Director of Public Prosecutions v Forester (a pseudonym)
[2021] VCC 732
•7 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V JONATHON FORESTER (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE LACAVA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 June 2021 |
DATE OF SENTENCE: | 7 June 2021 |
CASE MAY BE CITED AS: | DPP v Forester (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 732 |
REASONS FOR SENTENCE
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Subject: Charge 1 : indecent act with or in the presence of stepdaughter.
Charge 2 : incest with stepdaughter.
Sentence: 7 years imprisonment with 4 and ½ years non-parole.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. James | Office of Public Prosecutions |
For the Accused | Mr P. Stefanovic |
HIS HONOUR:
1In these sentencing remarks you are named by use of a pseudonym, and that is done to protect the identity of your victim, and her family, both of whom have suffered greatly as a result of your offending.
2You have pleaded guilty to two charges involving sexual offending against your then stepdaughter. Your offending occurred between 10 August 1997 and 4 December 1997. At that time your stepdaughter was aged between 12 and 13 years, and you were 30 years of age.
3Charge 1 is a charge of committing an indecent act with or in the presence of your stepdaughter. You had her masturbate you on multiple occasions. The maximum penalty for this offence is imprisonment for 10 years.
4Charge 2 is a charge of incest with your stepdaughter. You introduced your penis into her mouth. The maximum penalty for this offence as at the commencement of the period in which you offended was imprisonment for 20 years. The maximum penalty for incest was in fact increased by the parliament to 25 years on 1 September 1997. That gives you some idea of the seriousness with which the parliament of this state regards offending of this kind by adults against children. For the purposes of sentencing you I assume a maximum penalty of 20 years imprisonment.
5Each of the charges to which you have pleaded guilty is a course of conduct charge. Section 5(2F) of the Sentencing Act 1991 ('the Act') provides that in sentencing you on a course of conduct charge I must impose a sentence that reflects the totality of offending that constitutes the course of conduct and, I must not impose a sentence on that charge that exceeds the maximum penalty prescribed for a single offence. In passing sentence, I have endeavoured to have full regard to the totality of your offending in each charge.
6The circumstances of your offending are summarised in a prosecution opening in writing dated 20 May 2021 which was read to the court and tendered in evidence by the prosecutor Ms James. Your counsel Mr Stefanovic did not dispute that the prosecution opening accurately summarises your offending. The prosecution opening was marked as Exhibit A on the plea.
7It is not necessary that I again set out what is more fully contained in the prosecution opening. I do so only in an abbreviated way.
8At the time of offending you were married to the victim’s mother. You and the victim and her mother lived together in the family home in suburban Melbourne. At the time you commenced to offend the victim's mother was pregnant with your expectant child. Your offending commenced when she went out with friends to play bingo leaving you at home to mind your stepdaughter. Thereafter, and on what is described in the summary as multiple occasions whilst alone with your stepdaughter, you made your stepdaughter manually masturbate your penis with her hand. You threatened her by telling her, 'If you don't do it you and the new baby will get taken away'. Charge 1 indecent act on a course of conduct basis.
9Your offending escalated in seriousness. On three occasions between the charged dates, you put your penis into your stepdaughter's mouth and you made her perform oral sex on you. Charge 2 incest on a course of conduct basis. The summary does not mention whether you ejaculated but you did not wear a condom.
10Your offending occurred when your wife, the victim's mother was not at home and when you were entrusted with the care of your stepdaughter. You abused the trust that had been placed in you as a stepfather and carer of a child to fulfil your own selfish sexual gratification. You abused your trust as a husband. The offences occurred in a context of other uncharged acts described in paragraph 12 of the summary where before these charged offences you acted to sexualise your parental relationship with the victim.
11Your stepdaughter disclosed what you had done to a school friend in 1997. After this word spread around the school and the victim's mother confronted the victim, and then you, with the rumour in 1997. You admitted sexual contact with the victim at that time. Later the victim told her uncle who also confronted you, and you later admitted to the uncle that you had engaged in sexual activity with the victim. Later, after you separated from your wife, in a series of written letters you made admissions as to what you had done with the victim. These letters did not surface in the evidentiary case against you until many years later having been archived by Victorian Police.
