Director of Public Prosecutions v Grant, Adam Joel (a pseudonym)

[2010] VCC 20

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-09-01282

THE QUEEN

v

ADAM JOEL GRANT (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 January 2010
DATE OF SENTENCE:	15 February 2010
CASE MAY BE CITED AS:	DPP v Grant, Adam Joel (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2010] VCC 20

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A. Forrester	Office of Public Prosecution
For the Accused	Mr G. Thomas, SC and Mr S. Moglia	Victoria Legal Aid

HER HONOUR:

1       Adam Joel Grant[1], you have pleaded guilty to two counts of indecent assault on a girl under 16, ten counts of incest, and one count of common law assault. 

[1] Adam Joel Grant is a pseudonym.

2       The maximum penalties applicable to your offending are:  on Counts 1 and 2, indecent assault, 5 years’ imprisonment.  On Counts 3, 4 and 5 incest, 20 years’ imprisonment.  On Counts 6, 7, 8, 9, 10, 11 and 12, incest, 25 years’ imprisonment.  On Count 13, common law assault, the maximum penalty is five years’ imprisonment. 

3       Your offending occurred between 1 January 1977 and 31 January 2005.  Your crimes arise out of your offending against your daughter, MAR.  At the time of the commencement of your offending MAR was just 13 years of age.  Your offending occurred throughout her teenage years into her adulthood, ceasing in 2005 when she was 40 years of age. 

4       It is necessary for me to outline in some detail the facts of this case, albeit such was opened by the learned prosecutor.  I proceed to sentence you on the basis of the facts as so summarised by the prosecutor and discussed during the course of your plea hearing.

5       There is no doubt your offending was most serious over approximately 28 years of your daughter’s life.  It is difficult to find words to adequately and appropriately describe your ongoing offending against her.  Mr Thomas on your behalf, quite sensibly in my opinion, did not seek to minimise your offending in any way, nor could he.

6       There is a victim impact statement in this matter from MAR.  I can readily appreciate the impact your offending had and continues to have upon her.  You sexually offended against her repeatedly over a considerable number of years, resulting in the birth of four children to you, her father.  I shall return to pass some further remarks on the victim impact statement later in these sentencing remarks.

7       Briefly, by way of background or summary of your offending.  You were born on 10 March 1943.  You are currently 66 years of age and will be 67 this year.  MAR is your natural daughter and she was born on 28 September 1964.  She is now 45 years of age.  MAR is the eldest child of six children born to yourself and your wife, HR.

8       In 1971 four of your children, including the complainant, were voluntarily placed into care and became wards of the state.  In the years following this, MAR lived at Allambie Children’s Home and then with Victorian Children’s Aid in Black Rock until 1976.

9       You and your wife temporarily separated when MAR was 12 years of age.  At one stage during the separation MAR was allegedly sexually assaulted by a boyfriend of her mother.  This was reported, however, no charges were laid at that time.  Following that, MAR lived with you in Northcote while her mother stayed with MAR’s grandparents.

10      Count 1 related to the commencement of your offending, on an occasion in 1977 when MAR was just 13 years of age.  She came home from school and you told her to get into your bedroom and undress.  MAR did as she was told because you told her if she did not she would get into trouble and that you would scream at her.  You told her to lie on the bed and when she did so you touched her breasts with your hands and kissed her on the lips.  MAR was very afraid of what was happening and thought (as a result of her previous experience in conjunction with this one) that all men must be like this.  You said to her, “You’re damaged goods and no one will want you.”

11      You thus began your sexual offending against MAR often involving threats.  You showed total disregard for your daughter, reflecting your complete lack of empathy for her. 

12      Following that offending, MAR got up and went and had a bath.  She was very upset and crying as a result of what you did to her.

13      Turning to Count 2.  Approximately one month later you grabbed MAR on her bottom and breasts.  You did this in public on a number of occasions, including in front of her friends.  You touched and kissed her on almost a daily basis.  She told you she did not like what you were doing but you told her that if you could not have her no-one else would and that you could do whatever you wanted.  This unfortunately you did, displaying your total disregard for MAR’s feelings.  You were very domineering.  As a result of your behaviour, MAR stopped having her friends over and became very isolated.

14      MAR felt unable to report the abuse because she felt that her mother could not forgive her for the sexual assault upon her by her mother’s boyfriend.

15      At the age of 14 MAR moved into a house in Preston with her mother and two brothers.  They lived at that address for a month, during which time she did not see you.  However, her family then moved to a flat in Port Melbourne and not long after that you went to live there as well.  At that time MAR was just 14 years of age.

16      Almost immediately you resumed your almost-daily offending of her, grabbing her throat, pushing her against the wall, and touching her bottom and breasts in front of others.  You prevented her from speaking to males.  MAR, in her desperation to get away from you, reacted by continually running away from home, sometimes living on the streets and sometimes managing to get hostel accommodation.  She was a young girl, without support, particularly from you, her father. 

17      In around 1978 she was staying at a church-run hostel.  Whilst there, she found a woman she knew from her time at Black Rock, Ms Carolyn Pearl, and told her about your conduct towards her.  Ms Pearl could not recall the exact nature of MAR’s complaint, however, she recalled it was one that required notification to the Social Welfare Department.  This Ms Pearl did.  Ms Pearl was told that the Department was already aware of MAR’s allegations.  At that time police were not notified of any complaint against you.

18      MAR was subsequently placed in Winlaton Youth Training Centre in Nunawading.  At that location she told another social worker about your abuse of her, but again no criminal complaint was made to the police.  During her nine month stay at Winlaton you were allowed to visit her on at least one occasion.  During that visit you grabbed her arm and warned her, “Keep your fucking mouth shut.”  This further displayed your controlling nature and disregard for your daughter, who had told others of your sexual abuse of her. 

19      Following leaving Winlaton she lived in a hostel for approximately 18 months.  Shortly after leaving Winlaton she visited her mother at home.  Her mother went next door to make a phone call, and within minutes of her returning, you turned up at the house and were physically and verbally abusive towards her, demanding “How could you say such lies about me?”  It was clear that at that time you were aware your activities had been mentioned to others, and that she had not told lies.  Nevertheless, with total disregard for your daughter and her wellbeing, you continued to abuse her.  Following the incident just mentioned, MAR ran from the house back to the hostel and reported this incident.  MAR was, however, unable to continue her accommodation at the hostel past 18 months, and when she was 16 she had to return to live with you and her mother in Port Melbourne.

20      Not deterred by your daughter’s complaint to others, of which you were aware, regarding your inappropriate contact with your daughter, you further offended against her, this time involving sexual penetration of her.

21      Turning to Count 3.  Approximately a month after MAR returned home you again started physically, sexually and emotionally abusing her.  You would get very drunk and get physical with her, forcing her to submit to sexual intercourse with you.  Count 3 represents the first occasion that you forced your daughter to submit to penile/vaginal intercourse during the dates alleged, being 28 September 1980 and 28 February 1981, that is, over a period of approximately five months.

22      Your daughter told you she did not want to have sex with you, but you told her “You’ll do as I tell you to do.  You’ll do what I want.”  Your daughter did not argue with you as she was scared of you.  This conduct occurred on numerous occasions when you had been drinking.

23      After a couple of months and during your conduct, MAR ran away again.  She was suffering depression and was on medication for epilepsy.  When she ran away she tried to overdose on her medication and was hospitalised at the Prince Henry’s Hospital Emergency Department for a period of three days.  She told her doctor and social worker about what had been happening to her, what you had been doing to her at home.  The social worker tried to find her alternative accommodation, but none was available, and eventually MAR again returned home.  Despite you being aware of her recent history, your sexual abuse of your daughter resumed.

24      It was only about a week after MAR returned to the family home that you again started to push her around and sexually touch her.  You made her have sexual intercourse with you on approximately a daily basis, sometimes twice daily.  You emotionally abused her and put her in fear of what you would do if she tried to stop you abusing her.  This count, over a five month period, represents approximately 70 occasions on which you engaged in non-consensual intercourse with your daughter, that is approximately three times a week.  MAR was under 18 years at all times during this period of abuse.

25      While you were abusing her at home, MAR started working at a TAB agency in Port Melbourne.  She told her employer about what you were doing to her.  When she turned 18, in September 1982, her employer assisted her to move from the family home into a hostel in Brunswick.  MAR commenced a relationship with her employer which lasted for approximately two years, resulting in the birth of a son.  The child was born on 6 December 1984 when MAR was just over 20 years of age.

26      MAR was hospitalised for six weeks prior to the birth of her child and you and her mother began visiting her.

27      Following her release from hospital MAR returned to the family home in South Melbourne, where she was able to get assistance with the baby from her mother.

