Director of Public Prosecutions v Grant (a pseudonym)
[2021] VCC 1850
•17 November 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DONALD GRANT (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE MARICH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 November 2021 | |
DATE OF SENTENCE: | 17 November 2021 | |
CASE MAY BE CITED AS: | DPP v Grant (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1850 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2020] VSCA 169
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Officer of Public Prosecutions |
| For the Accused | Mr A. Patton | SLKQ Lawyers |
HER HONOUR:
Introduction
1Donald Grant[1], you have pleaded guilty to an indictment containing two charges, the first that between 22 January 1970 and 21 January 1971, you unlawfully and indecently assaulted Daniel Marasco[2], a male person under the age of 16, by masturbating his penis. This is a course of conduct charge.
[1] A pseudonym.
[2] A pseudonym.
2You have also pleaded guilty to a second charge that between 22 January 1970 and 21 January 1973, you unlawfully and indecently assaulted Daniel Marasco, a male person under the age of 16, by introducing his penis into your mouth. This is a rolled-up charge encompassing two occasions.
3Indecent assault upon a male person carries a maximum penalty of five years’ imprisonment for a first conviction, and 10 years’ imprisonment for any subsequent conviction thereafter.
4The circumstances in which you came to commit these offences are set out in the Prosecution Opening for Plea dated 3 November 2021 (Exhibit A). The prosecution also relied upon a criminal history detailing your subsequent convictions (Exhibit B), a LEAP extract in relation to those subsequent matters (Exhibit C), and the Victim Impact Statement of Daniel Marasco dated 28 January 2020 (Exhibit D).
5In addition to the matters developed in oral argument, your counsel relied on a Defence Outline of Plea Submissions dated 3 November 2021 (Exhibit 1), psychological report of Kerrin Danswan dated 17 June 2020 (Exhibit 2), and a medical report of Dr Carl Fernandes dated 20 August 2021 (Exhibit 3).
6I have had careful regard to all exhibited documents, as well as the matters addressed in the oral hearing, and the past cases drawn to my attention in an earlier sentencing indication hearing in the matter prior to the resolution of the case.
Circumstances of the offending
7At the time of your offending you were between 25 and 28 years of age. Mr Marasco was then aged between 13 and 15. You were both born in the United Kingdom. You are his cousin, and you are 12 years older than him.
8During 1965, when Mr Marasco was approximately eight years of age and living in the United Kingdom, you commenced touching him in an inappropriate way on his bottom and genitals during family outings where his parents, and sometimes your wife, were present. Over the next two years your offending progressed to you masturbating in the victim’s presence in a car whilst parked in a secluded location, whilst using words such as “when you get older, you’ll get erections. This is what it looks like”.
9The offending then progressed to you asking him “Why don’t you have a touch?” and convincing the victim to masturbate his own penis, as well as you touching the victim’s penis.
10On a couple of these occasions when the victim was about 12 years old, you put your mouth around his penis trying to stimulate him. This happened every couple of months from the age of 8 to the age of 12. You told the victim that what you were doing together was a secret.
11In November 1968, when the victim was about 12 years old, he immigrated to Australia with his parents. He was very relieved to be getting away from you. However, in June 1969, you immigrated to Australia with your wife and child, and the offending before me commenced.
12Between 22 January 1970 and 21 January 1971, when Mr Marasco was approximately 13 years old, you visited his family’s home. You stayed at the house for a little while before inviting him out for a drive. He got into the car and you drove him to a secluded area. Once you parked the car you began rubbing the victim’s penis over his clothing. You then touched and masturbated the victim’s penis under his clothing. You then exposed your penis and began masturbating yourself. This happened on several occasions, approximately every month or so, and you sometimes ejaculated but not every time. Your masturbation of his penis in this context is the offending referable to Charge 1 on your indictment, of indecent assault upon a male person and I again note that this is a course of conduct charge.
