Director of Public Prosecutions v Franz (a pseudonym)

[2022] VCC 532

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY FRANZ (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE J SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	6 April 2022
CASE MAY BE CITED AS:	DPP v Franz (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 532

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	N. Hutton	Office of Public Prosecutions
For the Accused	G. Chisholm	Stephen Peterson Lawyers

HIS HONOUR:

1Timothy Franz[1], 14 days ago a jury found you guilty of:

(i)Four charges of sexual penetration. 

(ii)Three charges of indecent act.

[1] A pseudonym.

2A few days after that you pleaded guilty on a second indictment to:

(i)Three charges of sexual assaults on two victims.

3The first indictment that I have referred to referred to one victim.

4You are effectively now 75 years of age and for these purposes have no prior convictions.  The trial obviously, takes away any mitigation that might have been available through some sort of remorse, and in my view in so far as the plea of guilty to the second matter is concerned, it is not exhibitive of remorse in any way, shape or form.

5Your attitude throughout the trial and throughout the plea, indeed to the extent yesterday where you were shaking your head while the victims were reading their impact statements indicates a total lack of remorse and insight.  That does not aggravate the situation, it just simply takes away what would have been an extremely important mitigating factor in this sentencing exercise. 

6

In so far as the law is concerned, Charge 2 on the second indictment is a

standard sentence offence, the standard sentence is four years.  I note that I'm well aware of the principles that are enunciated in the Court of Appeal in the decision of Brown, I’m also aware of the principles enunciated in the

Court of Appeal in the decision of McPherson and I simply say that I apply all those principles to this sentencing function.  This is indeed an example as pointed out in

McPherson that standard sentences when they are mixed up with others becomes a very complicated process and I do not intend to go into any great detail about that. 

7From Charge 5 on the first indictment, you are to be sentenced as a serious sex offender.  I note that community protection becomes the principle sentencing purpose, the Crown do not ask for a disproportionate sentence and I'm aware that accumulation follows unless I otherwise order. For reasons of totality I will otherwise be so ordering. 

8Because of the nature of the offending, you will be placed on the sex offenders register and I advise you that the reporting conditions of that will be for life.  I am not having my Associate go to the dock the that, it will be given to the police to give to you in the cells. 

9

The summary of the offending will be done firstly in regard to the indictment 98.2.  A young lady began a relationship with your son and after a time they lived together.  At that point in time, that lady had a son and a

three-year-old daughter.  The relationship initially between you, your wife and that extended family was initially good. 

10You took on effectively, a role of grandparent to those two children and offered to care for them to allow your wife to socialise with others.  That often caused the children to stay at night at your family home in Morwell[2] where you maintained a separate bedroom from your wife.  The children were often put to bed in your room despite each child having their own room to go to. 

[2] Location anonymised.

11

The girl has alleged misconduct against you over an extended period of time and the jury has accepted her evidence beyond reasonable doubt, as would have I.  She was offended against by you from around about the age of

seven for approximately five years.  The assaults occurred on a regular basis, often on a Saturday night when members of your family were not at home, and she was left in your care.

12You sexually assaulted her by rubbing her vagina, performing oral sex on her, making her touch your penis.  You on occasions try and insert your penis into her vagina, but on her evidence, without significant success.  Those matters are the surrounding circumstances which give rise to the matters of which you have been convicted.

13

In January 2005 your family moved to the home in Morwell.  One night while caring for Alia[3] you waited for your wife to leave the house and go to bingo and then said to her, 'let's go to bed, I'm tired'.  You locked the front door of the house and closed the bedroom door.  She got into your bed, you said that you wanted to play a game 'like touching each other'.  You removed her pyjamas, rubbed her vagina for a short time and inserted a finger into her vagina and moved it around.  That is

Charge 2 of sexual penetration.

[3] A pseudonym.

14You tried to insert more fingers but were not successful, you told her not to cry, she told you it hurt.  You then went down on your hands and knees and said words to the effect of 'relax, this won't hurt you, it'll feel nice'.  You placed your mouth and tongue on her genital area, licking around and in her vagina.  That is Charge 3 of sexual penetration.

15You then made her touch your penis, which was Charge 5, and indecent act.

16You then moved her head down to your penis and forced her to perform oral sex on you telling her to suck, which is Charge 6 of sexual penetration.

17After a period of time, she told you that she did not want to do it anymore and wanted to go to sleep.  You told her not to tell anyone.  In the days following that you would often ask her if she felt horny. 

18The third incident was a situation where you took her to an apartment being occupied by your son where there was a dog which you were caring for.  You put her on a bed at that address just with the two of you there and rubbed your erect penis on her vagina through clothing. 