28      Not deterred by the birth of her son to another, you again sexually abused your daughter.

29      Count 4 alleged a period of time over approximately six and a half years.  Approximately two months after MAR moved back into the house, following the birth of her son, you commenced emotionally abusing her.  You continually called her a “slut” and told her she was an unfit mother.  You told her she could leave the home but that you would keep her child.  You threatened that you would never let her take her son with her.  As I have stated, you resumed your sexual abuse of her.

30      Count 4 represented the first occasion after the birth of her son that you forced her to submit to sexual intercourse with you.  You had sexual intercourse with her wherever and whenever you wanted and you often pushed her physically.  To describe your behaviour towards your daughter as appalling is, in my opinion, a gross understatement.

31      During this time alleged in Count 4 the family moved to various houses in various suburbs of Melbourne.  Your sexual abuse of your daughter occurred at each of those addresses, sometimes on a daily basis.  Count 4 represents approximately 700 occasions during that period on which your daughter was forced by you to submit to sexual intercourse.  That is an average of twice a week.

32      MAR felt her mother was aware that she was being abused by you.  There is no evidence that such was actually the case.  However, the effect of this belief upon MAR was to further isolate her, as she had already tried and failed to get assistance from others outside the family network.  She was, in effect, at your mercy and in my opinion you knew it.

33      After approximately December 1986 MAR started working at the TAB and her mother looked after her son.

34      Turning to Count 5.  In February 1990 you forced MAR to submit to sexual intercourse with you.  As a result MAR became pregnant to you when she was then 25 years of age.  You continued to physically abuse her during her pregnancy, often calling her a “slut” and a “worthless piece of shit”.  You refused to admit the child she was carrying was yours.  You got your friends to watch over her when she was outside the house, effectively to spy on her.  MAR was in many respects your prisoner, despite the lack of bars or restraints. 

35      Her son, LJR, was born on 28 November 1990.  He suffers from an intellectual disability and currently attends a special educational facility.

36      You ceased your abuse of your daughter for about a month after LJR was born, however, then resumed the abuse as before.  You forced MAR to submit to sexual intercourse on a regular basis and this again developed into a daily occurrence at the family home.  This forms part of Count 4, which is a “between date” offence up to 4 August 1991.

37      In approximately 1992/1993 MAR commenced as a volunteer for a Meals on Wheels service through the South Melbourne Council, which she did for six years.  She was unable to move out of the home because you threatened you would kill her if she did.  You prevented her dating other men and told her she was yours.

38      Turning to Counts 6, 7 and 8 involving offending between 1 September 1997 and 30 April 1999, a period of approximately 20 months.

39      In 1997 the family moved to live in Port Melbourne.  Your physical and emotional abuse of MAR continued.  Again you had non-consensual sexual intercourse with MAR when living at Port Melbourne.

40      In approximately January 1998 you forced MAR to submit to sexual intercourse and as a result she became pregnant.  This is Count 7.  You continued to sexually abuse her throughout her pregnancy.  Her third son, CJR, was born on 4 November 1998.  He was born with an enlarged liver and an unattached kidney and required surgery at the age of nine weeks to remove that kidney.  He has an intellectual disability and an IQ of 55.  He currently attends a special school.

41      Two months after CJR was born you, yet again, resumed your physical and emotional abuse of MAR.  You continued to have sexual intercourse with her, including at times when her mother was present in the family home.

42      In approximately April 1999 you forced MAR to submit to penile/vaginal intercourse and as a result of that offending your daughter again became pregnant to you.  This is Count 8 on the presentment.  You continued to have non-consensual sexual intercourse with her throughout that pregnancy.  NSR, her fourth son, was born on 20 January 2000.  Although NSR does not have any significant health problems, he requires speech therapy at school and has some issues with his social interactions.

43      Almost immediately after his birth you again resumed sexually assaulting the complainant, forcing her to have oral, vaginal and anal sex with you.  Count 6 constitutes the first occasion after the birth of NSR on which you had non-consensual penile/vaginal sex with MAR.

44      Your daughter throughout this period suffered depression and had constant thoughts of suicide.

45      Count 6 is representative of approximately 400 occasions upon which you had penile/vaginal sex with your daughter, who submitted because of duress and fear of you, an average of twice a week during that period.

46      Count 9 referred to a period of one month in October 2000.  Again you had non-consensual penile/vaginal intercourse with your daughter.  Once again as a result MAR became pregnant.  During the pregnancy the family moved to Moe.  CJR was born on 5 July 2001 at 34 weeks.  From the time of her birth she suffered extremely severe health difficulties and was immediately placed on a ventilator in the newborn Intensive Care Unit.  She had respiratory failure, severe chronic lung disease, an abnormal airway, agenesis of the corpus callosum, hydrocephalus, lissencephaly and talemphany which is twisted feet.  Tragically she died on 26 September 2001 at the age of 11 weeks.  During CJR’s short life your daughter stayed at Ronald McDonald House.  On a couple of occasions you also stayed at that house.  Your daughter recalled that those occasions were the first occasions on which you “left her alone” and did not have sexual intercourse with her.

47      Turning to Count 10.  After CJR’s death your daughter moved back to the family home, now in Moe, and you again sexually abused MAR on a regular basis.  Count 10 constituted the first occasion on which you forced her to submit to sexual intercourse with you at the family home after the death of CJR.  Count 10 is representative of approximately 120 occasions on which you forced MAR to submit to sexual intercourse with you while she lived at the Moe address, that is approximately twice a week.

48      At the time your daughter’s mother, her brother and her own children were also living in the home.

49      In 2001 MAR told a counsellor, Ms ‘S’, from the Epilepsy Foundation about your conduct towards her.  The counsellor assisted MAR to make an application for separate housing.  You did not like that and told your daughter that it should be you and her and the children who were moving to a new house.

50      Approximately six months after the death of CJR your daughter had a hysterectomy.

51      In 2002 MAR attended CASA for help in relation to your offending conduct.  As a result, a police officer and child-protection worker attended at your home.  However, MAR did not make a formal statement in relation to your abuse of her at that time, and also denied you were the father of her children, as she was, understandably, frightened her children would be removed from her.

52      Notwithstanding this, with the assistance of Ms ‘S’, MAR moved out of the family home in late 2002, early 2003, with her three youngest sons and her brother, to Morwell.  You and your wife moved to Newborough.

53      Not deterred by the separation of addresses, your offending continued.

54      Count 11 referred to a period of approximately two years and one month,  from 2003 to 2005,  when MAR had left your home.  You often visited her and even stayed on various pretexts at her house in Morwell.  Alternatively, you asked her to come to your house with her children.  On those occasions you would have sexual intercourse with her.

55      Count 11 represented the first of the occasions on which you forcibly had penile/vaginal intercourse with her at MAR’s Morwell home.

56      You persisted in your sexual offending against your daughter until and including January 2005.  Count 11 represented approximately 25 occasions on which you forced MAR to submit to sexual intercourse with you, that is approximately once a month.

57      Counts 12 and 13 referred to events in January 2005.  In January 2005 you went to MAR’s home.  On that occasion you were drunk.  Your daughter’s sons and brother were asleep in the house.  Your daughter was in her bedroom, putting away washing, wearing a nightie and underwear underneath.  You entered her room and grabbed her breast.  She pushed you away.  You told her “I’ll teach you to knock me back”, and grabbed her around the throat, pushing her against a wall.  You then punched her in the stomach three times with your right fist, which was clenched.  MAR kneed you in the groin and you backed away.  However, you came back at her again, not deterred, and this time overpowered her, at which point she submitted.  You inserted your penis into her anus.  This was very painful and your daughter told you that you were hurting her.  You did not stop. 

58      Your daughter felt helpless.  She did not want to have sex with you but felt that if she fought you, you would hurt her even more.  After this sexual contact you left the room and went to sleep in the lounge room on the couch, leaving the house the following afternoon.

59      Your daughter described this offending on 17 February 2005 to her counsellor, Ms S, as follows:

“I sunk to the lowest for me with him the other night, I gave in to letting him do something I hate but he loved.  I just didn’t have the energy to fight him.  He made me realise I am nothing but a piece of meat and that’s all I’ll ever be.  They say you are supposed to love your father, he says he loves me, but I don’t know anymore.  Maybe I’m going nuts.  I sometimes think it would be better for everyone if I provoke him into killing me, then he’ll pay for it ... I’ve been doing what I have to do for the boys, that’s (been) keeping me going.”

60      In that brief paragraph your daughter eloquently described the impact of your offending against her and her feelings of helplessness at your hands.

