Director of Public Prosecutions v Gustav (a Pseudonym)

[2022] VCC 833

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

SEXUAL OFFENCES LIST

DIRECTOR OF PUBLIC PROSECUTIONS

v

Amar Gustav (A Pseudonym)

---

JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2022
DATE OF SENTENCE:	8 June 2022
CASE MAY BE CITED AS:	DPP v Gustav (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 833

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW

Catchwords:              Sentence – Plea of not guilty – Found guilty after jury trial – sexual penetration of child aged under 16 – sexual penetration of child aged under 12 – indecent act with child aged under 16 – Sexual assault of child aged under 16 – offending against granddaughter and niece – Lack of evidence of remorse or insight into offending – Complex health conditions – experience of detention more burdensome due to complex health conditions and COVID-19 pandemic restrictions – Serious offender – Serious sexual offender – Principle of totality warranting degree of concurrency – Class 1 and Class 2 offences – mandatory reporting for period of life

Legislation Cited:      Crimes Act 1958 (Vic); Sex Offenders Registration Act 2004 (Vic); Sentencing Act 1991 (Vic)

Sentence:                  Total effective sentence of 8 years and 6 months’ imprisonment – Non-parole period of 5 years and 6 months

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. Triandos	Office of Public Prosecutions
For the Accused	Mr N. Goodfellow	Balmer & Associates

HER HONOUR:

1Amar Gustav,[1] on 31 March 2022, a jury found you guilty of two charges of indecent act with a child (your then 8-year-old granddaughter) and of two charges of sexual penetration, and two of indecent act with another child, (a niece, who was aged between 6 and 7).

[1]        A pseudonym.

2Both children were from different sides of the family.  They, and their families, had little or no contact with each other.  The two children had, at best, met once.  Your contact with each child was limited before the offending began.  However, you had, by reason of family relationships, been trusted to have them in your company without their mothers, or, in the case of your granddaughter, her father, present and it was during those times that the offending occurred.

3Your granddaughter lived with her mother.  She was long separated from your son, the child’s father and you had only had contact with your granddaughter during periods when your son was living with you.  The relationship to your niece was more remote, and your contact with her only commenced shortly before the offending.  The contact with your niece came about this way.  Her mother was the half-sister of your late wife, but they had been estranged and had little contact over many years.  It was after your wife’s death that you initiated contact with her half-sister and through her, came into contact with your two nieces, her two young daughters.

4Dealing then with the circumstances concerning the offences of which you were convicted relating to your granddaughter.  In July 2015, your son came back home to live with you and on occasions his daughter, your granddaughter, would be brought by her mother to visit her father and you.  Your son had a younger child, a boy, who was then about 5 or 6 and you had custody of that child.  On visits you would sit your granddaughter on your lap.  As you did your grandson.  Originally, your granddaughter thought nothing much of it, as she was seated at the end of your knee, in the same way as your grandson would be seated.

5But sometime between October or November, she started to feel uncomfortable sitting on your lap.  You started sliding her from her position on your knee closer to your groin.  You would also rub her inner thigh, reaching higher and higher up her leg.  On one such occasion, somewhere between August and December 2015, whilst holding onto her waist with one hand, you used the other hand to rub up her inner thigh, moving higher and higher, until you reached the seam of her underwear, beside her vagina.  Once you made contact with her on the side of her vagina, on the edge of the underwear, she took herself off your lap because she felt uncomfortable.  It is this that constitutes Charge 1, of which the jury found you guilty, indecent act with a child under 16.

6On another occasion, in early December of that year, you were playing a game with your grandson.  You called it ‘the train game’.  That involved you laying on your back and bouncing the child up and down on your groin.  You encouraged your granddaughter to have a turn.  You held her by the waist and moved her so her vaginal area was placed over your groin.  You bounced her up and down.  She could feel your erect penis in the area of her vagina.  It is this that constitutes Charge 2 of indecent act with a child under 16.  She did not complain to anybody at the time. When pressed about that in cross-examination, pre-recorded for the purposes of your trial, she said that although she had felt uncomfortable, it was only as she got older that she could properly understand it for what it was. She made a disclosure about that and about the earlier incident only after hearing that you had been charged with sexually abusing another child. As she said, she thought it might help.