13The offending then escalated from masturbation to oral sex. Between 22 January 1970 and 21 January 1973, you took the victim for a drive to a secluded location and you started touching yourself, before exposing your erect penis and masturbating, telling the victim “when you get older, you’ll get a stiff cock”. You then started rubbing the victim’s genital area over his clothing, and you unzipped his pants. You rubbed and masturbated the victim’s penis. You then told the victim “let me show you how it feels when a girl does oral sex on you”, and you put your mouth on the victim’s penis, going up and down, sucking on the victim’s penis for approximately a minute. This is the first of the two occasions which establishes Charge 2 on your indictment, of indecent assault upon a male person. You then asked the victim “do you want to give it a go? Do you want to suck me?”, which made the victim uncomfortable, and he refused to suck your penis. You then reassured him that it was fine and tried to change the subject.
14On another occasion between 22 January 1970 and 21 January 1973, when the victim was about 14 or 15 years old, you took him for a drive and parked somewhere secluded. The victim was sitting in the front passenger seat when you started touching his penis over his clothing. You then unzipped your own pants, pulled them down a bit to expose your penis, and started masturbating until you got an erection. You then unzipped the victim’s pants and exposed his penis. You got the victim to hold and masturbate your penis while you were fondling the victim’s penis. You again said “this is how is feels when a girl sucks you off”, and you started sucking on his penis. This is the first time that the victim was stimulated and his penis became erect. He felt very uncomfortable, as it did not feel right and it was a bit of a shock. You continued sucking on his penis for about 30 seconds before he pulled away. You tried to reassure him that it was a normal feeling, and reinforced that it was your secret and not to tell anyone, as most people would not understand. This is the second particular which establishes the course of conduct charge the subject of Charge 2.
15You then drove the victim home. This was the first time the victim had resisted you, and it was the last time that your offending occurred against him.
Chronology of investigation
16During 2005, the victim told his daughter that he had been sexually abused by an uncle when he was 9 or 10 years old. During 2007, he entered marriage counselling with his then wife, and they talked with a doctor about him being abused by a cousin in England, and that the abuse had started again in Australia when he was about 14 years of age.
17He also told his son that “an uncle or family member had touched [him] when [he] was younger”.
18During late December 2017, the victim was at an event at his daughter’s place and a news item came on the television about unrelated sexual offending involving children, which caused him to breakdown crying and to disclose to two of his daughters that he had been sexually assaulted by an uncle figure in England that had moved to Australia.
19On 30 December 2017, the victim attended the Morwell Police Station and formally reported the offending. He later completed a police statement.
20On 3 April 2018, the victim conducted a pretext telephone conversation with you, and during the ensuing 37-minute conversation you made the following admissions to him:
“• ‘I'm sorry, of course I'm sorry David, I've lived with it all my life. I've gone over in my head, why, why, I just don't know, I really don't know. I wish to God it never happened’;
• ‘I - I - I really don't know. I - you know, as God as my witness, David, I - I haven't got - I haven't got a clue, I really haven't. It must've been - I - I don't know, it - it's no good saying I just - I just don't know. I've never forgiven myself and I wanted to speak to you many a time and apologise and - but I was obviously scared’;
• ‘I've never forgiven myself. I wanted to speak with you many times to apologise but I was obviously scared. I ask God every night why I have done these things. I'm scared of going to hell. I'm a Christian and I'm scared of going to hell because of the bad things I've done’;
• ‘Oh, I know it was wrong, I should have never have touched you and I know that. It was so many years ago and to this day I don't know why. I don't know what to say to you David. I feel so sad for you but there is nothing I can do to undo it’;
• ‘I still have to live with it, that's my punishment. I deserve that, I don't complain about it. Things go wrong in life. I've bought it on myself haven't I’; and
• ‘I'm certainly sorry I did it. I - I know I didn't do - it wasn't a lot of times but I should never have done any times’.”[3]
[3]Prosecution Opening for Plea Purposes, pages 4-5, [32]
21On 25 August 2018, you were arrested at your home address and were interviewed by police. You denied touching the victim sexually, and maintained that in the recorded pretext conversation that the victim knew it was a game, and that the victim and “you guys” were playing. You said that you said sorry to make him feel better. You later told police that you wondered whether you had done it, and accepted “maybe I did touch him, I don’t know”.