61      In February 2005 MAR, her brother and her children left Morwell with the assistance of Ms ‘S’, and moved to a confidential address unknown to you.  Your daughter commenced counselling with a psychologist in February 2005 and also began attending CASA.  In June 2005 she made a formal statement to the police but at that stage requested police not investigate the matter, as she was very frightened of you and your friends.  By this stage she had been removed from your proximity and the offending had ceased.

62      As a result of two contacts made with her in mid-2007 MAR feared you would be able to locate her and on 7 August 2007 she sought, and was granted, an intervention order against you in favour of herself and her sons LJR, CJR, and NSR.  Her eldest son, NJR, had remained in contact with you.

63      In June 2008 MAR felt able to request the police investigate her allegations and you were interviewed by police on 14 July 2008.

64      In that police interview you admitted MAR was your daughter but claimed she had had several boyfriends at the time LJ was born.  You denied knowing the identity of the fathers of LJ, CJ and NS.  You claimed she had not really discussed the identity of the father of her three youngest sons.  You claimed  your wife and MAR were not close but that you and MAR were close.  However, when asked “How close were you?” you described your relationship with your daughter as “We were just father and daughter and that was it – that was about it.”  You denied you were the father of her children and denied any sexual interaction with her.  You also asserted you had never physically touched or been violent towards any of your children.  In that interview you denied your offending against your daughter.

65      A forensic sample was taken from you by consent on 14 July 2008 and samples were obtained from MAR and her three youngest sons.  DNA analysis was conducted on all samples.

66      In the opinion of the forensic scientist at VPFSC the profiles obtained were:

(a)in relation to the paternity of LJR, 5,100 times more likely to have been obtained if you were the biological father than if the biological father was another man chosen at random from the Australian Caucasian population;

(b)in relation to the paternity of CJR, 22,000 times more likely to have been obtained if you were the biological father than if the biological father was another man chosen at random from the Australian Caucasian population;

(c)in relation to the paternity of NSR, 13,000 times more likely to have been obtained if you were the biological father than if the biological father was another man chosen at random from the Australian Caucasian population.

67      The police did not serve the Intervention Order on you until 13 February 2009, although you were aware of it by at least July 2008.  When they served it, you said “Fucking bitch, I’ll kill her.”  When challenged, you said “You heard me.  If I find the slut I’ll kill her.” 

68      It is difficult to find the words to adequately and appropriately describe your repeated sexual offending against your daughter over all of her teenage years and adult life, which on four occasions resulted in the birth of four children. 

69      You used violence and threats when your daughter refused your sexual advances.  You ignored her disclosure and pleas to social workers and the like, to fulfil your own selfish sexual desires. 

70      You defiled your daughter over many years on a regular basis and of course your offending involved a gross breach of trust. 

71      As I have already stated, your counsel, Mr Thomas, did not seek to address the circumstances of your offending, nor did he seek to minimise the seriousness of it.  In his plea Mr Thomas directed his submissions to your background rather than your specific offending behaviour. 

72      He submitted you had limitations regarding memory and as such Mr Thomas was reliant for your background history from that obtained by Ms Jane Lofthouse and Dr Danny Sullivan, who had both interviewed you for the purposes of this hearing.

73      Dr Danny Sullivan, Consultant Psychiatrist, also gave evidence at your plea hearing.  He confirmed the contents of his report dated 23 December 2009 as true and correct.  Dr Sullivan saw you for interview on 18 November 2009, at which time he took a personal history from you.

74      By way of background.  

75      You were born in Carlton and are one of six children, with three brothers and two sisters.  Your father died in the 1970s.  You described your father as “a bastard to me”.  You were singled out by him for punishment including beatings, and that at five you believed you had been admitted to hospital in a coma following a beating by your father.  Your mother died in 1956 of double pneumonia and you described her as “terrific”.

76      You attended Mordialloc State School and managed adequately, although struggled with some subjects.  You grew up in Aspendale but in 1956 the family moved to West Ivanhoe and you then attended Heidelberg Technical College for a few months, but left because you “hated it”.  You said you had never been able to mix and that this had persisted until your remand in custody on these matters.  You said you were relating well with other prisoners at the Melbourne Remand Centre.

77      After leaving school in the late 1950s you commenced work and did a number of odd jobs.  Your most recent job was at the South Melbourne Council involved in garbage collection.  This ended in 1991 when you left due to your problems with alcohol.  Since that time you have only had occasional work.

78      You married in 1964 and described that marriage in a negative way.  You had been married for 45 years.  You claimed you had never been able to argue with women and had not been able to assert yourself.  You lost contact with the remainder of your family when you, your wife and children moved from the Heidelberg area.

79      Since 1996 you had been on a Disability Support Pension as a result of your smoking and alcoholism.  In your earlier life you said you enjoyed boxing but had no other hobbies.

80      Turning to your medical history.  You had recently undergone surgery in custody to have part of your lung removed for lung tumours.  You further described that you have had blocked leg arteries and required three operations at the Alfred Hospital.  You reported some concern about intermittent chest pains which had been present for many years, although stated you were unaware of any cardiac problems.  You are not currently taking medication but in the past had been prescribed medication for cholesterol.

81      You stated you were not taking medication because of despair about your future.

82      Turning to your psychiatric history.  You reported you had been hospitalised at Plenty Hospital and possibly also at Mont Park and Larundel Hospitals in the 1960s.  You said that occurred a few times for periods of up to six months and you were treated with a range of medications, including Largactil and also with electro-convulsive therapy.  You reported you tried to commit suicide a few times, taking overdoses and cutting your wrists.  You reported that you recurrently suffered from depression.  At the time of preparation of his report, Dr Sullivan had access to various hospital records pursuant to subpoenas issued in this matter.

83      Turning to your substance-use history.  You reported commencing alcohol use at the age of 17 and more regularly consuming from the age of 20.  You, however, denied alcohol was a significant problem for you, stating you had never fallen over, nor behaved poorly when drunk.  For a more accurate assessment of your drinking pattern in the 1960s and 1970s, Dr Sullivan had recourse to the records provided pursuant to subpoena.

84      You denied ever using cannabis, stimulants, solvents, or other medications, although you said you may have used anabolic steroids whilst boxing in your youth.

85      Dr Sullivan referred to your forensic history.  You have admitted one prior court appearance in 1980 for the offences of exceeding prescribed concentration of alcohol and being an unlicensed driver.  You were convicted and sentenced to pay a fine and disqualified from obtaining a licence for two years.  I state for the purposes of sentencing you on the counts before me, I do not regard that appearance as relevant to sentence, although it confirms your alcohol use at that time. 

86      Whilst awaiting sentence for these matters you have been transferred from the Melbourne Remand Centre to Port Phillip Prison, where you are maintained in a protection unit within that prison.  You were concerned other prisoners had made threats against you.  You felt safer at the Melbourne Remand Centre. 

87      Turning to your psychosexual history.  You reported that through your life you have had approximately twenty sexual partners, all female.  You said you were uncertain how you commenced having sexual interaction with your daughter but said you always loved her.  You stated, “She followed me around.”  You said your marriage had been “not full of love”, and that in your 40s you commenced having sexual intercourse with your daughter.

88      You stated your offending began during a time which you described as “bad years for me”. 

89      You stated that you tried recurrently “not to do this”, and had tried to stop, but “she said no”.  I discussed these statements with your counsel during the course of the plea hearing and shall return to this later in these sentencing remarks.

90      You said you were uncertain why your daughter had not reported your offending earlier.  You denied you used any violence to stop her from telling other people.  You told Dr Sullivan “I never said anything nasty.”  You reported that most of the sexual intercourse was vaginal but it was possible on the last occasion you had attempted to have anal intercourse. 

91      Whilst you admitted in those comments to him your offending against your daughter, you minimised the extent of it.  You told Dr Sullivan you believed your daughter only reported these incidents after another person you described as a “prostitute” persuaded her to report your offending to police.

92      Dr Sullivan referred to a neuropsychological assessment of you conducted in 2009.  That assessment placed you in the average range of intellectual functioning pre-morbidly, and that your intellect was now assessed as being in the borderline range.  The findings he considered related to your chronic alcohol abuse and were indicative of alcohol-related brain injury.  Dr Sullivan elaborated on this in his evidence before me, stating an average IQ is below 100 and down as far as 70.  Less than 70 would be intellectual disability.  70 to 80 would constitute borderline range.  Reference to a pre-morbid assessment of average, compared to your current assessment as borderline, indicated a decline in your intellectual ability greater than that which would usually be expected.  He considered such in your case was consistent, as suggested by Ms Lofthouse, with your alcohol use over the years.

93      Dr Sullivan noted that you denied having a problem with alcohol.  However, the recent assessment of your cognitive abilities showed a decrease and the medical records he viewed from the 1960s confirmed that you also minimised during that time your alcohol use when discussing it with professionals.  Professionals had then described your alcohol consumption as “excessive”.

