Director of Public Prosecutions v Fraser (a pseudonym)

[2013] VCC 1289

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

Danny Fraser (a pseudonym)

---

JUDGE:	His Honour Judge Gucciardo
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 September 2013
CASE MAY BE CITED AS:	DPP v Fraser (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2013] VCC 1289

REASONS FOR SENTENCE

---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr L. Cameron
For the Accused	Dr M. Marich

HIS HONOUR:

1       Danny Fraser,[1] on 14 February you were found guilty by jury of four charges of incest, one of committing an indecent act with a child under 16 and one charge of attempted incest.

[1] A pseudonym.

2       You were remanded until a date to be fixed until a plea was made on your behalf.  At that point, it appears that, for a number of reasons, your plea did not come before me in a timely fashion.  By May, you were yourself making enquiries of those who were supposed to be representing you and organising your plea, including any psychological reports.  The Office of Public Prosecutions also endeavoured to gather information and reasons for this delay, and concluded that funding was not in place and an assessment had not be obtained.

3       It was not until late August that a full plea was able to be presented.  This is most unfortunate and unacceptable.  As officers of the court, legal practitioners on both sides should have ensured this delay did not take place.  It coincided with my absence on leave, which may not have assisted, but it was particularly incumbent on your legal team to prepare this plea in an appropriate timeframe, even despite financial difficulties.

4       I mention this matter at the beginning of this sentence because this delay was not, in my view, due to your fault and it has meant that you have had the question over your sentence hanging over your head for a substantial and unwarranted period of time.  In my view, I am entitled to take this delay and its effect into account in  ameliorating your sentence to an appropriate extent.  Although you could not have been under any misapprehension that you were likely to receive a substantial term of imprisonment, it is plain that a person in your situation ought to know, in a timely fashion, what the length of that reclusion is to be.  The effect of this delay, I have little doubt, has been bewildering and deleterious to you, a person without previous experience of detention.  In my view, such delay should tend towards  amelioration of the ultimate disposition and I take it into account in this way.  While its impact should not be over-estimated, it is a factor I should consider and take into account with other factors.

5       Justice delayed in this fashion, whilst it may not be justice denied, imposes on a convicted and remanded prisoner a state of limbo, uncertainty and disorientation which is a sort of punishment.  It also amounts to an injustice for the victim, who is also left to wonder at the lapse of time.

6       The complainant was aged between the ages of ten and 15 years at the time of the offences.  You were 52 years of age and you are now 54.  You were the de facto partner of the complainant's mother and you had been in that relationship for many years since the complainant, whom I shall refer to in these reasons as "M", was very young.  She had moved to your home with her mother in 1999.

7       Evidence was given that, on occasions when her mother was working, you would look after M and it was said that that was the context within which you committed sexual offences upon her.  As to each count, the prosecution prepared a summary which was relied upon at trial, and which M gave evidence about.  The summary will be retained on the court file.

8       For the purposes of this sentence, it is sufficient for me to state that on the incest charges, 1, 2, 4 and 7: on Charge 1, you rubbed her genital area with your fingers, ultimately penetrating her vagina digitally; on Charge 2, you were on top of M in her bed and you penetrated her vagina with your penis; on Charge 4, you put your penis into her mouth; and on Charge 7, you penetrated her vagina with your fingers.  These occurred on separate occasions when M was at home, being looked after by you. 

9       Charge 3 took place at the same occasion as Charge 4, as did Charge 5.  Charge 3 and 5, being indecent acts with a child under 16: Charge 3 encompassed the evidence of forcing M to put her hand on your penis to masturbate you; and Charge 5 encompassed the evidence of touching her on her breasts over her clothes.  Charge 6, of attempted incest, occurred at the time of Charge 7, the digital penetration, another incest charge.  That offence was preceded by attempts by you to penetrate her vagina by your penis whilst she resisted, until you did penetrate her with your finger.  That is Charge 7.

10      Broadly speaking, Charge 1 relates back to the year 2005, Charge 2 to the year 2006, Charges 3, 4 and 5 to March-May 2008, and Charges 6 and 7 to February 2011.  You were interviewed by police in February 2012 and you denied all the offences.

11      The first thing to note is the length of time, from 2005-2011, during which you committed these offences.  It may not have been said to have been sustained offending but it lasted for a substantial period of time.