Plea of guilty, timing
22After your police interview, you were summoned to appear in court and, on 8 November 2019 at committal mention, you entered pleas of guilty to the charges on the indictment, which was the earliest possible opportunity. In May 2020, you applied to adjourn your plea hearing, and then, in June 2020, your practitioner informed the court that you intended to change your plea, and the matter proceeded through a number of directions hearings, before the complainant was cross-examined on 16 July 2021.
23You then, again, indicated your intention to plead guilty to the preceding charges on 11 October 2021, following my indication and the conclusion of a sentencing indication hearing, that I would not impose a sentence of imprisonment to be served immediately. The matter was then adjourned to a plea hearing date.
24I accept and take into account in mitigation of sentence that your plea of guilty has significant utilitarian value (to which I will return) and is accompanied by your remorse.
Effect on the victim
25There is a presumption that sexual offending against children, such as your offending, causes them long-term psychological harm.
26In your case, I heard Mr Marasco read aloud his statement, which sets out incredibly vividly the pain and suffering that you have caused him.
27I could not do justice to the words that he has used to describe the effect of your offending. Instead, I will choose some of his words and also read aloud from his statement. He told me:
“Sexual assault is a terrible crime, but for the victim to be a child or young teenager it makes the victim feel dirty, unworthy, confused. … I have had 55 years to contemplate the emotional impact these actions have had on me, thinking back to my mid-teenage age I can recall my actions being, let’s say living on the edge, not really caring what the consequences would be to my life or wellbeing, many times. … During the past 40+ years I have seen a number of psychologists and doctors, I was diagnosed as having severe clinical depression and anxiety, I have been on various antidepression medications for mental illness and many, many years … I am still taking antidepressants which I have been for over 30 odd years.
Mental illness I think raises the question of suicide to a lot of people and is a hard subject to discuss, well look at myself even over 40 years, I have thought many times my life was not worth living, I may have thought that weekly, daily or when things were going well every three months or so, why I would think that I don’t really know. … But the thing that would come to my mind was my beautiful family, my three girls and my son, my grandchildren and their partners, whose names I will not mention here.
My addictive behaviour, which I’m not proud of also had a devastating effect on my financial position, once my marriage breakdown I was living alone, I started gambling, I lost a large amount of money, which affected the way I lived and my work, I think I had a nervous breakdown as I went off my medication for some time and ended up having extended sick leave from my work. … I’m not a doctor or specialist but the feedback I get and have learned from watching various documentaries on historical sexual assault is that it can have long term, devastating results on a person which can impact their life for many, many years, I think I am one of those people, sometimes you pretend to be happy because that’s what people expect. I have noticed personally since the start of this process that I am more emotional and get teary more than I used to, I also feel more anger when I see a TV program that has historical and child sexual abuse in it, it brings back the hurt and confusion I have gone through. My family is the most important thing to me and I won’t be going anywhere soon. I love you all.”
28The effect of your behaviour upon him has been profound and devastating.
Personal circumstances
29You are now 75 years of age, and you were aged between 25 and 28 at the time of your offending.
30You were born in Liverpool, England, and you were the second of four children born to your parents. Your parents and your two brothers are now deceased. You have not spoken to your sister since 1977.
31Your father worked as a merchant seaman and later as an engineer, and your mother was a homemaker, and I understand that she was frequently unwell.
32Unfortunately, when you were five, you set yourself alight when trying to light a fire in the fireplace, and you eventually returned home after spending some time in hospital with your burn injuries.
33I am sorry to say that you were molested twice as a child by two older men a number of times on separate occasions, and once you were raped by two older boys. You required hospital treatment for the physical effects of that rape.
34You joined the army when you were 15, but you were sexually abused by a number of your older peers, and after you reported this to higher ranking officers you were placed on restricted duties. You were discharged from the army after 12 months.