94      Turning specifically to some of the mental health records that were accessed by Dr Sullivan from your early years.  A Mental Health Act certificate dated 20 December 1971 noted you were “alcoholic ... unconcerned ... confabulates ... socially incompetent ... family now petrified of him.”  On one occasion your wife wrote to a Member of Parliament requesting intervention relating to your psychiatric hospitalisation and the then Chief Medical Officer, Dr Oldmeadow, reviewed that correspondence and noted:  “The chance of success in this marriage relationship is very slight indeed.”

95      Documentation from Royal Park Psychiatric Hospital indicated you were admitted there in December 1971 and in 1972 were given six treatments of electro-convulsive therapy.  It was Dr Sullivan’s opinion such treatment was given to you because psychiatrists at that time did not really know how to address your particular problems.

96      Correspondence from Prince Henry’s Hospital dated 20 April 1972 reported that your father blamed you for your mother’s death when you were 12 years of age.  Hospital records note you had “many emotional problems stemming from childhood and the basic relationship between he and his wife was of a neurotic hostile dependent type”. 

97      Dr Sullivan in his opinion and recommendations concluded you had a significant personality disorder and described this as “mixed personality disorder with borderline and anti-social elements.”  The medical material to which I have just referred, he stated, gave weight to his diagnosis and supported it.

98      Medical material from Prince Henry’s Hospital further described you as having increased difficulty coping, manifested in depression, somatic complaints and fits which were considered psychogenic.  Trials of anticonvulsants were associated with aggression.  There was reference to you taking an overdose in 1970.  The diagnosis was “explosive psychopathic personality disorder ... grossly self-centred, impulsive and unable to tolerate responsibility”.  The prognosis at that stage was considered poor and medication likely to be ineffective.  Again Dr Sullivan considered this material when forming his opinion.  The material referred to clusters of personality problems. 

99      Whilst the diagnosis made at the time of your attendance at Prince Henry’s Hospital was expressed in then DSM-II terms, Dr Sullivan stated such equated to DSM-IV today, and was therefore a consistent diagnosis.  In the discharge summary from Plenty Hospital dated 27 July 1973, there was a diagnosis of “gross personality disorder (aggressive immature)”.  The summary noted “alcohol excess, drug intoxication, fits atypical of epilepsy, ? hysterical element, suicidal gestures, low tolerance to frustration, self-confused, prognosis guarded”.  Again, such was consistent with the opinion and conclusion of Dr Sullivan.

100     There were further hospital records which documented an admission to Mont Park Psychiatric Hospital as an involuntary patient in 1974 with “severe depression, paranoid ideas and homicidal tendencies”.  You were described as having expressed the intention to shoot your wife and then yourself.  According to Dr Sullivan, it was difficult to tell if your depression was persistent between these episodes or an episodic manifestation of volatile mood related to your personality disorder.

101     Impulsive deliberate self harm was a manifestation of particularly borderline or emotionally unstable personality disorder types.

102     Most recently Dr Sullivan had access to recent Correctional medical material prepared by Dr Ong, Consultant Psychiatrist at the Melbourne Remand Centre.  In his notes Dr Ong described you as being frightened and threatened by other prisoners whilst at Port Phillip Prison.  You were noted to have refused a colonoscopy which Dr Sullivan thought was possibly due to your transfer to Port Phillip Prison.  You had described hopelessness and helplessness and indicated a general disinclination to pursue investigations or treatment for medical conditions, based on futility.  You had also indicated to nursing staff in earlier discussions that it would be better if you were not alive.

103     The medical material confirmed you had been diagnosed with primary carcinoma of the lung and that in late 2009 you underwent an operation in relation to the right upper-lobe lung for this lung cancer.  The tumour was well-resected and chemotherapy was not thought to be indicated.

104     Your medical history was of peripheral vascular disease, ongoing arterial narrowing, hypertension, elevated cholesterol and alcohol abuse.  Your medication was documented and noted in Dr Sullivan’s report.

105     At the time of his examination of you, Dr Sullivan concluded that there were no delusions evident, although you were preoccupied with threats to yourself.  You denied suicidality.  In his opinion, you appeared cognitively to be of borderline intellect, and whilst you had some insight, you minimised aspects of your offending.

106     In his opinion and recommendations Dr Sullivan noted that your childhood was marked by paternal alcohol abuse and violence.  The death of your mother in childhood, and your overall upbringing, was later considered responsible for some maladjustment by psychiatrists who had seen you over your early years.  In his opinion you had a significant personality disorder.  You had a history of chronically depressed mood, aggression, truculence, self harm, longstanding relationship difficulties, impulsivity and substance abuse.  This disorder had attenuated over time but had been relatively persistent and in the opinion of Dr Sullivan would continue to be so.

107     Dr Sullivan further noted you had a long history of alcohol abuse or dependence and that you exhibited significant cognitive impairment consistent with long-term alcohol abuse.  There was, however, no indication you had a pre-existing cognitive impairment.  He stated, “There are no features of the alleged offending suggesting that cognitive impairment was causally associated with his sexual abuse of his daughter.”

108     The degree of executive dysfunction described would not, in his opinion, constitute the sort of lack of control relevant to this offending.  Nor could Dr Sullivan find any evidence of intellectual or cognitive functioning which so impaired your understanding of your actions that might be seen by the court as having somehow reduced culpability.  Nor was there evidence of signature cognitive impairment apparent at the time of offending which could have accounted for it. 

109     Dr Sullivan noted that some of your offending was likely to have occurred when you were intoxicated, that your intoxication may have impaired your judgment but “certainly would not have prevented him being aware of the wrongfulness of his actions as alleged.”

110     In his opinion it was probable that you had also experienced recurrent depression, although it was not clear that there was any causal association between your depression and your offending.  However, in prison your mood had worsened and Dr Sullivan considered such was likely to render your incarceration more onerous than for an ordinary person.

111     Dr Sullivan stated there was no indication your depression would be associated with the sexual offending as described.

112     Dr Sullivan stated the persistence of your offending was indicative of the primal casual association being your personality structure.  This, however, he said, had not resulted in dis-inhibition but may have impeded your ability to make calmed, reasoned decisions.

113     Dr Sullivan noted there was no history of sustained treatment for mental disorder or personality dysfunction since the mid-1970s.  There was no indication of psychotic illnesses at any stage in your life and there was also no indication you had features of a paraphilia.  No other information suggested you had sexual arousal to children, or other forms of sexual deviance.

114     In his report he concluded you had a range of physical illnesses which would impact upon your mortality and wellbeing.  It was beyond his expertise to prognosticate on those.  However, he considered that the conditions were likely to restrict your lifespan and may result in debility and possibly reduce your independence in the near future.  In addition, you appeared hopeless about the future and reluctant to take medications.

115     In his opinion you presented as low-risk of further offending.  Again he noted, however, that you had minimised your offending and denied you threatened your daughter.  You appeared surprised and angry that she had sought criminal charges.  Those cognitive distortions, he considered, would be addressed in treatment through the Sex Offender Program whilst you were in custody.  In addition, you would benefit from an ongoing opportunity for psychological support and if returned to the community you should be abstinent from alcohol.

116     Dr Sullivan further elaborated in his evidence that in his opinion your personality disorder was not really a mental illness but reflected poor coping throughout your life over various facets of it.  That your significant alcohol use had resulted in a degree of cognitive impairment.  That your life reflected a pattern of poor coping, psychiatric admissions, substance abuse, and threats of harm to yourself and to others.  That your offending was, he thought, associated with your personality disorder, the causal association was not a direct link to your offending.  Your personality structure was central and your depression and alcohol were related issues.  With reference to dis-inhibition, which may have impeded your ability to make calm reasoned decisions, he stated it was difficult to say at what time your difficulty to make such decisions existed when they were present and when they were not.  He was unable to link these to any of the episodes of your offending.

117     In cross-examination Dr Sullivan stated the nature of your personality disorder would, at times, make it difficult for you to make calm, reasoned decisions, and at times not so, but he could not tell which of those times historically were times when you were impaired and when you were not.  That there may have been episodes over the 27 to 28 year period of offending at which your decision-making was more impaired than at other times but it would not have accounted for totality of your offending. 

118     Turning to your minimisation of your sexual offending against your daughter. Your minimisation regarding your alcohol abuse, and further, attributing fault to your daughter was, in his opinion, a fairly typical sort of cognitive distortion.  Self-deceptions were not unusual.  Such may have allowed you to continue with your behaviour, even if you knew it was wrong.

119     Regarding your history of depression, Dr Sullivan considered your type of personality disorder would be predisposed to depression.