19There was a further incident in the home in Morwell, on that occasion her stepfather was there.  On this occasion she was approximately eight to ten years old, you waited until your son had gone to bed and you then went in and tried to put your hands down her pants.  She was worried that it would be heard and said, 'no, you can't do this now'.  You asked her then to touch you, you then made her get on top of you and tried to put your penis in her vagina.  You had taken off her pyjamas, your penis did not go in that far, but caused her immediate pain.  That is Charge 8 of sexual penetration. 

20Charge 9 is a circumstance where after about 15 minutes you caused her to masturbate you to ejaculation and left the bedroom and went to the bathroom, which is Charge 10, an indecent act.

21They are the offences and as an indicator, whilst they are to be served cumulatively according to the legislation, it is a situation where a number of them occurred them in the one incident and accordingly, there has to be quite significant concurrency.  The fact of the matter is though each is an individual act and each in my view in these circumstances must attract its own sentence within the element of accumulation for each charge.  As I said, on that indictment at the trial no offer of a plea of a guilty as I understand it, and you just have to simply bear the consequences of that.

22

The next indictment was the one of three charges, they involve

two small children.  Your son went into another relationship with a lady who together they had two children, Ryan[4] and Elle[5]. 

[4] A pseudonym.

[5] A pseudonym.

23Between January 2017 and 2018 you on an occasion put your hand inside the back of the boy's pants and underwear and put your finger against his anus.  You then removed your finger, and he became emotional and went inside.  He also said at one stage to his mother, 'I didn't know that Pa was touching Elle’s bum, I only thought he was touching mine', Elle being his sister. 

24In so far as the sister is concerned, on 6 October 2018 you attended at a barbecue and the child was playing on the trampoline and no one else was present except you.  You put your hand in her pants and placed your finger against her anus and made a tickling motion.  You removed your finger and continued to play.  She was observed after that by her mother as acting in an abnormal manner.  She was asked why her bottom was sore and she said that 'you had touched my bum and wouldn't listen to me', she then pointed to her anal area. 

25The next incident involving her was in early 2019, she was playing hide and seek in a boat, and you touched the external front area of her vagina through her pants and undies.  That gives rise to another charge of sexual assault.

26By the nature of the allegations that were made, particularly by the comments made by young Ryan, it is clear that these were not one off.  I do not sentence you for any supposition on my part or any speculation.  It is clear that some many years earlier you had offended against other children and the apparent desire had never left you. 

27All these charges carry maximum penalties of 10 years despite the time lapses between them, and I take that into account. 

28In so far as the second indictments are concerned, there is a utilitarian benefit of there not being a trial, however, one must bear in mind that even in that particular matter the two children, as I understand it, went through special hearings and effectively the trial in so far as they were concerned was complete before you pleaded.  You, however, get the benefit of the decision of Worboyes pleading guilty in these times of Covid, I accept that certainly the initial stages of your sentence will be undergone in Covid circumstances.

29

It is a situation where the main matter put on your behalf by your counsel were your age of 75.  Clearly, the earlier offending on indictment 2 was back in 2006, some 16 years or so ago, so you were about 60.  The difficulty of the indictment

number 2 is that whilst it is put that your age is a factor, I take into account that that offending only occurred about three or four years ago.  If you seek to offend in that way as an old man, you will be jailed as an old man and you will have to simply wear the consequences.  Obviously, there is authority on age being taken into account, and to the extent that I am able to, I do take that into account.

30Your counsel provided very helpful if I might say so, submissions on your behalf and they outline your background.  The first factor is as he pointed out, the matter of age, and as I say, I do take that into account. 

31Your background on the face of it is that you were born in the Netherlands[6] just after the war and immigrated to Australia.  From the time you got here at the age of 15 you have always worked, and you have a very good work record indeed.  You worked for, as I understand it, 21 years at the spinning mills and then for another 23 years as a fireman for the SEC.

[6] Location anonymised.

32Clearly, you have a good work record, you have been able to acquire property over the years and I accept it will be an anxiety to you that that property, or at least a significant portion of it, may well be lost in actions brought by your victims.  That does not mitigate in your favour in its own sense because I am not going to speculate on what might happen in the future, but that is clearly anxiety to you. 

33

It is also a situation where you have been married for 55 years, you have

two children and you will now be separated from your wife for a very significant period of time, which may ultimately prove to be the rest of your life.  I take that into account on your behalf for the anxiety and the difficulty that that will cause.  I would assume that it will be difficult for her to visit you because of where I anticipate you will undergo your sentence. 

