Director of Public Prosecutions v Erickson (a pseudonym)

[2016] VCC 1652

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

OWEN ERICKSON (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	2 November 2016
CASE MAY BE CITED AS:	DPP v Erickson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1652

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	Ms A. Hassan	Office of Public Prosecutions
For the Offender	Mr M. Reardon	Victorian Legal Aid

HIS HONOUR: 

1Owen Erickson,[1] you have pleaded guilty to six charges of incest and one charge of indecent assault, those crimes carries maximum penalties of 25 years and ten years respectively.

[1] A pseudonym.

2The charges are not representative, but as part of the plea material put before me were accepted allegations of what used to be described as uncharged acts, I simply viewed each of the charges as not being in isolation on that basis, though not as representative charges or rolled up charges.

3You are now 41 years of age, you pleaded guilty at a reasonably early opportunity and you must get the utilitarian benefit of that plea of guilty.  I accept that ultimately there is appropriate remorse though there was obviously denial at the time of interview.

4You have avoided the need for a trial which would have been a very traumatic experience indeed, if what has happened already is not traumatic enough for both your daughter and for your wife.  You do have prior findings of guilt in courts, but they are not of significance in this matter.

5Because of the sentences I will be imposing from Charge 3 on you will be sentenced as a serious sexual offender.  The Crown do not seek a disproportionate sentence and I would not have given one in any event.  I am aware that community protection becomes a principle sentencing purpose, though I suspect in your situation specific deterrence does not play a large part.  I am aware that the sentences are to be served cumulatively unless otherwise ordered and in this situation totality demands that there be very significant concurrency between them.

6You, I am assuming will undergo the sentence in protection although no submissions were made in that respect and I take that into account in the sentencing exercise that I now embark upon.

7Firstly, pursuant to s.464Z of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.  That order is made and handed down.

8Secondly, pursuant to the Sex Offenders Registration legislation you will be placed on the sex offender's register and I advise you that the reporting period will be for life.  That documentation will now be given to you.  If you could accompany my Associate please, Mr Reardon.  You just go down there with her, thank you.

9I now turn to a summary of the offending.  I commence it by summarising your responses when apprehended and interviewed by police in relation to this matter.  It is clear that the offending went on for a period of something in excess of two years, commencing not long after your daughter's 16th birthday.  When you were arrested by police and interviewed you claimed that the relationship did exist but had only happened over the last five months or so since she had turned 18.  You conceded that you would lick her vagina and she would suck your penis.  You denied there had been any penetration.  You said that on the last occasion, this is the one we are coming which your wife saw, you were giving your daughter "oral pleasure."

10You further claimed that in late 2015 after she had finished school and prior to her going overseas that she had taken off your pants and sucked on your penis.  You denied that you forced her stating that she had asked you to "play or muck around" and you did so because you "love" your daughter.  You claimed that she had asked you about sexual experience and on the first occasion that she had rubbed your penis and you touched her breasts but denied that you had penetrated her with a finger.  In the end you admitted that you had penetrated your daughter orally no more than ten times and claimed you performed oral sex on her no more than ten times.  You told police that you thought you and daughter had a "loving relationship."

11You went onto claim to police that you really loved your daughter and that your feelings towards her were different to how you feel about your other children and that your feelings for your daughter were stronger than what you felt for your wife.  You denied that you penetrated her vagina with your tongue, fingers or penis saying, "It's not true, it didn’t happen."  You further claimed that you asked her to have sex of that nature but she said no.  You denied that you had inserted a carrot into her vagina saying, "It makes me feel sick."

12They were your responses to police when confronted with the then allegations and now facts that I am about to summarise.

13You, as I have indicated, are now 41 years of age.  I might indicate also that I will be anonymising this later.  Often I do it as I go through but in this situation I do not propose to do that.  You are the father of Dorinda Erickson.[2] Your ex-partner is Caleigh Erickson.[3]  Dorinda is the oldest of five children.  At the time of the offending the family was living in your hometown.

[2] A pseudonym.

[3] A pseudonym.

14The offending, as I have indicated, spanned a period from September 2013 through to the end of the December 2015.  As I say that puts her between the ages of 16 years through to 18 years and a few months.

