Director of Public Prosecutions v Frank (a pseudonym)
[2022] VCC 1682
•28 September 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL FRANK (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 – 28 June 2022 (Trial) | |
DATE OF SENTENCE: | 28 September 2022 | |
CASE MAY BE CITED AS: | DPP v Frank (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1682 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Found guilty at trial – Indecent assault – Statutory rape – Common law rape – Delay – Advanced age – Very good prospects of rehabilitation – Serious sexual offender – COVID-19 pandemic.
Legislation Cited: Crimes Act 1958 ss 44(1), 45(1); Crimes (Sexual offences) Act 1980; Sentencing Act1991 ss 6D, 6E, 18; Sex Offenders Registration Act 2004.
Cases Cited:Cheung v The Queen (2001) 209 CLR 1.
Sentence: Imprisonment for a period of 9 years with a non-parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | Office of Public Prosecutions |
| For the Accused | Mr R. Nathwani (Plea) Mr K. McLaughlin (Sentence) | Yang & Vale Pty Ltd |
HIS HONOUR:
Introduction
1Michael Frank[1], you have been found guilty by a jury of four charges of indecent assault contrary to s 44(1) of the Crimes Act 1958 (‘Crimes Act’), each of which carries a maximum penalty of 5 years imprisonment that is (Charges 1, 2, 7 and 8), three charges of statutory rape contrary to s 45(1) of the Crimes Act as amended by the Crimes (Sexual offences) Act 1980, each of which carries a maximum penalty of 10 years imprisonment that is (Charges 4, 5, and 6) and one charge of common law rape, which carries a maximum penalty of 10 years imprisonment and that is (Charge 9).
[1] A pseudonym.
2You have no prior criminal history.
Circumstances of the offending
3
In sentencing you I am bound by the principles in the case of
Cheung v The Queen.[2]As such, I must interpret the facts in a way that is consistent with the jury's verdict.
4You were 35 years old at the time of the offending. The victim, Anne Fleming[3], was 16 years old.
[3] A pseudonym.
5When the victim was about four or five years old her parents separated. The victim’s mother, Angela Donaldson[4], married Robert Macmillan[5], who had a daughter from a previous marriage, Bonnie Macmillan[6]. The victim grew up in Tasmania with her mother, her stepfather Robert and her brother, Rick Montgomery[7].
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
6Angela Donaldson’s sister, Georgie Arthur[8], was married to you between 1971 and 1991. You and Ms Arthur had four sons born between 1973 and 1984.
[8] A pseudonym.
7In 1980, you and Ms Arthur purchased a property in St Andrews, and in 1982 you moved to Yarra Glen. Ms Arthur worked at Deloraine Nursing Home in Greensborough and you worked at the Australian Paper Mills in Fairfield. You and your wife were both shift workers.
8Growing up the victim had a close relationship with your wife. In 1985 the victim was having difficulties with her stepfather, Robert Macmillan, and decided to go live with you and your wife in Yarra Glen after New Year’s Day in 1986.
9When the victim lived with you and your wife, she shared a room with two of your sons who were aged between 4 and 5, and 2 and 3 years respectively at the time. The two boys slept in single beds and the victim slept on a fold out bed.
10The victim returned to Tasmania just after Easter in 1986.
[2] (2001) 209 CLR 1.
Charge 1 – Indecent Assault
11
In either January or February 1986, the victim was laying under the covers in bed with Ms Arthur at the Yarra Glen house. This was a common occurrence, as
Ms Arthur and the victim would often lay in Ms Arthur’s bed together and watch movies on a television that sat on top of a long cabinet in the bedroom.
12
You, having finished having a shower, walked into the room wearing your underwear. You got into bed next to the victim. At some stage, the victim felt your leg hook around the inside of her leg. You forced the complainant’s leg towards you, in turn opening her legs. The victim attempted to resist you and did not notify
Ms Arthur what you were doing. The victim was shocked and scared.
13
The victim laid still as she could feel your hand push inside the front of her pyjama pants. You moved your fingers down to the opening of her vagina and forcibly pushed your fingers inside her vagina which hurt the victim
(Charge 1 – Indecent assault).When the victim announced that she would go to bed you removed your fingers from her vagina. The victim left and went to bed.
