Director of Public Prosecutions v Frank (a pseudonym)
[2016] VCC 1905
•20 December 2016
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MELVIN FRANK (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Bendigo | |
DATES OF HEARING: | 28 – 29 November 2016 (Special hearing); 30 November – 5 December 2016 (Trial); 6 December 2016 (Plea). | |
DATE OF SENTENCE: | 20 December 2016 | |
CASE MAY BE CITED AS: | DPP v Frank (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1905 | |
REASONS FOR SENTENCE
---
Catchwords: Criminal law – sentencing – convictions following trial – incest - course of conduct and incest charges – prisoner currently undergoing sentence in respect to similar offending involving his biological sons and a stepson – “serious sexual offender” within the meaning of s16(3A) of the Sentencing Act1991 – totality principle – s6E of the Sentencing Act1991
Cases Cited:DPP v John Dalgliesh (a pseudonym) [2016] VSCA 148; RHMcL v R (2000) 203 CLR 452 (“RHMcL”)
Sentence: Head sentence: 16 years
New single non parole period: 12 years 8 months
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R. Willcox | Victoria Legal Aid |
HER HONOUR:
1 Melvin Frank,[1] following trial you were convicted by a jury of Charge 1, incest - course of conduct charge - being digital penetration of your daughter, Ella Frank's[2] vagina between 9 October 1995 and 11 August 2000.
[1] Melvin Frank is a pseudonym.
[2] Ella Frank is a pseudonym.
2 Charge 2 incest, was an alternative charge to Charge 1, so it was not necessary to take a verdict in respect to that charge.
3 Charge 3, you were acquitted by the jury of a single instance of incest, being lingual penetration of the vagina of Ella Frank.
4 Charge 4, you were found guilty of a single instance of incest, between the period 14 October 1999 and 11 August 2000, the particulars of which are that you introduced your penis into Ella Frank’s vagina.
5 Charge 5, you were found guilty of another single instance of incest, between 31 March 1998 and 11 August 2000, being an occasion where you introduced your penis into the mouth of Ella Frank.
6 I will turn now to the particualrs of offending.
7 You are the biological father of Ella Frank who was born in 1989.
8 Your daughter, was between six and seven years old at the time of the offending. You were born in 1955 and you were aged between 40 and 45 years old at that time.
9 By way of background, you lived in a de facto relationship with Gina Ralston[3] from 1983 to 1993. There were four children born of that relationship, Adam Frank[4] born in 1986, Russel Frank[5] born in 1987, Ella Frank born in 1989 and Lucy Frank[6] born in 1991.
[3] Gina Ralston is a pseudonym.
[4] Adam Frank is a pseudonym.
[5] Russel Frank is a pseudonym.
[6] Lucy Frank is a pseudonym.
10 Gina Ralston also had a son from a previous relationship, Shaun Frank[7] born in 1981, who is now deceased.
[7] Shaun Frank is a pseudonym.
11 During the period of the offending Ella lived with her mother, Gina Ralston, her step-father, John Ralston,[8] and other siblings at ABC Street,[9] Long Gully and at XYZ Street,[10] Long Gully.
[8] John Ralston is a pseudonym.
[9] ABC Street is a pseudonym.
[10] XYZ Street is a pseudonym.
12 You returned to live in Bendigo from living interstate and commenced living in a nearby property at ABC Street. Ella and her younger sister, Lucy, would regularly visit you at your home each alternative weekend with the occasional sleepover. The arrangement remained in place over the course of approximately a year whilst you lived in ABC Street.
13 Ella’s evidence was that the first occasion of sexual penetration occurred when she was about six. It happened at night when she was staying at ABC Street and she was woken by you saying her name “El”. You told her to follow you and she did so. She was taken into your bedroom where you placed her on the bed and pulled down her underwear. Whilst she was lying on her back you played with her clitoris, that is, you rubbed it.
14 Ella’s evidence was that during the whole of the time that you sexually abused her that you would “finger" her, that is, you would play with her vagina every time she visited. She explained the words “playing with her vagina” meant playing with her clitoris. You would play with her clitoris and move your fingers up and down around her vagina and on one occasion you made her “come”.
