf of the Crown submitted that while you did not overtly evidence sexual gratification, it was impossible to find any other motive for your offending. Furthermore, although the Crown conceded that the physical acts were relatively low on the scale of seriousness, the three factors to which I have made reference put your offending in the mid-range.
I have considered the cases to which Ms Burnnard has referred. Ultimately however I must form my own view as to the seriousness of your offending and take into account the matters personal to you.
The significance of the representative charge to which you pleaded guilty is twofold. First, it may operate to deny you leniency that might otherwise result from the offence being an isolated act. Secondly, it may be used to put the offence in context. It should not be used to impose a disproportionate sentence in respect to the offence and it does not stand as an aggravating factor. Accordingly, I take those factors into account in sentencing you on Charge 1.
Taking into account only the objective factors in determining the seriousness of your offending, I consider that your offending in respect to both Charge 1 (being a representative charge) and Charge 2 fall just below the mid-range of seriousness when I assess all of the circumstances. Whilst I consider that the physical acts which attend both charges are relatively low on the scale of seriousness, I consider the offences are made more serious by the offences having occurred in the context of the family relationship whilst the young girl was in your care as her guardian. This represents a significant breach of trust. These factors are compounded by her age and your awareness of her mild intellectual disability.
On Charge 2, you are convicted and sentenced to three years and nine months' imprisonment. On Charge 1, you are convicted and sentenced to two years and six months' imprisonment. I order that 12 months of the sentence on Charge 1 be served cumulatively. The total effective sentence is therefore one of four years and nine months' imprisonment. I order that you serve a non-parole period of two years and 10 months before you are eligible for release on parole.
I declare the period of 21 days' pre-sentence detention reckoned as already served.
I am required by s.5(b)(5) of the Sentencing Act to refer to the standard sentence for the offence and explain how the sentence imposed by it relates to the standard sentence. I have considered the relevant standard sentence as one of the sentencing factors in my instinctive synthesis but it has not assumed a dominant or determinative significance.
The overall sentence I impose is lower on each charge than the standard sentence for each of these offences. After considering all of the objective factors surrounding the offending, I have formed the view that the objective gravity of both offences was overall lower than the mid-range of sentences for these types of offences.
As a consequence of your conviction on these charges, the provisions of the Sex Offender Registration Act are enlivened. As I have previously adverted to, although these offences occurred on two different days, I cannot be satisfied that they occurred outside a 24 hour period. As such, pursuant to the combined operation of s.5 and s.34 of the Sex Offenders Registration Act, the mandatory registration period is 15 years.
The s.6AAA declaration is but for the pleas of guilty, I would have imposed a sentence of six and a half years with four years and three months to serve.
- - -

[2019] VCC 1320

21 August 2019