Director of Public Prosecutions v Fichtner
[2018] VCC 669
•10 May 2018
.
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-02152
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KLAUS WERNER FICHTNER |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 2 May 2018 | |
DATE OF SENTENCE: | 10 May 2018 | |
CASE MAY BE CITED AS: | DPP v Fichtner | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 669 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991; Crimes Act 1958
Cases Cited:R v Verdins & Ors (2007) 16 VR 269; R v Rumpf [1988] VR 466; TRG v R [2011] VSCA 337; R v SBL [1998] VSCA 144; DPP v Toomey [2006] VSCA 90; DPP v DJK [2003] VSCA 109
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr K. Doyle | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1 Klaus Fichtner, you have pleaded guilty to one charge of carnal knowledge of a girl between the ages of 10 and 16, two charges of indecent assault of a female, one charge of gross indecency with a girl under 16, one charge of carnal knowledge of a girl under 10, a charge of common assault and one of indecent assault. The maximum penalties applicable to those offences of carnal knowledge of a girl above 10 and under 16 is ten years’ imprisonment, indecent assault of a female, ten years’ imprisonment. Charges 2 and 3 attract ten year maximum penalties, as you have previously been convicted of indecent assault charges.
2 Gross indecency with a girl under 16, two years’ imprisonment and carnal knowledge of a girl under the age of 10, 20 years' imprisonment, common assault ‘at large’, and indecent assault, five years’ imprisonment.
3 There are five victims of your offending, that offending having occurred between 1 January 1976 and 3 August 1982.
4 It is not necessary for me to recount in great detail the facts of this matter, as the matter has been opened in some detail by the learned prosecutor, consistent with Exhibit A. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing. I turn to a summary of your offending. But I consider some detail is necessary.
5 You were born in 1948, a citizen of Germany and plasterer by trade.
6 In 1965, you commenced a relationship with Marie Willis[1] who became pregnant to you in 1966. You married in July 1966. In 1973 to 1974, you purchased a house.
[1] Marie Willis is a pseudonym
7 At the time you moved into that property, you had two sons, Clifford[2] and Anthony[3]. A third son, Timothy[4], was born in 1975. After you divorced your wife, you remarried and divorced a number of times.
[2] Clifford is a pseudonym
[3] Anthony is a pseudonym
[4] Timothy is a pseudonym
8 You eventually left Victoria to gain work as a plasterer. Your sons, Clifford and Timothy had already moved to the Northern Territory.
9 Three of the victims of your offending, Caroline Mathis[5] and her sister, Julia Dean[6] were neighbours of yours, as was Angela Leon[7]. The complainant, Heather Nolan[8], was a friend of Caroline and met you through her. The fifth victim Marie Willis, is your ex-wife.
[5] Caroline Mathis is a pseudonym
[6] Julia Dean is a pseudonym
[7] Angela Leon is a pseudonym
[8] Heather Nolan is a pseudonym
10 I turn to your offending involving Caroline Mathis. She was born in 1965 and lived with her family at an address near yours, just down the road from you. You were friendly with her family.
11 In 1976, when Caroline was 11 years of age, on Saturdays, she and her younger brother would go to your house for guitar lessons with you. Her brother eventually took up football and stopped going to those lessons, leaving Caroline to continue the lessons on her own.
12 One Saturday in 1976, Caroline arrived at your home for her guitar lesson. She saw your wife and son, Anthony, leave in the car. Your younger son, Clifford, was at home with you. He was approximately 8 to 9 years of age at that time. You sat next to Caroline as she played guitar and began rubbing her shoulders. When she made mistakes with her guitar playing, you would suddenly pinch her on her cheek. You grabbed her around the mouth, pulled her off her seat and dragged her to the lounge room, where there was a mattress on the floor. You sat down with Caroline sitting between your legs. You put your hands down the front of her underpants onto her vagina. Clifford, entered the room and you told him to go and get some “jelly” stuff. Your son came back with jelly. You put some on your fingers before digitally penetrating Caroline’s vagina.
13 You then turned Caroline over and pulled down her tracksuit pants and underwear, pushed her face into the mattress and inserted your penis into her vagina (Charge 1), this being a representative charge of two occasions. This caused Caroline pain. You said to Clifford, who was in the room at the time, “This is how you treat them if they don’t come around to what you want”. You put your finger into Caroline’s mouth and pressed the top of her cheek, then bent her over the couch and again penetrated her vagina (this forming part of the context of Charge 1).
14 Caroline later woke up lying in bed in the spare bedroom wearing only a t-shirt. You entered the bedroom from the adjoining bathroom. Clifford was standing in the bedroom doorway watching. You told Clifford that if he was not going to watch and learn, he should go away. You then again digitally penetrated Caroline.
15 You told Caroline she was too tense and took her to the bathroom. You pulled down the fly on your pants, pulled out your penis and put it in her mouth (Charge 2). You held her head back while you did this. Caroline vomited. You told her she was a dirty bitch and needed to be taught a lesson.
16 You then ran a bath and tied Caroline’s wrist to the sink in the bathroom using a cord from a radio, while you went and made yourself something to eat. You returned and bent her over the bath tub and inserted your penis into her vagina (part of representative Charge 1). You then washed her. Clifford brought her clothes into the bathroom. Caroline got dressed and jumped out of the lounge window to escape.
17 When Caroline was 19, she went to Bonnie Doon with her sister, brother-in-law and other friends, and disclosed to her brother-in-law your sexual offending.
18 I turn to Julia Dean, the sister of Caroline. She was born in 1961 and played netball with your then wife. Julia also babysat your children.
19 In 1978, you told Julia’s father you were having financial problems and could not pay your phone bill. Her father told you, you could use his home phone.
