Director of Public Prosecutions v Greenhouse (a pseudonym)

[2020] VCC 602

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLES GREENHOUSE  (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2019
DATE OF SENTENCE:	11 May 2020
CASE MAY BE CITED AS:	DPP v Greenhouse (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 602

REASONS FOR SENTENCE
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Subject:  Incest, Indecent Act with a Child Under 16, Indecent Assault
Sentence: 6 years imprisonment with a non parole period of 4 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Cordy
For the Accused	Mr. R. Timms

HIS HONOUR: 

1Charles Greenhouse, on 2 December 2019, you pleaded guilty in the County Court at Bendigo to one charge of incest for which the maximum penalty is imprisonment for 20 years -  Charge 1.

2You also pleaded guilty to two charges of indecent act with a child under the age of 16, for which the maximum penalty for each charge is 10 years' imprisonment - Charges 2 and 3. 

3Also you pleaded guilty to one charge of indecent assault for which the maximum penalty is imprisonment for 10 years -  Charge 4. 

4I heard a plea on your behalf on 18 December 2019.  I was asked at that time to adjourn the plea part-heard so that a further forensic psychological report about you could be obtained.  I agreed to that request and it has taken a number of months for further material to be put before the court on your behalf.

5I recently received a forensic psychological report from David Ball, dated 23 April 2020, about which I will have more to say later. 

6In the meantime, you have been remanded in custody awaiting further plea and sentence.  I set this out, because I have been somewhat concerned about the delay in completing this matter, not only from the court's point of view, but also because I consider it is in your interest, that these matters be finalised as soon as possible. 

7The circumstances of your offending are summarised in a summary of prosecution opening, dated 17 December 2019.  That document was read to the court by the prosecutor, Mr Cordy, and your counsel, Mr Turner, accepted that the summary of prosecution opening is accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you. 

8In those circumstances it is not necessary that here again set out in full that which is contained in the prosecution summary.  I do so only in an abbreviated way. 

9You are now 57 years of age.  Your offending occurred when you were aged approximately between 30 and 37 years of age.  That is to say, approximately February 1992 and September of 1999. 

10The victims in your offending were the natural daughters of your then-de facto spouse.  You lived with their mother between approximately 1990 and 2002.  Your partner had a number of children from other relationships including the two victims. 

11Together with the children and your partner, and three children which you had with her out of your relationship, the extended family lived at three addresses in the Bendigo area and the offending is linked to those addresses by the victims who cannot, with certainty, recall the precise dates upon which you offended against them. 

12The victim in Charges 1 to 3 told police that you regularly entered the bathroom whilst she was showering.  You would open the shower curtain and place your hands under the water to wash them whilst the victim was in the shower.  She told police that this occurred for the first time when she was aged between approximately seven and nine years of age, and that it happened on a regular basis. 

13The same victim told police that when she was about 12 or 13 years of age, and when she was alone with you in your car, you touched her on the thighs by rubbing or stroking the inner part of her thigh, which made her feel uncomfortable.

14On other occasions, and on a frequent basis, you would elbow the first complainant, touching her breast with your elbow as you walked past her.

15None of this is evidence of your offending, but forms part of the background circumstances in which the offending in the charges occurred in relation to the victim in Charges 1 to 3.  It is only context and you are not to be sentenced for this behaviour. 

16There is also context or background in relation to the second complainant in Charge 4.  She told police that after she returned from a Grade 6 camp you would watch her taking a shower.  She told police you did this regularly.  She said you were looking through the sliding door and eventually you managed to slide the door open far enough so that your entire face was visible to the victim in the shower. 

17Again, this is only context and you are not to be sentenced in Charge 4 because of this.  It is only background.

18Turning to Charge 1.  Between February 1992 and February 1999, you sexually penetrated the victim in Charge 1 by introducing your fingers into her vagina.  The charge is representative of one other occasion when this offending occurred, that is, it occurred twice over about a seven-year period.

19The victim told police that when she was approximately nine years of age, you saw that she was awake early, and asked her to come into your bed which you shared with your partner who was asleep.

20The victim laid down next to you in the bed.  You put your hand down her pants and placed two fingers between the lips of her vagina and manipulated her clitoris.  You continued to do this until the victim's mother began to stir in the bed next to you, whereupon you pulled your hand away. 