12This is clearly serious offending involving as it does, sexual offending against a child whilst in your trusted care in a parental relationship. This must have been a confronting and horrible experience for a 12 to 13-year-old girl to have endured. You used non-violent threats in order to have the victim comply with your requests that she sexually satisfy you. Although the offending was confined to a relatively short period, there were repeated sexual acts over about a four-month period. In my judgement your offending falls at about mid-range for this kind of offending.
13In sentencing you I must keep in mind sentencing practices for this kind of offending in the 1990s when you offended.
14A number of decisions of the Full Court of the Supreme Court of Victoria and after 1995 the Victorian Court of Appeal reflect the Court's, and the community's, abhorrence at this kind of offending against children at the time you offended. This abhorrence is not an attitude that has only surfaced recently. It was being expressed around the very time that you were offending.
15In R v Ware [1997] 1 V.R 647 Hedigan J spoke of the evils of the crime of incest at p653. He said this:
The courts have had occasion, more often than they would care to remember, particularly in the past decade, to consider matters raised by these cases, involving both the interests of young persons and societal interests in protecting them by the detection and punishment of this type of crime, which strikes at the familial roots of civilised society.
16The considerations involved in the appeal by the Director on the basis that the sentences were manifestly inadequate have been the subject of consideration by the Court of Appeal in many recent cases, including R v Clarke [1996] 2 V.R. 520 and R v O'Rourke [1997] 1 V.R. 246. The Director reminded us of statements made by earlier Courts of Appeal in R v Sposito (unreported, 8 June 1993) and, even earlier, in R v Wayland (unreported, 14 September 1992) by the Court of Criminal Appeal, passages from which bear repeating. In Wayland, the earlier of the two cases, Crockett J who gave the leading judgment, had this to say with respect to a charge of child abuse at p4:
The undoubted fact is that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect both to specific and general deterrence.
17In Sposito, (unreported, 8 June 1993) Marks J said, at pp4 to 5 of his judgment:
Over the recent past, the large number of incest cases before the Court has made it apparent that the commission of incest, repulsive and unnatural as one would assume it to be, is not the rarity for which a civilised community may be expected to hope. It must be inferred that the large number of incest cases which this Court now sees is merely a fraction of the number of offences with which the court system as a whole is concerned and those which are occurring without report. It is clear that the high numbers, however, reflect less an increase in the commission of the offences than, rather, an increase in the confidence of victims that their report of the crime will be sympathetically received and investigated.
A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are 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. An even more alarming revelation is the frequent failure in these cases of support for the victim from other members of the family.
18Finally, in R v Wakime [1997] 1 V.R 242 per Winneke P at p244 had this to say:
As this Court has repeatedly pointed out, incest is an abhorrent crime. His Honour correctly recognised the crime's capacity to erode decent family life and the trust and confidence of its victims. This Court has said that it ought not turn its back on the tide of community anger and resentment towards crimes which involve the despoliation of children. As the Court has indicated in the past, if fathers wish to claim guardianship rights over their children, they have an overriding responsibility to assume their obligations to protect, inter alia, the moral welfare of those children. Incest simply undermines the role of guardianship and destroys the entire concept of family unity, and that is why this Court in particular is continually reminding itself and other courts that incest ought to attract condign punishment. His Honour correctly recognised, in passing his sentence, the odious nature of the offences.
19Abhorrence of these crimes is not confined to Victoria. Appellate courts in all jurisdictions in this country have repeatedly said that crimes against children and young persons are to be regarded as abhorrent, and that the courts have a duty to the victims, and to the community generally, to protect children from people such as yourself who might be minded to take advantage of them for personal sexual gratification. Experience of the courts has shown that where such offences are committed, the effects upon the victims (as here) and upon the family as a whole (as here) are both profound and lasting.
20Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend as you have, that if they do so and they are detected, the punishment from the court will be stern and appropriate. Accordingly, in cases such as this, application of the principle of general deterrence will be a very important factor in sentencing and I have acted accordingly in imposing sentence upon you.
21I admitted into evidence victim impact statements from your former stepdaughter and her mother. The former was read in open court by the prosecutor. I have had the advantage of again reading both documents in my chambers. They are telling documents which record the emotional hurt and pain that can be inflicted on a young child by an offender such as yourself. But it does not stop there. The whole family is almost always affected with the direct parent often suffering feelings of guilt. That is the case here. Often families that were previously close degenerate or fragment. That is the case here. Because of what you did, the mother's relationship with her daughter has completely broken down. It is the experience of the court that victims of this kind of offending can suffer psychologically for the rest of their lives. The victim impact statements here show this case is somewhat typical of the harm caused by this kind of offending. In passing sentence, I have taken the victim impact statements into account, as I must.