20 One day, you arrived to use that phone. Julia was the only person home. She was then 16 years of age. You made a phone call, then told Julia that you were waiting on a return phone call. You sat next to her on the couch, and put your hand on her leg and patted it.
21 On the next occasion you arrived to use the phone, Julia was also home alone. On that occasion, she sat in the single chair to prevent you sitting next to her. She got up to do something and came back to find you in the single chair. She went and sat on the couch. You sat next to her and asked why she felt uncomfortable. You patted her leg and put your arm around her.
22 You began coming to the house daily to use the phone when you knew Julia was alone. On one occasion, Julia answered the door wearing a dressing gown. She sat on the couch. You sat next to her and ran a hand up her leg and into her underwear, touching her pubic hair (relied upon as context). She jumped up and asked what you were doing. You told her she liked it. That evening, Julia came home and saw you in the lounge room talking to her father, and you were smirking at her.
23 The next day, you again went to the house. Julia was wearing a dressing gown, a nightie and underwear. You sat next to her on the couch, put your hand inside her underpants and touched her pubic hair (context). She ran down the hall and you followed her. She ran into the bathroom. You went in after her and put your hand into her pants and penetrated her vagina with your fingers. Julia’s head hit the mirror and she could not move because you were standing between her legs saying, “You want it, you want it” (Charge 3).
24 You told Julia that if she told anyone, her father would not get the money back he had lent you. The next day, you came back to use the phone. She refused to let you in. You told her you were not going to pay her father back and that it was her word against yours.
25 You approached Julia’s father that night stating you had missed a job because Julia would not let you in the house. As a result, she got into trouble from her father.
26 I turn to Angela Leon, born in 1970. In 1977, Angela moved with her family to the house opposite yours. She became friendly with your sons.
27 In 1979, Angela stayed overnight at your home. You asked for a goodnight kiss and she kissed you on the lips. You asked her to kiss you again, then asked her to open her mouth while kissing you. When she did, you put your tongue in her mouth. After this, every time Angela saw you, you would kiss her passionately. Sometimes you kissed her in front of your sons, but not in front of your wife or anyone else. You would get Angela to sit on your lap and tickle her all over, ending with you tickling her in the groin area. You told her not to tell anyone, it was a special secret.
28 During the weekends and school holidays, Angela would often stay over at your home. You began tickling her vagina over her clothing, which progressed to touching her on the vagina with your fingers. You would touch her in a playful manner while kissing her.
29 On occasions, you would penetrate her vagina with your fingers (context). If she moved or said “ouch”, you would stop. More often than penetrating her vagina, the touching would involve you circling your finger around the opening of her vagina.
30 On one occasion, you put Angela down on the floor and laid between her legs on top of her. She could feel your erect penis through her clothing. You simulated sex by grinding into her, at the same time, tongue-kissing her.
31 You showed Angela Penthouse and Playboy magazines and tried to copy some of the sexual positions. This occurred on several occasions in 1979 when you were both naked. On one occasion, she recalled you got her to put her hands on the ground and you picked her up like a wheelbarrow and placed her legs around your waist, grinding against her, but not penetrating her vagina.
32 On another occasion in 1979, Angela stayed at your home and was asleep on the floor in your sons’ room. You picked her up, took her into the lounge room and put her on the couch next to you. You showed her your penis and asked her to touch it, which she did. She masturbated you and your penis became erect. You asked her if you could put your penis in her mouth. Angela refused. You then masturbated yourself until you ejaculated (Charge 4). You showed the ejaculate to Angela and told her that was where babies come from. The charge incorporates you having her masturbate your penis, then you masturbating and ejaculating in front of her.
33 You then lay on the floor and kissed Angela passionately. You took off her pyjama bottoms. You did not have any pants on. You lay on top of her again, rubbing yourself up and down on her. You became erect again and used your hands on her vagina to assist in penetrating her vagina with your penis. You pushed your penis inside her vagina, causing her to cry out, at which point you stopped (Charge 5). This is a representative charge of two separate occasions involving penile/vaginal penetration.
34 In early 1980, Angela stayed over at your house in your sons’ bedroom. During the night, you came into the bedroom, lay down, began kissing her and rubbed your penis up and down on her. You took down your pants and Angela touched your penis, which was erect. You pulled down her pyjama pant bottoms and used your hands to part her vagina so you could get your penis inside. You tried a few times but without success. You then pushed your penis into her vagina, but it hurt her so you stopped (this is part of Charge 5, representative charge). At the time of your offending against Angela, she was under 10 years of age.
35 I turn to Marie Willis, your ex-wife. You were abusive and violent to her when you consumed alcohol. On one occasion, when your son, Anthony, was 8 years of age and you had been drinking heavily, he began to argue with you about your drinking. You pushed her around with your hands. Marie was present and tried to intervene, however, you flung him against the wall. To defend her son, Marie started attacking you to get you away from Anthony. You threw her to the ground and she fell on her arm. She told you she thought she had broken her arm. You called her a lying bitch and kicked her in the stomach, leaving her lying on the ground. Marie sustained a broken wrist as a result of that assault (Charge 6).
36 I turn to Heather Nolan, a school friend of Caroline. Sometimes when you drove Caroline home from school, Heather would also get a lift.
37 On one occasion, when Heather was 16, she was alone in the car with you when you were driving her home. You stopped the car and made comments about her breasts, then reached across and placed both your hands on her breasts (Charge 7). She eventually climbed out of the car and walked herself home.
38 You were extradited to Victoria from the Northern Territory in May 2016 and interviewed by detectives at the Knox Sex Offences and Child Abuse Unit. You told police in the interview that you could feel your blood pressure increasing and said you did not want to answer further questions. In the interview, when you did participate, you admitted the assault on Marie, but said it was out of character for you to do such a thing and denied breaking her arm.