15 She recalled a different occasion that happened when you were living at the Central City Caravan Park, Golden Square. She was staying overnight with you, she was woken by you and again taken to your bed where you removed her underwear and played with her clitoris with your hand. There was another occasion when you visited her at her mother’s property in XYZ Street when you took her to a shed located in the backyard and rubbed her clitoris.
16 I am satisfied that the jury accepted the complainant’s evidence concerning all of the incidents of digital penetration that amounted to a course of conduct and that that constitutes Charge 1, incest. You will be sentenced on the basis of that finding, that is, you will be sentenced for all of the acts of digital penetration as described by Ella Frank as having occurred over the period 9 October 1995 to 11 August 2000.
17 Charge 4, incest, refers to an occasion when your daughter, Ella, visited you at the Central City Caravan Park. It occurred after an occasion of digital penetration of her vagina and it involved you inserting your penis inside her vagina. Ella's evidence that "It", that is, your penis, "Just went in a little bit".
18 Charge 5, incest, occurred at XYZ Street, Long Gully. You were visiting and told your daughter, Ella, to follow you to a shed that was located in the backyard. It was daytime and on that occasion, in addition to rubbing her clitoris, you made her suck your penis. You asked her to do this by using the following expression “Can you suck my dick and suck it like a lollipop?”.
19 Ella’s evidence was that she did as she was requested and it was disgusting. At the time, she was positioned in front of you kneeling down with her back against the wall. Your two hands were holding the back of her head. You only stopped when you heard somebody calling out from the house.
20 Mr Frank, your offending is extremely serious and that is reflected in the maximum penalty that is prescribed by law in relation to the charge of incest, that is, 25 years’ imprisonment.
21 You admitted your prior criminal history. There are three court appearances spanning a period from 18 February 1974 to 18 April 1983. They are not of relevance in my sentencing you today. The previous offending related to dishonesty offending and driving offences.
22 You are currently aged 61. You are now undergoing a sentence that was imposed on 18 August 2016 by his Honour Judge Montgomery.
23 Following trial, you were convicted by a jury, of four charges of incest involving your two biological sons, Adam and Russell, two charges of indecent act with a child under 16, involving both those sons, and one charge of sexual penetration of a child under 16 involving your stepson, Shaun Frank, deceased.
24 His Honour Judge Montgomery sentenced you to a total effective sentence of nine years and six months’ imprisonment and imposed a minimum term of seven years. You were sentenced pursuant to s.6F of the Sentencing Act 1991 as a serious sexual offender in respect to each of the charges. Pursuant to s34 of the Sex Offenders Registration Act 2004 (SORA), it was ordered that you be placed on the register and the length of reporting is for life.
25 The following table sets out the details of the sentence.
| Charge on indictment | Offence | Maximum | Sentence | Cumulation |
| 1 Complainant Adam (autistic and significant behavioural problems) Aged 13 | Incest Between 14/10/99 and 31/1/2000 Penile penetration of the anus | 25 years | 6 years(base) | Nil |
| 2 Complainant Adam | Indecent act with child under 16 Between 14/10/1999 and 31/1/2000 Rubbing your penis on his penis until ejaculation | 10 years | 18 months | 6 months |
| 3 Complainant Russell (suffers ADHD) Aged 8-13 | Indecent act with child under 16 Between 1 January 1995 and 11 August 2000 Rubbing Russell’s penis over the top of his clothing | 10 years | 18 months | 12 months |
| 4 Complainant Russell | Incest Between 1 January 1995 and 11 August 2000 You sucked Russell’s penis until he ejaculated | 20 years | 5 years 6 months | Nil |
| 5 Complainant Russell | Incest You sucked your son’s penis until he ejaculated | 20 years | 5 years 6 months | Nil |
| 6 Complainant Russell | Incest You put your penis into his anus | 25 years | 6 years | 12 months |
| 7 Complainant Shaun Frank Aged 11-13 | Sex penetration child under 16 You sucked your son Shaun’s penis, witnessed by your son Russell | 25 years | 6 years | 12 months |
Total Effective Sentence: | 9 years’ and 6 months’ imprisonment | |||
Non-Parole Period: | 7 years | |||
Pre-Sentence Detention: | 8 days | |||
| Other orders: Reporting pursuant to Sex Offenders Registration Act 2004 for life | ||||
26 The first charge related to the complainant, Adam, and it was one of incest and involved penile penetration of the anus for which you were sentenced to six years' imprisonment which was the base sentence.