12      Incest is a very serious criminal offence which carries a maximum of 25 years.  Attempted incest carries 20 years and committing an indecent act with a child under 16 carries ten years.  Incest is a particularly heinous offence involving a profound breach of trust from a person, usually an adult, who is entrusted with the care and supervision of a young child out of familial relationships.  This offence is not only abhorrent because of this fundamental breach but because it is performed by physical acts, like in this case, which are a vile violation of the most important rights of a child, that of safety, security, physical integrity and inherent innocence , all in the context of that trust they are entitled to enjoy as children.

13      The law and  the community rightly abhor such criminal conduct and  the Court must  denounce it in the strongest possible terms.  The sentence of the Court must hold this purpose as very important, as well as acting as a clear and unequivocal message of deterrence to any who  intend or are minded to offend in this way, who must know that such criminality will be met with stern punishment.

14      The sentence in effect provides retribution for the rights which have been criminally  infringed, particularly in this case, over a significant period of time in the young life of M.  She has submitted a victim impact statement which I take into account.  She reports that she suffered depression and anxiety.  She has nightmares and received ongoing counselling and been placed on antidepression medication.  She has trouble sleeping and her relationship with her mother is fraught with frustration and unease.  She reports having attempted suicide many times.  This impact is common among young victims of sexual abuse, and their struggle with the consequences of it is often lifelong and frequently destructive of hopes, relationships, self-esteem, confidence and even career prospects.

15      You chose to contest these charges and, as a consequence of this and your conviction, I am unable to find any remorse or assign it any credit.  Specific deterrence in this sentence therefore is an important aspect.

16      I will take into account your personal circumstances.  You are now 54 years old.  You grew up in Melbourne and Ballarat.  You were the fourth child of six children.  You are close to your siblings and you have been receiving visits from your sisters.  Your eldest brother is in frequent contact with you.  Your mother, it appears, was not a maternal person, often violent and manipulative according to your report to Garry McMullan, a psychologist who prepared a report of his assessment for the court, dated 30 July 2013.  You told him your mother could be petulant and violent, with displays of anger and regular arguments with your siblings and your father.  According to you, she often threatened to suicide or to abandon the family home.  Your father was a train driver and when you were ten, your mother left him for another man.

17      You had gone to live with your grandparents from age seven to ten.  You were content living with them in those years.  However, when your grandfather died, your grandfather and you moved back to live with your father and siblings.  Your father remarried.  You lived with him and two younger brothers, and a stepbrother and sister.  There was dissention in the household and eventually you returned to your mother's care.  Your stepfather was cruel and violent.  Your asthma got worse.  The family then moved from Williamstown to Ballarat.  Life on a farm proved to be harsh, particularly because of your stepfather's cruelty in dealing with you.

18      When you were about 17, you were told to leave the family home.  You told McMullan that your mother attacked you physically when you were about that age and was taking various medications.  Your mother died two years ago but you had by then lost contact with her for nearly 30 years.  She had left the family, you and your brothers, with your stepfather when you were about 17.

19      Though you managed to remain at school for a while, eventually you left school and got a job,  having completed part of Year 9.  You worked first as a telegram boy then four years in a sawmill.  You worked in a panel shop and learnt to spray paint.  You spent the next ten and a half years spray painting.  You ran an automotive and household paint shop.  You also sold paints on the road.  You obtained a well-paid job with Practi-Plan Mapping[2] and when that job was discontinued, you worked for Landskip Yard Care[3] and then Dick Fischers.[4]  When that store was taken over by Merrymaking,[5] you became a supervisor.  You obtained certificates in retail management, a Diploma in Management and a Diploma in Business.  You were with that firm for seven years, to the point at which you went into detention. 

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

20      This work history is to your credit and demonstrates that you can be a productive member of the community, despite the difficulties of your upbringing.  I will take this history and particularly your achievement in work, business and study into account. 

21      You married when you were 22.  You were together with your first wife for some 14 years.  You have two daughters, Sandra[6] and Sarah.[7]  You split from her when the children were ten and 12.  They chose to remain with you.  The next relationship was with M's mother.  She refused to leave you after you were charged, although she now resides with M and away from you.  I have taken the other detailed matters related in Mr McMullan's report into account.

[6] A pseudonym.

[7] A pseudonym.

22      It was reported by your daughter to Mr McMullan that you had struggles with mental health, having attempted suicide after you split from your first wife.  Mr McMullan also spoke to Allan Williams, a psychologist who has treated you since 2012, prior to the laying of charges.  You had consulted him about dealing with M's behaviour.  Sessions were about parenting.  In Williams' view, you had no psychological or psychiatric issues. 

