Director of Public Prosecutions v Grant (a pseudonym)

[2022] VCC 389

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATHEW CHARLES GRANT

 (a pseudonym)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	1 March 2022
DATE OF SENTENCE:	16 March 2022
CASE MAY BE CITED AS:	DPP v Grant (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 389

REASONS FOR SENTENCE

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Subject: Criminal law - sentence

Catchwords: pleaded guilty to  one charge of sexual penetration of a stepchild under 16 (course of conduct) - one charge of  sexual assault of a child under 16 – both complainants lived from time to time with offender -  stepdaughter 13 – 15 years of age  treated as  defacto wife – extensive offending over 18 months – developed serious case of bulimia and anorexia – hospitalised – depression – anxiety  –-  second complainant 14 years of age – offending led to self-harming -  school progress deteriorated – offender 34 years of age  gross breach of trust -  moral culpability very high – no empathy -  offending above mid range – standard sentencing applies – serious sex offender – SOR life

Sentence: 11 years 6 months imprisonment  non parole period 8 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Caruso	OPP
For the Accused	Ms K. Ballard	Sullivan Braham

HER HONOUR:

1Mathew Charles Grant[1], you have pleaded guilty to one charge of sexual penetration of a child who was your stepchild as a course of conduct charge, and one charge of sexual assault of a child under 16.  These offences occurred between about September 2019 and 26 March 2021, when you were aged 33 to 34 years of age.  The first victim was your stepdaughter, then aged 13 to 15.  The second victim was her friend, who was aged 14.

[1] Mathew Charles Grant is a pseudonym

2In about 2010, you commenced a relationship with your new partner (your stepdaughter’s mother)  who also had two other children.  You moved in to with the family and became their father figure.  Another child was born in 2013, and in 2017 you and your partner married.  Your stepdaughter was aged five when she first knew you, and she called you Dad.

3In 2016, you were seriously injured in a car accident and required extensive rehabilitation and support.  In 2018, you and your wife separated, and initially all four children lived with their mother.  The separation remained amicable, and the older boy went to live with you, followed by your stepdaughter, who assisted you in many of your daily activities.  You still suffered physical limitations due to the accident.  I note that legal proceedings arising from the accident are currently ongoing.

4Your stepdaughter’s friend, would often sleep over at your house, and during the 2020 lockdowns they were both learning from home.  Her friend had her own bed in the younger boy's bedroom and lived there semi‑permanently.  The older boy lived in a caravan at the property, and a friend lived in a granny flat behind the house.  He would sometimes sleep in the main house during bad weather.

Charge 1

5Your stepdaughter (the first complainant) said in her VARE, which she made to police on 29 March 2021, that from the age of about 13, you would make her come into your bed and cuddle you. 

6Sexual penetration first occurred in the context of cuddling her in your bed on about 1 September 2019, when you took off her pants and inserted your penis into her vagina.  This activity continued between three and six times a week until March 2021, when the police and the Department of Families, Fairness and Housing intervened and removed her from the house.

7The pattern of offending was that you would ask your stepdaughter to come into your room or send her a text message, saying, 'Come here, please', or, 'Come give me a hug', or, 'I'm waiting'.  You would sometimes make her sleep in your bed overnight.  She described a variety of ways in which you would penetrate her; and you used a condom during a time when you were awaiting the results of a vasectomy, but after that you did not.

8On one occasion, the complainant was intoxicated, and you dragged her into your room and had sex with her.  On other occasions, when she said no to sex, you would desist, but sometimes you would proceed anyway.  The last time you penetrated her, on 26 March 2021, you took her into your room and penetrated her while watching a movie.  You ejaculated and the complainant put her underwear on.  Later, she went to her room and removed them and placed them in a bag, hoping to preserve any semen as evidence. 

Charge 2

9The victim of Charge 2, (the second complainant), is the first complainant's best friend.  In June 2020, you drove your car with the second complainant as a front‑seat passenger.  You held her hand and rubbed her leg up and down, saying words like, 'I love you, gorgeous'.  This incident is not the subject of any charge but is included as evidence of context. 

10At the end of June 2020, she was staying at your home.  Your stepdaughter’s boyfriend was also staying.  You sent the second complainant a text message, asking her to come into your room and watch a movie.  You went into the lounge room and took her into your room.  You told her you would give her a massage, and you massaged her back.  You told her she could open up to you and tell you anything. 