Charge 2 - Indecent assault
14On another occasion in either January or February 1986, the victim was again in the master bed watching a movie with Ms Arthur. At some stage you also got into the bed and laid in the middle between the victim and Ms Arthur.
15The victim felt your leg hook around her leg and pull her leg apart towards you. You slid your hand down the front of the victim’s pyjama pants. The victim was not wearing any underwear. You put two or three fingers inside the victim’s vagina which hurt the victim. You pushed your fingers in and out of the victim’s vagina. The victim was shocked and scared and didn’t want to yell out or say anything because she didn’t want Ms Arthur to know (Charge 2 – Indecent assault).
16At some stage the victim made an excuse and got out of the bed. Before going to bed the victim went to the toilet and washed her vagina.
Charges 4 and 5 - Rape
17Late at night in February 1986, when Ms Arthur was at work, the victim was in her bed. The victim had her head under the blankets and was facing the side wall. The victim heard you arrive home from work, come into her bedroom and subsequently felt you pushing and pulling on her shoulder.
18You rolled the victim over resulting in her being on the edge of the fold out bed facing you. The victim saw your erect penis in front of her face. You poked and pushed your penis in the victim’s face and attempted to put your penis in the victim’s mouth by pushing your penis against her lips. The victim could not really move as you were kneeling and leaning into her and the victim’s arms were pinned under the blankets. The victim was moving her head around in an attempt to stop your penis entering her mouth. Your penis pressed against the victim’s lips and entered her mouth slightly (Charge 4 – Rape).
19The victim was terrified about what was happening and that the boys would wake up and see what their dad was doing. After a minute, because the victim did not want the boys to wake up, she stated, ‘let’s go to the lounge’. You got up and walked to the bedroom door and stood in the hallway waiting for the victim. The victim saw that you were naked and had an erection.
20The victim got out of bed and walked from the bedroom into the lounge room. You followed the victim pushing her on her back and into the lounge room. The victim stated to you, ‘please don’t do it’.
21You guided the victim to a single chair that was opposite the lounge room opening. You forced the victim by pushing your knuckles into her back and ribs towards the two-seater couch in front of the television. You then put both of your hands on the victim’s shoulders and guided her to sit down on the two-seater couch. You, facing the victim, leant on top of her with your legs slightly bent. You moved your penis towards the victim’s face. The victim didn’t know what to do and told you ‘no’. You forced your penis into the victim’s mouth and pushed your penis in and out. The victim gagged and choked. This went on for approximately 15 minutes and ended when you ejaculated inside the victim’s mouth. The victim felt sick. You wiped your penis and walked away. The victim began to cry and eventually went back to bed (Charge 5 – Rape).
Charge 6 - Rape and Charge 7 – Indecent assault
22Also in February 1986, when Ms Arthur had gone to work, the victim was laying in her bed and heard you come into her room. The victim pretended to be asleep and was facing the wall with her head under the blankets. The victim felt you grab her shoulder and roll her over. You stated ‘lounge room’ and the victim got out of bed. You told the victim that if she said anything to Ms Arthur, that it would ‘break [your] family and your sons would ‘end up like [her]’.
23You pushed the victim in the back until she was in the lounge and then onto the couch so that she was laying on her back, then climbed on top of the victim with your penis facing her face and your head facing towards her vagina. You forced your penis into the victim’s mouth by pushing it at her face and told her to ‘suck it as hard as [she] could’ (Charge 6 - Rape).
24You pushed multiple fingers inside the victim’s vagina which hurt her (Charge 7 – Indecent assault). You put your penis in and out of the victim’s mouth. The victim tried to struggle and move her head. You ejaculated inside the victim’s mouth. The victim was crying. You climbed off the victim, stood up and wiped your penis.
Charge 8 – Indecent assault and Charge 9 – Common Law Rape
25In February or March 1986 the victim was home alone with you. You came into the bedroom and forcibly got the victim up from her bed and guided her into the lounge room onto the two-seater couch in front of the television. You pushed the victim onto the couch and pulled her pyjama pants down and slid them off. The victim observed that you were naked.
26The victim stated that you gave her the choice to either ‘suck [your] dick or [you] would fuck [her]’. The victim told you she didn’t want to do either. You knelt down in front of the victim and roughly pushed her legs far apart with your hands. The victim felt her hip click as a result.