120     I heard evidence from Ms Jane Lofthouse, Clinical Neuropsychologist.  She confirmed the contents of her report dated 29 November 2009 as being true and correct and also that the contents of an attachment dated 19 January 2010 were also true and correct.  It appeared this attachment was prepared following her receipt and perusal of a number of medical documents provided through subpoena, to which I have previously referred.

121     Ms Lofthouse provided further detail regarding your background and history.  You reported to Ms Lofthouse that prior to your incarceration you were drinking up to a slab of beer per day and smoking up to 60 cigarettes per day. 

122     Ms Lofthouse noted your capacity to recall details of your medical background and personal background were restricted.

123     You described your marriage to your wife and stated that you had never loved her and only married her because she was pregnant.  You were unwilling to discuss your children and said you could not recall the names or number of your children.

124     Ms Lofthouse interviewed you on 23 November 2009 whilst you were at the Melbourne Remand Centre.  This assessment was completed over one session.  You were angry with your wife because she had written a letter stating you had stolen 45 years of her life.  You said you had more acquaintances whilst in prison than when outside prison.  At times she considered you were evasive with respect to providing a personal history, particularly in relation to your family. 

125     You attempted a number of tests at Ms Lofthouse’s request.  Ms Lofthouse assessed your pre-morbid IQ as falling within the average range.  On intelligence testing at the time of her interview your scores ranged between the borderline and average range, with a full-scale IQ of 77.  Scores obtained indicated a deviation from your predicted intellectual functioning from pre-morbid to current, with your scores suggestive of cognitive impairment.  Ms Lofthouse indicated, however, that the actual range of your IQ could be between 73 and 82.  The difference between the prediction of your pre-morbid IQ and your current state, described as borderline, could, she said, be explained by your large consumptions of alcohol. 

126     In her evidence she stated your ability to think in a flexible way was limited.  Your thinking was based on concrete concepts.  You had a limited ability to draw on fluid problem-solving skills.

127     Scores across tests of memory and new learning were consistently impaired, within the extremely low range and below the first percentile.  Such, she said, often followed alcohol abuse over an extended period of time. 

128     You also underwent frontal-lobe and executive function tests. 

129     A moderate degree of executive dysfunction was detected in the results.  Such impairment was often related to frontal lobe damage but there were no scans relating to this. 

130     Turning to emotional-screening tools.  Self-report screening tools were used to assess your level of anxiety and depression.  Using the Beck Depression Inventory, your results suggested a severe level of depression.  You indicated  you believed your future was hopeless and that you were dissatisfied and disgusted with your life.  You also indicated a level of guilt and had expectations you would be punished.  You also indicated you had suicidal ideation.

131     Ms Lofthouse noted these results were only “simple self-report measures of depression and anxiety and should be interpreted with some caution”, that this was not her area of expertise, rather, her expertise was more in testing and interpreting results.

132     In her summary and recommendations Ms Lofthouse noted that results of cognitive assessment and results of tests which were often not affected by the presence of brain damage, predicted that your intellectual level would fall within the average range.  However, the results of standardised intelligence testing indicated a deviation from average, with your IQ within the borderline range.

133     The deficits that you demonstrated were consistent with an alcohol-related brain injury, and she noted that you stated to abusing alcohol from the age of 15.  Such use of alcohol, and its related intellectual impairment, may have also contributed to behaviour deregulation, including aggression and exploitation.

134     In her opinion, any chance you had of rehabilitation would need to be intensive, taking into account your intellectual deficits and your emotional instability.

135     It was very difficult to say when your cognitive impairment began. 

136     Turning to the Attachment to her earlier report, Ms Lofthouse referred to some of your medical records. 

137     Ms Lofthouse concluded you had a degree of frontal lobe dysfunction which affected your ability to solve problems in a flexible and abstract manner.  Your deficits were often noted in individuals who drink alcohol excessively and over extended periods. 

138     Whilst the reports referred to a number of disorders on a background of excessive alcohol abuse, it was difficult, she said, to make definitive comments in relation to those factors and their effect on your offending before me. 

139     In cross-examination Ms Lofthouse stated from the reports of your behaviour, it appeared your personality traits were conducive to exploitation both of yourself and others.  You had very aggressive tendencies.  Ms Lofthouse agreed frontal lobe damage was not confirmed. 

140     Mr Thomas conceded, regarding the evidence called, there was difficulty linking the diagnoses made of you with any form of causal link to your offending.  He conceded that there was “not much by way of expert evidence to assist me”. 

141     Mr Thomas made submissions regarding your moral culpability, general and specific deterrence.  He referred to R v Chambers (2005) 152 A Crim R 164, submitting your disability contributed to some extent to your offending. I note the offending in that case referred to one occasion or event, whereas your offending occurred regularly and over many, many years. He submitted that you had a personality disorder and that depression and alcoholism were a feature of your life, not causing these offences, however to some extent leading you to not making calm and rational decisions.

142     Mr Thomas referred to R v Howell (2007) 16 VR 349, and the decision of Court of Appeal Justice Nettle, para 20, relying in his submissions, upon the combination of features previously mentioned as limiting your ability to make calm, reasonable, sensible decisions through your life.

143     Whilst I accept unreservedly the statements of Court of Appeal Justice Nettle, in my opinion there is a marked difference between the personal circumstances of the appellant in that case as described and your situation. 

144     Mr Thomas submitted that what he was attempting to do was avoid an over finding of a knowing and able man conducting these offences.  That what was required in your case was ‘some moderation’ of general and specific deterrence. 

145     You were, Mr Thomas submitted, a man who had functioned at quite a low level through your adult life. 

146     In R v Howell, the Court further stated:

“Concerning personality disorders there are a number of cases in which it has been said there is a need to focus on the question of whether or not the offender was deprived of rational judgment at the time of the offence or was unable to weigh the potential advantages and disadvantages of the course of conduct in which he or she was engaged.” [para 17]

147     In my opinion, the evidence in your case does not support such a deprivation of rational judgment. 

148     The Court referred to R v Skura

“The argument advanced for the applicant appears to assume that provided a link is demonstrated between a mental disorder and the commission of the crime, moral culpability is reduced and issues of deterrence are less significant.  But it is necessary to analyse the nature, severity and effect of the condition.” [para 18]

149     Ms Forrester also made submissions, regarding your psychiatric and psychological issues, and in particular the principles stated in R v Verdins (2007) 16 VR 269. Ms Forrester submitted that there was no suggestion of any causal relationship between your cognitive impairment and offending behaviour, nor any suggestion there was any possible causal element other than your personality structure. As such, your moral culpability, Ms Forrester submitted, was not reduced. She submitted it had not even been established that your cognitive impairment existed at the time of your offending.

150     She further submitted there was no evidence your personality disorder impeded your ability to control your actions, and to know what you were doing, or to tell right from wrong.  That at most, your ability to make rational decisions may have been impacted.  Further, she submitted that, in the circumstances, your moral culpability should not be affected, relying upon the decision of R v Skura [2004] VSCA 53 at [33]. Situational depression, she submitted, would not result in significant moderation of general or specific deterrence.

151     Ms Forrester further submitted there was no feature of your psychological condition which made you an unsuitable vehicle for either general or specific deterrence.

152     The prosecutor submitted the aetiology of a condition may be relevant in determining whether deterrence should be moderated.  Reduction of the deterrent aspects of the sentence may be neither required nor appropriate where an offender’s condition has arisen “because of the discovery of his crimes and his reaction to the prospect of a lengthy term of imprisonment”:  see R v RLP [2009] VSCA 271 at para 26.

153     Ms Forrester further submitted your alcohol abuse based on the evidence had no apparent causal connection to your offending behaviour.  That self-inflicted alcohol-induced conditions were generally of little mitigatory weight, referring to R v Howell.

154     To the extent that your depression and associated feelings of helplessness, hopelessness and despair as to your future had been exacerbated or created by your situation, it was submitted by her that no deterrent element of your sentence should be moderated.

155     The prosecution conceded, however, to the extent your depression and personality-related “mood swings” would result in the sentence of imprisonment weighing more heavily on you than it would a normal person, the prosecution conceded the principles set out in proposition 5 of R v Verdins was applicable.  I have also considered R v RLP, paras 26 and 29, in concluding proposition 5 in R v Verdins is applicable when sentencing you. 

156     In support of her submission that there not be moderation of general, specific deterrence and moral culpability, Ms Forrester referred to your ability since 1975 to live within the community as a functioning adult, to move houses, to find MAR.  That you were not dependent on welfare or anybody else for your survival in the community.  That whilst you did suffer with situational depression, that did not lead to moderation in sentencing of general and specific deterrence.