21The other occasion of this offending of which Charge 1 is representative, occurred four or five years later when the victim was approximately 13 or 14 years of age.  She was taking a shower and stepped out to get some soap.  You walked into the bathroom and the victim slipped on the wet floor.  She got up and returned to the running shower and you moved the shower curtain to one side and reached in, placing your finger inside her labial folds in an upward motion while saying, 'I hope you didn't hurt that' referring to her vagina.

22Charge 2 occurred when the same victim was approximately 12 to 14 years of age.  She was asleep but awoke because someone was touching her nipple and this hurt.  It was you who was doing so, whilst kneeling beside her.  The complainant's mother came into the room and she told her mother you had touched her after which the three of you went into the kitchen of the house to discuss what had happened. 

23Charge 2 is representative of two further occasions of similar conduct.  They are described in the summary and it is not necessary that I here repeat what you did. 

24Charge 3 involves the same complainant.  When she was about 11 years of age, and had been ill with a fever, her mother put her under a shower to try to get her fever down.  You were helping to dry her after the shower and as you did so, you moved your finger back and forth across her vagina. 

25Charge 4 relates to a different victim who was the sister of the victim in the other charges.  This offence occurred between January and September 1999 when the victim was pregnant with her second child, at the age of 19.  She was in the shower and you came in and slid the shower door open.  You reached in and indicated that you were washing your hands and as you did so, you touched the breast and nipple of this victim with the palm of your hand on your fingers.  You continued to stare at her and you smiled at the victim as you touched her.

26Your offending is most serious.  It is a breach of trust placed in your by the victims and their mother.  The offending in Charges 1 to 3 is against a child and you were her de facto father. 

27In Charge 4, the victim is an adult and a young mother, pregnant with her second child.  You were also her de facto father.  You had shown a clear attraction to your stepdaughters over a long period of time and the offending shows that you had the willingness to act on that attraction when circumstances permitted you to do so. 

28The fact you would come to the shower when they were showering bespeaks of perverted desire on your part towards each of them.  Offending of this kind almost always results in a breakup of the family unit, as here. It is almost always an extremely traumatic experience for the victims as here. 

29In sentencing for offending of this kind, the sentence must properly reflect general deterrence and denunciation and most importantly, the need to protect young children from people of your kind who think only of their own personal sexual gratification. 

30Offending of this kind must be deterred by the sentences imposed by the courts.  In sentencing you, I must also have regard to your background circumstances and your prospects for rehabilitation.  In passing sentence upon you, I have endeavoured to have proper regard to these sentencing principles.

31You have pleaded guilty to the charges and that is to your credit.  By your pleas of guilty, you have saved the time and cost of a trial and you have facilitated the course of justice and you have accepted responsibility for your offending. 

32I agree with the submission that your guilty pleas represent a clear acknowledgement by you that each of your victims were telling the truth in what they said to police investigators. 

33You were charged and bailed on or about 30 May 2018 when there was a filing hearing.  On 12 March 2019, there was a contested committal which lasted two days and after a number of mentions, the charges were set down for trial in the November sittings of the court at Bendigo.  The charges resolved into a plea on 2 December 2019. 

34Although you did not plead guilty at the earliest possible opportunity, I nevertheless treat you as having pleaded guilty at an early time.  By your pleas of guilty you have saved the time and cost of a trial and importantly, in this case, you have saved each of the victims from having to give evidence and be cross-examined by your counsel. 

35The prosecution acknowledges that by pleading guilty to the charges, and by saving each of the victims from having to give evidence, that real weight should be attached to that in formulating a sentence in this case. 

36Another issue overcome by your guilty pleas was the fact that this is historical offending, there being considerable delay between the time of the offending and your being dealt with by the court.  In passing sentence, I have taken all of this into account.

37I also treat your guilty pleas as evidence of remorse on your part for this offending.  I note that you also expressed some guarded remorse in a pretext call during the course of the investigation. 

38I received into evidence victim impact statements from each of the victims.  They reflect the bewilderment that a child can go through when offenders behave against them in this way. 

39In her victim statement, the victim in Charges 1 to 3 said amongst other things:

'When he was touching and sexually abusing me, I remember feeling so scared, frozen and had no idea what I could do to stop him doing that.  I was just a child.  I was confused and embarrassed about what he was doing to me.  It was only when I was around 15 years old when mum and Charles split up, that I was able to feel some sense of relief, finally knowing I could be free and safe in my house.  This sounds really weird, but for so many years, I accepted that what he was doing and how he behaved, was somehow a normal part of life, even though it affected me and I knew it was wrong.  It was just the way it was at my house.'