22Offending of the kind that you have engaged in is offensive, repugnant and intolerable in this society. You breached the trust that was reposed in you as a father and partner. You destroyed the family that you had and you left its members suffering at your hands for the rest of their lives. The family has been ruined. The overall sentence must manifest appropriate denunciation of your conduct. Your counsel appropriately conceded that I must order that you serve a term of imprisonment and fix a non-parole period.
23In fixing a total effective sentence of imprisonment and in fixing a non-parole period I must balance your actions in offending with a number of matters raised on your behalf by your counsel in mitigation. I now turn to those matters.
24You have pleaded guilty to the charges and that is to your credit. By pleading guilty you have saved the time and costs of a trial, and importantly, you have saved the victim and her mother from having to again give evidence against you and having to thereby re-live these horrible events. Further, by pleading guilty to the charges you have admitted responsibility for your offending and you have advanced the administration of justice. That is especially so at the present time where this Court is faced with a backlog of criminal trials caused by the COVID-19 pandemic. By pleading guilty to the charges you have not added to that backlog and that is also to your credit. I accept that your pleas of guilty also evidence remorse on your part.
25The law provides that a sentencing court must have full regard to the fact when a person accused of a crime pleads guilty to the charges and the timing of that plea. A plea of guilty will almost always result in a reduction of sentence. A plea of guilty at the earliest opportunity will almost always attract the largest reduction in sentence. A plea of guilty at or close to trial will almost always attract some reduction in sentence but usually not the same amount of reduction had the plea of guilty been made at the earliest opportunity.
26I have referred to this in some detail in these sentencing remarks because there has been obvious delay in these charges being finalised in this court, and in your entering your pleas of guilty. It is necessary here that I here record what has occurred since your offending and how it came about that you eventually pleaded guilty to the charges many years later. I must take into account the fact of delay unattributable in any way to you.
27In August 1999 the victim and her mother went to the police and a VARE interview was made. That was two years after the offending. The then police investigator contacted you to attend for interview, but you did not attend. The summary records you did not respond to follow up messages from investigating police.
28Police attended your address to find your address vacant. Some years later, in 2003, police received information that you had moved to Queensland. You had been detected for a traffic infringement in Queensland, and the electoral role indicated a Queensland address. A telephone inquiry to you resulted in you answering a phone call, but you failed to failed to engage with further telephone calls thereafter.
29Inexplicably, between 2003 and 2013 Victoria police did nothing. A request for investigators to travel to Queensland in 2006 was apparently denied. The investigation file was found archived in 2013 when the current informant reactivated the previously archived file. The prosecution accepts that none of this delay between 2003 and 2013 can be attributed to you. You have no prior convictions whatsoever and this offending aside you have led an unblemished life. Importantly, you have not re-offended in any way since this offending or during the delay. You have never before been to prison and there is no
pre-sentence detention to be taken into account on sentencing.30Having said that, this lengthy delay through no fault of your own, must be taken into account by me in arriving at a just sentence. Justice delayed is justice denied. In arriving at an appropriate total effective sentence, and in fixing a non-parole period, I have taken the fact of delay into account.
31This delay reflects very poorly on Victoria Police. When the complainant and her mother went to the police for justice in 1999, they were entitled to expect a thorough and complete investigation of their complaint. That did not happen. In my view, from what I have been told, the investigating police initially charged with investigating this complaint, failed in their duty to the victim. You could have and should have been charged with this offending much earlier. It was not as if you had vanished and assumed a new identity in some remote outpost. You were living in Queensland under your name and you held a driver's licence and you were on the electoral role. One would have thought that even basic detective work with the cooperation of interstate police forces would have seen you easily located. That was eventually done. If your charging and extradition failed to occur in 2006 because of costs concerns within Victoria Police, then that is cause for real concern because the victim was let down. It seems no-one in Victoria Police was concerned to bring justice to your victim until the intervention of the current informant in 2013. He is to be commended.
