Director of Public Prosecutions v GH
[2013] VCC 735
•28 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00362
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GH |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2013 | |
DATE OF SENTENCE: | 28 May 2013 | |
CASE MAY BE CITED AS: | DPP v GH | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 735 | |
REASONS FOR SENTENCE
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Subject: Plea – sentencing
Catchwords: Incest
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:
Sentence: 12-month Community Correction Order, no work condition
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms L. DiPietrantonio Ms E. Finnigan | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Ms J. Munster Mr M. Sturges | Victoria Legal Aid |
HIS HONOUR:
1 GH, you have pleaded guilty to one charge of incest. This charge is representative of three occasions of penile/vaginal penetration.
2 The offending occurred between 1 January 2011 and 28 February 2011 in various houses in Clayton. This offence, being incest between siblings, carries a maximum penalty of five years' imprisonment.
3 You have no criminal history.
4 You are now 20 years old, having been born on 7 October 1992. At the time of the offending, you were aged 18. The victim was born on 5 December 1995. At the time of the offending, she was 15 years old. You and the victim were born in the Cook Islands and are biological siblings.
5 In October 2002 the victim immigrated to Australia and lived with her auntie in New South Wales. In April 2003 her parents immigrated to Australia, leaving you in the Cook Islands to continue to be raised by your maternal grandparents. On 15 December 2009 you came to Australia and lived with your mother, father and the victim. You and the victim knew that you were siblings, although you had never before lived together.
6 Whilst living in Inverell, New South Wales, between August 2010 and December 2010, you and the victim engaged in penile/vaginal penetration on a number of occasions. No condom was used. On the first occasion the victim was 14 years old and a virgin. You were 17 years old and were aware the victim was a virgin.
7 On the victim's 15th birthday in 2010 you and the victim discussed your relationship. You acknowledged that you were aware the relationship was wrong but you did not care because you loved her. You again engaged in penile/vaginal intercourse.
8 Your mother moved to Victoria in October 2010. You and the victim moved to Victoria on 23 December 2010 and lived in Clayton with your mother.
9 On three occasions between 1 January 2011 and 28 February 2011, you and the victim engaged in consensual sexual intercourse.
10 In March 2011 the victim's mother thought that the victim was pregnant and questioned her about it. The victim told her mother that you were the father. The pregnancy was confirmed and the victim was at approximately 32 weeks' gestation. Police were notified on 21 March 2011.
11 On 31 March 2011, during her recorded evidence, the victim detailed the sexual relationship between herself and you, stating it was consensual and, "We both didn't want anyone to know … cause he's my brother and I'm his sister and it's not right that we had sex together … I don't know what made us do it in the first place."
12 On 14 May 2011 the victim gave birth to a baby boy. DNA testing conducted on blood samples from the child concluded that you could not be excluded as the biological father of the child.
13 On 4 August 2011 you attended at the police station and a record of interview was conducted with an interpreter. You made the following admissions:
- you were aware the victim was your sister
- you had a sexual relationship with her
- you had sex with your sister once in August, in New South Wales
- when the allegations were put to you, you either nodded or shook your head
- you admitted having sex with the victim whilst living in Clayton, in the garage and the house next door, although you could not recall the exact number of times, and
- you noticed the victim was pregnant, were aware she had had the baby and nodded when asked if you were the father.
14 The matter was resolved on 21 February 2013 at committal mention stage.
15 I now turn to your personal circumstances.
16 As noted earlier, you are 20 years old and have no previous convictions. You were raised in the Cook Islands by your grandparents on a different island to your parents. You had believed your grandparents to be your parents. You were educated to year 11 and were involved at the local church. Apart from some occasional telephone calls, you had no personal contact with your parents until 2009.
17 You were sent to Australia for employment. You felt sad about leaving the Cook Islands and anxious about meeting your family. There were a lot of arguments between your parents, and in the context of the disharmony you moved to Melbourne to live with a maternal aunt. You found work initially and very quickly at a meatworks, then in a factory, later as a furniture removalist and for the past two years at another meatworks.
18 A report from Ms Carla Lechner, forensic psychologist, was tendered on the plea. Ms Lechner has diagnosed you as being clinically depressed. You have no symptoms of any psycho-sexual disorder and you had and continue to suffer from loneliness, social isolation and emotional immaturity.
19 The crime of incest is a serious offence and usually an offender should expect a sentence of imprisonment. Principles of general deterrence and denunciation feature prominently in the sentencing discretion. In this case, the victim was a 15‑year‑old girl. You were 18 and expected to be protective.