157     The characterisation of you by Mr Thomas as a less than fully functioning adult in a cognitive sense, she submitted, was not supported by the psychiatric and psychological material.  That based on the evidence of Dr Sullivan, your personality structure at best, she said, gave you a predisposition to alcohol abuse and that in turn resulted in cognitive impairment. 

158     I further considered R v Verdins.  The Court stated there were circumstances in which impaired mental functioning at the time of offending may reduce an offender’s moral culpability.  Such applied if it had the effect of:

(a)   impairing the offender’s ability to exercise appropriate judgment;

(b)impairing the offender’s ability to make calm and rational choices, or to think clearly;

(c)   making the offender disinhibited;

(d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;

(e)   obscuring the intent to commit the offence; or

(f)    contributing (causally) to the commission of the offence.

The Court also reframed the principles in Tsiaris [1996] 1 VR 398. I have read that decision again, as I have also read Verdins and in particular the six ways referred to within that decision of Verdins.

159     I briefly then summarise again the evidence of Dr Sullivan and Dr Lofthouse.

160     The evidence of Dr Sullivan was:

·        You had a significant personality disorder in your early years.

·        There was no indication of pre-existing cognitive impairment.

·        There were no features of the alleged offending to suggest cognitive impairment was causally associated with your sexual abuse of your daughter.

·        The degree of executive dysfunction as described would not, in his opinion, constitute the sort of lack of control relevant to this offending.

·        There was no evidence of intellectual or cognitive function which so impaired your understanding of actions that might be seen by the Court as having somehow reduced your culpability.

·        There was no evidence of significant cognitive impairment at the time of offending which would have accounted for it.

·        Some offending was likely to have occurred when you were intoxicated.  That intoxication may have impaired your judgment but “certainly would not have prevented him being aware of the wrongfulness of his actions as alleged”.

·        It was probable you experienced recurrent depression, although it was not clear there was any causal association between your depression and your offending.

·        There was no indication your depression would be associated with the sexual offending as described.

·        The persistence of your offending was indicative of the primary causal association, being your personality structure.

·        This had not resulted in disinhibition but may have impeded your ability to make calm reasoned decisions.

·        Your personality disorder was not really a mental illness, but reflected poor coping throughout your life.

·        That your significant alcohol use had resulted in a degree of cognitive impairment.

·        Your offending was associated with your personality disorder; the causal association was not a direct link to your offending.

·        Your personal structure was central, and your depression and alcoholism were related issues.

·        With reference to disinhibition which may have impeded your ability to make calm reasoned decisions, Dr Sullivan stated it was difficult to say if such decisions existed and whether they were present or not at the time of your offending.

161     Referring to Ms Lofthouse:

·        You had a degree of frontal lobe dysfunction, although frontal lobe damage was not confirmed.

·        It was difficult to make definitive comments regarding these disorders and the effects on your offending.

162     In R v Zander [2009] VSCA 10, Her Honour Court of Appeal Justice Dodds-Streeton stated:

“The principles of Verdins do not dictate the automatic mitigation of sentence in an offender simply because he or she has suffered or is suffering from a mental illness, however severe.  Rather, Verdins requires scrutiny and assessment, based on cogent evidence, of the relationship between the mental disorder and the offending and other relevant matters."

163     From the circumstances of your offending, including duration and frequency, it is clear there were times when you did not offend against MAR, such as following the birth of MAR’s children, and whilst she was at Ronald McDonald House. 

164     In my opinion, the material and evidence does not support moderation of your moral culpability or general and specific deterrence. 

165     The difficulty in my opinion based on the material, is that your offending given the frequency and duration of it, cannot be explained or attributed to any particular personality disorder or the combination.  That whilst your disorder, depression and alcohol use may, I stress may, have on occasions been present, such did not explain the totality of your offending. 

166     I am unable on the material to do more than speculate on the possibility that you may have been unstable at the time of your offending, such a conclusion is far from conclusive. 

167     In my opinion, putting aside proposition 5 of R v Verdins, a reduction in your moral culpability, general or specific deterrence does not apply when sentencing you. 

168     Turning to Mr Thomas’ other submissions.  He urged that any term of imprisonment I impose allow you some prospect of life beyond prison.

169     Mr Thomas relied upon your physical health, and ongoing depression.  He conceded there was no suggestion that you could not be managed appropriately in custody.  He referred me to a number of authorities including R v Yates [1985] VR 41, and urged that I could in your case impose a non-parole period which would avoid a crushing sentence. That there would be support for you from the Parole Board when on parole. That the material before me indicated that a repeat of your offending was unlikely.

170     Mr Thomas also relied upon your advancing years.  That you are currently 66 and will be 67 in March of this year.  He submitted that you were totally alone, without any supports whilst in prison from family or friends.

171     I was referred to the decision of R v Whyte (2004) 7 VR 397, specifically para 29. President Winneke, whilst noting that a sentencing judge must be astute to pay due attention to the age of an accused stated, “[they] must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished.” His Honour referred to R v Yates and R v Crowley & Garner (1991) 55 A Crim R 201.

172     His Honour further stated:

“In such cases, the court said that it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender’s age, there was a need to grant some measure of life after release.  Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight.”

173     Mr Thomas urged that in your case I extend mercy to you in respect of your advanced age.

174     In further addressing me on your age and medical condition, I was referred to the decision of R v Iles [2009] VSCA 197. The Court in that decision referred to R v Cumberbatch (2004) 8 VR 9 that “an offender’s age does not militate against the imposition of a significant period of imprisonment in the appropriate case”. I note the advanced age of the appellant in Iles. 

175     I have also read and take into account reference within R v RLP to relevance of age and ill health when sentencing an offender, in particular paras 32-38 therein. 

176     Mr Thomas urged there be some prospect of life outside prison by reason of your physical health, depression and personality which would impact on you in prison. 

177     In your case, you are 66 nearly 67 years of age and I have taken this into account to some extent in your favour in determining the appropriate sentence.  Although, given the objective seriousness of your offending, in my opinion, I do not give this great weight. 

178     Mr Thomas further referred to you being in protective custody.  Beyond your sentence of course I am unable to predict whether you will remain in protective custody or be in mainstream prison.  I was referred to the decision of R v Males [2007] VSCA 302 and note the comments of His Honour Acting Court of Appeal Justice Whelan that where a prisoner is being held in protective custody, that is a factor relevant to sentence. “The extent to which it is to be taken into account in the person’s favour depends upon the source of the need for protection and upon the particular circumstances and likely duration of the protection.”

179     And further, His Honour Court of Appeal Justice Kellam in R v Males stated:

“The circumstances of protective custody can vary significantly.  There are prisoners in protective custody in high security prisons ... .  There are prisoners in protective custody which cater entirely for prisoners with a protected status … .  It is incumbent upon counsel for both the prosecution and defence to provide such information as is available as to the true circumstances of the protective custody and the actual hardship such custody is likely to cause, if a submission is made before a sentencing judge that such a matter is relevant to the sentencing task faced by the judge.”

180     Whilst you are currently in protection whilst on remand, it is unclear what your status will be following sentence, it may be that you will manage in a prison with prisoners of similar offending.  Whilst protective custody is a relevant sentence consideration, if applicable, your future status is unknown, and as such I do not consider such to be of significant weight in your sentence. 

181     I of course accept Mr Thomas’ submissions that you have not previously been in custody, and that given your health difficulties, custody will be arguably more difficult for you than younger and more able prisoners.

182     On the question of your guilty plea and remorse, I was referred to R v Duncan [1998] 3 VR 208.

183     Your plea of guilty to these offences is a significant sentencing consideration.  The fact that you have pleaded guilty to these serious offences, and the stage at which you have pleaded guilty to them, is a relevant matter when sentencing you, and I take that into account.  The community by your plea has been spared the time and cost of a trial.  Witnesses, and in particular your daughter MAR, have been spared the ordeal of having to give evidence upon your trial.

184     By way of history leading to your plea of guilty, when first questioned by police on 14 July 2008 about your offending, you denied there was any offending involving your daughter.  This matter was listed for a contested committal on 14 July 2009, which was to include cross-examination of your daughter.  However, on that date you offered to plead guilty to certain offences, and your daughter was not required to be cross-examined.  Following that date there were further discussions between the prosecution and those representing you and you then pleaded guilty to the charges before me.

185     On 13 August 2009 you appeared in this court and pleaded guilty to Count 1 on the presentment, and indicated your preparedness to plead guilty to the remaining counts.  You confirmed that on 18 December 2009 you were rearraigned on a new presentment, and you pleaded guilty to the counts before me.

186     I therefore accept that you have indicated your preparedness to plead guilty from 14 July 2009, and that your daughter was not required to be cross-examined.