32You were located in Queensland in 2013 but there were further delays. You were eventually interviewed by Queensland police on 17 April 2016. You denied the offending. A year later on 24 May 2017 you were charged and bailed.
33There was a contested committal on 19 October 2017 at which the victim and her uncle and two complaint witnesses and two investigators were called to be cross examined.
34A trial commenced in this court on 2 July 2018. The prosecution, just before trial, filed a notice of intention to rely upon incriminating conduct, alleging flight to Queensland. The trial was adjourned to enable you to gather evidence to rebut this argument. By this stage you had remarried, and the evidence showed you had resided at several Queensland addresses.
35The trial was again set down for hearing on 23 September 2019. It too had to be adjourned because you were physically unwell and appropriate medical evidence was provided to justify the adjournment.
36Your trial was set down for a third occasion on 16 March 2020 by which time Melbourne was engulfed in the COVID pandemic and all criminal trials in this court had to be adjourned.
37While all of this was going on investigators again went into the previously archived file where they unearthed some letters written by you to the victim's mother in 1998, shortly after these offences. In those letters you had admitted the offending. The letters were made available to you and your legal advisers on 26 November 2020 and 20 December 2020. When confronted with this new evidence of admissions, the court was advised on 2 February 2021 that you would plead guilty to the charges, and you were arraigned and you pleaded guilty to the charges on 16 February 2021.
38You have not pleaded guilty to the charges at the earliest opportunity. However, that was not your fault. The delay between about 2003 to 2016 cannot, and is not, attributed to you. You did go to Queensland in the knowledge police wanted to speak with you, but they should have pursued you. The fact Victoria Police did not do so is most regrettable, as is the fact that no-one seems to have looked into the archived file about your offending which contained written evidence, in your hand, admitting to the offending.
39Once you were confronted with that evidence you soon after pleaded guilty. For that you are entitled to a reduction in sentence and you will receive a reduction in sentence which will be explained in the sentence that I will soon pass. You were entitled to challenge the evidence in the case initially brought against you. It is to your credit that when confronted with the evidence in the letters you pleaded guilty soon after. Your pleas of guilty were not made at the earliest opportunity. Far from it. But for the reasons set out above, they are nevertheless valuable pleas for which your sentence must and should be reduced.
40I accept that I must and do take into account the delay in bringing you to justice. Whilst it cannot be said that you had these charges hanging over your head between 1999 and 2016, you nevertheless were getting on with your life in a relationship with a woman and working in IT. Most importantly, during the delay you did not re-offend and that is important. In passing sentence, I have taken the fact of delay into account as the law says I must.
41I turn to matters personal to you and to your background. Your counsel Mr Stefanovic filed a helpful written outline of submissions which I marked as Exhibit 1 on the plea.
42You were born in January 1967. You are now aged 54. As I have said you have no prior or subsequent convictions.
43You have some medical conditions. I received into evidence a medical report from Cleveland Central Medical Centre dated 27 April 2021, Exhibit 2. You were diagnosed as a Type 2 diabetic in September 2019 which was stabilised on admission to hospital. Since then you have been appropriately medicated. As well as this you have suffered from a number of medical conditions during your life summarised at paragraph 41 of Mr Stefanovic's submissions. All appear to have been appropriately treated. You will require proper medical attention for your Type 2 diabetes in prison and this will be brought to the attention of Corrections. I accept you are concerned as to your state of health in a custodial setting.
44I received into evidence a psychological report from Simon Candlish dated 11 May 2021 (Exhibit 3). Mr Candlish also gave evidence in which he adopted what he had said in his report and said he would not now change his opinions there expressed. Mr Candlish interviewed you on two occasions. He said at interview you presented as being overwhelmed by a range of strong emotions including guilt and self-loathing. He said you made some concerning statements related to suicidal ideation. Mr Candlish carried out a number of psychological tests.
45From what you told Mr Candlish it appears you were raised in a good family by good parents and wanted for nothing. You were educated to Year 10 level and then completed an apprenticeship as a plumber. As a young person you had part time jobs and played sport. Apart from a brief period of unemployment you have a good work history. In Queensland, and in the years since this offending, you have worked in the IT industry. You are presently a moderate drinker of alcohol and you have no addiction to illicit drugs.