7The circumstances of the offences concerning the other child, your niece, are these.

8You had initiated contact with your wife's half-sister after the death of your wife, and after some other contact you had offered to help her and her family.  They were in need of some help.  Indeed, you helped them to relocate to live to an area near you, you encouraged her to enrol her older child, the child who is the subject of the charges of which you were convicted, at the same school that your grandson was enrolled in.  On occasions you would pick up her child from school along with your grandson when your half-sister-in-law and her partner were both working.  Because of the assistance that you had given, you gained their trust.

9The first incident concerning your niece occurred in June 2017.  You had been asked to help look after her at very short notice, when her younger sister had cut her foot and needed to be taken to hospital for urgent care.  Whilst staying at the house looking after the child, you initiated a game with her, and your grandson.  You play-tackled her to the ground, and in the boy’s presence, pulled down her underpants and licked the inside of her vagina.  That is Charge 3 of which the jury convicted you, sexual penetration of a child under 16, with the finding by the jury that she was aged under 12 at the time.

10Some months after that, following allegations of family violence between your niece's parents, her mother and the two children stayed at your home for a few days.  They were required to move out of the home where the partner was and they had nowhere else to go.  On one occasion during that time whilst the mother was absent, you took your older niece into your bedroom and began rubbing her vagina underneath her clothing.  The jury convicted you of sexual assault of a child under 16 in respect of that (Charge 5).  You then made her lie on the bed and licked her inside her vagina.  The jury convicted you of Charge 6, sexual penetration of a child under 12 in respect of that.

11The last charge of which you were convicted occurred again at your house.  The child had slept over at your place and when she got up, you were watching TV.  It was a school day and she was dressed in her school clothes.  You sat her on your lap and pulled down her school pants, leaving her underwear on, and asked her to lay back on the chair.  You then guided her hand into your pants and placed it on your bare penis and used her hand to masturbate you. That is Charge 8 of which the jury convicted you, again sexual assault of a child under 16.

12Your niece made some disclosures to her mother in early 2018, and again in August 2019.  She also told people at her school.  The school notified the Dandenong Police Sexual Offences and Child Abuse Investigation Team and she participated in a VARE in which she confirmed the disclosures that she had already made.

13In September 2019, you were interviewed in respect of these allegations made by your niece and you denied all the allegations made against you, and in fact said there had been no opportunity when you had been alone with the child without her mother present.

14It was about a month after that that your granddaughter, having overheard a conversation indicating that you had been charged with sexual assault of a child, made her disclosures.  Again you were interviewed and again you denied the offending (that is the offending against your granddaughter). Again you said you had no opportunity, that you were never left alone with her.

15You ran a contested trial and you still maintain your innocence.  The children participated in VAREs and were cross-examined at special hearings.  They were challenged on their account of the incidents and on their reliability generally.

16Your half-sister-in-law was also cross-examined extensively at trial in relation to the family dynamics. The jury heard and clearly rejected the accounts that you had given in your recorded interview.  By their verdicts, they clearly accepted the truthfulness and reliability of the children.

17So you come to be sentenced for two charges of indecent act with a child under 16 in respect of your granddaughter, one of charge of sexual penetration of a child under 16, with a finding the child was under 12, one of sexual penetration of a child under 12, and two of sexual assault of a child under 16 in respect of your niece.

18The maximum penalties for the charges of indecent act and of sexual assault of a child under 16 are 10 years' imprisonment; and for sexual penetration of a child under 12 or of a child under 16 with a finding the child was under 12 at the time, 25 years' imprisonment.  Those sentences are one marker of how seriously Parliament and the community regards this offending.

19Since the time of the commission of these offences, Parliament has further strengthened the statement it makes about the seriousness of such offending by making the charges of sexual penetration of a child under 12 and sexual assault of a child under 16 standard sentences. A standard sentence or benchmark for the sexual penetration charges is 10 years and for sexual assault of a child under 16, four years. A standard sentence is defined as the standard sentence for an offence of objective midrange gravity.  Whilst these standard sentence provisions do not apply to you, they are a further indication of the seriousness with which such offending is regarded by Parliament and the community.

