Director of Public Prosecutions v Fields (a pseudonym)
[2023] VCC 1396
•21 July 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAKOB FIELDS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LYON |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 21 July 2023 |
CASE MAY BE CITED AS: | DPP v FIELDS (A PSEUDONYM) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1396 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic); Crimes Act 1958 (Vic); Sex Offender Registration Act 2004 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins [2007] VSCA 102; DPP v Turner [2023] VCC 654; DPP v Stevens [2021] VCC 1510
Sentence:9 years and 6 months imprisonment with a non-parole period of 6 years
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms Malobabic | Office of Public Prosecutions |
For the Accused | Mr Hunter | Kingston Lawyers |
HIS HONOUR:
1Jakob Fields[1], you have pleaded guilty to the following charges which carry the following maximum penalties: You have pleaded guilty to four charges of sexual penetration of a child or lineal descendent contrary to s50C(1) of the Crimes Act1958.[2] Each of these offences carries a maximum penalty of level 2 imprisonment, which is 25 years' imprisonment. In addition, each of the offences is Category 1 offence under s3(1) of the Sentencing Act 1991 and in addition each is a standard sentence offence under ss5A and 5B of the Sentencing Act1991.[3]
[1] A pseudonym
[2] (Vic).
[3] (Vic).
2In addition to that, Charges 3 and 4, should you be sentenced to a term of imprisonment in respect of Charges 1 and 2, which is inevitable, will lead to a declaration that you are a serious sexual offender and consequences flow from that.
3You have no criminal history and you have no matters outstanding.
Circumstances of Offending
4The Crown tendered the summary of prosecution opening as Exhibit A. A summary of your offending is as follows.
5The victim of your offending is your biological daughter. She was born in 2006 and was aged between ages of 11 and 12 years old at the time of your offending. She is now 16 years of age.
6At the time of your offending, you were 43 to 44 years of age.
7You were married to the victim's mother and you had two children, including an older son. You separated in 2008.
8You had an arrangement whereby your children visited you every couple of weeks after school. After a period of time and due to your relationship difficulties with your son, who has non-verbal autism spectrum disorder, you commenced seeing your children separately.
9The offences occurred between 1 August 2018 to 19 August 2019 when your daughter visited you after school on her own.
10Charge 1 involves an occasion where you asked the victim to go to your bedroom. She removed her primary school uniform and underwear and you licked and penetrated her vagina with your tongue for somewhere between five to 30 minutes.
11Charges 2, 3 and 4 were each instances where you were sitting on the couch with your daughter and you penetrated her vagina with your finger.
12There are a number of instances of other penetrations which constitute uncharged acts. You told the child protection practitioners that you offended against your daughter on approximately 10 occasions.
13In July 2019 the victim told her mother that you touched her leg when you were sitting on the couch together and that this made her feel uncomfortable and scared. Her mother told you that the child was 'growing up' and that you needed to give her more personal space. You replied, 'Yes, no worries', which I take to be an indication that you understood what your former wife was telling you.
14Then the victim herself confronted you, asking, 'Do you know how bad it is?' You replied that it was bad and you agreed with her statement that you should stop. It is apparent that you continued to sexually penetrate your daughter after this point. In answer to a specific query from me it is agreed between the parties that you committed one charged act (that is Charge 4) and other uncharged acts after your daughter confronted you and, in effect asked you to stop assaulting her.
15On 21 August 2019 the victim cried to her mother stating that you had been licking her and touching her private parts. She told her mother that she wanted you to stop but she did not want you to go to prison.
16The following day you were confronted by your former wife who asked if you had touched the victim inappropriately. You replied, 'Yes, but only a couple of times'. You sent a further acknowledgement by text stating, 'I'm sorry'.
17Your mother took you to see a GP, who reported the matter to the child protection services. A plan was put in place whereby you were prohibited from seeing your children. You have not had contact with your children since August 2019.
18As I have already stated, it was in those circumstances that you told the child protection practitioner that you had sexually touched your daughter about 10 times.
19Although the victim spoke to the police in August 2019, she was not ready to make a complaint. The victim again spoke to the police in August and September 2021. You attended police by appointment on 18 November 2021 and made no comment record of interview.
