Director of Public Prosecutions v Foster (a pseudonym)
[2017] VCC 178
•3 March 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ETHAN FOSTER (A pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 10 February 2017 |
| DATE OF SENTENCE: | 3 March 2017 |
| CASE MAY BE CITED AS: | DPP v Foster (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2017] VCC |
REASONS FOR SENTENCE
---Subject: Persistent sexual abuse of a child under 16;
Maintaining a sexual relationship with a child under 16.Sentence: 13 years' imprisonment with a non-parole period of eight and a half.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R. Gibson | |
| For the Accused | Mr S. Robertson |
Pages 1 - 15
1You have pleaded guilty to one charge of maintaining a sexual relationship with a child under the age of 16 years (Charge 1). Your offending in this charge occurred over about a three and a half year period between October 2005 and March 2009. The victim was your grand-daughter. As charge 1 sets out, during the period of your offending, you took part in a number of acts of a sexual nature with the victim on at least three occasions.
2You have also pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16 years (Charge 2). Again, the victim was your grand-daughter and the sister of your victim in Charge 1. Your offending in Charge 2 commenced after the offending covered by Charge 1 had ceased. It commenced in July 2009 and persisted until February 2016, a period of approximately six and a half years. As Charge 2 sets out, during the period of your offending you took part in a number of acts of a sexual nature with the victim on at least three occasions.
3The maximum penalty for the offending in each charge is 25 years' imprisonment.
4The circumstances of your offending are set out in an amended summary of prosecution opening which was tendered in evidence and read in open court by the prosecutor, Mr Gibson. It was accepted by your counsel, Mr Robertson, as being accurate and as forming a proper basis upon which I can proceed to pass sentence upon you. It is therefore not necessary that I here set out in detail again that which is set out in the summary except in a very limited way.
5You are approaching your 79th birthday. Your offending occurred when you were aged between 67 and 77 years of age. You are the paternal grandfather of the victims.
6During the time of your offending in Charge 1, your victim was aged between 12 and 15 years.
7In relation to the victim in Charge 1, when she was 12 years of age, you began by touching her inappropriately by fondling her vagina above her clothing. You then proceeded to touch her breasts. When she was aged 13, you began to touch her inappropriately beneath her clothing. You asked her to remove her clothing, which she did, exposing her vagina and you used your hands to pull back her labia. As time went on, you extended your assault by again touching the victim around her labia and clitoris and you touched her breasts. You then moved to asking the victim to rub your penis whilst you looked at her vagina. Eventually, this type of conduct which occurred on more than one occasion developed to you having the victim masturbate your penis. She was 14. Over time, you upped the ante, digitally penetrating the victim’s vagina and performing oral sex upon her until you eventually penetrated her vagina with your penis. You also had her perform oral sex on you by penetrating her mouth with your penis.
8This is only a very abbreviated description of the many abhorrent sexual acts that you performed upon the victim in Charge 1 which, as I say, is set out in more detail in the prosecution summary, which needs to be read in conjunction with these sentencing remarks. What comes through is the victim resisted you and you scared her and confused her. This was particularly so when the victim was younger. On occasion 4, the victim told you that you should not do what your were doing because it was not right. Your response was not to tell anyone.
9Your offending with the victim in Charge 1 ceased in March 2009 and there was a brief interlude in your offending before you commenced offending with the victim in Charge 2 in July 2009.
10Your abuse of the victim in Charge 2 commenced when she was eight years of age. Your method of offending followed a similar pattern as that which you had successfully employed with the first victim.
11You had her touch your penis and you touched her inappropriately. You penetrated her mouth with your penis when she was aged only eight. As the victim in Charge 2 got older, you tried on a number of occasions to penetrate her vagina with your penis. She resisted your attempts but you persisted. You continued to touch her sexually and you digitally penetrated her vagina and you also penetrated her vagina with your tongue.