15This offending ended when your then wife, and Dorinda's mother, walked in and caught you sexually penetrating her with your tongue.  The offences included indecent assaults of touching breasts, vagina, oral penetration on you, oral penetration on her, digital penetration, penile/vaginal penetration and the vaginal penetration with an object.  The charges here particularise four separate incidents, however she has indicated, and it is not disputed, that you had sexually assaulted her on up to two or three occasions a week over the course of the two years.  As I have indicated they are not representative charges and I am aware of that but in these circumstances they certainly cannot be regarded as isolated or in any way, shape or form out of the blue.  It was persistent offending over an extended period of time.

16The first incident that she describes occurred in September of 2013 just after her 16th birthday.  On that occasion you entered her bedroom and began talking about having a sexual relationship with her, how you did not want others having sex with her and that she should have sex with you as your body should be attached to a younger woman.  You told her not to tell her mother.  You then left the room.  You returned shortly afterwards and sat on the bed next to her.  You then put your hands under her clothes and unhooked her bra.  You then began to play with her breasts.  You then reached down under her skirt, under her underpants and started to rub her vagina and clitoris and then started rubbing your finger inside her vaginal lips and did this for several minutes.  That gives rise to Charge 1 of incest.

17You then revealed your erect penis, grabbed the back of her head and forced your penis into her mouth making her suck it.  That continued until you ejaculated in her mouth.  You then left the bedroom.  That as I understand the material here was her first sexual experience that occurred in extraordinary, almost unbelievable circumstances and in circumstances in my view of degradation.

18The next incident that is described is between 1 November 2013 and 30 November 2013, approximately two months later.  On that occasion you again entered her bedroom and took off her clothes.  You then took off all your clothes.  You began to play with her breasts while you inserted your finger in and out of her vagina.  You then pulled her up so that she was facing your penis and while you continued to insert your finger into her vagina you made her suck your penis. That gives rise to Charge 4 of incest.  You then forcibly picked her up from the bed and put her onto your lap facing towards you.  You then inserted your penis into her vagina, which is Charge 3 of incest.

19She found the experience incredibly painful and started to cry.  Despite that you continued to penetrate her vagina with your penis stopping for a short time with your penis inside her vagina.  You then continued to insert it in and out of her vagina when she was asking you to stop, but you refused.  You began to thrust faster and faster, then ejaculated inside her vagina.  You then withdrew your penis, got dressed and left the room.  It was put in the plea that these crimes did not involve violence.  I am well aware of what is in Dalgliesh.  In my view they quite clearly did.

20The first two occasions that have been described here involve the forcing of your natural daughter, as I said in the most inconceivable circumstances, to participate in such acts.

21The next incident is described as around the middle of July 2014.  She was unwell and lying on her bed.  You entered the bedroom carrying a carrot and a massaging device with a disc attachment.  You pulled her pyjama pants and underpants off.  You then put the massaging disc on her exposed vagina and left it there for a minute or so.  That is Charge 6 of indecent assault.

22You then removed the massaging disc, rubbed the carrot on her clitoris before inserting it into her vagina which is Charge 5 of incest.  She says that approximately for the next 30 minutes you alternated between using the massaging disc on her vagina and inserting the carrot into her vagina.  Once you had finished you left the room taking the massager and carrot with you.  I think the nature of that crime just simply speaks for itself.  I do not have to say anything more about it.

23The fourth and final incident that is particularised occurred when she had shifted out into a bungalow of her own.  By that stage she was 18.  She had been putting up some curtains in her bedroom when you walked in.  You told her to sit on the end of the bed and then removed her shorts and underpants leaving her naked from the waist down.  You then spread her legs and started to lick her vagina, repeatedly inserting your tongue into her vagina.  You began to reach for your penis but at that moment her mother entered the room.  You jumped up saying, "Sorry, sorry" over and over again.  Her mother began yelling at you telling you to leave the room, which you did and you were then told to leave the premises.

24It would appear that there was contact after that.  I do not need to go through the details of it.  You were ultimately arrested in the middle of February of 2016 once your daughter was able to make the decision to report it to police.  Your response to these dreadful allegations is the response that I have already read out.

25The situation is that the circumstances of the offending are very serious indeed.  It is always difficult to place gradations on offending of this sort, the very nature of it tends to make that difficult.  The penetration and sexual degradation of one's natural daughter a lot of people find almost inconceivable.  It clearly calls for the application of general deterrence.  Specific, I accept the situation will be unlikely to occur again.  It certainly calls for denunciation and it calls for an appropriate punishment.