20You were not charged with these offences until December 2022. You indicated a plea of guilty at or shortly after the filing hearing and entered your plea at the committal mention on 17 March 2023.
21You were remanded in custody after the plea hearing on 10 July 2023 and you have now spent 11 days in prison by way of pre-sentence detention, which will be declared and reckoned as already served.
Standard Sentence Principles
22I now turn to a consideration of the standard sentencing scheme.
23The scheme provides for a standard sentence for Charges 1 to 4; sexual penetration of a child or lineal descendent.
24All things being equal, I must set a minimum term of not less than 60% of the head sentence unless I consider that it is not in the interests of justice to do so.
25The 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.
26Objective 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.
27In determining the appropriate sentence for your offending, I must take into account the standard sentence as one of the factors relevant to sentencing.
28In this way, it is an additional factor to consider in the sentencing process.
29Furthermore, I must not have regard to previous sentencing practices which are not standard sentencing scheme sentences.
30This does not limit the matters which I must 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.
Objective Gravity and Moral Culpability
31I turn now to a consideration of the objective gravity of your offending and an assessment of your moral culpability.
32The seriousness of the offence of sexual penetration of a child or lineal descendant is marked by the fact that Parliament has imposed the maximum penalty of 25 years' imprisonment.
33The objective gravity of your offending is obvious. Incest is abhorred by the community. Incest is a repugnant offence that strikes at the core of the family relationship and involves a fundamental breach of trust. This offending stands in total conflict with your responsibilities as a parent to protect and nurture your daughter. This was your own biological child that you abused. Instead of protecting your young daughter, you did her serious harm. In the process, the family unit has been destroyed. Your actions will have profound ripple effects on the rest of your family members also.
34The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. There is and can be no question or issue about consent. The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child.
35Your told Associate Professor Sullivan that your daughter engaged in sexualised conduct with you and that you felt compelled 'to give her what she wanted' or she would not come over to see you. I utterly reject this means of rationalising your actions as representing the true state of affairs. In this respect, I refer to paragraph 68 of Dr Sullivan's report. In any event, the adult parent can never use 'passive participation' in sexual activity with a child as a means of lessening the objective gravity of their offending. I should add that your counsel was very careful and responsible in his submissions in this respect and did not seek to use your perception to lessen the seriousness of your offending.
36The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm which is long-lasting and serious and manifests itself in both physical and psychological forms. Therefore, the harm to your victim is presumed.
37In this case the victim impact statement made by the victim's mother makes it clear that the harm you caused to the child was actual and profound. Her trust in others and the presumption of relative safety with which we mostly go about our lives has been destroyed in her. The experience of the courts shows that the harder, longer road to rehabilitation is usually experienced by the victims of childhood sexual abuse. In many cases the trauma is carried with them for the whole of their lives. This may well be the case here.
38Your offending was not isolated in occurrence and continued in the face of your former wife and daughter speaking to you.
39Your offending is therefore objectively serious, and must be met by deterrence, just punishment and, with the serious sexual offender charges, protection of the community.
Personal Circumstances
40You are 47 years old.
41Prior to being remanded you resided on the Mornington Peninsula with your partner.
42You have two children from your past marriage to Jenna Fields[4]: Ronald[5], who I have mentioned is aged 18, and Natasha[6], aged 16, who is the subject of this offending. I note you were married once before this.
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
43As I say, your son has been diagnosed as non-verbal autistic and suffers from epilepsy.
44Turning to you, you were born overseas and moved to Australia with your parents at the age of one.
45Your parents separated when you were around five years old and you do not have and nor have you ever had a relationship with your biological father. You consider your stepfather to be a father figure to you.
46You struggled in school academically, socially and in sport. You described struggling to understand your schooling and having trouble with academic subjects but received no extra assistance, instead copying off others to pass your VCE.
47Socially, you describe having had one good friend in primary school and a small group of friends in secondary school, nevertheless you state you felt 'like a spectator' in these friendships and were often teased, picked on and assaulted at school.