27 The second charge relates to the complainant, Adam, which involved an indecent act with a child under 16, which involved you rubbing your penis on his penis until ejactulation and you were sentenced to 18 months' imprisonment.
28 The third charge relates to the complainant, Russell, and relates to an indecent act with a child under 16, which involved you rubbing Russell's penis over the top of his clothing.
29 The fourth charge relates to the complainant, Russell. It is a charge of incest and involves an occasion when you sucked his penis until he ejaculated for which you received a five year six months' sentence.
30 The fifth charges relates to the complainant, Russell. It is a charge of incest. You sucked his penis until he ejaculated for which you received a sentence of five years and six months' imprisonment.
31 The sixth charged related to the complainant, Russell. It is a charge of incest. You placed your penis into his anus for which you received a six year sentence.
32 The seventh charge related to the complainant, Shaun Frank, deceased, and involved a charge of sexual penetration of a child under 16 and on that occasion you sucked his penis for which you received a sentence of six years' imprisonment.
33 Orders were made for cumulation and a total effective sentence of nine years and six months' imprisonment was imposed with a non-parole period fixed of seven years. Eight days pre-sentence detention was declared.
34 The background to the offending was that you lived with Gina Ralston and the children at ABC Street, Long Gully until your separation which occurred in approximately 1993. You then moved to the Central City Caravan Park for about six months with all the male children, Shaun, Adam and Russell. From there you moved to Heathcote for about a year and then from Heathcote you relocated to South Australia to live. Adam, Russell, and possibly Shaun, lived with you in South Australia in various places. You also moved to New South Wales for a time.
35 Sometime around October 1995, you moved back to Bendigo and resided nearby at 10 ABC Street, Long Gully for about 12 months.
36 In mid-1996 you moved back to South Australia.
37 In July 1998, Adam returned to Bendigo to live his mother, Gina. You then returned to Bendigo to live again in October 1999 and lived at the Central City Caravan Park. At that time you had Russell Frank living with you.
38 Sometime in late 2000, Gina Ralston was informed that your son, Adam, had disclosed that he had been sexually abused by you in the context of Protection Proceedings that were being conducted in the Children’s Court. As a consequence, Russell was collected from the caravan park and following that time you have had no face-to-face contact with any of your three male children.
39 At around that time, your daughter, Ella, also disclosed to a DHS worker that she had been touched by you and, after that time, she had no personal contact with you apart from some telephone contact. Contact ceased when she told her mother that on one occasion you engaged in “sex talk”.
40 On 9 December 2003, a video/audio taped statement was recorded at the Bendigo Police Station between your daughter, Ella and a police officer, where she disclosed that you had been sexually abusing her. The recording stopped and arrangements were made for her to make a further videotaped statement on 23 January 2004, during which she made further disclosures about the offending, the subject of the charges.
41 For some reason that has not been disclosed, police charges were not authorised in 2004 after Ella had made her statements.
42 Similarly, recordings were made by police of allegations of sexual abuse by you, by Adam in 2000, and Russell in 2004. For some inexplicable reason, the police did not authorise charges in respect to the allegations until a much later time.
43 It was not until Ella Frank made a further statement to police at Dandenong Police Station on 7 February 2013 that a further investigation was commenced leading to the current charges that have been laid against you concerning your daughter, Ella.
44 I will now turn to the impact of the offending. Ella Frank has a documented intellectual impairment that was first diagnosed when she was around five years of age. She suffers ADHD, anxiety and depression. She gave her evidence in a special hearing. Your offending against her has impacted upon her greatly.