26In the decision of Dalgliesh, which I am not going to refer to other than to say it has matters contained within it which I completely agree with and have for an extended period of time.  I refer to the decision of Marks J as he then was way back in 1993 in a case of Sposito where he said;

"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.  The offence of incest is particularly erosive of human relations and casts doubts upon the assumption that parents are the natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and the irreparable fundamental damage to the victim."

27This case fits precisely in with what His Honour said way back in 1993.  Tendered in the matter were two victim impact statements and, as I have already indicated at the conclusion of the mother reading her victim impact statement, it was an extremely articulate and erudite explanation of the consequences of offending of this sort.  If there was some way known that it could be in an anonymous way published I think it would be a benefit to the community in a number of ways.

28I will deal firstly with the victim impact statement of your daughter.  This of course started when she was 16 years of age.  She said that she felt disgusted by what you were doing to her.  She was unsure about what was going on at first.  She, as many children in this situation do, thought that maybe that is what dads do.  As it got worse she definitely knew it was wrong.  She asked you why you were doing it.  You never gave her an answer.  She said that she was angry at you, she was disgusted at herself for letting it happen. 

29She said, "Sometimes now I do not know that I didn’t let it happen but sometimes I do think it was my fault.  Especially with my family I feel like what is happening now is my fault.  My family don’t let me think that.  It's more important that I just think - I don’t think as much as I used to because I've been told so many times by people it's not my fault.  It made me feel angry, frustrated, unsure and alone.  Because I felt so alone I actually started to isolate myself from my family.  I became numb.  I wanted to feel something, anything.  I started to self-harm.  I suppose I replaced the feeling of numbness with pain because I wanted to feel it.  I cut myself with razors on my legs and stomach area, places that couldn’t be seen.  I cut myself deep enough that it would bleed and deep enough to hurt but not too far as to leave scarring."

30She said that once she had gone to the police and everything that she said "went down and it was no longer happening", she stopped self-harming.  She was still numb and still has massive difficulties because of it all.  She said she felt a lot of humiliation and she had to go for a blood test and a pap smear, times of humiliation when it became known throughout the community that she was the victim of what you had done to her.  She said that she thought that her class had a fairly good idea that it was her.  She described that she had suicidal thoughts while this was all going on. 

31She said that "there were a lot of times when I was cutting myself and thought why don’t I just push the razor deeper and kill myself, it would stop it.  It would stop what was happening and everything would end, the pain, the loneliness, the isolation, it would all end.  I suppose I could say I didn’t act on my thoughts because yes, it would end my suffering because what would stop him from doing it to [my siblings].  The possibility of what would happen to them was bigger than the thought of suicide.  I never wanted to them to see or feel or actually have things happen to them at that age.  I never wanted them to see what the world could be like.  I wanted them to keep their innocence even if I couldn’t do it forever.  I just wanted to protect them."

32To load that onto a 16 year old girl is, as with so many other matters in this crime, inconceivable.  For a father to do it is even worse.  I will just quote, "I have stopped seeing him as my dad or part of me.  I just see him as someone who has hurt me."

33The victim impact statement provided by your wife and her mother is of some length and I clearly could not summarise it in any way that does justice to it.  I do not think that I possibly could.  I will simply read a few pertinent parts from it bearing in mind it has been read aloud in open court and has been placed on the court file as an exhibit.  She said, "I know everyone involved has had their world shattered and everyone will be a changed person for having to be involved in this."  "I have to allow myself to feel again and think about the man I've loved for 20 years who I made a beautiful family with could inflict so much pain and terror not only on our oldest daughter but how it could ruin every life that he'd been involved with." 

34She described how she had to tell her daughter that it was not her daughter's fault.  She described having to get counselling for herself and for her daughter.  She described the dreadful experiences of having to open up and tell people about these things and the consequences of having to go to counselling in one of the, I thought personally as a man I suppose or as a grandfather, one of the most poignant parts of that was the "So I made one of the hardest phone calls to my dad asking him to come straight away.  I needed to leave the house and [Owen] was there.  I need help getting the kids out.  When he arrived [Dorinda] ran to the car and I bundled my little family into cars and drove off as he stood and watched us.  I knew everything was about to come crashing down around me again." 