11You undid her bra and held her breasts, saying this was your way of coping and, 'You're the only person who can actually get me hard'.  You then undid her pants and placed your hand under her underpants.  You played with her vagina and rubbed her clitoris without putting your finger in her vagina.  You asked her if it felt good and said, 'It should be, because I've been practicing for 10 years'. 

12You tried to get her to touch your penis, but she pulled away, so you cuddled her and tried to get on top of her to kiss her on the lips.  At the time, you were wearing only underpants.  You told her she would have to sleep in your bed that night, and that if she did not listen, something would happen.  She slept the night there, spooning on top of the covers.  In the morning, someone knocked on the door and she had to hide.  She then went outside to see your stepdaughter.

13The first complainant recalled a night when the second complainant stayed over and appeared to have been crying at one point.  Some time after that night, the first complainant received a phone call from  the second complainant , who told her that you had touched her and forced her to do stuff.  The first complainant asked her where you touched her and she replied, 'My box'.  She asked the first complainant if you had done anything to her, and she said no.  She explained later that this was because she was scared of the consequences and did not have a plan and did not know what to do.

14In October 2020 the second complainant told  another friend  and some days later that friend was present when you sent the second complainant  several Snapchat messages, one of which stated, 'Can I take you out', and, 'Secret'.  Several months later, in February 2021, the second complainant told her mother that you had touched her top and bottom part.  Her mother wanted to take her to the police but she did not want to go. 

15Meanwhile, your stepdaughter told her friend what had happened to her and also told the second complainant that she had previously lied to her when she said you had not done anything to her.  She said it was rape.  The second complainant told her mother this and said she wanted to wait to go to the police until the first complainant was comfortable to talk to the second complainant’s mother.

16On 26 March the second complainant’s mother showed her mother a Snapchat picture of  the first complainant crying and saying that you had tried to grab her hips and bend her over in the meat room 'because they hadn't had sex in there yet'.  The second complainant’s mother decided to get your stepdaughter out of your house and told her daughter  to tell that to your stepdaughter.  The next day she called the police station and spoke to a detective, who told her to come in straightaway, to see if she could get your stepdaughter to go to her house.  The second complainant made her VARE that day.

17The police and department workers went to your house that night and removed the second complainant and her younger brother and took them to the police station.  Your stepdaughter made some disclosures to the police, who arranged for a medical examination at Monash Children's Hospital.  There was an order in place preventing you from attending your wife’s home, in order to protect the children.  You went there the day after the children's removal.  Your wife told you of the order and you asked why.  She told you it was because you had been sleeping with her daughter, and you replied, 'I guess that's why they didn't get back to me last night'.

18Your stepdaughter made her VARE the following day.  Her phone was analysed and messages from you were found, telling her to go to your room to be cuddled.  On the second complainant phone, police found a photo dated 15 February 2021 of a hand holding a naked penis, said to be yours.  Again, this is not the subject of a charge but demonstrates your ongoing sexual interest in her.  Other evidence included your stepdaughter’s older brother's observations of her and you asleep in your bed, and of the second complainant’s  complaint to him, when in a distressed state, that you had been kissing and cuddling her.

19Around late 2020, you were told about rumours circulating that you had been molesting your stepdaughter.  You denied or laughed off these rumours.  You were arrested on 1 April 2021 and made several admissions to the police while still at your home.  You admitted having had sex with her but framed some of it in terms of a dream.  You said you treated her as a wife and sex was regular and frequent, and sometimes at her instigation.  Indeed, you sought to emphasise her willingness and apparent enjoyment, seemingly in an attempt to minimise your culpability.  You denied any allegations relating to the second complainant and repeated this in the record of interview which followed.

Victim impact statements

20Your stepdaughter explained in her victim impact statement that she developed a serious case of bulimia and anorexia and lost a great deal of weight as a consequence of the abuse she suffered from you.  Eventually, she collapsed and was hospitalised, having come very close to a heart attack, and she had underlying depression and anxiety.  She missed a lot of school and TAFE when she was living with you, and later.  After leaving your house, she was unable to retrieve many of her belongings, and I note that much of it, as she described it, was of a sort which would likely be important to a girl of her age.