187     I am prepared to accept that in your case your preparedness to plead guilty indicates some remorse for your actions.  However, there are a number of troubling aspects of this history which cause me concern regarding whether or not you have real remorse for your offending.  The duration of your offending was over approximately 27-28 years.  You made denials of your offending in your record of interview.  You minimised your offending to Dr Sullivan, “He stated that he had tried recurrently ‘not to do this’ and had tried to stop but ‘she said no’” and your statement that “she followed me around”. 

188     However, the fact you have pleaded guilty to these offences is an important sentencing consideration, and one I have taken into account in your favour.

189     Turning to your rehabilitation prospects.  It is difficult for me to be optimistic regarding your rehabilitation prospects, although I note Dr Sullivan considered you presented as a low risk of further offending, noting however you minimised your offending and denied threatening MAR.  Your age and likely health upon release probably also contributed to his assessment of you as a low risk of further offending and in that regard provides some comfort regarding your rehabilitation prospects.  In fixing an appropriate sentence I must seek to maximise such chances of your rehabilitation as there may be.  It is clear from the material that you do need to address a number of significant issues outlined in the reports of both Dr Sullivan and Ms Lofthouse, and their reports will be provided to the Parole Board to assist in your future management.

190     There is a victim impact statement before me, which was read into the transcript.  I have also re-read that statement, and accept from the contents of it that the victim has suffered considerably in the manner described in that statement as a result of your actions.

191     It is very difficult in these brief sentencing remarks to adequately reflect the contents of that most eloquent statement.  In it MAR referred to the ongoing effects of your sexual abuse.

192     MAR referred to your violence towards the family and to her.  You would regularly punch her to the face.  When you came home from the pub you would pull her out of bed.  She was always on alert. 

193     MAR’s schooling suffered as a result of your abuse of her.  She had very poor self esteem and she went ‘downhill’ at school. 

194     MAR talks of the emotional trauma she has suffered as a result of your violence and sexual abuse of her.  She has been told by a psychiatrist she suffers Post Traumatic Stress Disorder and a Developmental Delay trauma disorder as a result. 

195     MAR had difficulty sleeping and had chronic depression and emotional deregulation.  She had attempted suicide several times. 

196     After leaving Winlaton when she returned home she said she felt trapped.  Her children were constant reminders of your abuse of her. 

197     She suffers extreme shame, has found it hard to socialise and lives in fear that you will find her and kill her. 

198     She had tried recently to be involved in the community and raise her children well, but feels she ‘just can’t keep it up’.  She falls into despair.  She feels she has to keep going for her children. 

199     She is dismayed by your responses to being charged, and angered by your denials.  

200     There is no doubt your offending against your daughter over so many years of her life has had enormous impact upon her.  I am not surprised that her children are a constant reminder of your abuse.  To her credit she is trying to see past that abuse to be the best mother she can to her children. 

201     It is impossible for anyone other than MAR to appreciate the enormity of the impact of your offending against her. 

202 The effects of offending upon a victim is a relevant sentencing consideration, s.5 Sentencing Act 1991.  I am very conscious however that I must not allow the effects upon a victim to swamp the sentencing process. 

203     Ms Forrester on behalf of the prosecution submitted there were a significant number of aggravating features of your offending.  The gross breach of trust by you, who at the time of your initial offending had the sole care of your daughter.  A further aggravating feature was the violent, threatening, degrading and manipulative behaviour of MAR which accompanied your offending.  The non-consensual nature of your offending.  The young age of MAR at the time of your first offending.  In addition, the prosecutor referred to the persistence of your offending, even after you discovered that she had attempted to disclose your abuse. 

204     A further aggravating feature was the length of time, that is approximately 28 years over which your offending took place and that on four occasions your offending resulted in your daughter falling pregnant to you.  Even after the death of your daughter’s fourth child to you, from significant birth defects, you resumed your offending. 

205     Ms Forrester referred to the impact on your daughter, who is now 45 years of age.  That she had never had an adult life free of abuse and fear at your hands.  She further referred to the impact upon MAR’s children, who have never had a father, and who now must adjust to knowledge of the circumstances of their conception.  Also, that your offending involved significant acts of penetration which placed your offending into the worst category. 

206     A number of the counts before me were representative counts, and as such, the decisions of R v SBL [1999] 1 VR 706, R v RGG [2008] VSCA 94 and R v CJK [2009] VSCA 58 are relevant. Court of Appeal Justice Batt in R v SBL stated:

“Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. ... [R]egard may ... be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone.”

207     There has been further consideration of representative counts in R v RGG to which I have previously referred.  The Court of Appeal in that decision stated “that whether or not the duration and circumstances of conduct represented by a count should be described as an aggravating circumstance, absence of a potential circumstance of mitigation and consideration ‘in its full circumstantial content’ is at least likely to lead to a heavier sentence than would otherwise be passed.” 

208     Further in RGG the Court stated that when sentencing a person for a representative count, “the sentencing judge should record what has been agreed to be the conduct of which the count is representative and the approximate frequency of such conduct over a specified period of time.”

209     I am satisfied the Prosecution opening recorded the conduct agreed within each representative count and the approximate frequency of such conduct over the specified period of time in each representative count to satisfy the test in RGG, and such was not challenged by Mr Thomas. 

210     Ms Forrester described your offending as manipulative.  That you often made plans to enable you to have contact with your daughter.  You were able to refrain from such conduct when you were in company.  You were able to determine not to inappropriately touch the complainant whilst you were staying with her at Ronald McDonald House.  This, she submitted, as well as your refraining from sexual contact with her immediately after the birth of her sons, she urged, meant that you did have an ability to make calm and rational decisions. 

211     Ms Forrester submitted your behaviour fell into the worst category for this type of offending.  That your actions towards your daughter were deliberate, with no feelings for her wellbeing or welfare.  That your daughter had never been free in her life from abuse by you, such having commenced when she was 13.

212     Ms Forrester conceded that totality was a relevant sentencing consideration, referring to Mills v R (1988) 166 CLR 59 at 63 in which the court stated:

“Where the [totality] principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing judge, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.”

213     Ms Forrester submitted, however, the operation of the totality principle must be moderated having regard to the serious sexual offender provisions within the Sentencing Act 1991.

214     I was referred to the decision of RHMcL v R (2000) 203 CLR 452 para 76, in which the Court indicated that serious sexual offenders modified the totality principle. However having said that, Ms Forrester conceded totality principles should not be ignored. That it would be appropriate there be partial cumulation of sentences on the counts before me.

215     Ms Forrester submitted that your plea of guilty was not indicative of remorse.  That your only acknowledgment of guilt was in Ms Lofthouse’ report, in the expression “he indicated a level of guilt” however such was not further defined.

216     Your plea of guilty, I have already stated, I consider is evidence of some remorse.  However, I have difficulty concluding you have real remorse for your offending, given the lack of insight displayed by you regarding your offending against your daughter and the minimisation of it as described by Dr Sullivan and discussed with your counsel during the plea.

217     The prosecution further submitted that, if your plea of guilty was a significant mitigatory factor in itself, this was a strong Crown case, in particular given the paternity of three children.  I am mindful of the observation of the Court in R v RLP in which the Court stated a strong Crown case is not a reason to reduce the discount, unless it casts doubt on the level of remorse that would otherwise be inferred from the plea and surrounding circumstances.  As I said, I am concerned about your lack of remorse.

218     As I have stated, I accept on the evidence that your condition at the date of sentence may mean a given sentence will weigh more heavily on you than it would on a person of normal health, consistent with the proposition 5 in R v Verdins.  .

219     Ms Forrester conceded your age and health may also mitigate an otherwise appropriate sentence by requiring the weight given to general deterrence to be modified, as it may make a term of imprisonment more burdensome.  She referred, in her written outline of submissions, to Austin v R (1996) 87 A Crim R 570 at 572:

“[T]he significance of old age as a mitigating factor ... is that ... general deterrence may be required to surrender some ground to the need to exercise mercy to take account of the possibility the offender may not live to be released.”

220     It is clear from the authorities, age and ill health should not be permitted to unduly influence a sentencing process such that it would result in the imposition of an unacceptably inappropriate disposition:  See R v Smith (1987) 44 SASR 587. In her written submissions Ms Forrester stated there was no evidence that you were currently suffering physical health problems. Such a conclusion appeared to be consistent with the material before me. I am referring to “physical” health problems.

221     Further, Ms Forrester submitted, there may be cases, depending on the circumstances, which in imposing a minimum term such would have the effect that an offender may spend the rest of his life in custody.  That just punishment, proportionality and general and specific deterrence remain primary sentencing considerations. 

222     Turning to general and specific deterrence, Ms Forrester referred to a number of decisions of the Victorian Court of Appeal when sentencing for sexual crimes against children.  The concerns of the Court have been expressed over many years.  In R v WEF [1998] 2 VR 285, Winneke P stated:

“This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for, but it is now well known that it has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle.”