34I take all those matters into account, but what one must then do is look at what you actually did and the consequences of it.  You were placed in a position of trust, the victims were very young indeed, very vulnerable, and unable to defend themselves or do anything about it. 

35

I am well aware that the circumstances of increased maximum penalties of

25 years for under 10 and 15 years are not applicable here because of the lack of specificity in the timeframe.  The Crown very properly do not seek for those maximum penalties to apply so I am very much aware that the maximum penalty for each as I sit here and sentence is 10 years, though those other factors obviously go very much to the seriousness of the offending. 

36In terms of what actually occurred and what you did I then look at the consequences.  Three victim impact statements were read to me, one by Alia and she very eloquently explained what had happened to her.  She said, and I am only reading parts of it as people would understand, ‘Timothy has taken so much away from me.  He has taken away my childhood and I'll never ever get that back.  I wish I could remember my childhood being happy, carefree and safe, but I remember it being far from that.  When I think about it, it gives me so much anxiety, it makes me feel sick to my stomach.  I was diagnosed with anxiety and depression when I was in my early teens.  These actions have caused so much hurt and trust issues with everyone I meet', even her relationship with her partner.  She said, ‘Timothy always shows up in my dreams, every time he does, I can feel the anger and feel scared, and I wake up in the morning feeling sick'. 

37She said that she had seen many counsellors over the years to try and come to terms with it and find ways to live her life.  The depression has kicked in often and it makes it get to a stage where she does not even see the point of living.  When she is going through those stage it has a large impact on her work, her social life and her wellbeing, she does not leave the house because she is crying so much and just wants to lock herself in her room and not talk to anyone. 

38She said that there had been times that she was so scared by this whole process she felt like not going ahead with it.  She understands why there have been delays, but they have just caused her difficulty as well.  She says that 'this has been going on for so many years him not pleading guilty when it first began and not admitting what he has done has filled me with so much anger'.  As often the circumstances are, I am not saying it is the case here, but it is often all that the victim wants is the acknowledgement and you could not even do that.

39

She said recently she has been in and out of hospital trying to find help as only

a month ago she went through such a hard time with this trial coming up and the like that she had said to a psychiatrist that she was suicidal.  She is now on

anti-depressants and there is a report from her doctor which I have read. 

40She stayed a week in hospital but has now come to terms with the fact that she just cannot continue like this, she has two beautiful children and needs to be the best mother she can for them, and she has to stop letting these actions take control of her life.  That is what you achieved, Mr Franz, when you abused that little girl over such an extended period of time and in such a disgraceful way.

41It struck me listening to her when her evidence was being given and when she was reading her victim impact statement out, that she is a very intelligent person and that may well assist her in all this.  It also struck me that in the nature of her despite the difficulties that she has had, and I appreciate what her mother says, that she seems to have, to me at least, an innate gentleness and that was the little child that you assaulted. 

42

Her mother also read her victim impact statement and said this, 'You've robbed Alia of her childhood, innocence, confidence and self-esteem, her dignity and

self-respect as result of the crime you carried out on an innocent child, my beautiful daughter.  I don't believe you have any regret', and I need to point out that I agree with her, 'you were effectively my children's grandparent and were supposed to protect, but you definitely failed'.  Knowing that her daughter had withheld that trauma from her for years has caused her enormous grief.  She said, and this again is text book in these circumstances and why general deterrence plays a very significant part.  'Still to this day as a mother I feel powerlessness, blame, shame, extreme distress, and most of all anger.  Although I have to seek counselling on how to have the strength to best support Alia and how to manage my own wellbeing just doesn't seem enough'. 

43And whilst that impact statement was being read out from the view I had of the dock; you were shaking your head as if it simply was not true.  She said that not a day goes by where what was done to Alia does not interfere with her life or limit the life that she leads.  She said, ‘Alia has lost so much, and those losses cut right to my core as a mother.  Unfortunately, what you have done can never be undone'.  And that is one indictment. 

44

So far as the other indictment is concerned, the mother of the two children who are now still quite young said as a result of finding out what you'd done, 'I lost all enjoyment of life and began to shut down emotionally, I felt betrayed, manipulated, deceived, robbed, in fear and panic when I found out what he did to my children.  I felt the weight of the world on my shoulders, I've never been so stressed in my life.  The incredible feeling of heaviness in my heart upon finding out what has happened to my children by their grandfather has been devastating and

gut wrenching to me.  I could not sleep; I was sick to my stomach'. 

45She also goes to point out the effect that it has had on those two small children, of distrust, of not understanding why they have to effectively be your grandchildren.  The young boy is on level two autism spectrum disorder and has ADHD, he finds the whole circumstances unbelievable effectively, apparently having to go to Melbourne for the special hearing over about three days.  It caused him great grief as one can understand with the change in routine and the likes. 