21Her mother's statement is an impassioned and articulate account of the impact of your offending on her and her family.  Her first reaction was to protect the children from you, partly because she was very frightened about the possible consequences of having told the police.  Your stepdaughter’s  collapse and near heart failure was terrifying for her mother, and after her recovery she has had to drive her to many appointments each week.  The family had to move house, as the current house was too small for all of the children who returned to live with her.

22The second complainant described in her statement how lonely she felt, not being able to tell anyone, and this led to her self‑harming.  Her progress at school deteriorated.  She had nightmares of you trying to hurt her.  Things became worse for her after she reported it, because what you did became more real.  She felt disgusted with herself, and she felt numb.  She feels she has disappointed her parents because she has changed, hiding herself away.  She no longer trusts people because she is scared it might happen again, and she wants to have her happy self back again.  She is aware that you manipulated her and her parents into thinking you were a good man, but you were not.

23The second complainant’s  mother said her daughter was a happy girl, but she knew something was wrong when she began to stay in her room and wouldn't eat properly.  Her schooling was affected, and she stopped going to TAFE and turned to drugs and alcohol.  The family is planning to move house, as she gets anxious there, and her mother wishes she could take away her daughter's pain. 

Gravity of the offending

24These charges represent serious examples of this type of offending.  It involves gross breach of trust at the highest order by you, a man two decades older than the children, in loco parentis of both of them and the stepfather of one.  In relation to that child, the offending was for an extensive period of 18 months, on a frequent and regular basis, with the child being exploited as a de facto wife.  On being discovered, you tried to blame the child, as I have described.  You did not use a condom, exposing her to sexual disease, and on occasions you persisted with penetration when she objected.

25The other child was exploited as the best friend of your stepdaughter.  She herself was in some kind of need, staying at your house on a semi‑permanent basis, and yet you used her as a sexual object.  You have demonstrated not one scintilla of remorse or empathy for the children or insight into your offending.  Thus, your moral culpability is very high.  The objective gravity of the offending places it well above the mid‑range, which is the entry point for the standard sentences for each charge, which I shall refer to shortly.

Maximum penalties and Sentencing Act considerations

26It is useful at this stage to set out the maximum penalties and the requirements of the Sentencing Act.  The maximum penalty for Charge 1 is 25 years' imprisonment, and the legislation requires a prison sentence to be imposed.  The standard sentencing provisions require regard to be had to the standard sentence when determining the length of the sentence, as a guide, while not excluding the role of instinctive synthesis.  The non-parole period, which is fixed by the Court, must be at least 60 per cent of the sentence, unless it is in the interests of justice not to do so.  The standard sentence is 10 years.

27For Charge 2, the maximum is 10 years' imprisonment, with a standard sentence of four years.  Charge 2 attracts the serious offender provisions of the Sentencing Act if a term of imprisonment is imposed for Charge 1, which is a course of conduct offence. 

28I turn now to your personal background and circumstances.  You are aged 35 and you have no criminal history.  As a child, your biological father was not part of your life, and you and your sister were raised by your mother and stepfather.  He abused alcohol and drugs and was violent towards you and your mother.  The family moved around a lot because of your stepfather's work as a truck driver.  Your mother separated from him when you were 14 or 15, and around that time you went to live with your grandmother, with whom you had a strong bond.  You now have a good relationship with your mother and her new partner and your sister.

29Your primary schooling was interrupted by frequent change of schools, and you believe this made school hard for you.  You completed Year 12 through VCAL, the Victorian Certificate of Applied Learning.  As a child, you were sexually abused by an older cousin over a short period of time, but you did not disclose it until you were 22, to your mother and grandmother. 

30After school, you worked in a variety of unskilled jobs in the rural sector and, eventually, as a self‑employed stock agent until you were seriously injured in a car accident in 2016, to which I have previously referred.  By this time, you were in a relationship with your partner  and you married in 2017.  As I said before, you became the stepfather to her three children, including the first complainant, and you  had a son together.