48You reported to Dr Sullivan that you previously had a good friend, but you have not spoken for a number of years since this offending. Your interests currently include collecting Hot Wheels Cars, making model railways and constructing plastic models from kits; all activities which you like to do by yourself.
49Since finishing high school, you have maintained stable employment making ornamental fibreglass moulded fittings for houses, a field in which you have worked for 12 years. You most recently worked for a Melbourne glazier. Your work did not involve any contact with the public and very little with your fellow workers. You rarely took holidays and did not take sick leave. You resigned from that position in light of the charges you currently face.
50I received evidence at the plea hearing from your stepfather, who became very emotional when speaking about your offending.
51I also received character references from your mother and current partner. They speak of you as a quiet, kind-hearted person who has struggled immensely with your mental health issues and loneliness in life. You have always been open to them about your offending and it is clear you still have the love and full support from your family and partner.
52From the picture painted by Mr Hunter, who appeared on your behalf, you live a very quiet, simple, child-like existence, where you depend almost entirely on your mother, stepfather and partner to negotiate everyday life for you. A striking example of this was provided by Dr Sullivan. That is, after you resigned from the glazier, your partner would drop you at your parents' place. She would then go to work. You would spend the day with your parents until you were picked up again by your partner at night.
Psychological and Psychiatric Material
53I received reports from Dr Sue Cockman, educational development and clinical psychologist, dated 2 February 2023 and 25 June 2023.
54Dr Cockman saw you on seven occasions from December 2021 to February 2023. From her interviews with you she reported your lifelong social difficulties. At school, you could not understand games or real social interactions. You struggled with academic tasks. You had few friends.
55After testing, Dr Cockman reported on your cognition assessment as follows:
(a)your verbal comprehension is at the 19th percentile, which puts you in the low average range;
(b)your perceptual reasoning is in the 96th percentile, which is superior;
(c)your working memory is in the 6th percentile, which puts you in the borderline category; and
(d)your processing speed is in the 23rd percentile, which puts you in the low average range.
56Dr Cockman diagnosed you with autism spectrum disorder without intellectual and language impairment and requiring level II support for social communication and restricted, repetitive behaviours. Dr Cockman also diagnosed you with generalised anxiety disorder.
57Dr Cockman concluded that you are:
(a)largely socially isolated;
(b)unable to describe your own emotional state; you are unable to read emotions or intensity of feelings in others and have little capacity to understand other people by describing mental states to them; (that is the theory of mind);
(c)you have significant difficulty initiating activities and rely on routines provided for you by your partner, mother and stepfather. For example, all shopping and cooking is planned and undertaken by your partner;
(d)at least before remand you were taking a variety of medications;
(e)you must stick to routines in order to navigate daily life and, as I have stated, you take directions from your partner and guidance from your parents in this respect; and
(f)you are prone to making relational errors.
58Dr Cockman considers your experience of prison will be that of a child being placed in an adult prison. She considers you would be vulnerable at every turn.
59Associate Professor Sullivan confirmed the diagnoses of autism spectrum disorder and generalised anxiety disorder and further considered that you displayed prominent traits of dependent personality disorder and adjustment reaction with depressed mood.
60Professor Sullivan does not consider there is any indication of paraphilia your case; he concludes that you are aware of the wrongfulness of your actions and that you are remorseful.
61Professor Sullivan concludes that your autism spectrum disorder and deficits in social understanding did not materially contribute to or cause the offending.
62Professor Sullivan considers that you need offence-specific treatment, modified to suit your cognitive issues, in order to ensure that the treatment is effective. Further, he considers that you need to continue your SSRI medication whilst in custody.
Sentencing Submissions
63Mr Hunter who, as I say, appeared on your behalf submitted the following factors should operate to mitigate your sentence:
(a)the plea of guilty was made at the earliest time and in the face of the COVID backlog, so that is the application of the Worboyes[7] principle;
(b)the plea has utilitarian benefit and facilitates the course of justice;
(c)you have exhibited remorse through your plea of guilty, your disclosure immediately to your mother and text messages to your friend;
(d)your prospects for rehabilitation are good. You have good support, a good work history and remorse;
(e)you are unlikely to reoffend again. You have no paedophilic traits, your offending was both opportunistic and situational and you are unlikely, with lifetime Sex Offenders Registration monitoring requirement, to ever be in a position to offend again; and
(f)that Verdins[8] principles 5 and 6 should apply. With your cognition you will find gaol extremely difficult to negotiate. The separation from your partner and parents will increase your anxiety and you will inevitably make relational errors.