20On your plea, your counsel, Mr Goodfellow, acknowledged that these were serious examples of these very serious offences.  The number of victims (two), their very young ages (one 8; the other between 6 and 7), the duration of the offending (with one child over a period of months; with the other child a period perhaps more than months, but spanning over two years overall), the breach of trust, and the breach of family relationships are all indicators of the gravity of the offending.  As a senior apparently responsible and caring older male in the family, a grandfather or grandfather figure, you were indeed a trusted relative.  You had custody of a younger grandchild, which added to the sense that you could be trusted with little children in your care, and you had no criminal history.  That too added to the belief that you could be trusted with the unsupervised care of these little girls.  So the abuse of the family relationships, of the trust of their parents as well as the trust of the children makes this very serious.  You abused the trust placed in you by the complainants themselves and their parents.

21Victim impact statements were provided by your niece, her mother and father. Their sense of betrayal, and dismay that you could so deceive them was palpable.  The grief, shame and embarrassment that your niece felt, trying to struggle to understand that she is not at fault, that she did not encourage or invite any of this and it was not her responsibility to stop the behaviour has clearly taken a significant toll on her.  Although no victim impact statement was provided by your granddaughter or by her mother, it takes little imagination to understand the seriousness of the impact on them. Indeed some of the evidence from your granddaughter showed the impact that it had on her.  It was clear from her evidence at trial that at the time she was confused, distressed, felt uncomfortable, felt it was wrong but did not have the language or the knowledge to be able to understand exactly why or to verbalise it.  It was only as she became older that she became more aware of the depravity of your conduct.

22It is clear therefore that the sentencing principles of denunciation, deterrence both general and specific and just punishment loom large in the sentencing mix.  All children are entitled to be safe from sexual predation.  They are particularly entitled to be safe from sexual predation by trusted older members of their family. To obtain and actively solicit the trust of their parents so as to allow them to be left alone in your care and then to abuse that trust is a terrible, terrible thing.  To abuse them in the presence of another child is also a terrible thing. The sentences must reflect the condemnation of that behaviour, and the importance of affirming the right for all children to be safe from predation and to be protected.

23Your counsel acknowledged that imprisonment and indeed a substantial term of imprisonment must be imposed following the jury verdicts.

24What then is put on your behalf to mitigate against these significant sentencing factors?

25You are an older man and in poor health.  You were aged between 52 and 54 at the time of the offending.  You had obviously become a father and a grandfather at a very young age.  You are now 58.  You were born and raised in Melbourne, one of six children.  You completed your education up until Year 10, and from then until 2014, you had had a long history of hard work and supporting your family.  You did an apprenticeship as a fitter and turner, or machinist, you worked in retail, as a courier, and then for 25 years worked in the security industry specialising in the retail sector.  You worked in security for a number of companies and progressed to the role of a state manager for one of them.

26You have not been in paid employment since 2014.  You stopped work to care for your wife, who by then was terminally ill with lung cancer.  You had been married for 33 years by the time of her death in July 2015 and I accept that her death was an extremely difficult thing for you and continues to weigh on you.  Together, you and your wife had four children.  You are especially close to one of them and she has been at court from time to time. She was there at the time of verdict to support you and she is here again today.  She has offered continued support to you.  One of your sons, the father of your granddaughter victim, suffers from a complex range of behavioural and drug addiction issues and you have, despite his often difficult and violent behaviour towards you, continued to offer him support both emotional and financial and indeed a roof to live under.  However his violence towards you has required police intervention on more than one occasion and you have been subject to criminal conduct by him which required intervention orders to be taken out on your behalf to protect you.  That son was unable to care for his children.  The granddaughter, in respect of whom you have now been convicted of sexual offences, has been in the custody of her mother for almost all of her life.  His younger child, your grandson, has been in your custody, initially the custody of you and your wife and following her death you alone, because of the inability of his father and his mother to care for him.  One of the consequences which has caused not only grief to you but obviously enormous disruption and difficulty for your grandson is that as a result of being charged, he was removed from your care and he is now in kinship placement with other family members.  Thus his history of displacement continues.