39 You do not have any prior court appearances, however, do have subsequent convictions relevant when assessing your rehabilitation prospects. The prosecution provided a list of your subsequent convictions, in particular, those dealt with between 24 March 1988 and 24 February 2016. Specifically, I refer to appearances for offences involving sexual offending.
40 You appeared on 24 March 1988 at the Lakes Entrance Magistrates’ Court on two charges of indecent assault. The matter was adjourned for 12 months on a $500 good behaviour bond.
41 You next appeared on 4 March 1999, Dandenong Magistrates’ Court, on a charge of indecent act with or in the presence of a child under 16, and received four months’ imprisonment, wholly suspended for two years.
42 You appealed at the Melbourne County Court on 17 December 2003 on one charge of make/produce child pornography, a Director’s appeal from a sentence imposed on 8 July 2003 at the Ringwood Magistrates’ Court. The Magistrates’ Court order was set aside and you were sentenced to 18 months’ imprisonment with a non-parole period of nine months.
43
You next appeared at the Darwin Supreme Court on 19 June 2008 on one charge of possession of child abuse material and one charge of exposing a child to indecent material. You were sentenced to a total effective sentence of two years and nine months’ imprisonment, to be released after serving
21 months of that sentence, the balance suspended.
44 You were also dealt with for failing to comply with reporting conditions (three court appearances).
45 The prosecution submitted you had subsequent convictions for sexual offences against and/or involving children consistent with Exhibit C.
46 The prosecution correctly submitted your subsequent convictions were relevant when assessing your prospects of rehabilitation and I was referred to the decision of R v Rumpf[9].
[9] [1988] VR 466 and 476
47 I turn to the serious sex offender provisions. As you have previously been sentenced to a term of imprisonment for qualifying offences, you fall to be sentenced as a serious sexual offender on each of the charges on the indictment except Charge 6, and I shall return to that later.
48 The prosecution was not ultimately seeking a disproportionate sentence, and I am of the opinion I am able to appropriately sentence you without the need to impose a disproportionate sentence.
49 As of the date of your plea hearing up to and including 1 May 2018, you had spent 723 days in custody by way of pre-sentence detention.
50 By your pleas of guilty to the charges before me, you are required, pursuant to the Sex Offenders Registration Act 2004 to report for life, such being mandatory. Mr Backwell, who appeared on your behalf, agreed such classification and duration applied to you.
51 Turning to your pleas of guilty, you were originally charged in Darwin on 9 May 2016 and extradited to Victoria on 11 May 2016. At a contested committal on 6 December 2016, the matter resolved to a plea of guilty before any witnesses were called to give evidence and the matter was listed in the County Court for a plea hearing on 23 March 2017.
52
On 21 March 2017, the Court was advised your instructions had changed and that you were no longer pleading guilty to the charges. At a further directions hearing on 9 May 2017, a four-week trial date was listed for 9 April 2018. On
2 February 2018, the prosecution was advised by those representing you of a plea offer, ultimately accepted on 6 February 2018. You were arraigned on that new plea indictment on 9 February and pleaded guilty to all the charges.
53 There are a number of aggravating features of your offending, as I discussed with counsel, including breach of trust, not only of each child complainant, but also, the trust of their parents. Some of your offending involved violence beyond that necessary to commit the offences alleged, in particular, I refer to Caroline and Julia. You also directed Angela to keep your offending against her a ‘secret’. You showed Angela Playboy and Penthouse magazines. You threatened Caroline, she ‘needed to be taught a lesson’. You threatened Julia that her father would not get the money you owed him.
54 You referred to Caroline in a degrading manner, calling her a ‘dirty bitch’. That your sexual offending involving Caroline occurred in the presence of your son, Clifford, and that you directed him to bring you the ‘jelly’. Your violence towards Caroline also involved use of a restraint, tying her wrist to the sink in the bathroom.
55 Your failure to wear a condom regarding Caroline and Angela (see R v Khem[10]) is also an aggravating feature, that failure not only referrable to pregnancy (unlikely here) but also exposure of the complainant to disease (see Khem paragraph 20).
[10] (2008) 186 A Crim R 465
56 A further aggravating feature, accurately identified by Mr Backwell, was that your offending involved multiple complainants, four involving sexual offending.
57 It is difficult to adequately and completely describe your offending. It was repugnant, degrading, humiliating, very disturbing and persistent abuse. The adverse impact of it upon the complainants, as reflected in their victim impact statements, have been longstanding and continues.
58 Mr Backwell conceded your offending could be described as serious examples of serious offences. He is correct.
59 The victims of your offending have suffered considerably as a result of it, and I shall turn to those victim impact statements later in these sentencing remarks.
60 You have pleaded guilty to these offences. However, I note for a significant period of time (approximately 12 months) you indicated a change in your plea of guilty to not guilty. Ultimately, upon subsequent advice from Mr Backwell and your solicitors then instructed by you, you reverted to a plea of guilty.
61 You have ultimately pleaded guilty and you are entitled to have that fact taken into account in your favour, and I do so.
62 By your pleas of guilty, you have spared the time and cost of a trial and witnesses, specifically the complainants, have not been required to give evidence upon your trial.
63 I also take into account the stage at which your plea was entered and I previously note the approximately 12 month period where you maintained a plea of not guilty after indicating a plea of guilty.
64 Regarding your pleas of guilty, whilst I accept it is indicative of some remorse by you, I am concerned about the extent of your remorse.
65 Mr Backwell agreed all the matters to which I have previously referred were aggravating features of your offending, and I said, he added the additional aggravating feature that there were multiple complainants.
66 Mr Backwell conceded that on each of the charges before me, you fell to be sentenced as a serious sexual offender (except Charge 6).
67 Mr Backwell conceded you fell to be sentenced in relation to Charges 1 and 5 as being representative charges, consistent with R v SBL[11] and subsequent authorities that have referred to SBL (Browne v The Queen[12], DPP v HPW[13] and DP v The Queen[14]).