12As the victim in Charge 2 got older, she repeatedly resisted you and told you that she did not want you touching her sexually. In what is described as occasion 8 in the summary, on 16 February 2016 whilst the victim was seated on a ride-on mower in a shed, you ran your hand up her leg into her shorts and under her underwear. The victim hit your arm and pleaded with you to stop but you did not. You instead began to fondle her vagina and told the victim to keep an eye out for your wife who was nearby. The victim attempted to push you off but you were too heavy and large. You pulled the victim into the shed and bent her over and from behind, pulled down her shorts and underpants. The victim kicked you in the shin but you told her, "Keep a look out for nana." You then attempted to penetrate her vagina with your penis. The victim resisted and said, "Stop, Pop, I don't want this, I don't like it." But you again persisted and attempted to push your penis into her vagina and succeeded in achieving partial penetration but penetration nonetheless. You only stopped when the victim told you, "Nana is coming." In all, you sexually interfered with the victim in
Charge 2 more than 100 times.13Your offending towards each victim was disgraceful. You are their grandfather and each was very young when you began to take advantage of each of them sexually. At the time of offending you were a senior citizen. Nonetheless, it would appear that your appetite for sexual pleasure could not be satisfied as you were almost relentless in your pursuit of these victims. Against the will of each victim, you persisted and persisted.
14Your offending was a gross breach of trust. Your whole family worked in the family business. Your offending occurred when you found yourself alone with the victims or when they were entrusted into your care by their parents. Neither victim encouraged you in any way. In fact, both resisted you as much as they could. They were each scared and confused by your conduct towards them from a young age. Typically, you told each of them not to tell anyone.
15The victim in Charge 1 told her school in May 2008 but she did not make any disclosures to investigators and no police action was taken at that time. That is understandable in offending of this kind because victims are young and confused but usually cognisant of the fact that if they reveal the offending, it will have drastic permanent consequences for the entire family which is what has occurred here.
16It was only when the victim in Charge 2 made disclosures to a school chaplain in February 2016, that your conduct was revealed.
17Your offending was planned to take sexual advantage of each of these children whenever the opportunity arose that you were alone with them. It was brazen, often taking place with other family members in close proximity. It had only one object in mind, your personal sexual gratification. There is no evidence in the summary that you, at any time, stopped to consider either victim’s physical, emotional or psychological welfare. The victim in Charge 2 slapped you away and resisted your attempts to penetrate her in one way or another on numerous occasions but you just kept on coming back for more.
18By your pleas of guilty, you have admitted your offending and as I said,
Mr Robertson did not dispute the prosecution summary. When interviewed, you told police that you might have tried it on the victim in Charge 1. You said, "I didn't have no sex though, only played with their boobs and that, like you know." You were latter reinterviewed in relation to the victim in the first charge. You made no comment in relation to the allegations put to you, as is your right.19You did make numerous admissions in relation to the offending against the victim in Charge 2. However, by what you said, you conveyed the impression that the victim was cooperative with you and indeed initiated much of the sexual contact between you. Assuming the summary to be accurate, that could not be so. When interviewed, you revealed a poor insight into just how serious your offending was, often giving answers in a nonchalant way as if you had inflicted no harm at all.
20In fairness to you, when interviewed, you did tell the police about some offending that occurred in relation to the victim in the second charge which she herself had not revealed in the VARE interview.
21All offending of this kind, involving as it does, sexual abuse of children, is very serious offending. Your offending is no exception. Your actions were so abhorrent towards each victim that I regard your offending, prolonged and persistent as it was in respect of each victim, as being at the most serious end of the scale for this kind of offending. Your moral culpability is extremely high. Although you are of low intelligence, there is no evidence that would support a submission that Verdins principles applying here to reduce your sentence and Mr Robertson did not advance such a submission.
22The sentence that I pass must reflect appropriate application of the principle of general deterrence. Adult males who seek to breach family trust by seeking to perform sexual acts on young children in a family context of trust must be deterred from doing so by the sentences imposed by the courts. The sentence that I pass must reflect appropriate denunciation of your criminal conduct and in your case, appropriate specific deterrence for reasons that I will later discuss. There is also protection of the public that must also be kept in mind in arriving at an appropriate sentence.