27You suffer from a range of serious health conditions, including asthma, Graves’ Disease, Type 2 diabetes which is unable to be easily controlled by medication, coronary artery disease, and neuropathic pain related to your diabetes.  You have had a heart condition since you were a child; you underwent surgery when you were young to repair an atrial septal defect.  In 2016, after the death of your wife, you had a serious heart attack.  You have a diminished level of heart function and you are currently under the care of the ‘Diabetes Complications’ and the ‘Reduced Ejection Fraction (Heart Failure)’ clinics at Frankston Hospital.  You were on a disability support pension from the time of your heart attack until your remand in custody following verdict.  Your heart function is being monitored. It is low and likely to continue to decrease and you are likely to need to be considered for heart transplant in the future.  All of these are significant health factors which clearly impacted your quality of life both before and after your entry into custody.  Having said that, I also note that you suffered from all of those other conditions at the time of the offending against your granddaughter and you had already sustained the heart attack, and the diminished capacity that followed, at the time of the offending against your niece.  Those conditions did not stop your offending.

28You have been in custody since the verdict.  You have spent 69 days in pre-sentence detention.  I accept that that has been a very difficult time for you; It is your first time in prison. You are in your late 50s, in poor health, have had difficulties in adjusting to a prison environment, particularly in making sure that your diabetes which is apparently very difficult to control is adequately monitored, that you can do your blood tests and have your insulin appropriately. On top of that there are the restrictions in custody as a result of COVID, your overall poor health and concern about your prognosis.

29I accept that the combination of health issues from which you suffer will make imprisonment more burdensome for you and I accept it is proper to take that into account, to mitigate the severity of the sentence otherwise appropriate.

30I also accept that imprisonment in a time of COVID is more onerous and the sentence must be reduced as a result of that.  There are restrictions on access to services and facilities, to visits, on movement, in almost every area of activity in prison life. There is also the fear about being exposed to COVID in an environment where you no longer have control over who you see and when you see them, something that those of us who are at liberty in the community have some better control over.  All of that is proper to take into account and operate to reduce the sentence otherwise appropriate.

31It was put on your plea having regard to your age or absence of prior convictions, your family support, your good history of work and employment, absence of any history of substance abuse or alcohol abuse, absence of mental health issues, that I should find you had good prospects for rehabilitation.  However I cannot make any realistic assessment of your prospects for rehabilitation or indeed of your risks of reoffending in like manner again.

32You have maintained your innocence as is your right, but you have demonstrated no remorse or insight for the conduct which the jury finds you have committed.  You maintain your denials of the offending.  In my view, this was a very strong case.  But you, as was your right, exercised your right to challenge and contest the evidence of the children and to test the evidence of their families in a way that you saw appropriate in order to seek to advance your defence to the charges.  That made it a more difficult ordeal for the children and their families.  You are not to be punished for that – it is your right to contest the charges, –  but it does indicate a lack of insight and remorse.  A psychological report was commissioned following your conviction. The psychologist, Ms Fleming, assessed you.  She noted that she was expressly instructed not to address the offending in her assessment.  In my view, that makes it difficult to give any great weight to her opinion as to your prospects for rehabilitation or your risk of further offending.  The most that can be said is that you have got positive factors which, if the offending itself is addressed, would stand you in good stead upon your release.  That is, that you have continued support from your daughter, somewhere to live on your release and you have no other history, that you have no history of mental health problems that would impede rehabilitation. Although your current health means that you are probably unlikely to work again, you have had that history of engaging in the discipline of work and supporting yourself and your family.

33You have expressed a willingness to engage in rehabilitation programs if they are offered to you whilst you are serving any sentence.  Whilst this may be largely motivated by a desire to be granted parole, which is often predicated on participation in a rehabilitative program and is not an indicator of acceptance of responsibility for your conduct, it nonetheless shows a preparedness to engage in rehabilitation programs which is also a factor I take into account in your favour.

34Because of these convictions, the serious sexual offender provisions of the Sentencing Act apply.  That means the sentences on Charges 3, 5, 6 and 8 of which the jury found you guilty, unless otherwise directed, are to be served cumulatively upon each other.  However, I accept that protection of the community, although a paramount consideration, does not require fully cumulative sentences and that the principle of totality must be given proper weight having regard to the number of charges for which you are to be sentenced.  I accept Mr Goodfellow's submissions that a significant degree of concurrency is just and appropriate.