[11] [1998] VSCA 144
[12] [2015] VSCA 274
[13] [2011] VSCA 88
[14] [2011] VSCA 1
68 I discussed with Mr Backwell your change of plea from guilty to not guilty, which necessitated a trial being listed and the matter being further delayed in its resolution. Mr Backwell submitted whilst that chronology was accurate, your pleas of guilty had facilitated the course of justice and that at least a trial had not occurred and the complainants had not been required to give evidence at a trial, and of course, that is correct.
69 Mr Backwell acknowledged, however, at least from the contents of the victim impact statement read to the Court by Caroline Mathis, your plea of not guilty had slowed the progress of this matter and the protracted process had impacted adversely, at least upon her. Having now read the other victim impact statements, to which I shall shortly refer, it is apparent this has also impacted adversely upon the other complainants also.
70 Mr Backwell conceded there had been a delay of approximately 12 months to the resolution of this matter following your ‘change of mind’ in relation to your initial plea to these charges.
71 In Mr Backwell’s written submissions, he referred to your current age of 70 and that you had a number of medical conditions. You were awaiting surgery for two knee replacements. As I understood it, following sentence, such was likely to be then arranged. As Mr Backwell observed, your change of plea from guilty to not guilty had also, in essence, delayed that knee replacement.
72 Mr Backwell referred to your age and health as being relevant when sentencing and of course, he is correct. He is also correct that health and age are not determinative of sentence, nor do they justify the imposition of an unacceptably inappropriate sentence. He submitted that some sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect you may not live to be released (see TRG v R[15]). He conceded it may be that an appropriate sentence ultimately means you did not return to the community, but would rather die in prison. I am particularly conscious of that in your case and am aware you may die in custody whilst undergoing sentence.
[15] [2011] VSCA 337
73 I have read the decision of R v RLP[16], referable to age and ill health of an offender, in particular paragraphs 32-38 therein.
[16] [2009] VSCA 271
74 I also note the decision of TRG v The Queen[17], in which Weinberg JA referred to RLP, and the passage from that judgment of Neave and Redlich JJA and Hollingworth AJA. The Court said:
[17] [2011] VSCA 337
“We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind.
1.The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending on the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.” (See paragraph 39)
75 As I say, I am particularly aware in your case the term of imprisonment I have imposed may well mean you spend the remainder of your life in custody.
76 Mr Backwell, when addressing your prospects of rehabilitation, acknowledged your subsequent sexual offending referred to by the prosecution (Exhibit C). He submitted your prospects of rehabilitation would be, at best, guarded. I agree. Whilst one can never give up hope of your eventual rehabilitation, I remain concerned about that, despite your advancing years and reduced mobility.
77 I do note the report of Dr Gee, who placed you at a medium risk of re-offending. He conceded you struggled to appreciate links between your mental functioning and your aberrant behaviour, with your memory functioning in a lapse of time, and difficulty unpacking the defence process, impacting on your intra/interpersonal understanding. You would, however, whilst in custody, be offered the opportunity to participate in offender behaviour programs, in particular, sex offender programs, and such he suggested may assist your rehabilitation prospects should you be released back into the community.
78 Mr Backwell submitted that at the time of your appearance in the Northern Territory in 2008, Dr Walton had described you as a ‘paedophile’, however, following recent assessment by Dr Gee, as you had not been dealt with for sexual offending since 2008, he had concluded you did not currently meet the criteria for a Paedophilic Disorder, however, he did speak to the potential background existence of ‘paedophilic interests’. You were yet to address those ‘interests’ in counselling/treatment.
79 Mr Backwell referred to the potential risk of deportation and I discussed that briefly with him. The Court of Appeal confirmed the approach in Guden v The Queen[18], in the subsequent decision of Lima Da Costa Junior v The Queen[19], Konamala v The Queen[20] and Schneider v The Queen,[21] noting the changes made to the Migration Act 1958 (Cth). The Court cannot speculate about the likelihood of deportation. If a sentence of imprisonment only enlivens a power to deport, then it is a ‘complete speculative possibility’ (see Konamala [37]).
[18] (2010) 28 VR 288
[19] [2016] VSCA 49
[20] [2016] VSCA 48
[21] [2016] VSCA 76
80 I accept, however, you may be anxious about that possibility while undergoing sentence.
81 You were interviewed and assessed, as I said, by Dr Dion Gee, Forensic Psychologist, his report dated 9 April 2018. It was noted during assessment you had a degree of difficulty word-finding and said you had lost your train of thought. Your recall of your past aberrant behaviour, he said, appeared markedly impaired, with you stating you had no memory of the events for which you were currently charged. Subjectively, you impressed as a man whose cognitive functioning was estimated to fall within the above-average range.
82 You were able to provide a reasonable account of your personal circumstances, noting your current placement had afforded a reasonable standard of living and provided an environment commensurate with your physical/mental health needs. Further, you had been able to occupy your time through gainful vocational/employment pursuits. It would appear your principal social supports travelled from either interstate or towns on the Victorian border to visit you. You expressed concern should you be relocated following sentence closer to Melbourne. Ultimately, your placement following sentence will be a matter for Corrections, not me.
83 In the opinion of Dr Gee, you presented with a reduced understanding of your risk profile, with limited awareness of the inverse nexus between mental state impaired mental functioning and the risk for future aberrant behaviour.
84 Dr Gee gave further details regarding your background and history. You are one of six children, having two brothers and three sisters. You gave limited accounts of your early developmental experiences. You were a poor historian. There did not, however, appear to be a family history of domestic violence, substance abuse, mental health issues or contact with the criminal justice system. You reportedly obtained all formative developmental milestones. You denied being exposed to childhood sexual abuse or neglect over your developmental period. You did, however, state you were bullied at school.