45 Mr Cordy, the prosecutor, read the Victim Impact Statement on her behalf that was prepared with the assistance of a friend. Growing up she suffered with both anxiety and depression. She has had real difficulties in forming relationships with males. She experiences night terrors. She is very concerned in respect to her own son’s safety. At times she has used drugs to try and forget what happened. She has been suicidal on occasion and has cut her wrists. She continues to be very hurt and angered by your actions.
46 I consider that your offending against Ella falls towards the upper end of the range of seriousness for this type of serious offence. Your offending involves an egregious breach of trust imposed by our society on a father. You abused your daughter, who was of a tender age, for your own sexual gratification and you have shown no remorse for your actions. Notwithstanding her very tender age and vulnerabilities, you sexualised your daughter without any forethought for the consequence to her in terms of her own psychological, physical and psychosexual development.
47 The impact upon her has been significant. She was extremely upset whilst giving her evidence and has articulated in her Victim Impact Statement the profound effect of your offending. Such effects have been long-lasting and it is not anticipated that they will resolve in the future.
48 I will turn now to your personal history and background.
49 Mr Willcox, on your behalf, highlighted your difficult and dysfunctional background. You were born in Newcastle, New South Wales. You were one of two boys. Your older brother is five years your senior. There were two other children who died early in their infancy. Your father worked as a moulder in a foundry. When you were approximately eight years of age your family relocated from Newcastle to Melbourne. The foundry where your father had been working had closed when the owner relocated to Victoria. The family then moved in order that your father could obtain employment in Victoria with his former employer. There was a substantial gap between jobs and he was not employed for some time. He managed on odd jobs. He drank heavily and was violent towards his family members.
50 Your older brother ran away from home when he was aged 16 and from about age 11 to 19 you were physically beaten by your own father. Occasionally, your mother would also treat you violently, for instance, she attempted to burn your hand on the stove.
51 Both your parents had mental health issues. Your father attempted suicide at work and was saved by the intervention of a fellow employee. Your mother was schizophrenic. Both your parents are now deceased.
52 You continued to have a close relationship with your older brother who is living in South Australia.
53 You have had two marriages. The first married occurred in 1978 but that resulted in divorce in 1983. There were no children of that marriage. The second marriage was in 2006 but was only of a very short duration.
54 You formed a relationship with Ms Ralston in the early 80s and lived with her until 1993. Following separation from her you lived a fairly peripatetic lifestyle, moving between various places in South Australia, New South Wales and Victoria. In 1999 you returned back to live in Bendigo, ostensibly to care for your son, Adam, who had psychological and intellectual disabilities.
55 You have had very little by way of formal education. You left part-way through Form 3, which is the equivalent of Year 9, at Keon Park Technical School. At age 15, you secured work in a foundry working as a labourer. You were able to work in various roles in factories over the years. At age 23 you obtained your licence and then your heavily endorsed licence, which enabled you to obtain work as an interstate truck driver.
56 You did have a good work history, working with various trucking companies. However, there was a period of one year unemployment because of a loss of licence due to a drink driving conviction.
57 You were, effectively, employed until around 1986. You then became unemployed. It was not until 1997 you obtained some farm labouring work interstate. In 2005 you undertook a short period of employment as a truck driver in South Australia. Eventually you ceased work and prior to being incarcerated you were receiving the disability support pension for a back condition.
58 Mr Willcox referred to some background issues in relation to depression but it was never suggested that he sought to rely on any principles as enunciated in the case of Verdins.
59 You have a subsequent court appearance and convictions recorded in respect to two charges of possession of child pornography that were recorded in South Australia. On 30 June 2010 you were sentenced to a term of 18 months’ imprisonment with a non-parole period of 12 months and you served the entirety of that sentence.
60 As was stated by His Honour Judge Montgomery in his sentencing reShauns, the fact that you have been convicted in respect to the possession of pornography charges is not a factor to be taken into account in my sentencing you here today. However, it is a matter to consider in terms of your prospects of rehabilitation.
61 I have grave concerns about your rehabilitation prospects. You have never offered any proper exaplanation for your offending behaviour and it is apparent that you have used your children for your own sexual gratification irrespective of the impact upon them, and in my view the risk of re-offending in a like manner, remains high.