27You forced your body between the victim’s legs. The victim said ‘no’ and told you to stop. You pulled the victim’s buttocks closer towards you so that her buttocks was sitting right at the edge of the couch. You started to lick your fingers and told the victim you were ‘lubricating [her] vagina so you could fuck [her]’. You put your fingers inside the victim’s vagina and pushed them in and out. The victim could not move and was in pain trying to hold herself up (Charge 8 – Indecent assault).
28
You took your fingers out and pushed your penis inside her vagina which hurt the victim. The victim told you that it was hurting her and to stop. You ignored the victim and kept pushing your penis in and out of her vagina and that is
(Charge 9 – Rape).29After a while you pulled your penis out of the victim’s vagina. The victim could feel that you had ejaculated and could feel it all over her vagina and between her legs.
Complaint evidence
30In November 2013 the victim was distressed about the incidents with you and locked herself in her bathroom at her home as she could not stop crying. The victim’s husband was worried about her and called her stepsister, Bonnie Macmillan, to come to the house to try and comfort the victim.
31When Ms Macmillan arrived she entered the bathroom and saw the victim was crying and her face was puffy. The victim told Ms Macmillan what had happened when she lived with you in Yarra Glen. The victim did not give Ms Macmillan specific details about the abuse.
32On 25 December 2013 the victim, Ms Arthur and one of your sons were at the Macmillan’s house for Christmas. After lunch your son was speaking to you on his phone. Your son asked the victim if she wanted to speak to someone on the phone. The victim assumed it was one of his brothers and took the phone and said ‘hello’. You responded ‘hello’. The victim recognised your voice and replied, ‘You’re the one that made me suck your dick’. You did not reply.
33Ms Arthur and Mrs Macmillan overheard the conversation. They went into a bedroom with the victim. The victim then told them that when she lived at the Yarra Glen address you had sexually abused her. She did not provide specific details.
34In February 2018 the victim and Ms Arthur were on a telephone call with each other. During this call the victim disclosed to Ms Arthur that she was raped by you when she lived with you.
Arrest and record of interview
35You were interviewed by the police on 17 April 2019. During the interview with police you stated:
a.In relation to the victim being in your bed you stated, ‘I wouldn’t have that little bitch in my bed’ (Q & A 1260); and
b.
The victim did not live with you for six weeks but came over for holidays
(Q & A 1268-1269).
36You made no admissions to the allegations and denied the offending.
Nature and gravity of the offending
37Sexual offending against young people is very serious offending. In this instance, the offending for which you have been found guilty is undoubtedly very serious. It occurred over a three-month period and the charges relate to five separate incidents. All charges involved a type of penetration of the victim. The four indecent assault charges involved digital/vaginal penetration, the three statutory rape charges involved penile/oral penetration and the common law rape charge involved penile/vaginal penetration.
38The victim was your niece. At the time of the offending she was in your care, living with you and your wife for a period of time. While it is not alleged that the victim was under 16 in relation to any of the charges, it is not disputed that she turned 16 while she was staying at your home during the offending period. Thus she was relatively young but more importantly, she was in your care and was entitled to feel safe in your home. Instead, you took advantage of the fact that you had a degree of control over her and in that context you sexually assaulted her on a number of occasions purely for your own sexual gratification. It is also not in dispute that you told the victim not to report the offending.
39It was submitted on behalf of the prosecution that the objective gravity in relation to each indecent assault is high as they involved actual penetration noting that given the time of the offending, penetration of the vagina by finger was charged as indecent assault. In relation to the statutory rape charges it was submitted that they were brutal and involved a degree of physical violence. As to Charge 9, the common law rape charge, it was submitted that it was especially brutal and that you did not wear any protection. Mr Nathwani who appeared on your behalf did not take issue with those submissions other than to point out that there are much more serious examples of force or violence in sexual offending. While it is true that more serious examples of violence are not present, it must be remembered that in the circumstances of the offending, you exercised physical control over the victim in each case and you were also in a position of power given the nature of the relationship.
Victim impact
40
Victim impact statements were prepared by Anne Fleming, her parents,
Angela Donaldson and Thomas Fleming[9], her husband, Rodney Cottee[10], and her aunt, Georgie Arthur. Each of the victim impact statements were read at the plea hearing.
[9] A pseudonym.
[10] A pseudonym.