[7]Worboyes v The Queen [2021] VSCA 169.
[8]R v Verdins & Ors [2007] VSCA 102.
64Mr Hunter provided material from the Sentencing Advisory Council. He pointed to median sentences for single offending and submitted that you should be given the opportunity for a significant period of parole. There should be some concurrency between the sentences, notwithstanding the serious sexual offender presumption.
65Ms Malobabic who appeared for the Crown submitted that the only appropriate sentence is a term of imprisonment with a non-parole period.
66The Crown submitted that the sentence must take into account the fact that you committed multiple offences over a 12-month period. When seen against the multiple uncharged acts, these four offences were not committed 'out of the blue'.
67The Crown submits that your offending is made more serious by the fact that one of the charged offences and multiple uncharged acts occurred after the conversation in the car with your daughter. In other words, when confronted by her, you acknowledged that your offending was wrong but you continued anyway.
68The Crown submits that limb five of Verdins applies but none of the other limbs.
69The Crown submits that the risk of reoffending cannot properly be measured as you were not specifically tested. Moreover, by your assertion that you were passively participating in the activity with the child, you still lack insight. Furthermore, Dr Sullivan noted that none of your deficits played any role in the offending.
Analysis
70I turn to my analysis. I take into account that this is a category one offence. In any event, all agree that only a period of imprisonment is appropriate for your offending.
71I have taken into account that these offences fall under the standard sentence provisions. I shall say more about the application of those provisions when I come to impose sentences for each of the offences.
72You fall to be sentenced as a serious sexual offender in relation to Charges 3 and 4, with Charges 1 and 2 being the so-called 'qualifying' offences.
73In the event that I sentence you to a term of imprisonment on Charges 1 and 2, which is inevitable, you will be declared a serious sex offender on Charges 3 and 4. I must then regard the protection of the community as the principal sentencing purpose.[9] The legislation provides that, unless I otherwise direct otherwise, the terms of imprisonment for the serious sexual offender charges must be served cumulatively.[10]
[9] Section 6D(A) Sentencing Act 1991 (Vic).
[10] Section 6E.
74The Crown is not calling for the imposition of a disproportionate sentence in this case. Given the scope of the sentencing available to me, I do not intend to impose an overall disproportionate sentence.
75Although I intend to cumulate part of the sentence for each of Charges 3 and 4, it will also be necessary to make a large component of the sentence concurrent to ensure that the principle of totality is met.
76I conclude that the plea of guilty was made at the earliest time, that it is attended by remorse and that it was made during COVID times, that it has utilitarian benefit and facilitates the course of justice. All of these matters must be taken into account to mitigate your sentence.
77Despite the Crown's submission urging caution, I consider that your prospects of rehabilitation are very good and the likelihood of you reoffending is low. I consider that your offending was indeed situational. As you have been assessed as not possessing paedophilic traits and that your offending was not associated with your cognitive issues, it seems reasonable to conclude that you are unlikely to seek out further children to offend against. Moreover, you have strong family support and a good work history which support your prospects for rehabilitation. You have no history of alcohol or drug abuse.
78I consider that you have used the period of time provided by the delay in this case to show that you are unlikely to offend again in this way. The delay itself in this case is a factor to which I have some regard.
79I take into account your loss of employment. I recognise that obtaining employment in the future may be difficult but not impossible for you. Rather, I recognise that it was difficult for you to have to resign from your long-standing job as the prospect of imprisonment loomed.
80Contrary to the Crown submissions, I consider that both Verdins limbs 5 and 6 are applicable to the sentencing consideration in this case. Your autism spectrum disorder, your cognition issues, your difficulty in reading others and forming relationships will indeed make prison more difficult for you than for the general prison population. Based on the reports I received, I consider that there is a real likelihood that these issues, and in particular your general anxiety disorder condition will be exacerbated by your time in prison.