85 Dr Gee considered your transition throughout adulthood had nevertheless been compromised by somewhat maladaptive experiences. You struggled within long-term intimate relationships, demonstrated a problematic pattern of substance use, principally alcohol, potentially also amphetamines, and had multiple contact with the criminal justice system from approximately the age of 30. You also appeared to demonstrate a pattern of sexual interest to pre/post-pubescent female children.
86 Following your 2004 incarceration for child pornography offences, Dr Gee observed your life then moved onto a somewhat different trajectory. From that time, at approximately 56, you began practising as a Jehovah’s Witness.
87
Dr Gee referred to your medical history. You recounted somewhat enduring contact with medical services, noting longstanding problems with diabetes, for which you received medication. You said that was under control. You were also in receipt of “blood thinners” and said due to a history of cardiac irregularities. A report prepared in 2014 from Dr Burrows expressed concern about your consumption of alcohol, and a final diagnosis of Dr Burrows on
25 August 2015, was of mild cognitive impairment, probably secondary to chronic alcohol. No treatment was then considered warranted other than abstinence.
88 Dr Burrows described at that time that there were likely to be investigations as to whether you had a prostate infection or possible testicular cancer. You were, as I have said, currently awaiting surgery for a double knee replacement.
89 From the information available to Dr Gee, you had minimal contact with mental health services. You claimed you had never attended a psychiatrist, been hospitalised on mental health grounds, or been in receipt of psychotropic medication. Nor had you engaged with a psychologist or counsellor for either mental health or criminogenic interventions.
90 Dr Gee observed there had been a comprehensive neuropsychological assessment undertaken by Mr Jackson on 14 July 2017, who assessed you as a man of average to high-average premorbid abilities, although noted some variability in your neurocognitive profiles (report of Dr Gee paragraph 15).
91 In Mr Jackson’s opinion, your cognitive impairment was not consistent with a diagnosis of Alzheimer's disease. Mr Jackson concluded your current cognitive difficulties were "most likely the result of cognitive impairment due to cerebrovascular disease due to your history of hypertension, high cholesterol and diabetes". It was observed by Dr Gee that Mr Jackson had noted a possible diagnosis of alcohol-related brain injury given your “long history of alcohol abuse”.
92 Turning to your drug and alcohol history, you recounted minimal exposure to illicit substances, nor misuse of prescription medication. You did, however, present with a somewhat conflicted picture of past alcohol consumption, inconsistent with collateral information. At interview with Dr Gee you acknowledged alcohol consumption by you had been a prominent feature of your background psychopathology. Dr Gee noted, as do I, that you presented before the courts in various jurisdictions facing a plethora of charges, in particular, several sexual offences. You have also received several terms of incarceration within the adult correctional system.
93 Dr Gee noted your various subsequent Court attendances.
94 Turning to your current offending, Dr Gee noted your recall for offence-specific details was considerably impaired. You struggled to recall the period of offending and your sexually aberrant conduct that constituted your offending.
95 While you were able to articulate that your behaviour was wrong and would have had enduring effects on the victims, you struggled to provide detailed accounts.
96 You were asked to complete a battery of assessments to elaborate on your personality functioning and psychopathology.
97 In the opinion of Dr Gee, your character pathology was suggested as schizoid personality with compulsive and turbulent features. That presentation had the capacity to underpin maladaptive ways of thinking, feeling, behaving and relating that interferes with your ability to function productively. In the opinion of Dr Gee following assessment, you did not present with an enduring mental illness, although displayed some difficulty regulating cognitive emotional behavioural states in an adaptive manner. Your reported past use of alcohol suggested a dysfunctional association. Your alcohol consumption was now in sustained remission. Dr Gee concluded you did not demonstrate enduring pathology suggestive of a personality disorder, but did display mild to moderate dysfunction relating to self.
98 Accepting your past aberrant sexual behaviour, you did not currently meet the criteria, as I have said, for paedophilic disorder, nor for paraphilic disorder, however, acknowledging the difficulty of retrospectively applying clinical diagnoses, your enduring sexually aberrant behaviour, often involving pre-pubescent female children, spoke to the potential background existence of paedophilic interests. Looking at your history of sexual offending, it was difficult for Dr Gee to allocate a specific offence pathway to you. While you presented with a clear desire to avoid sexually aberrant behaviour, you lacked the requisite skills and competencies to meet your needs in a more adaptive pro-social and meaningful way, and that you at times lacked insight into the needs of others.
99 In the opinion of Dr Gee, your aberrant behaviour was best construed as unsophisticated attempts at sexual expression/gratification. Your loss of control/disinhibition fitted with your offending during the post-offence period. You continued to demonstrate deficits of insight relating to your mental health needs.
100
You were assessed using the Static-99 and the RSVP Assessment Tools,
Dr Gee concluded you represented a moderate risk of re-offending sexually.
101 There was little in your current clinical picture, nor within collateral information, to posit a direct causal link between your impaired mental functioning and the index period of offending.
102 In the opinion of Dr Gee, suitably tailored psychological intervention in a timely manner would present a fair prognosis for rehabilitation.
103 Addressing Verdins principles and your period of time in incarceration, in the opinion of Dr Gee, your current presentation would not see incarceration weighing more heavily on you than a person in normal mental health, although I do find some applicability of general sentencing principles.
104 It was recommended by Dr Gee, given your enduring history of sexually aberrant behaviour, you would benefit from a group-based sexual intervention program, such as those run by Corrections Victoria. Given your age, medical compromise and mental state, it highlighted the need for ongoing monitoring of your physical/mental health. The prison authorities will receive a copy of those concerns to enable you to be cared for appropriately within the prison system.