41Ms Fleming speaks of the impact of the offending on her life in the time before her disclosure and since. She has suffered long term depression and speaks of the pressure her anguish placed on her relationship with her husband. Since the disclosure Ms Fleming states that she now experiences insomnia, panic attacks and anxiety. Ms Fleming suffers from an auto-immune disease which has been exacerbated by the trauma she has suffered as a result of your offending.
42Rodney Cottee eloquently reflects on the time when Ms Fleming was clearly going through a traumatic period before disclosure for many years and how he felt that he was unable to support her. He notes that he now realises Ms Fleming’s trauma and behaviour over the years before her disclosure was reactive to the impact of your crimes. He reflects on Ms Fleming’s ongoing anxiety and pain and it is clear that your offending has had a lifelong impact on his relationship with Ms Fleming.
43Angela Donaldson, Thomas Fleming and Georgie Arthur in various ways each express their feelings of guilt when hearing of the abuse, questioning whether they could have done more at the time to protect the victim from your conduct. As such it is clear from each of their statements that your offending has also had an ongoing impact in their lives.
44What is plain from the reading of victim impact statements is that offending of this nature does not only devastatingly affect the primary victim but significantly impacts a wide range of their family members, changing their lives and relationships indefinitely.
45I take the contents of each victim impact statement into account.
Personal circumstances
46You are currently 72 years of age. You grew up in Fitzroy and you are the eldest of five children. Your parents have been described as supportive and loving. You married Georgie Arthur in 1971 when you were 19 and you divorced in 1991. You have four children from this marriage. Three of your children have ceased contact with you as a result of these proceedings; however, your youngest son, Simon[11], has remained supportive of you. You re-married over 10 years ago and your current wife has remained supportive of you throughout these proceedings.
[11] A pseudonym.
47
You attended a local primary school in Fitzroy and reported struggling to develop rudimentary literacy skills. You attended Watsonia Technical College for secondary schooling, though you only attended for a year. You have not returned to formal education since then and your work has primarily been in factories. You spent more than 20 years working for Amcor at its Fairfield plant as well as a further
10 years at another factory. You report you retired in your early sixties because of damage to your knees. You also developed a hearing deficit due to exposure to industrial noise and you use hearing aids to assist you.
48Your youngest son, Simon, his wife, Leah[12], and a friend, Jemima Royal[13], prepared character references for the court. All three speak with a united voice as to your otherwise good character. Your son writes that you have been a pillar of strength and support in the family and your daughter-in-law writes that you love your family more than life itself. Your friend Jemima describes you as honest and hardworking and writes that she believes the offending to be totally out of character for you.
[12] A pseudonym.
[13] A pseudonym.
49Psychologist Patrick Newton prepared a report dated 7 September 2022 after conducting two extended consultations with you. Mr Newton reports that you ‘adamantly maintain…that [you] are not guilty of the charges for which the jury found [you] guilty.’ Mr Newton opines that your denial of the offending and the likely effect of this denial upon your ability to participate in offence-specific treatment does present an issue, however he asserts he does not consider that they substantially increase the risk of recidivism. Consequently you have been assessed as presenting a low risk of sexual recidivism, given the length of time you have been offence-free in the community.
50Mr Newton states that you are ‘functionally illiterate’ and your educational experience is ‘strongly suggestive of a specific learning disability with impairment of reading’. However, your cognitive functioning was normal when Mr Newton assessed you and he reports your ‘moral reasoning and social judgment are not impaired’.
51Mr Newton also opines you are ‘experiencing some reactive anxiety and depression’ which have developed in response to these legal proceedings. You have been prescribed an anti-depressant, which you continue to take. These are symptoms Mr Newton observes as ‘typical of those experienced by individuals incarcerated for the first time’ and in his opinion are not ‘sufficiently severe to meet diagnostic criteria for a mental disorder.’ Mr Newton asserts whilst it is impossible to be certain about your mental state at the time of the offending, there is no indication to suggest that you were labouring under the effects of a mental disorder at the relevant times. Mr Newton is also of the view that your offending ‘is not sufficient to warrant the diagnosis of paedophilic disorder’.
Sentencing considerations
52Mr Nathwani highlighted a number of matters in mitigation.