223     The present case before me provides such an example.

224     In R v Sposito (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 8 June 1993), Marks J of the Court of Appeal said:

“A society which fails to protect its children from sexual abuse

by adults, particularly by those entrusted with their care, is degenerate.  The offence of incest 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 unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of 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 irreparable fundamental damage to the victim.”

225     Most recently, in DPP v CPD [2009] VSCA 114 para 54 (regarding in that case the offence of sexual penetration of a child under 10), the court referred to the maximum penalties, and stated:

“The fixing of such a high maximum reflects the community’s abhorrence of sexual crimes against children ... In 1992, Crockett J said in relation to sentencing for sexual abuse of a child:

“The undoubted fact [is] that in recent times there has been evidence of a rising tide of public indignation that such crimes have been committed and can be seen to be anything but infrequent occurrences. The courts, and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need in particular to have sentences give effect to both specific and general deterrence.[2] ”

[2]See R v Wayland (Unreported, Supreme Court of Victoria, Court of Criminal Appeal, 14 September 1992).

226     In reply, Mr Thomas did not seek to address any of the matters raised by Ms Forrester in her submissions on sentence other than referring again to Verdins.  As I have previously stated, in my opinion, proposition 5 is applicable in your case. 

227     The prosecution provided sentencing statistics.  As I discussed with counsel at the time, such are of course important, however in many respects of limited assistance.  There are very few cases which are factually similar.  Nor are the facts pertinent to offenders ever the same.  I was also provided with a brief outline of decisions of the Victorian Court of Appeal when sentencing of sex offenders.  The same difficulties apply.  However, a number of very important sentencing principles arise from these decisions, and I am provided with some guidance in relation to the appropriate sentence to impose.

228     As well as matters personal to you to which I have referred, I must also consider the importance of general deterrence when sentencing you.  It is a relevant sentencing consideration, as I have said, and is applicable when sentencing.

229     There is also an element of specific deterrence relevant in sentencing you.  I acknowledge you do not have any prior criminal history for offending of this type.  However, the circumstances of your offending before me including the duration and frequency of it requires there be specific deterrence in sentencing you.

230     I also need to consider protection of the community from you, even taking into account your likely age at the time of your release, the statements of Dr Sullivan regarding your lack of paraphilia and paedophilic tendencies. 

231 By virtue of your plea of guilty to the offences before me you become a serious sexual offender pursuant to s.6B Sentencing Act 1991. Following the imposition of a term of imprisonment on counts 1 and 2, you thereafter fall to be sentenced as a serious sexual offender on Counts 3 – 12 inclusive, and I direct such be noted in the records of the Court. Mr Thomas agreed such a classification applied to you.

232 Pursuant to s.6D Sentencing Act 1991, in determining the length of the sentence I:

(a)must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and

(b)may, in order to achieve that purpose impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. 

233     I consider I am able to appropriately sentence you without the need to impose a disproportionate sentence. 

234 I must also take into account s.6E of that Sentencing Act, which states:

“Every term of imprisonment imposed by a court on a serious offender for a relevant offence, must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence or sentences of imprisonment imposed on that offender, whether or at the same time as that term.”

235     There is a need for denunciation of your conduct and a need to impose an appropriate sentence for your offending.  In my opinion your offending warrants the imposition of a significant term of imprisonment.  Can you just stand please.

236     I sentence you as follows.  I will take this slowly.

237     On Count 1, you are convicted and sentenced to 10 months' imprisonment. 

238     On Count 2, convicted and sentenced to 10 months' imprisonment. 

239     On Count 3, convicted and sentenced to 3 years' imprisonment. 

240     On Count 4, convicted and sentenced to 5 years' imprisonment. 

241     On Count 5, convicted and sentenced to 4 years' imprisonment. 

242     On Count 6, convicted and sentenced to 6 years' imprisonment. 

243     On Count 7, convicted and sentenced to 5 years' imprisonment. 

244     On Count 8, convicted and sentenced to 5 years' imprisonment. 

245     On Count 9, convicted and sentenced to 5 years' imprisonment. 

246     On Count 10, convicted and sentenced to 5 years 6 months' imprisonment. 

247     On Count 11, convicted and sentenced to 4 years' imprisonment. 

248     On Count 12, convicted and sentenced to 3 years' imprisonment. 

249     On Count 13, convicted and sentenced to 12 months' imprisonment. 

250     I am also conscious of and have applied the principle of totality when sentencing you. 

251     I order the following in relation to cumulation and concurrency.

252     Count 6 is the base sentence, and I direct the following in relation to cumulation and concurrency.  I will take this slowly:

253     Four months of Count 1 is to be served cumulatively and 6 months concurrently with Count 6.

254     Four months of Count 2 is to be served cumulatively and 6 months concurrently with Count 6.

255     One year of Count 3 is to be served cumulatively and 2 years concurrently with Count 6.

256     Two years of Count 4 is to be served cumulatively and 3 years concurrently with Count 6.

257     One year of Count 5 is to be served cumulatively and 3 years concurrently with Count 6.

258     Two years of Count 7 is to be served cumulatively and 3 years concurrently with Count 6.

259     Two years of Count 8 is to be served cumulatively and 3 years concurrently with Count 6.

260     Two years of Count 9 is to be served cumulatively and 3 years concurrently with Count 6.

261     Two years and 4 months of Count 10 is to be served cumulatively and 3 years and 2 months concurrently with Count 6.

262     Two years of Count 11 is to be served cumulatively and 2 years concurrently with Count 6.

263     One year of Count 12 is to be served cumulatively and 2 years concurrently with Count 6.

264     Five months of Count 13 is to be served cumulatively and 7 months concurrently with Count 6.

265     That makes a total effective sentence of 22 years and 5 months. 

266     I direct you serve a period of 18 years before you are eligible for parole. 

267 Pursuant to s.18(4) Sentencing Act 1991 I declare that you have spent 367 days, by way of pre-sentence detention for these offences up to and including yesterday, which was 14 February 2010, and I direct that this be entered into the records of the court.

268     By virtue of your plea of guilty and conviction on these offences you are required to be registered pursuant to the Sex Offenders Registration Act 2004.

269     Pursuant to s.7, clauses 1 and 6 of Schedule 1, Count 3 is a Class 1 offence.

270     Pursuant to s.7, clauses 1 and 26 of Schedule 2, Counts 1 and 2 are Class 2 offences.

271     Pursuant to s.8, clauses 1 and 2 of Schedule 3, Counts 4 - 12 are Class 3 offences.

272     Pursuant to s.34(1)(c)(ii) you are required to comply with the reporting conditions of the Act for life. 

273     At the end of these sentencing remarks my associate will approach you with the documents that relate to the Sex Offenders Registration Act.  You will be asked to sign acknowledging receipt of those documents. 

274     Mr Thomas agreed such applied to you.

275 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these offences following jury verdict I would have imposed a head sentence of 27 years with a non-parole period of 23 years.

276 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. Mr Thomas consented to such a sample being taken from you. I make the order in the terms sought. It will be for a saliva sample, and I do that on the basis of the seriousness of your offending. I must inform you that police may use reasonable force in order to obtain that sample.

277     Are there any other orders, or are there any questions?

278     MS FORRESTER:  Just, Your Honour, a technical matter in relation to the orders for cumulation.  It is, of course, as I understand Your Honour, is a total effective sentence cumulative on the base sentence and upon each other in each?

279     HER HONOUR:  Yes.

280     MS FORRESTER:  Yes, thank you.

281     HER HONOUR:  Yes.  The total is, and it then becomes that total of 22 years and 5 months, so, yes, if that needs to be stated, I state it.  Do you want any help with the figures again?  Anyone require them to be re-read?

282     COUNSEL:  No, Your Honour.

283     MS FORRESTER:  For the record, I confirm the pre-sentence detention is correct.

284     HER HONOUR:  Thank you.  Mr Moglia, do you require any re-reading of figures?

285     MR MOGLIA:  No, Your Honour.

286     HER HONOUR:  You agree pre-sentence detention is correct?

287     MR MOGLIA:  I do.

288     HER HONOUR:  All right.  My associate is now going to approach Mr Grant, and he is being asked simply to sign that he has received the documents.  That is what it is about.

289     MR MOGLIA:  May my instructor accompany your associate?

290     HER HONOUR:  Yes.  Your instructor can go back.  It is just acknowledging receipt of the documents, is what it is about.  Yes, thank you.  You may go to the back of the court, thank you.  Thank you, is that signed?  Yes, all right, thank you, Mr Dusting.

291     Remove the prisoner.  Thanks.

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