105 Dr Gee suggested you would also benefit from a psycho-educational program around substance misuse, and the impact of substances on mental health, self-regulation and psychological wellbeing. You also needed to learn more adaptive and pro-social ways of enhancing your psychological wellbeing.
106 Mr Backwell conceded the only appropriate disposition for your offending was an immediate term of imprisonment. He is correct.
107 Mr Doyle, in response, submitted that, in particular, in relation to your offending against Caroline, that fell “at the top of the scale” of gravity. I agree.
108 The victims of your offending have suffered considerably. The statements are eloquent and it is difficult to do justice to them in these brief sentencing remarks. I have, however, read all those statements. The impact of your offending on each has been profound.
109 I turn, first of all, to the statement of Caroline Mathis. She described being very angry about what you did to her and that the anger runs deep and affects every aspect of her life. She is not the person she wants to be.
110 Since the court case Caroline has not been able to work, she has been struggling “that bad”. She would get to a place where she felt she wanted to kill herself every day and had been living on the edge, even whilst attending Court and writing her victim impact statement. She wanted to get power back that you had taken from her.
111 Before your offending, Caroline was a happy-go-lucky child. She then withdrew and became very sick with childhood illnesses. She was in the Children’s Hospital for months which she thought was as a result of the stress of what happened to her. She turned into a wild child, did not care for herself, and did not feel she was worth anything.
112 She tried doing heaps of things for her father, hoping that that would make him love her and protect her. She felt unsafe when she should have felt safe in her own home.
113 She took up skating and trained nonstop until she vomited, trying to get rid of the anger. When playing roller hockey, she would laugh when she was in agony because nothing was as bad as everything else that had happened to her. Skating was her way of coping.
114 When things get too bad, Caroline runs. Your offending has adversely impacted upon her relationships as she described in her statement. She felt she had been walked over like a doormat in her life as she was when a child. She did not have a social life, and for years worked seven days a week to keep herself constantly busy so that she did not think about things. She could not have medication for depression given the work that she was doing. Recently, she had considered trying drugs just to take the pain away. She is so tired of it.
115 When she was working, she worked like a machine, and was meticulously fussy, working until she wore herself down. When she slept, she would, on occasions, wake up screaming. She was hypervigilant at home. Her mind was all over the place.
116 Physically, your offending has impacted on Caroline for many years and she referred to embarrassment with personal hygiene as she described within the statement.
117 Over the years, she has tried to reinvent herself and put on a façade. She became good at lying to cover up her low self-worth. She was angry at you. She wanted her identity back.
118 She had not felt safe for years, feeling like she could not get away from you. She wanted her own identity.
119 Your offending had been destructive to Caroline’s relationships with her family. She felt like her parents were never there for her and that they did not protect her.
120 Even though Caroline never argued with her sister, Julia, she felt that they never knew each other. She had been able to reconnect with her recently.
121 Caroline had kept to herself for years and moved away from the family to be by herself. She can never relax. Her head was always racing.
122 She needed many more sessions of counselling to help her work through your offending and it had ruined her life. She could not begin to explain how much pain and anger you had caused her. She wanted the anger to go away and she wanted to find peace. She wanted her life back.
123 There is a victim impact statement from Julia Dean, who described great difficulty writing her victim impact statement because it was so painful to relive the memories, emotions, fear and anxieties that, for many years, she tried to bury. Over the years, she had tried to forget about what happened to her and get on with her life as best she could. The legal process had brought this back again. It was confronting and painful.
124 Julia had a few counselling sessions to assist her, and was only now beginning to understand the many ways your offending had affected her life. She could not bring herself to attend Court because she could not bear to see your face. She had tried hard to get the visual of your face out of her mind. She had been staying at home more since the court case, not able to cope with the extra stressors in her life. She tried not to share how difficult this time was for her and her family, which meant she had to keep it inside. She felt very alone, with some very distressing emotions. She felt she could not speak to her parents because she wanted answers such as "why? why did they not speak to us? why were they still in our home?”
125 As a result of your sexual abuse of Julia, she had a massive lack of confidence, was very self-critical and had lots of self-doubts and self-blame. She tried to put on a façade, but that was draining and isolating.
126 She suffers with mild anxiety, post-traumatic stress disorder and depression. She had used alcohol as a means of trying to cope when she was away or on her own. She had trouble sleeping.
127 Julia had done shift work most of her life so that one of them was always at home to protect the kids. Nights were particularly difficult for her, when her brain was ticking over, being hypersensitive to noise.
128 By doing shift work, she ensured she dropped the children off and collected them from school because she wanted to keep them safe. She found it hard trusting other adults with her children. The matter had come at a cost to her relationship with her husband.
129 She was always blamed by other people for what had happened to her, and that it was her fault. The offending happened in her own home, a place where she should have felt safe. She felt angry about your manipulating and predatory behaviour. She cannot trust people.
130 Julia carries guilt, frustration and sorrow, was guilty about her sister and that she had not been able to protect her.
131 What happened to her as a child had affected her intimate relationships, as she described in her victim impact statement.
132 Julia drank socially to overcome anxiety. She hid her weight. She tried relaxation therapies and workshops.
133 In her employment in aged care, working with dementia patients, she felt very uncomfortable when things were said of a sexual nature. It raised her anxiety.
134 Julia had tried to change over the years, but found herself making some progress, then regressing. She also felt angry at times.
135 She was hypervigilant about people’s inappropriate behaviour towards other young women/adolescents.
136 She cannot watch movies or news, or read anything about predators or manipulative behaviours, as such made her feel violently ill and panicky.
137 They moved from the first home they owned after they found out her sister had been attacked there. When her husband was away, she had to lock the doors. She felt it was difficult to trust anybody completely.
138 Regarding a victim impact statement from Angela Leon, correspondence was recently received by me from the Office of Prosecution on 8 May 2018, which confirms that she did sign and swear a victim impact statement on 21st day of 2017 and I heard evidence in relation to that, and it would appear that that statement was sworn on 21 March 2017. I discussed with counsel that victim impact statement. .