62 Recently the Court of Appeal in this State in DPP v John Dalgliesh (a pseudonym)[11], stated that incest is a crime of violence and must so be regarded. General and specific deterrence and denunciation must be given proper emphasis and long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.
[11] [2016] VSCA 148.
63 You are to be sentenced as a serious sexual offender under Part 11A of the Sentencing Act 1991. The protection of the community is of paramount consideration.
64 Mr Cordy submitted, however, in the circumstances of your case, it was not necessary for the court to impose a disproportionate sentence.
65 Whenever a court is sentencing a serious sexual offender the presumption as to cumulation under s.6E of the Sentencing Act1991 applies.
66 In RHMcL v R[12], McHugh, Gummow and Hayne JJ cautioned judges not to compress sentences when the accused person was a serious sexual offender within the meaning of s16(3A) of the Sentencing Act 1991. They observed that the scope for applying the totality principle must be more limited than in cases not falling within that section.
[12] (2000) 203 CLR 452.
67 In Gordon v R,[13] Redlich JA further observed:
“A sentencing judge must evaluate the overall criminality involved in all of the offences for which the offender is to undergo sentence, ensuring that there is no disproportion between the totality of the criminality and the totality of the effective length of sentences imposed. The judge is also required to ensure that the totality principle is applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991. This tension between the policy underlying s.6E and the principle of totality is difficult to reconcile. Authority has thus far provided no clear guidance as to the circumstances in which the statutory presumption of full cumulation under s. 6E should override the principle of totality.”[14]
[13] [2013] VSCA 343.
[14]Ibid [74].
68 Therefore, whilst RHMcL constrains the application of the principle of totality where the serious offender provisions apply, totality nonetheless remains an important consideration in sentencing.
69 Overall, I consider that your moral culpability in respect to the offending relating to your daughter is of a high order. At all times you knew Ella was a vulnerable person given her tender age, combined with her intellectual disability. Notwithstanding that, you proceeded to sexually abuse her. You must have understood the probable consequences of your actions upon such a young and vulnerable child but at no stage did you concern yourself with any of those consequences.
70 Absent treatment addressing your underlying offending behaviours, your risk of re-offending in a like manner is high and the need to protect the community from you is equally high.
71 Nothing was said in the plea hearing in respect to your willingness to undertake such treatment and I am extremely guarded about your rehabilitation prospects.
72 In formulating the appropriate sentence I have had regard to the circumstances of the previous offending for which His Honour Judge Montgomery imposed the sentence of nine years and six months to serve a minimum of seven years. That offending spanned a period of over five years from 1 January 1995 to 11 August 2000 which, roughly, equates with the period of offending in respect to your daughter, Ella.
73 The convictions concerned your two biological sons, Adam and Russell, and your stepson, Shaun. You were found guilty following trial of one charge of incest, being Charge 1 concerning Adam. That involved penile penetration of his anus; Charge 2, indecent act with a child under sixteen, concerning your son, Adam, which related to an occasion when you placed your penis on his penis and ejaculated. Charge 3 is an indecent act with a child under sixteen concerning your son, Russell, and that concerned an occasion when you rubbed his penis on top of his clothing; and Charge 4 was a charge of incest and that occurred with your son, Russell,where you sucked his penis until ejaculation. Charge 5 is an incest charge where, on a separate occasion, you performed the same act on your son, Russell, and Charge 6 was an incest charge that related to penile penetration of his anus. Charge 7 concerned an occasion when you sucked you stepson, Shaun’s, penis that was witnessed by your son, Russell.
74 The offending, the subject of the charges in respect to Judge Montgomery's matters, all occurred following your separation from Gina Ralston when your sons and your late stepson were in your care.
75 The children were subjected to other sexual misconduct not the subject of charges that occurred at various locations here in Victroria and South Australia. You are not sentenced to that other misconduct. That other misconduct provided a realistic background and context to your offending. The same applied in respect to Ella.
76 The totality of your offending has been severely corrosive to your family unit. The law must protect all vulnerable children from harm. In your case, you knew that your son, Adam, was autistic and had significant behavioural problems. You also knew that Russell had Attention Deficit Disorder and that your daughter, Ella, has an intellectual disability and that she, too, has been diagnosed with Attention Deficit Disorder and anxiety.