23I admitted into evidence, victim impact statements from each of your victims and their father. They are compelling reading. It is fair to say I think that you have destroyed their lives. Each of them will certainly suffer emotionally and psychologically because of your offending, if not for the rest of their respective lives then certainly for most of them. In passing sentence, I have taken the victim impact statements into account as I must.
24In sentencing you I have had regard to your pleas of guilty to these counts as I must. You pleaded guilty to the charges at committal mention on the 8 June 2016 and remained free on bail until your plea hearing.
25I treat you as having pleaded guilty at the earliest possible opportunity. There was no contested committal. In sentencing you for these offences, I have imposed a sentence less severe than I would have otherwise imposed had you pleaded not guilty and fell to be sentenced after conviction by a jury at trial for these offences. In your case, your pleas of guilty have saved your victims the indignity and embarrassment that would doubtless be afforded to each of them, were they compelled to give evidence against you and be cross examined by your counsel and thereby having to relive your sordid behaviour towards them. You have also saved the entire family the ordeal of a trial. You have also saved the time and costs of a contested committal proceeding and a trial.
26You are now 78 years of age and will turn 79 in the 5 May next. I admitted into evidence as Exhibit 2, a psychological report prepared about you by a forensic psychologist, Dr Cunningham. Mr Robertson relied upon the matters contained therein relating to your background. I borrow from that report:
27You were born in the decade after the Great Depression and your parents struggled financially. You were one of five children. Your father, you described as a "jack of all trades and a professional boxer." You had a good relationship with both parents. There was no abuse of children within the family. You left home aged 27 and went to live with your wife. You have been married 52 years. Your wife was in court to support you. There were six children of your marriage. You have a stable marriage and have lived in the same home in Wyuna more than 30 years. Your daughters still support you. You no longer enjoy a good relationship with your son, who is the father of the victims. In the circumstances, this is understandable.
28You had only a very limited primary school education and left school to work with your father, transporting animals to abattoirs. Aged 12, you began working with your father, operating a carnival. You eventually took over operating the carnival and members of your family continue to do so. You retired from this work about five years ago. Despite having low intelligence and a very limited education, you have done reasonably well in life, operating a family business in carnival amusements from which seems to have supported the family quite comfortably.
29You told Dr Cunningham you have been suffering headaches for the past few years but I was given no details of you having been given a diagnosis of any particular illness or disability. Dr Cunningham could find no criteria from which it could be opined you suffer from mental illness.
30Dr Cunningham administered psychological testing of various kinds. On the verbal comprehension testing, you scored better than 3 per cent of your peers where 97 per cent of people in the same age group would do better. On the perceptual reasoning index you scored better than 21 per cent, where 79 per cent of people in the same age group would do better. On the working memory index you scored better than 2 per cent, where 98 per cent of people in the same age group would do better. On the processing speed index you performed better than 1 per cent of your peers, where 99 per cent of people in the same age group would do better. He assessed you as having a full scale intelligence quota of 70, meaning you performed better than 2 per cent, where 98 per cent of the people in the same age group would do better.
31Because of all this testing, which shows you are a man of borderline intelligence, Dr Cunningham recommended you have neuropsychological testing. Dr Cunningham thought you were a moderate risk of reoffending.
32You told Dr Cunningham "the offences just happened." You said you have no memory of offending against the first victim and you blamed the second victim as having instigated the events which resulted in the offending. You did express "absolute shame" at your behaviour to Dr Cunningham. Although this is some indication of remorse, it is the only indicator. You have not apologised or expressed regret to any of your victims. Instead, you have blamed them. Instead of trying to console your son who is the father of the victims, you have cut him off and ostracised him. Family life, as he knew it, has been totally destroyed by your offending and what has flowed from it.
33Dr Cunningham thought you do not have significant insight into the underlying reasons for your offending behaviour. He also thought that you did not understand the inappropriateness of sexual behaviour towards a child and placed the victim in the role of the sexual aggressor to minimise your own responsibility for the offending. Dr Cunningham thought you present with paedophilic tendencies that require psychological intervention.