Comparable Cases
81I was not referred to any comparable cases. Nevertheless, my staff found the case of Turner [2023] VCC 654, sentencing remarks of Judge Doyle, and the case of Stevens [2021] VCC 1510, sentencing remarks of Judge D. Sexton (referred to in Turner). Both are standard sentencing cases.
82Turner pleaded guilty to six charges of penetration of two lineal descendants (all involving penis/vagina or penis/anal penetrations). The complainants were between 11 to 13 years of age and 10 years old at the time of his offending. Like you, Turner had no prior convictions. Turner had Bugmy considerations and faced the prospect of deportation to Tonga at the end of his sentence. The individual sentences for penetration ranged between six years, four months to seven years. There was a degree of cumulation in conformity with the serious sex offender provisions but a large degree of concurrency to ensure totality was achieved. Ultimately Judge Doyle sentenced Turner to 12 years, 2 months with 7 years, 10 months to serve in respect to these and other charges.
83Stevens pleaded guilty to six charges of sexual penetration of a stepchild in relation to two different victims. Judge D. Sexton imposed individual sentences of six years, six months on most of the individual counts, which included instances of oral penetration (that is licking the victim's vagina), penile/anal penetration and digital/anal penetration. Stevens pleaded guilty at an early time, exhibited remorse and insight and was cooperative in the admissions he made to police. Judge D. Sexton sentenced Stevens to 11 years with 7 years to serve to these and other matters.
84Of course, there are a range of differences between your offending and your circumstances and those of the other offenders in these two cases. It is interesting, however, to see how other judges view sentencing for standard sentencing offences and how the question of cumulation and totality was dealt with. In the end, however, I must not be overly influenced by the sentences imposed in other cases. I must come to a sentencing decision in relation to your offending and your circumstances so far as they are relevant to the sentencing consideration.
Orders
85Accordingly, I make the following orders:
86On Charge 1, sexual penetration of a child or lineal descendent you are convicted and sentenced to 6 years and 3 months' imprisonment. I make that the base sentence.
87On Charge 2 you are sentenced to 6 years and 3 months' imprisonment. I cumulate 1 year of that sentence on the base sentence and other sentences.
88On Charge 3 you are declared a serious sexual offender. You are sentenced to 6 years and 3 months' imprisonment on that charge and I order that 1 year of that sentence be cumulated on the base and other sentences.
89On Charge 4 you remain a serious sexual offender. You are convicted and sentenced to 6 years and 3 months' imprisonment. I order 1 year and 3 months of that sentence be cumulated on the base and other sentences.
90The total effective sentence is therefore one of 9 years and 6 months. I order that you serve a non-parole period of 6 years before you are eligible for parole.
91I declare the period of 11 days pre‑sentence detention, excluding today, reckoned as already served.
92I make the 6AAA declaration that but for the pleas of guilty in this case I would have sentenced you to a term of 12 years with nine years to serve.
93I have taken into account the standard sentence for this offence in relation to each of the charges and for the overall offending and I have come to the conclusion that a lower sentence is warranted in the interests of justice in this case.
94I order that your status as a serious sexual offender be entered into the records of the court. Each of the offences is a Class 1 offence. Registration under the Sex Offender Registration Act 2004 is mandatory upon your conviction for these offences. Your reporting period is a period for the rest of your life. You will be provided with paperwork and an acknowledgment form for you to sign.
95I will provide copies of the reports of Dr Cockman and Associate Professor Sullivan to the prison authorities.
96Ms Birkin, is there any other matter to which I must attend or are there any ancillary orders? There are none filed.
97MS BIRKIN: No, Your Honour. No orders and no other matters.
98HIS HONOUR: Thank you. Mr Shannon, is the sentence clear to you and do you want the opportunity to speak to Mr Fields on the video link? I can take the other parties out.
99MR SHANNON: There are no other matters, Your Honour, and I think it may be better to speak to my client a bit later on.
100HIS HONOUR: Very well, thank you very much. That being the case, I'll adjourn now.
101MR SHANNON: As Your Honour pleases.
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