46The victim's mother was your third serious relationship. You married her at age 28. The victim was born in an earlier relationship her mother had. You and the victim's mother had a son whom you have not met. You told Mr Candlish your sexual relationship with the victim's mother declined during pregnancy describing her as being, 'Tired and grumpy.' Around the time of offending you had an affair with another woman. Thereafter, you had two further relationships with two other Queensland women. I was told and accept that your most recent relationship ended because of these charges after almost 20 years duration.
47Mr Candlish was of the opinion that you presently suffer from a major depressive episode with anxious distress. He thought your symptoms were reactive in nature in response to these charges and the fact you will be imprisoned. I accept that opinion, and Mr Candlish's opinion that you will require close monitoring in a prison setting especially in the early time of your confinement until you adjust to the prison setting.
48Mr Candlish carried out tests to assess your risk of re-offending in a sexual way. He assessed you as being of a low risk. Although this opinion appeared to be challenged by the prosecution, I accept that to be the position. The fact is that now almost 24 years since this offending you have not re-offended in any way, and to my mind suggests it is unlikely you will re-offend. I assess your prospects for rehabilitation as being reasonably good.
49In passing sentence I also take into account the fact that you will be entering prison for the first time in a COVID setting where you will be quarantined for 14 days in relative isolation and thereafter as is presently the case in Victorian prisons you will be denied direct prison visits and programs within the prison system that are normally available and are presently not available. True it is that you will likely benefit from some administrative credits from your sentence as a result but these COVID restrictions, whilst in force will make your time in prison more burdensome than it ought be. I have taken all of this into account. Similarly, the fact you require treatment for Type 2 diabetes in prison may make you anxious in a prison setting again making your time in custody more burdensome for you. In passing sentence, I have taken all of this into account.
50As I said earlier, it is conceded that I must sentence you to a term of imprisonment and fix a non-parole period. The sentence in this case must properly reflect application of the sentencing principle of general deterrence and denunciation for offending against a child. I must also have regard to all the matters submitted in mitigation as well as factors personal to you and assess your prospects for rehabilitation. In passing sentence and fixing a non-parole term I have endeavoured to have regard to all of these things.
51On Charge 1, indecent act, a course of conduct charge, you are convicted and sentenced to a term of imprisonment of three years.
52On Charge 2 incest, on a course of conduct basis, you are convicted and sentenced to a term of imprisonment of five years.
53I direct that two years of the sentence imposed on Charge 1 cumulate upon the sentence imposed upon Charge 2 making a total effective sentence of seven years' imprisonment.
54I direct that you serve a minimum period of four and a half years' imprisonment before becoming eligible for release on parole.
55The crime of incest is a Class 1 offence pursuant to Schedule 1 of the Sex Offenders Registration Act 2004. The crime of committing an indecent act with or in the presence of a child aged under 16 is a Class 2 offence pursuant to the same schedule. You have been convicted of one such offence.
56You are a registrable offender within the meaning of Sex Offenders Registration Act 2004 with reporting obligations for life. I strongly advise you to take advice whilst in prison as to your obligations under the Sex Offenders Registration Act 2004. You will have to comply with the reporting obligations upon your release and for the remainder of your life.
57For the purposes of s6AAA of the Sentencing Act 1991, had it not been for your pleas of guilty to the charges, I would have fixed a total effective sentence of nine years' imprisonment, and I would have fixed a non-parole period of seven years.
58Are there any questions arising out of that Mr Stefanovic.
59MR STEFANOVIC: No, Your Honour.
60HIS HONOUR: Do you have any questions, Ms James?
61MS JAMES: No, Your Honour.
62HIS HONOUR: Very well. Now we will just have to – my associate just has to print a document to be handed to your client Mr Stefanovic, relating to the SORA.
63MR STEFANOVIC: Yes.
64HIS HONOUR: I am not sure whether your client has his medication with him, Mr Stefanovic, but I have had added to the gaol order that I will sign, that your client is going into custody for the first time, that he suffers from Type 2 diabetes for which he is medicated, and I have also noted that he has expressed suicidal tendencies to Mr Candlish.
65MR STEFANOVIC: If Your Honour pleases. If my instructor may approach the dock?
66HIS HONOUR: Yes, certainly.
67MR STEFANOVIC: Thank you.
68HIS HONOUR: Approach the – Mr Forester if you would. Thank you. Would you take Mr Forester into custody please. Adjourn the court please.
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