35You heard about work opportunities in Australia from your aunt, and you secured employment and moved to Australia age 24 in 1969 with your wife and 18-month old son. Between 1972 and 1974, you and your family returned to England due to your wife’s mother being unwell, and you eventually returned to Australia and you are now a permanent resident.
36You completed the equivalent to Year 10 in England, and have reported that academically you are above average and you achieved good grades. Prior to moving to Australia, you worked as a truck driver in England, but you were barely making enough money to make ends meet, which led to your move to Australia to pursue employment.
37After you arrived in Australia you worked for a mining company, but you left that job after a couple of months.
38You worked as a paramedic for 10 years, but left the service after developing Post-Traumatic Stress Disorder due to the nature of the work. You did not work for a few years after leaving this role because of your mental health.
39You then returned to employment as a truck driver and then worked in a factory, until you injured your arm which was nearly severed from your body whilst you were working at a glass factory.
40Eventually, you returned to work, to open a small convenience store, and then returned to truck driving. You are now in receipt of an aged care pension.
41You were married for 42 years until 2008, when you wife unfortunately died suddenly in an accident, and you have reported that this was when your “world ended”. You loved your wife dearly, and you have been struggling without her in your life over the past 13 years.
42You have two sons from your marriage, with one living in Shepparton and the other in New South Wales. You speak to your sons regularly on the phone but have not seen them in person for a number of years.
43You are now reportedly very socially isolated and have become a recluse. You live in a caravan as a result of your limited funds.
Physical health
44You are currently in poor health, receiving treatment for Idiopathic Retroperitoneal Fibrosis and Type 2 Diabetes, which have led you to being hospitalised for periods during this year.
45The fibrosis is the development of fibroid growths within the abdominal cavity, which over time develop in internal organs and arteries. This has led to the insertion of a ureteric stent to alleviate a swollen kidney, and you have also experienced internal bleeding relating to this fibrosis.
46The deterioration in your health over the last 12-18 months is such that you have become reliant on homecare provided by your local municipal council.
Mental health
47You were examined by clinical psychologist, Kerrin Danswan, who administered empirical testing and has provided a report with her professional diagnosis.
48She diagnoses you as presenting with persistent depressive disorder, with anxious distress and a persistent major depressive episode. I understand that you previously met criteria for major depressive disorder. However, since you wife’s death in 2008, your symptoms have increased significantly and have been persistent.
49You were previously diagnosed with Post-Traumatic Stress Disorder, as I have mentioned, following your service as a paramedic.
50Ms Danswan observes that you are not currently presenting with any acute symptoms of Post-Traumatic Stress Disorder. However, you continue to experience mild symptoms of the disorder, including low moods which are in part mitigated by your antidepressant medication.
51Ms Danswan highly recommends that you engage in suitable treatment to address your grief, childhood and adult traumatic experiences, your offending behaviour, and social isolation.
Prior character
52At the time of your offending, you had no prior criminal history and were a person of good character, which I take into account in mitigation of sentence. However, in April 1987, you were convicted of three charges of indecent assault and sentenced to four months’ imprisonment, which was varied on appeal and a suspended sentence was imposed.
53In September 1998, you were convicted of five charges of unlawfully or indecently assaulting a girl, and were sentenced to 15 months’ imprisonment, which was affirmed on appeal.
54I understand that the latter offending related to incidents occurring in 1981, of rubbing and digitally penetrating a 10 year old girl’s vagina.
Gravity of your offending, moral culpability, rehabilitation
55Your offending concerns me very much and I condemn it in the strongest terms. Your young cousin thought that he had escaped you, and had started a new life in Australia. Upon your arrival, you pursued him, and engaged in these grave acts for your sexual gratification. It escalated to oral sex, the subject of charge 2. You physically isolated him in your care and in secluded areas, you silenced him by telling him it was your secret, and you have caused him lasting trauma. You were much older than him. Your need to silence him shows me your understanding that what you were doing was very wrong.