34Warrick Brewer a clinical neuropsychologist conducted neuropsychological testing on you. His report diagnoses you as suffering from a mild acquired brain injury, likely caused by multiple blows to the head. He thought there to be a possibility of some organic decline and for this reason, advised you to be reassessed in 12 months' time.
35You have admitted a number of prior convictions spaced over a long period of time. Of most relevance, is a prior conviction at the Shepparton Magistrates’ Court for indecent assault in 1991 when you were aged about 53. A summary of what occurred in that offence reveals that your daughter had employed at
12-year-old girl to lead ponies at your carnival. You found her physically attractive and you took her into your caravan where you pulled out her blouse and fondled her breasts. The level of that offending is very similar to the way you commenced to offend against the respective victims in these charges.36Mr Robertson conceded that your offending was serious and that a term of imprisonment was the only proper disposition. In mitigation, he relied upon your advanced age and possibly declining health, your low intelligence and that you will be vulnerable in prison due to your age and the nature of your offending against children. He also relied upon your pleas of guilty at an early stage. In arriving at my sentence I have taken all of this into account.
37Critical to the decision as to what is a just sentence in this matter, is an assessment of your current circumstances, especially your age and an assessment of your mental and physical health. The principles to be applied in such cases have been set out by the Court of Appeal in R v. RLP [2009] VSCA 271, at paragraphs 32 to 40. At paragraph 39, the court summarises with seven principles which need to be addressed in sentencing in circumstances such as this, where the person being sentenced is old and suffering from ill health. The court said this at paragraph 39:
38"We approach the conjunction of the appellant’s advanced years and ill health with these propositions in mind:
39The age and health of an offender are relevant to the exercise of the sentencing discretion.
40Old age or ill health are not determinative of the quantum of sentence.
41Depending upon 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.
42It 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.
43Other 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.
44Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
45Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.”
46Applying these considerations to your case, in arriving at a head sentence, I am mindful of the fact that it is likely you will spend the whole, or certainly a significant part, of your remaining life in custody. However, on the available medical evidence and having regard to the seriousness of your offending and your continued insistence that the victims were the instigators of the offending, and because there is only limited evidence of remorse from you, I can see no justification to reduce the head sentence you would receive on compassionate grounds. The head sentence must properly reflect the gravity of your offending.
47In fixing the head sentence and providing for appropriate accumulation to reflect the fact there are really two separate episodes of offending involving two victims, the sentence of imprisonment I will impose on Charge 2 is longer than that imposed on correct Charge 1. My intention is to reflect the fact that this sentence relates to a second episode of offending and that you will be sentenced on Charge 2 as a serious sexual offender.
48The minimum term I will fix is reflective of the fact you will be approximately aged 87 if released on parole with a possible term on parole of four and a half years, during which you will be supervised. I doubt you will have opportunity to again offend against girls at that age. The minimum term I will fix also reflects my view that your time in custody will be very difficult for you, having regard to your age, your low intelligence and the nature of your offending.
49As I said earlier, the sentence must reflect appropriate application of the principle of general deterrence. 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 such persons from people such as yourself, who might be minded to take advantage of them for personal sexual gratification.
50Experience 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. In this case, any sentence I impose must, by its terms, apply the principle of general deterrence.
51I have referred to the victim impact statements admitted into evidence. The consequences for the victims are there to be seen. Accordingly, 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 appropriate. Offending of the kind that you have engaged in is repugnant to this society. You breached the trust that was reposed in you as the grandfather of these children. You have damaged the family that you had and you left all of its members suffering at your hands for the rest of their lives.
52My sentence must reflect the Court’s and the community’s denunciation of your conduct.
53Because you have committed a sexual offence against a child in the past, specific deterrence is relevant in the sentencing disposition of you. Although you are elderly, these offences only ceased in February of last year. A feature of your offending is the almost constant repetition of sexual misconduct over a number of years, even when most people would consider you but an old man. You also have a prior conviction for indecent assault of a 12-year-old girl and when interviewed, showed little insight into just how serious your offending has been. Whilst you will be imprisoned for a significant number of years, I cannot say that given an opportunity, you will not re-offend. The sentence imposed must therefore reflect appropriate specific deterrence.