46This sort of offending has ongoing consequences and consequences which extend way out from simply you and your self-induced position.  So, that is what you did and that is what you are to be sentenced for.  As I have indicated, I am fully aware that a number of the offending happened in the one incident, but there still has to be in my view, accumulation.

47

In those circumstances, the breach of trust is massive, the offending in my view is at the higher end and as Justice Marks said in R v Esposito many years ago,

'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care is degenerate'. 

48

Going on he said further, 'the offence of incest', and whilst I realise you have not been convicted of incest, the circumstances of the offending are tantamount to it, '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 or any lineal ancestor.  'It ought to be unnecessary to recount the morbid features of offending such as this, the most prominent which include the exploitation by the stronger will of the adult, 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 parents of the child, and the irreparable fundamental damage to the victim'. 

49They are the matters that give rise to general deterrence, the specific deterrence in your particular situation, I think are of no real value here because of the length of the sentence and because of your age.  Community protection, I am we all aware of the circumstances of the legislation, it seems to me that the odds of you offending again in this way once you are released, if you are released, ultimately from prison would be very low indeed. 

50Denunciation must be shown, and the punishment must be effective, in other words, people in your situation who have the arrogance to simply think that they can do this to children over an extended period of time for their own perverted pleasures and think they can get away with it might think twice.  The sentences have to be significant in these sort of circumstances, and significant enough, as I said, to deter other likeminded men. 

51I could say a number of things in addition to all that, Mr Franz, but I think in these circumstances I am just going to have to let the sentence express what the community and those involved in the legal system think of offending such as this.  It could be a circumstance of rearranging the deck chairs, I suppose, in terms of the sentence, I have been very conscious of ultimate sentence, very conscious of totality, and I am conscious of the need where possible, to not impose a crushing sentence. 

52I have already indicated, however, that you committed the last of this series of offending when you were already 70 or so, and it seems like you had got away with the first one for a long time. 

53In any event, on indictment 98.2:

(a)   On Charge 2, five years.

(b)   On Charge 3, six years.

(c)   On Charge 5, two years concurrent. 

(d)   On Charge 6, six years.

(e)   On Charge 7, two years.

(f)    On Charge 8, six years.

(g)   On Charge 10, two years. 

54

I direct that six months of the sentence imposed on Charge 2, two years of the sentence imposed on Charge 3, one year of the sentence imposed on Charge 7,

two years of the sentence imposed on Charge 8 and one year of the sentence imposed on Charge 10 be served cumulatively upon each other and upon the sentence imposed on Charge 6. 

55

On indictment ending 98.2 that gives a total effective sentence of

12 and a half years. 

56On indictment ending 98.4, the one to which you pleaded guilty:

(a)   On Charge 1, 18 months.

(b)   On Charge 2, two years, that was the standard sentence matter.

(c)   On Charge 3, 18 months.

57I direct that 12 months of the sentence on Charge 1, and six months of the sentence on Charge 3 be served cumulatively upon each other, and upon the sentence imposed on Charge 2. 

58That gives a total effective sentence on indictment 98.4 of three and a half years.

59

I direct that one and a half years of that sentence be served cumulatively upon the sentence imposed upon the indictment 98.2, that gives an effective head sentence

of 14 years. 

60

I have expressed it in terms of accumulation because that is easier, but I am well aware that that has the same effect as expressing it in terms of concurrency, which is what the Act suggests.  In any event, that is a total overall effective sentence of

14 years. 

61I have heard the arguments of your counsel about age, and I take them all into account, but order that you serve a minimum term of 10 years before becoming eligible parole. 

62I direct that 14 days be regarded as having been served under this sentence, in these circumstances as discussed with counsel, a s6AAA declaration would be meaningless, and indeed, probably very misleading, so I do not propose to make one.  I am well aware that it does not invalidate the sentence. 

63Are there any other matters I need to make orders on gentlemen?

64COUNSEL:  No, Your Honour

65HIS HONOUR:  No.

66COUNSEL:  No, Your Honour.

67HIS HONOUR:  No.  Remove him, please. You can take him now.

68OFFENDER:  Sorry, Sir, can I speak (indistinct) Your Honour?

69HIS HONOUR:  No, you can go to the cells is where you can go.

70OFFENDER:  Well, thank you very much, you've been great.  It's all false and lies.

71HIS HONOUR:  You are a criminal and an old man, and you've got a very severe sentence and you deserve every second of it, Mr Franz, don't start that.

72OFFENDER:  You is (indistinct words).

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