56These were your first offences, but not your last, and if you had been prosecuted in the decade following this offending, a judge would have needed to observe that your prospects for rehabilitation from your interest in sexual offending against children could be characterised as bleak. However, whether by your own efforts, the deterrence that your later jail sentence caused you, or by your lack of opportunity, you have shown during the passage of 35 years since your last offence to be capable of rehabilitation, and, I consider your future prospects for rehabilitation to continue to be good.
Sentencing principles, sentencing practices
57As I have mentioned, your plea of guilty was entered at a time where the court system in Victoria was experiencing very significant impediments as a result of the unfortunate effects of the COVID‑19 pandemic. There was significant utilitarian benefit in your entering a plea of guilty to the proceeding charge, and I have attached significant weight to this factor.[4]
[4]Worboyes v The Queen [2020] VSCA 169
58I accept and take into account the delay of nearly 50 years between the period of offending and it being reported to police, and the delay in resolving this matter in the years since its initiation, which are circumstances unattributable to you, albeit that you have reoffended in the meantime. I have mitigated sentence on the basis of that delay.
59I note that you do not hold Australian citizenship in spite of your long residence here, and the uncertainty as to whether the apparently mandatory visa cancellation process might apply to you will weigh heavily upon you, and I mitigate sentence on that basis.
60Counsel helpfully provided me with a number of prior decisions of this court and the court of appeal demonstrating the range of sentences applied in other cases of historic child sexual abuse. In relation to both of your charges, you fall to be sentenced as a serious sexual offender in accordance with Part 2A of the Sentencing Act 1991 (Vic). As I intend to sentence you to imprisonment upon this charge, I must regard protection of the community as the principal sentencing purpose. Nonetheless, I do not intend to impose a disproportionate sentence in all of the circumstances of the case. I order that the fact that you are sentenced as a ‘serious offender’ on both charges to be entered in the records of the court. I am also mindful of the fact that the sentence upon this offence will be served cumulatively upon other sentences of imprisonment unless I order otherwise.
61I take into account the purposes for which sentence must be imposed and the need for deterrence, both general and, to a lesser extent, specific. Sexual offences against children are unfortunately prevalent. The sentence that I will impose will punish you and denounce your behaviour, in addition to allowing and emphasising your continued efforts at rehabilitation.
62I have accepted and acceded to your counsel’s secondary submission, that I could impose a sentence of imprisonment, to be wholly suspended. I have had regard to the totality principle of sentencing in structuring the sentence that I will impose.
63On Charge 1 of indecent assault upon a male person, you are convicted and sentenced to a term of nine months' imprisonment, three months' of which is to be served cumulatively upon the base.
64On Charge 2 of indecent assault upon a male person, you are convicted and sentenced to a term of 15 months' imprisonment, this is the base.
65The total effective sentence is therefore 18 months and it will Sentencing Act 1991 (Vic) be wholly suspended for a period of 24 months. Under s6AAA of the in relation to the sentence that would otherwise have been imposed, had the matter proceeded to trial, I consider that the sentence that I have passed to be so acutely specific to this point in time, that I am unable to indicate what sentence would otherwise have been passed, absent the factor of the effect of the pandemic upon our system. I order you to comply with your sex offender registration obligations for the mandatory period of life. Ms Duckett are there any other orders that I ought to have made that I've overlooked?
66MS DUCKETT: No, there were no ancillary orders, simply that the records reflect that he is to be sentenced as a serious sex offender.
67HER HONOUR: Yes, I've entered that into the order.
68MS DUCKETT: I see.
69HER HONOUR: Mr Patton, anything else?
70MR PATTON: No, Your Honour.
71HER HONOUR: Yes, thank you very much. Now Mr Patton, you just need to hold the space as your client needs to be served with his obligation under the Sex Offender Registration Act that he'll need to acknowledge, he doesn't need to acknowledge the sentence. So that will be prepared immediately. Thank you very much, we'll now adjourn until this afternoon.
72MS DUCKETT: The court pleases.
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