54I must have regard to your age and the principle of totality in sentencing and current sentencing practices for this kind of offending. I must also must take into account your prospects for rehabilitation which I regard as being poor. The sentence that I will shortly impose, appropriately applies all of these sentencing principles.
55Finally, I must impose a punishment which is, in all of the circumstances, just. The sentence to be imposed should meet the needs and expectations of the community and take account of the effect of your offences on the community. It should also take into account those matters personal to you and the mitigating factors already discussed. Having regard to the sentencing purposes to which I have referred, the circumstances of your offending and the relevant penalties fixed by Parliament, there is no sentence other than a sentence of immediate imprisonment which is appropriate in this case and it has not been suggested otherwise.
56In sentencing you, I have had regard to the nature of the offences for which you have pleaded guilty, the period of time over which those offences were carried out; together with the effect of your conduct upon your victims and your family, as appears all too clearly from the victim impact statements.
57Such matters must, however, be balanced with the matters in mitigation to which I have endeavoured to refer.
58The offence in Charge 2 is a serious sexual offence. That means that as you will be convicted of this charge and sentenced to a term of imprisonment, you are a "serious sexual offender" within s.6B(2) of the act. In determining the length of any prison sentence imposed on Charge 2, protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offence considered in the light of their objective circumstances, within s.6D of the act.
59This does not mean that the principles of proportionality and totality in sentencing are to be disregarded, unless in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for. In my view, the overall effective sentence I propose will properly and adequately provide for protection for the community. I note the position of the prosecution is that I have not been asked to impose a disproportionate sentence.
60Every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed, be served cumulatively upon any other sentence impose on you. I will impose some cumulation and order some concurrency which I regard as appropriate, taking account of all of the circumstances discussed.
61I am required to cause to be entered in the Court’s records that I sentence you as a serious sexual offender in respect of any sentence imposed on you in that manner. I direct that it be entered into the records of the court that I sentence you on Charge 2 as a serious sexual offender.
62On charge 1, you are convicted and sentenced to a term of imprisonment of seven years.
63On Charge 2, you are convicted and sentenced to a term of imprisonment of nine years.
64I direct that four years of the sentence imposed on Charge 1, cumulated upon the sentence imposed on Charge 2, making a total effective sentence of
13 years' imprisonment. Otherwise, the sentences imposed on each charge are to be served concurrently. I direct that you serve a minimum term of eight and a half years before being eligible for release on parole.65For the purposes of s.6AAA of the Act, I state I have imposed sentences, being terms of imprisonment, and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges, I would have imposed a total effective term of imprisonment of
17 years and I would have fixed a non-parole period of 13 years.66I note that you have served 20 days in custody. Accordingly, pursuant to sub-s.18(4) of the Act, I declare that the period of 20 days be reckoned as time already served under the sentences passed today and be noted accordingly in the records of the Court and deducted administratively.
67These offences are each Class 1 offences, pursuant to Schedule 1 of the Sex Offenders Registration Act 2004. By operation of s.13(1)(c)(ia) of that Act, you are a registrable offender with reporting obligations for life. I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act, which you will need to comply with strictly upon your release from prison.
68MR GIBSON: As Your Honour pleases.
69HIS HONOUR: Any questions arising out of that.
70MR GIBSON: No, I have none, Your Honour.
71MR LOWE: No, Your Honour.
72HIS HONOUR: Very well. Would you remove Mr Foster, please. Mr Lowe, you will need to get Mr Foster to sign an acknowledgement of the Sex Offender Registration Act requirements.
73MR LOWE: Yes, Your Honour.
74HIS HONOUR: If you could do that, I would be grateful My associate will give you the form.
75MR LOWE: Thank you.
76HIS HONOUR: Feel free to leave.
77MR LOWE: Sorry, Your Honour.
78HIS HONOUR: Feel free to leave the Bar table for that purpose.
79MR LOWE: Thank you, Your Honour.
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