53
Since being remanded following the verdict you have been subject to periods of
23-hour lockdown as a result of the ongoing impact of the COVID-19 pandemic in addition to the initial 14-day quarantine period. As this is your first time in custody you have submitted that the conditions are particularly onerous in your circumstances. I accept that submission.
54Delay is relevant in this instance. The victim provided her first statement to police in July 2018. You were interviewed in April 2019; however, you were not charged until 30 July 2020 and the matter not tried until June 2022, thus, there has been a period of over three years between interview and trial.
55As a result of the delay it was submitted that you have had this matter hanging over your head for a significant period of time resulting in anxiety and depression for which you have been medicated. While you exercised your right to contest the matter, there have been other delays which are not attributable to you and I take this delay into account. I accept that at your stage in life having never been in custody before the delay in bringing this matter to a conclusion has been longer than usual and has had a negative impact on your life.
56Your age is a relevant matter to take into account. You are now 72 and the generally accepted principles in relation to elderly offenders were relied on your behalf; such as the fact that you are less likely to pose a risk to the community in the future, that any period of imprisonment will represent a larger proportion of your life expectancy, that you will find prison more burdensome than a younger offender and that there is a risk that you may die in prison. I accept that these general principles apply in the circumstances and I take them into account.
57As to your prospects of rehabilitation I take into account the fact that you have no prior criminal history and have not committed any offences since the index offending in 1986. Further, you have supports in the community and you have been assessed as a low risk of re-offending. In the circumstances in my view your prospects of rehabilitation are very good.
58General deterrence and denunciation of your conduct must be the primary sentencing considerations in this instance. A message must continue to be sent that when young people are in the care of adults they are entitled to feel safe and secure and when that position of trust and power is breached in such a serious manner, stern consequences will follow. Protection of the community and specific deterrence are also relevant considerations; however, in my view need only be given limited weight in this instance given your lack of prior criminal history and low risk of re-offending.
59
In relation to Charges 1 and 2, as each are sexual offences for which you will be sentenced to a term of imprisonment, pursuant to Part 2A of the
Sentencing Act1991 (‘the Act’) you fall to be sentenced as a serious sexual offender from Charge 4 onwards.
60Section 6D of the Act provides that when sentencing you as a serious sexual offender I must have regard to the protection of the community as the principle purpose for which the sentence is imposed. While I do have regard to protection of the community, for the reasons stated above, I do not propose to impose a disproportionate sentence nor does the prosecution seek such a sentence.
61Section 6E of the Act provides that, unless otherwise directed by the court, every term of imprisonment imposed on a serious offender must be served cumulatively. In all the circumstances balancing the need to cumulate to a degree between certain charges and applying the principle of totality, in my view, the sentence does not demand cumulation in the way anticipated by s 6E.
Sentence
62Mr Frank, please stand.
63Michael Frank, on Charges 1, 2, 7 and 8, indecent assault, you are convicted and sentenced to 2 years and 6 months imprisonment on each charge. On Charge 4, rape, you are convicted and sentenced to 3 years imprisonment. On Charges 5 and 6, rape, you are convicted and sentenced to 4 years imprisonment on each charge. On Charge 9, rape you are convicted and sentenced to 5 years imprisonment. This is the base charge.
64I direct that 6 months of the sentence on Charges 1, 2 and 4, 12 months of the sentence on Charges 5 and 6 and 3 months of the sentence on Charges 7 and 8 be served cumulatively on each other and on Charge 9, making for a total effective sentence of 9 years imprisonment. I direct that you serve 5 years before becoming eligible for parole.
65Pursuant to s 18 of the Sentencing Act1991, I declare that 92 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
66As all the offences you have been found guilty of are ‘Class 1’ offences, you are deemed to be a registerable offender and will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
Charge number
Offence
Max Penalty
Sentence
Cumulation
1
Indecent assault
5 years
2 years and 6 months
6 months
2
Indecent assault
5 years
2 years and 6 months
6 months
4
Rape
10 years
3 years
6 months
5
Rape
10 years
4 years
12 months
6
Rape
10 years
4 years
12 months
7
Indecent assault
5 years
2 years and 6 months
3 months
8
Indecent assault
5 years
2 years and 6 months
3 months
9
Common law rape
10 years
5 years
Base
Total effective sentence: 9 years imprisonment
NPP: 5 years
- - -
1
1
0