77 By your actions you have unscrupulously exploited each of your children each of whom were vulnerable. You chose to exploit your power and authority over them and subordinated them to your perverted actions.
78 Overall, your conduct constitutes a gross breach of trust. It has caused irreparable damage to each of the victims and your family unit. Your criminality is abhorrent and is deserving of condign punishment.
79 There will be substantial cumulation between the sentence to be imposed in respect to the crimes concerning your daughter, Ella, and the sentence imposed by His Honour Judge Montgomery, to reflect the overall totality of your criminal behaviour.
80 In formulating the appropriate sentence, I have had regard to current sentencing practices and, in particular, the decision of DPP v John Dalgliesh (a pseudonym)[15] where there is a consensus of opinion that the current sentencing for incest is inadequate and there is a need for higher sentences.
[15] [2016] VSCA 148.
81 This offending is very grave involving as it does Charge 1, a course of conduct defence in respect to the charge of incest, which occurred over many years where, effectively, you sexualised a young, innocent and vulnerable child who is your biological daughter.
82 Society's abhorrence of the crime of incest is well recognised. As was stated by the court in John Dalgleish one of the key concerns of the criminal law is the vindication of the community's social values. Pre-eminent among those values is the protection of the personal integrity and physical safety of young and/or vulnerable children.
83 Overall I must impose just punishment for the harm caused and potential offenders must be deterred from the commission of such crimes. Importantly, there is now much greater understanding of the trauma and long-term harm suffered by children who are sexually abused. As was stated by Hoeben CJ at common law in Franklin v R,[16] sentences imposed for incest must reflect this greater appreciation of harm.[17]
[16] [2013] NSWCCA 122.
[17]Ibid [21].
84 Could you please stand now, Mr Frank, I am going to announce my formal court orders.
85 Charge 1, incest, course of conduct, this is the base sentence. I sentence you to seven and a half years’ imprisonment.
86 Charge 4, incest, I sentence you to six years’ imprisonment.
87 Charge 5, incest, I sentence you to six years’ imprisonment.
88 I make the following orders for cumulation. I direct that one year of the sentence imposed in respect to both Charge 4 and Charge 5 be cumulative upon each other and the sentence imposed upon Charge 1, making a total effective sentence of 9 years 6 months.
89 I direct that six years’ and six months’ of this sentence be cumulative upon the sentence imposed by his Honour Judge Montgomery, making a head sentence of 16 years, and pursuant to s14(1)(b) Sentencing Act 1991 (Vic), I fix a new single non parole period of 12 years and eight months imprisonment.
90 This sentence commences today pursuant to s.17(1) of the Sentencing Act 1991 (Vic).
91 In accordance with the decision of R v Stares (2002) 4 VR 314, I have taken into account in sentencing that a period of 124 days have already been served under the sentence of Montgomery J, by an appropriate reduction in the period of the non-parole and head sentence. I have noted eight days pre-sentence detention was declared by Montgomery J and this declaration will be taken into account by the authorities.
92 Pursuant to section 6F of the Sentencing Act 1991, I direct that it be noted on the records of the court that you are sentenced as a serious sexual offender in respect to Charges 1, 4 and 5.
93 Pursuant to section 34 of the Sex Offenders Registration Act 2004, I make the further order that you be placed on the sex offender register with a reporting period for life.
94 Mr Willcox, I have had my associate prepare the relevant notifications and I would appreciate it if you could accompany her and ask Mr Frank just to acknowledge receipt of that information.
95 MR WILLCOX: Certainly, Your Honour.
96 HER HONOUR: I think that has covered all the orders that - - -
97 MR CORDY: It seems to, Your Honour.
98 MR WILLCOX: Yes, Your Honour.
99 HER HONOUR: - - - are required. All right, can you do that now please.
(Orders signed and acknowledged.)
100 HER HONOUR: Thank you for that. All right, so Mr Frank can be removed from the dock and taken.
- - -
0
5
0