20 The circumstances of this case, however, are exceptional. You were raised separately from your sister and did not meet her until a few weeks before you came to Australia. When you arrived in Australia you moved in with the family. You were struggling with the English language; you were socially isolated and thrust into an unstable family environment with your biological parents in an atmosphere of parental discord and disharmony. Not surprisingly, you found your sister to be a positive emotional support and, in the absence of parental guidance and supervision, you developed an overly‑close relationship where you both genuinely fell in love and eventually crossed the line into a mutually consensual sexual relationship.
21 In her victim impact statement, your sister maintains that she remains strongly supportive of you, accepts responsibility also for what happened and lives life normally, raising her now 2‑year‑old son. Your mother, who reported the incident, also remains supportive.
22 In mitigation, I accept the matters submitted by your counsel including:
- your plea of guilty and that it was made at the very earliest stage,
- your lack of any previous criminal history,
- your lack of any psycho-sexual disorder indicating any danger to children,
- your evident commitment to your employment,
- your good prospects of rehabilitation,
- your remorse, and
- the exceptional context of your offending where you were extremely vulnerable and socially isolated and where your sister did not present in the usual situation of a sibling.
23 Your counsel submitted that in light of the particular extenuating circumstances of this case, an appropriately tailored community correction order would fall within appropriate sentencing range. The prosecution accepted this submission.
24 The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, its context, your personal circumstances and those of any victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
25 On balance, in the particular circumstances of this case, I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison.
26 I have requested an assessment and report as to your suitability for a community correction order as an appropriate sentencing option. I have received the report and it is positive as to your suitability. You have been assessed as having a low risk of re-offending, and in light of your circumstances it is recommended that you participate in programs directed towards mental health treatment and that you are under the supervision of a community correction officer. I endorse those recommendations.
27 GH, could you please now stand.
28 On Charge 1 of incest, you are convicted and ordered to serve a community correction order for a period of 12 months.
29 The community correction order commences today and ends on 27 May 2014. The corrections centre you will attend is the Dandenong Community Corrections Service at 46‑50 Walker Street, Dandenong and you must attend there within two clear working days after the commencement of the order, that is by 4 p.m. this Thursday, 30 May 2013.
30 All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
- you be under the supervision of a community correction officer,
- you undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager,
- you undergo programs consistent with the purpose of treatment and rehabilitation, which may include but is not limited to employment, educational, cultural and personal development programs as directed by the regional manager, and
- you undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility.
31 I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you. However, it is appropriate that I briefly summarise them here.
The mandatory terms are that:
- you must not commit another offence for which you could be imprisoned during the time that the order is in force;
- you must report to and receive visits from a community correction officer;
- you must report to the community corrections centre ‑ that is the Dandenong centre ‑ within two clear working days of the order starting and, as I have already indicated, that is this Thursday, 30 May;
- you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
- you must not leave Victoria without first getting permission to do so from a community correction officer; and
- you must obey all lawful instructions from and directions of community corrections officers - such directions may be given either orally or in writing.
32 You will be given a copy of these orders so that you have them with you so that you understand what they are, but having had those matters read to you, do you understand and agree to those conditions, GH?
33 PRISONER: Yes.
34 HIS HONOUR: If you become sick or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case, you must notify the community corrections centre ‑ that is the centre at Dandenong ‑ and I recommend that you obtain legal advice if any of these things happen.
35 However, I must warn you that if you breach any condition of this order, you'll be brought back before me. One of the options open to me is to cancel the community correction order and re-sentence you on the original charge, and I may also deal with you for the breach by sending you to prison for up to three months. So, GH, do you understand the consequences of breaching your community correction order?
36 PRISONER: Yes.
37 HIS HONOUR: I will ask you to sign the community correction order shortly.
38 At the plea hearing, the Crown sought an order for the taking of a forensic sample which you opposed, and I do not grant the Crown's application for that order. I do not consider that it is necessary or appropriate that that order be made in the circumstances of this case.
39 There is a further matter to which I also need to attend. You may take a seat for a moment, GH.
40
The offence to which you have pleaded guilty is a registrable offence pursuant to the provisions of the Victorian Sex Offenders Registration Act 2004 and by reason of your being sentenced for this offence you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
41 In my view, it is entirely inappropriate and, in the circumstances of this case, a misuse of the Register that you be subject to such registration, as I do not regard you as presenting any future danger to the community. However, I have no discretion and the registration is compelled as a matter of law.
42 As required by sub‑s.5(2BC) of the Victorian Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
43 I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of the reporting period, which in your case is for 15 years.
44 My associate will shortly hand you the Notification Of Reporting Obligations, which I have already signed. Your representative in court today will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the notification form and to return the Acknowledgement to my associate.
45 I will now have the appropriate forms for the sex offenders registration material and the community correction order passed to you, and if I could ask you, Mr Sturges, just to make sure that GH understands what it is that he is signing.
46 GH can in fact leave the dock now. He is not in custody.
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