40Similar expressions and thoughts and feelings were made by the victim in Charge 4.  In passing sentence, I have taken the contents of the victim impact statements into account as I must.  I accept that your pleas of guilty will assist each of the victims to achieve closure and to move on with their lives.

41I turn to some matters personal to you.  Mr Turner filed a helpful written outline of his submissions.  You are now 57.  You were born and raised in the Bendigo area and you attended primary and secondary schooling in that area.  You are one of three children, your father deceased about 15 years ago, but you were estranged from him, your parents having separated when you were about five or six years of age. 

42You had limited contact with your father after separation, however you were briefly reunited with him shortly before he passed away.  Your mother is a resident of a local nursing home and she suffers from dementia.  You are the primary contact for her outside of the nursing home.  Your mother re-partnered and you had a good relationship with your stepfather.  He also passed away about 12 months ago. 

43You married about 32 years ago.  That marriage did not last long, but there was a child of that union.  You then met and had a long term relationship with the mother of the complainants.  That relationship produced three further children, now each aged in their 20s.  Your relationship with these children, understandably, is said to have been compromised by these charges and the criminal acts encompassed in them. 

44You completed Year 9 at school.  You have told your counsel and psychologist that you were bullied at school and you missed a lot of school.  After leaving school, you worked as a cleaner and then at various other jobs of an unskilled kind.  You received medical treatment for a work-related back injury and osteo-arthritis which is medicated.  You have no issues with drugs and alcohol.

45I have been provided with a forensic psychological report from psychologist, David Ball, dated 23 April 2020.  He saw you for assessment over a period of 90 minutes at Hopkins Prison on 2 March of this year.  You told Mr Ball that when you were first taken into custody, you were subjected to bullying by other prisoners.  You are now employed in the prison industries area assembling plumbing parts and you have participated in a number of vocationally-oriented programs. 

46Since being moved, you have not been subjected to bullying or harassment by other inmates.  You told Mr Ball that this is your first experience of custody and you found it salutary.  You have been prescribed Panadol Osteo for your arthritis and an unknown anti-depressant, otherwise you thought your general health was adequate. 

47You have been visited from time to time by your current partner and two cousins.  Mr Ball thought you to be suffering from anxiety and depression related primarily to the current circumstances in which you find yourself.  Mr Ball said, amongst other things:

'Overall Mr Greenhouse impressed me as a man with an impairment to his capacity to exercise good judgement and to plan and execute positive and self-sustaining behaviours.  He presents as a low-functioning individual living on the fringes of the community.' 

48You told Mr Ball that you are currently involved in an 'on again off again' relationship with a woman who has been visiting you in custody.  You have no prior convictions but there is a subsequent offence where you were convicted of indecent assault in May 2008.  You were sentenced to a community corrections order for a period of 12 months. 

49The circumstances of that offending occurred in November 2007 and there is a remarkable similarity in that offending with the offending charged here in Charge 4.  You indecently assaulted the 23 year old daughter of your then-de facto partner, by rubbing her thigh while seated in the front passenger seat of the car being driven by the victim. 

50You told Mr Ball that offence occurred in circumstances where you had consumed too much alcohol.   Of this offending you told Mr Ball that you had little recollection.  This subsequent offence, although not a prior conviction, is a concern and must be taken into account on an assessment of your prospects for rehabilitation.

51Mr Ball carried out a number of tests in order to give an opinion as to your risk of reoffending.  He considered you are a low to moderate risk of recidivism.  Mr Ball thought it essential that you undergo the Sex Offenders Program whilst in custody and this would act as a protective factor as to your risk of reoffending. 

52Mr Ball gave this opinion as to your diagnosis: 

'During the course of Mr Greenhouse's offending he would have satisfied diagnostic criteria for paedophilic disorder, non-exclusive type, sexually attracted to females, limited to incest.  He denied any recent unsolved or unreported offences.  Similarly, he denied any current attraction to young girls or children.  Based on Mr Greenhouse's history-taking in clinical interview, he fails to satisfy any DSM diagnostic criteria for a frank mental illness, substance-use disorder, personality disorder, mood disorder or other pervasive syndrome.  He presents with no impairment to his capacity for moral reasoning or culpability.'

53I accept the opinions of Mr Ball.  Whilst in custody you must undergo the Sex Offenders Program, given it is likely in the future that you would have only limited opportunity to offend in this way, I assess your prospects for rehabilitation as reasonable. 