35She described how she put the kids to bed at her parents and said as far as the car driving to the police station, "The whole care trip [Dorinda] was silent and I cried to myself.  Dad was silent and just drove not asking anything but that feeling in the car I can't describe but I'll never forget."

36She described how Dorinda was trying to protect her.  She said after the interview with police which lasted for something in the order of two and a half hours and ended at about midnight, "We both walked out to dad waiting in the car."  "The trip home was terrible.  Dad asked which team did we have our interview with and I replied 'a child sexual assault team.'  Silence spread through the car, I couldn’t cry anymore but I could not look at him either.  I was so embarrassed and ashamed.  I just witnessed what it was like for a grandfather to have his heart crushed and torn out.  I felt so responsible for all this pain.  Monday night was such a long night, I had to tell mum and I had to answer all those questions."

37She then goes onto describe the ongoing difficulties with being reported in the press, with sporting groups and her fear as to what was going to happen to the children after that.  She listed a number of the questions going through her head, "What will parents do when they find out, parents at school and in sporting groups?  Will they keep their kids away from mine?  Will they get invited to parties and playdates still?  Will they ever let their kids stay over at our house?  What will they think of me?  Will they still talk to me?"

38She goes onto describe how people were telling her that she was strong but that she felt weak.  She said she just felt terrified even trying to discuss it.  She described going to sporting events where local people were aware of what had occurred and the awfulness of having them just simply look at her.  She describes the pain of having seen the children lose their father in such dreadful circumstances and seeing their trust in him so betrayed.  She said that the offending has caused immense pain for all of her children.

39She then said, and this is so common in these matters in my view, one of the things that just makes it - I am just sick of using superlatives.  "That day in December changed my whole life forever.  In an instant I lost my marriage, husband, my friend of more than 20 years, the father of my children.  I had my trust betrayed and I was humiliated.  All the memories we made and all the happy times had just disappeared as what you have done", referring to you, "overshadows everything.  Every time I think of a happy memory a shadow sweeps over and I get all emotional, I cannot enjoy it as it's all lies. I've spent years missing out on the small things with my children while I supported you and my family." 

40I interpolate there you were a stay at home dad for seven or eight years while she worked quite often at night which explains a few things.  "I've spent hours blaming and questioning myself for what you did to our daughter.  I blame myself because this happened and I allowed you to manipulate and change the person I am.  My whole relationship with you was a lie and I can't believe anything you have ever said or we have done together."  This is what I was referring to, "I blame myself every day for being a bad mother who didn’t care enough for her children to notice what you were doing.  Every day I battle self-doubt and are haunted by painful thoughts like a mother's job is to protect her child.  I was not a good wife so you looked for someone else.  A good mother would have known what you were doing and what was happening to her children.  I also question the type of person I am and my intelligence."

41That is clearly untrue in terms of it being the mother's fault in any way, shape or form and yet it is so common that that is the reaction of women in this situation that they are made to feel guilty and in some situations, and hopefully that will not be the circumstances here, totally misplaced guilt can plague them for a very, very long period of time.  Obviously you have destroyed your own life pretty much and you have destroyed, hopefully not forever, the lives of your family.

42You told the police that it was a loving relationship with your daughter and what I have described, your ignoring her when she cried or asking her not to and you persisting, it seems to me fairly clear that for two and a half years in reality and sentencing only on these counts, she was something of a sex toy for you.  A very significant gaol sentence is the only sentencing option open here and counsel did not demur from that.

43I am aware of the comment in Dalgliesh about the incremental increase in sentences for this type of offending.  I must admit that I was not aware that the sentencing practices were that low.  I have certainly been sentencing at a higher rate than that for certainly the last few years. 

44So far as the offending is concerned it was put that there was no violence.  Well I think from what I have described that there was and in any event there did not need to be.  There was no pregnancy, I accept that.  That might have been more by good luck than by good management and whatever the circumstances of discussions you had with her.  There were certainly no weapons used or anything along those lines, however to subject your own child to this conduct over such an extended period of time in circumstances where you must have been aware of the effect it was having on her is disgraceful.

45I have read the references tendered on your behalf which describe your background.  They also refer to community work that you have been involved in.  I accept that there is quite a deal of that and I will go through it briefly in a moment.  The principles involved in Verdins play no part in this and that was conceded by your counsel.  The effect of offending such as this destroys not only a family but it causes distrust within a community, within sporting clubs, particularly when the offender has been a sporting coach.  It causes parents, many of them in a situation such as this to have grave concerns about what may or may not happened to their own children and has a very powerful ripple effect through a community.