23      Mr McMullan conducted psychometric testing on you.  The results suggest your risk for re-offending are low whilst some "factors that protect against criminal behaviour need to be strengthened."  This probably arises out of your insistence on your innocence.  The testing suggests you tend to repress emotions, lack insight and can be rigid in your views.  Mr McMullan opines that while your motive for offending is difficult to fathom, it may be related to the need for control or power, or be merely opportunistic.  He believes you would benefit from sex offender programs.

24      Although you have tolerated detention so far reasonably well, upon being sentenced you may fall into deep depression and you could be a suicide risk.  I will annotate my orders for correctional authorities in that regard and am confident they will make appropriate provisions for you.

25      I take into account that you have no prior criminal history and have reportedly had an impeccable good character before these offences.  Your daughters are staunch supporters.  I have received a bundle of references which I have taken into account.  These letters speak of your sense of humour, your generosity, diligence, productivity and industriousness at work. 

26      Although you have spent some time primarily in protection, which is a harsh regime, once you are properly sentenced, you will hopefully find yourself in the general prison population.  There, you will be able to access more courses and rehabilitative efforts.  You have already completed a number of programs: industrial, food handling, computers, mood management and occupational health and safety.

27      Your health issues, asthma and depression, have been managed in custody and will no doubt continue to do so.  You will probably continue to receive family support and visits.  All of that seems to me to bespeak of reasonable prospects that you will not re-offend and your prospects of rehabilitation are reasonable.  Such prognostication, however, is not much more than mere hope.  In the face of this type of offending, these prospects must always be expressed with caution, and some of these reservations may be addressed by the sex offender program.  However, I have no doubt reclusion will be a sobering experience for you. 

28      Your daughter mentioned in a letter that you have witnessed an incident of suicide in custody and this is traumatic in itself, but probably had significant impact on you, since you had lost a brother to suicide in 1990.

29      I have read the letters of Sarah; Adam,[8] her current partner; Elliot,[9] your brother-in-law; Michael Slaiper, a work colleague and friend; Steve Boscetti, the Merrymaking accounts manager; Eva Schembri, co-worker and friend; Johnny Dwyer, a friend; Alexander Thirgood, an ex-partner of Jade's and a metallurgist; Tony West, a businessman and friend from Ballarat; and Mark Craven, the area operations manager for Merrymaking.  All of them speak highly of you and of the out of character nature of these offences.

[8] A pseudonym.

[9] A pseudonym.

30      I note that, after the first sentence of imprisonment for Counts 1 and 2, you fall to be sentenced as a serious sexual offender thereafter.  However, I do not propose to impose a disproportionate sentence and will cumulate an appropriate portion of the sentences with community protection as a primary purpose in mind, as I am instructed to by the legislation. 

31      Taking all of these matters into account, I sentence you on the following terms:

32      In relation to each of the incest charges, you are convicted and sentenced to four years' imprisonment. 

33      On the attempted incest, you are convicted and sentenced to two and a half years' imprisonment.

34      On the indecent act with a child under 16, Charges 3 and 5, you are convicted and sentenced to 18 months' imprisonment on each charge.

35      I order that 12 months of each of Counts 2, 4 and 7, six months on the attempted incest charge, and three months of each of the two indecent act charges, 3 and 5, be served cumulatively on each other and cumulative on the sentence for Charge 1, the base sentence, making a total effective sentence of eight years.  I fix a non parole period of six years.

36      I note that you have served 202 days by way of pre-sentence detention, excluding today. 

37      As a result of this conviction and sentence, you have become liable to be registered as a sex offender and subject to mandatory registration for life.  Registration is not part of my sentence but follows as a legislative requirement.  The mandatory period applicable to your registration is life.

38      There are a number of very onerous obligations which require great attention after you are released.  You will be given some paperwork which sets out those obligations.  I would advise you to read it carefully, particularly when you are about to be released, because they require significant monitoring of a number of aspects in your life.

39 I have signed orders pursuant to s.464ZF that you undergo a forensic procedure, the taking of a scraping from the mouth and/or a blood sample in accordance with the Crimes Act, until a sample of sufficient standard is obtained for placement on a DNA database.  I have considered the seriousness of the circumstances and I am satisfied that those circumstances warrant the order and that the order is in the public interest.

40      Mr Fraser, if at the time a request is made to you for a scraping from the mouth, which is not a painful procedure, you do not consent to the taking of such a sample under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted; do you understand?

41      OFFENDER:  Yes.

42      HIS HONOUR:  I have signed those orders.  Are there any other orders that I need to make, Mr Prosecutor?

43      MR CAMERON:  No, Your Honour. 

44      HIS HONOUR:  All right, I will stand down.

- - -