35It is always difficult to fix on the exact sentence when there is more than one victim and more than one charge. The individual sentences must, as best as possible, reflect the individual acts.  There must be a degree of cumulation between them to reflect the different acts but at the same time, some concurrency to reflect your age, poor health, your previous good character and the hardship of imprisonment caused by COVID and your poor health.  Dealing with all of that as best I can, I fix the following sentences.

36On all charges of which you are found guilty you are convicted.

37On Charge 1 of indecent act with a child under 16, the first charge relating to your granddaughter, you are sentenced to be imprisoned for a period of 3 years.

38On Charge 2, the second charge of indecent act with a child aged 16 relating to your granddaughter, you are sentenced to be imprisoned for a period of 3 years.

39On Charge 3 of sexual penetration of a child aged under 16 (that child being found to have been aged under 12), the first charge in respect of your niece, you are sentenced to be imprisoned for a period of 6 years.  That is the base sentence.

40On Charge 5 of sexual assault of a child aged 16, you are sentenced to be imprisoned for a period of 3 years.

41On Charge 6 of sexual penetration of a child aged under 12, you are sentenced to be imprisoned for a period of 6 years.

42And on Charge 8 of sexual assault of a child aged under 16, you are sentenced to be imprisoned for a period of 3 years.

43As noted, the sentence on Charge 3 is the base sentence.  I direct that 6 months of the sentence on Charge 1, 6 months of the sentence on Charge 2, 3 months of the sentence on Charge 5, 9 months of the sentence on Charge 6 and 6 months of the sentence on Charge 8 be served cumulatively upon each other and upon the base sentence.  That makes a total effective sentence of 8 years and 6 months and I fix the period of 5 years and 6 months as the time that you must serve before being eligible for parole.

44I declare that you have spent 69 days in pre-sentence detention and I direct that the be counted and reckoned as part of the sentence already served.

45On Charges 3, 5, 6 and 8, you are sentenced as a serious sexual offender and direct that declaration be placed on the record.

46Since you have been found guilty of two Class 1 offences (those of sexual penetration of a child), under the Sexual Offenders Registration Act, the length of the reporting period is the remainder of your life.  You must be placed on the Sexual Offender Register and you must remain on it for life.

47There are notice of reporting obligations which are required to be provided to you.  As this is a remote hearing, I cannot hand them to you directly and ask for you to give an acknowledgment, I will ensure that they have been provided to your legal advisers and a copy provided to the prison when you are currently being held. I note that I have in this sentence today made that Sex Offenders Registration Act order and indicate that my intention is to provide the conditions to your legal advisers and to you.

48Are there any further orders that are required to be made, Mr Triandos, and have I declared the sentences correctly?

49MR TRIANDOS:  No further orders, Your Honour.  The sentences have been declared correctly.

50HER HONOUR:  And the arithmetic correct?

51MR TRIANDOS:  Yes, Your Honour.

52MR GOODFELLOW:  I agree, Your Honour.

53HER HONOUR:  Thank you.  All right.  Do you want me to leave the link open for you, Mr Goodfellow, so you can speak briefly to Mr Gustav?

54MR GOODFELLOW:  If that is possible, yes.  Thank you, Your Honour.

55HER HONOUR:  Yes.  Thank you.  In that case, I will adjourn the hearing, direct that everybody other than Mr Goodfellow, Mr Gustav and - is your instructor present on the link, Mr Goodfellow?

56MR GOODFELLOW:  I do not think so.  No, Your Honour.

57HER HONOUR:  All right.  Well, I will just direct that you and Mr Gustav remain on the link.

58MR GOODFELLOW:  Thank you.

59HER HONOUR:  Remember; it is the court link - - -

60MR GOODFELLOW:  Yes.

61HER HONOUR:  - - - my staff will have to be on standby to disconnect at the end.  It is not able to be a confidential privileged conversation.

62MR GOODFELLOW:  Understood.  Thank you, Your Honour.

63HER HONOUR:  Thank you.  Thank you.  We will adjourn.

64COUNSEL:  As Your Honour pleases.

- - -