46All those matters have to be taken into account when aspects of general deterrence and punishment are looked at in these circumstances.  You are 41 and you are a qualified builder.  As I have indicated you have no prior convictions of significance.  You are the eldest of six children.  You have been the husband of the mother of the victim for an extended period of time.  You had seen alcoholism in your own family as a child. 

47It is asserted from the Bar table and I have no reason to not accept it, that when you were seven or eight you were sexually interfered with by a relative and that when you were approximately 12 years of age you were again interfered with by an older person in a BMX organisation.  That occurred on a number of occasions over a period of a number of months.  There is no real psychological material linking that to what you did to your daughter over an extended period of time.  Yours was not one of an errant moment of misjudgement.  It was calculated, premeditated and persistent. 

48I am aware that from a young age you have been heavily involved in surf lifesaving.  You went to Year 11 but left with academic difficulties and you instructed your counsel that you in fact have dyslexia and you also left school to become involved in surfing.  To your credit you did a pre-apprenticeship and ended up as a qualified builder.  As I have indicated you have spent some seven or eight years as a stay at home parent and at the time of this offending or at the time of being apprehended, apparently were working part-time in a hardware store. 

49It was explained to me by your counsel that in fact your wife had been a nurse and had worked nightshifts at times.  You have another child in Western Australia which is of no, in my view, concern here.  You have clearly had problems with alcohol for a considerable period of time but again it is not asserted that that has brought about this offending.  You have, and I accept this, difficulties in your own psyche and difficulties from your own childhood.  I was told from the Bar table and it was not disputed that there have been suicide attempts in the past and I was told that your wife had intervened.  Whether they were genuine or not I do not know but for these purposes I accept that you do have a certain fragility to your psyche. 

50It was pointed out to me the community involvement that you have had over the years, that you have various titles for matters that you were - as far as your home town was concerned - overseeing the bronze medallion training, that you encouraged clubs in so far and surfing and the like.  Clearly this is your first time in gaol.  As I have indicated you have been remanded in custody and you have been up at Ararat.  You do have contact with your mother and some of your siblings and it will really be a matter for you what you make of your time in gaol.

51There is very little else that can be said in mitigation, Mr Erickson.  As I indicated to your counsel in a very sensible plea if I may say so, totality is of real significance here and I must endeavour not to impose a sentence which can be regarded as crushing.  However the objective seriousness of it is grave indeed.  Often in these matters are of an historical nature where the sentencing is carried out 20 or 30 years later and that plays a significant mitigatory part in it all.  That is not  the case here.  The offending occurred in recent times and you are to be sentenced on that basis.

52The prospects of your rehabilitation are really up to you.  The risk of you reoffending, certainly in this way, I would think would be probably limited.  As I understand the present situation you would not be released from custody without having done a sex offenders program in any event.  Whether this experience over the last couple of days has finally brought home to you the dreadful consequences and the evilness - I will use that word - of what you did to your daughter is problematic.  One can only hope that it has.  I think I have already indicated I have read the references that were tendered on your behalf and take those into account.  Accordingly you are sentenced as follows;

53On Charge 1, three years; on Charge 2, five years; on Charge 3, five years; on Charge 4, five years; on Charge 5, five years; on Charge 6, two years; on Charge 7, five years.

54I direct that six months of the sentence imposed on Charge 1, 12 months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, 12 months of the sentence imposed on Charge 5 and 12 months of the sentence imposed on Charge 7 be served cumulatively upon each other and upon the sentence imposed upon Charge 1.

55In those circumstances I am obviously directing that because of the provisions in the legislation that time periods involved not referred to are to be served concurrently.  That includes the entirety of Charge 6 with the sentence imposed upon Charge 2.

56That gives an effective head sentence of nine years.  I direct that you serve a minimum term of six years before becoming eligible for parole.  I direct that 261 days be reckoned as having been served under this sentence.

57Pursuant to the provisions of s.6AAA of the Sentencing Act I say that but for your plea of guilty had you run this as a trial, I would have sentenced you to be in prison for a period of 12 years with a minimum term of nine years.

58Are there any other orders I have to make?  No.  You can remove the prisoner please.

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