31As a result of the car accident, you had multiple surgeries and rehabilitation for significant injuries, including a fractured pelvis, and you returned home in a wheelchair.  You have lost muscle strength in your legs and pain management is an ongoing issue, as is memory and general cognitive function.  These matters are documented in a number of medical reports tendered, which are part of your TAC claim.  I should note that it is not put by your counsel that these circumstances bear any relation to the offending.  Your marriage ended in 2018 and you then moved to a property in Woodside, where you were living when arrested.

32In prison at Ararat, you have been deprived of family visits partly because of COVID restrictions but also because of the geographical distance from your family.  You have engaged in as many prison programs as possible and have been enrolled in a TAFE business course.  And while this is significant as a positive indicator for prospects for rehabilitation, it must be balanced by your lack of remorse and insight. 

33Other than your strong family support and the likelihood that you will be equipped to work again when released, there is no other material upon which your risk of re-offending can be assessed.  Experience might suggest that those prospects are not less than reasonable.

34You pleaded guilty to the charges in October last year, after negotiations resolved some differences, and this avoided a contested committal, so no witnesses had to give evidence and the complainants have not had to be cross‑examined.  Indeed, the avoidance of a trial is of great importance, particularly at this time, when the Court has an enormous backlog of cases owing to the pandemic.  You are entitled to a meaningful discount on your sentence because of the contribution that your plea will make to the criminal justice system.

35However, while your plea is acknowledgement of wrongdoing, as submitted by Ms Ballard on your behalf, it is not an indication of remorse, as I have already said.  In her letter of support for you, your sister stated that you were devastated about the charges, but I can only infer that to mean you regret having been charged and imprisoned, and that your regret is not an indication of remorse.  Although I have referred to your prospects for rehabilitation as being no less than reasonable, the absence of remorse and insight suggests the need for specific deterrence to play a role in your sentence.  Just as important is the need for general deterrence. 

36The community regards sexual abuse of children as abhorrent and deserving of a harsh sentence and a strong denunciation of the Court.  Breach of trust by a parent or someone in the shoes of a parent is regarded as particularly heinous.  Moreover, it is presumed that child victims are harmed by the offending, and in this case there is evidence of actual harm.

37Your offending was extremely grave, given the duration and extent of your actions in respect of Charge 1 in particular.  Your attitude to two young girls living under your own roof and trusting you was exploitative, manipulative, entitled and in complete disregard of their rights to safety. 

38Even in a heinous case, mitigating factors remain highly relevant to sentencing.  I have already mentioned the value of your plea and the likelihood prospects for your rehabilitation eventually.  An important mitigating factor is the burden of imprisonment likely to be experienced at this time, when COVID restrictions are continuing and likely to continue in the foreseeable future.  Visits are restricted, prisoners are subject to isolation, programs are reduced, and increased anxiety is caused by fear of infection.  This must be taken into account in determining the length of the sentence to be imposed. 

39Having carefully considered those matters, I sentence you as follows.  For Charge 1, 11 years' imprisonment.  For Charge 2, two years.  Six months of the sentence for Charge 2 will be served in cumulation upon the sentence for Charge 1.  This results in a total effective sentence of 11 years and six months.  I order that you serve eight years before being eligible for parole.  In relation to Charge 2, you are sentenced as a serious sex offender.  If you had pleaded not guilty to these charges, I would have sentenced you to 15 years, with a non-parole period of 12 years.

40You have been in custody for 349 days, not including today; I declare that is to be reckoned as already served, and it shall be noted on the court record.  Pursuant to the Sex Offenders Registration Act, you must provide your details to the police every year for the rest of your life after your release from custody. 

41Ms Caruso, are there any matters that I have neglected or omitted?

42(Discussion ensued re correction to paragraph 5)

43HER HONOUR:  Thank you.  I will make sure that is deleted and not part of the sentencing remarks. 

44Thank you, Ms Caruso, for pointing that out.  Ms Ballard, is there anything else?

45MS BALLARD:  No.  Not from me, Your Honour.  Thank you.

46HER HONOUR:  Thank you.  My associate will arrange for the sex offender registration form to be sent to the prison for Mr Grant to sign and for that to be returned.

47MS BALLARD:  Your Honour pleases.

48MS CARUSO:  As Your Honour pleases.

49HER HONOUR:  Thank you.  I will leave the Bench now and I will leave the link open, in case my associate needs to speak to either of you about that.

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