54Your counsel accepted that your offending was serious and that I must sentence you to a term of imprisonment and fix a non-parole period.  Mr Turner acknowledged that a serious aspect of your offending was the breach of trust arising from the de facto relationship in which the offending occurred. 

55Mr Turner submitted that your offending was to be considered in the lower range for this kind of offending.  He submitted, and I accept, that your offending did not involve a threat of violence or a threat of retribution should the offending be disclosed and there was no attempt to silence either of the victims and there was no pre-offending conduct such as physically holding either of the complainants down or forcing them into a particular room or position.

56As I say, I accept these arguments.  I accept that each of the offences encapsulated in the charges was short-lived and I accept that your offending falls towards the lower end for this kind of offending.  However, it does involve a number of charges spread over a period of time and involving two victims from the one family. 

57In offending of this kind, the sentence imposed must reflect proper application of the principles of general deterrence.  Those who would seek to offend as you have, must be deterred from doing so by the sentences passed by the courts. 

58The sentence must also have proper regard to the principle of just punishment and must appropriately serve to denounce your offending.  I must also have proper regard for your prospects for rehabilitation, which I have assessed as reasonable.  I cannot say you will not reoffend again in a similar way, given the opportunity.  I am of the opinion you are remorseful and as I have said, that is a good starting point.  I expect you will undergo the Sex Offenders Program whilst in prison.

59In addition to the sentencing principles which ordinarily apply, because I will sentence you to a term of imprisonment on each of the charges, you will be sentenced on Charges 3 and 4 as a serious sexual offender within the meaning of s.6B of the Sentencing Act 1991.

60In determining the length of any prison sentence imposed on each charge where you fall to be sentenced as a serious sexual offender, protection of the community from you must be the principle purpose for which the sentence is imposed. 

61To achieve that purpose I may impose a sentence longer than that which is proportional to the gravity of the offences, considered in the light of their objective circumstances within s.6D of the Act. 

62This does not mean that the principles of proportionality and totality of sentencing are to be disregarded unless in the exercise of my discretion I consider that the circumstances before me make it appropriate to do so for good reason.

63I do not consider that a disproportionate sentence is called for and the prosecution does not seek such a disposition.  In my view, the overall effective sentence I propose will properly and adequately provide for protection of the community. 

64Section 6E of the Act provides that every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed, be served cumulatively on any other sentence I impose on you. 

65In respect of Charges 3 and 4, I will impose some cumulation of part of the sentence imposed on each of those charges and order some concurrency which I regard as appropriate, taking account of all the circumstances discussed. 

66On Charge 1, incest, you are convicted and sentenced to a term of imprisonment of four and a half years;

67On Charge 2, indecent act with a child under 16 years of age, you are convicted and sentenced to a term of imprisonment of 18 months;

68On Charge 3, indecent act with a child under 16 years of age, you are convicted and sentenced to a term of imprisonment of one year;

69On Charge 4, indecent assault, you are convicted and sentenced to a term of imprisonment of one year.  I direct that six months of the sentences imposed on each of Charges 2, 3 and 4, cumulate upon the sentence imposed on Charge 1, making a total effective sentence of six years imprisonment. 

70I direct that you serve a minimum term of four years imprisonment before being eligible for release on parole. 

71Pursuant to s.6F(1) of the Sentencing Act 1991 I direct the fact I have sentenced you on Charges 3 and 4 as a serious sexual offender within s.6B of the Act be entered into the records of the court. 

72For the purposes of s.6AAA of the Act I state I have imposed sentences being terms of imprisonment and have reduced the overall sentence I would have imposed, but for your pleas of guilty. 

73Had it not been for your pleas of guilty to the charges, I would have imposed a total effective term of imprisonment of nine years and I would have fixed a non-parole period of six years. 

74I declare there has been 145 days pre-sentence detention of the sentences passed this day and I direct 145 days imprisonment be reckoned as having been already served by way of pre-sentence detention and be entered into the records of the court and be deducted administratively.

75Because you have been convicted of these crimes, you are a registrable offender within the meaning of the Sexual Offences Registration Act 2004 with reporting obligations for life. 

76Any questions arising out of that Mr Timms?

77MR TIMMS:  No, Your Honour.

78HIS HONOUR:  Do you have any questions Mr Cordy?

79MR CORDY:  No, that's perfectly clear, thank you Your Honour.

80HIS HONOUR:  Very well.  Thank you.  Thanks for coming to town Mr Timms. 

81MR TIMMS:  Thank you, Your Honour.

82HIS HONOUR:  Adjourn the court till 11 o'clock.

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