139 There was also a victim impact statement from Angela Leon. You were manipulative, enabling you to molest her. Those memories were constant in her life and never receded. They were always there. The memories of your molestation of her permeated every aspect of her being.
140 Prior to your sexual abuse of Angela, she was outgoing, adventurous and feared little. She was also very trusting and easily manipulated. She suffered extensively from guilt, even today. Guilt about her participation in the abuse and keeping it secret. She found this period of her life difficult to talk about.
141 Despite her reticence to discuss the sexual abuse she encountered as a child, the memories of your abuse were always with her, continually plaguing her thoughts and affecting her behaviours. She relived the abuse over and over again every single day. It did not matter what she was doing or where she was going, the memories were always there. The two main areas of her life that had most prominently been affected were her emotional and sexual development. The ramifications of your abuse had affected her emotionality. Her emotions had been difficult to manage and cope with, such as guilt, anger, confusion, frustration, sadness, loneliness and insecurity. For many years, she wondered whether she should tell anyone about what you had done to her and she told no-one, justifying her silence by making herself believe it was only her, and that no-one else would have had such an experience with you. She silently lived with your offending as a pre-teen. The circumstances of your abuse and her confusion about it, led to feelings of depression and anxiety, which became increasingly overwhelming.
142 Angela became belligerent in her behaviour, angry, and she felt isolated. Punishment became a normal part of her life. She had recurring nightmares, and to this day, had problems with sleep.
143 She was 13 years of age when she first began contemplating suicide, just wanting the memories, the anxiety, the desolation and dreams to stop. Her inability to achieve this caused her to withdraw and question her own self-worth.
144 She was extremely critical of herself and in those moments, the shame, guilt and self-loathing dominated her emotions.
145 As a young teen, to the outside world, Angela appeared to be outgoing. She masked her inner turbulence. However, aggression and rebelliousness began creeping further and further into her behaviour. She began to engage in petty crimes, her social circle changed, and she began socialising with a tougher crowd. She was a sexualised child. She had difficulty with intimate relationships that she cared about. Your offending had adversely affected her sexual relationships and her responses to others ever since, as detailed in her statement. Illicit drugs provided her with a way of coping with your offending. Unfortunately, in the world of illicit substances, that relief became harder and harder to maintain.
146 Depression manifested itself as anger more than crying, even now. She became increasingly confrontational and aggressive over minor issues.
147 As a result of her emotional disaffection, her relationships suffered, as had her working life. She had difficulty maintaining steady employment for extended periods of time.
148 At 26, she began to a see a psychologist for the first time to talk about her past and the sexual abuse. She found that of some assistance in dealing with her childhood trauma. Unfortunately, that psychologist moved interstate and she began to unravel again, and began taking antidepressants.
149 Angela again relied upon illicit drugs to help her cope and to escape, with the then negative impacts of such a lifestyle, as she describes in her statement.
150 She felt guilty she had not reported your offending, which made her feel like she was complicit in the molestation.
151 She also saw a psychiatrist for a while, and despite being prescribed medication to assist with sleep, could not sleep. Your offending had corrupted her perception of male intimacy and male desire, especially where children were concerned, as described most eloquently in her statement.
152 Despite the criminal justice process, which had been uncomfortable for her, she felt a sense of relief that she had finally broken her silence.
153 There was no doubt your offending had adversely impacted upon each of the victims in the ways described in their statements.
154 Also relevant is the notion of social rehabilitation, and a number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[22], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[23] (allowing, of course, as I do, for the differences in factual circumstances to your present case). The Court said:
“… With respect to those statements [victim impact statements], I repeat comments that I have made as a Sentencing Judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the Judge who would of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a Sentencing Judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view [His Honour said] they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[22] [2006] VSCA 60
[23] [2003] VSCA 109
155 The effects upon a victim are a relevant sentencing consideration (s5 Sentencing Act 1991). But I am conscious, however, I must not allow the effects upon a victim, or victims, to swamp the sentencing process, and must be mindful to take into account only impact directly related to your offending.
156 Turning to the serious sex offenders provisions in s6D Sentencing Act 1991, you are sentenced as a serious sexual offender on Charges 1 to 5 and 7 on the indictment (not Charge 6). When determining the length of sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. The prosecution, as I have said, was not seeking a disproportionate sentence and I can appropriately sentence you without the need to impose such a sentence.
157 When sentencing as a serious sexual offender, I apply The Queen v RHMcL[24], more recently considered in DPP v Hopner[25] and Matheas v The Queen[26].
[24] (2003) 203 CLR 452 at [76]
[25] [2016] VSCA 303 [48]-[52]
[26] [2017] VSCA 330 [46]-[50]
158 In Matheas, Tate JA referring to Gordon v The Queen[27] and DPP v Bales[28] (when s6E was enlivened) and stated:
“… there is a need to ensure that the totality principle is not applied in a manner in inconsistent with the legislative purpose of s6E, that is, full effect is not to be given to the totality principle as though s6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purposes.” (See Matheas para 50)
[27] [2013] VSCA 343
[28] [2015] VSVA 261
159 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also consider the need for general deterrence when sentencing you, which is of particular importance when sentencing. The courts have repeatedly referred to the seriousness of sexual offending involving young children, and of course, in referring to a number of these cases, I am very mindful of the different offences and factual scenarios in each case.
160 Sexual offending against children is regarded by the courts as very serious and there have been such pronouncements over many years, including R v Wayland[29], R v Sposito[30], R v WEF[31], DPP v VH[32], R v Parente[33], DPP v DJK[34], DPP v CPD[35], DPP v Clunie[36] and DPP v Dalgleish[37], and also see most recently, the decision of Carter v The Queen[38]. Also most recent yesterday being 9 May 2018, Court of Appeal decision regarding sexual offending against children in Phillips v The Queen[39], Crawford v The Queen[40] and Grantley v The Queen[41], albeit I note for offending different from yours. The concern of that Court regarding sexual offending against children continues.
[29] 14/9/1992 CCA Vic Unreported
[30] 8/6/1993 CCA Vic Unreported
[31] [1998] 2 VR 385
[32] (2004) 10 VR 234
[33] 20/2/1996 CCA Vic Unreported
[34] [2003] VSCA 109
[35] [2009] VSCA 114
[36] [2016] VSCA 216
[37] [2017] VSCA 360
[38] [2018] VSCA 88
[39] [2018] VSCA 114
[40] [2018] VSCA 113
[41] [2918] VSCA 112
161 There is also the need for specific deterrence when sentencing you, as your offending involved a number of complainants over a significant period of time with multiple offences.
162 I must also consider the protection of the community from you, and in this regard, I do remain concerned about your rehabilitation prospects. They are, as Mr Backwell said at best, guarded. Although I anticipate you will be much older and less likely to be in a position to offend against a child again should you live beyond your sentenced time.
163 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
164 In my opinion, the very magnitude of your offending demands a sentence of some substance, of course being mindful of the matters that have been raised in mitigation on your behalf by Mr Backwell.
165 In determining the appropriate sentence, I have also taken into account principles of totality and proportionality (consistent with RHMcL and subsequent cases).
166 On the charges before me, I sentence you as follows.
167 On Charge 1, convicted and sentenced to 6 years and 6 months’ imprisonment.
168 On Charge 2, convicted and sentenced to 4 years’ imprisonment.
169 On Charge 3, convicted and sentenced to 4 years’ imprisonment.
170 On Charge 4, convicted and sentenced to 10 months’ imprisonment. I note this one is a two year maximum.
171 On Charge 5, convicted and sentenced to 10 years’ imprisonment.
172 On Charge 6, convicted and sentenced to 18 months’ imprisonment.
173 On Charge 7, convicted and sentenced to 18 months’ imprisonment.
174 I direct the following in relation to cumulation and currency. Be aware counsel, because some of them are serious sex offender. I have changed the concurrency cumulative so listen carefully.
175 Charge 5 is the base sentence.
176 I direct that 3 years of Charge 1 be served concurrently and 3 years and 6 months cumulatively upon Charge 5.
177 I direct that 3 years of Charge 2 be served concurrently and 1 year cumulatively upon Charge 5.
178 I direct that 3 years of Charge 3 be served concurrently and 1 year cumulatively upon Charge 5.
179 I direct that 4 months of Charge 4 be served concurrently and 6 months cumulatively upon Charge 5.
180 I direct that 10 months of Charge 6 be served cumulatively upon Charge 5.
181 I direct that 12 months of Charge 7 be served concurrently and 6 months cumulatively upon Charge 5.
182 For clarity, the orders for cumulation are upon each other and upon the base sentence.
183 That results in a total effective sentence of 17 years and 4 months’ imprisonment and I direct that you serve a period of 13 years before you are eligible for parole.
184 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these offences following pleas of not guilty to them, in other words, following jury verdict, I would have sentenced you to a term of imprisonment of 21 years and set a non-parole period of 17 years.
185
As you have pleaded guilty to two registrable Class 1 offences (Charges 1 and 5) and four Class 2 offences (Charges 2, 3, 4 and 7) Sex Offenders Registration Act 2004 (Vic), you are required pursuant to s34(1)(b)(ii) of that Act, to comply with reporting obligations for a life, such being mandatory. Your counsel,
Mr Backwell, agreed such classification and duration will apply to you.
186 In a moment, Ms Jackson, my associate, will approach you with documents that tell you a bit about that register. You are being asked to sign for the receipt of the documents, not whether you want to be on the order or not. I have made that order. Just for the receipt of the paperwork, but if you do not want to sign, it is up to you.
187 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 731 days in custody (up to and including yesterday, 9 May) by way of pre-sentence detention and I direct that that be entered into the records of the Court.
188 Also, I confirm for clarity, you have been sentenced as a serious sexual offender on Charges 1 through to 5 inclusive and 7, note not 6, which was a charge of common assault.
189 The prosecutor made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Mr Backwell, on your behalf, consented to the making of the order, and I make the order in the terms sought. It will be a saliva sample, and I do so on the basis of the seriousness of your offending, and I must advise you, the authorities may use reasonable force in order to obtain that sample.
190 First things first. Are there any other orders required?
191 MR DOYLE: No.
192 HER HONOUR: Good. Did you get the maths and did everyone follow the maths?
193 MR RIORDAN: Sorry, Your Honour. I have just been asked - - -
194 HER HONOUR: Did you get the maths, the sentence?
195 MR RIORDAN: I have done the - - -
196 HER HONOUR: I am not asking if you agree with it or not.
197 MR RIORDAN: Yes, I do.
198 HER HONOUR: I am just asking, did you get the maths?
199 MR RIORDAN: Yes.
200 HER HONOUR: All right, excellent. Next, PSD. Is it correct?
201 MR DOYLE: Should be 731.
202 HER HONOUR: 731 days up to and including yesterday. That will be pursuant to s18(4) and I think they were the only matters I wanted to raise. You can wander down the back if you want to, Mr Riordan. Ms Jackson is going to approach him to sign the receipt of the documents to do with the register. He is not asking if he wants to be on it.
203 MR RIORDAN: Yes.
204 HER HONOUR: I have made the order.
205 MR RIORDAN: Thank, Your Honour.
206 HER HONOUR: Yes, thank you, Mr Fichtner. You need to leave please. Yes, thank you.
207 MR DOYLE: Yes, Your Honour.
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