Director of Public Prosecutions v Harford (a Pseudonym)
[2015] VCC 734
•1 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No: CR-15-00226.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KELAN HARFORD (A Pseudonynm) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 April 2015 | |
DATE OF SENTENCE: | 1 June 2015 | |
CASE MAY BE CITED AS: | DPP v Harford (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 734 | |
REASONS FOR SENTENCE
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Catchwords: Criminal Law – Sentencing – Incest.
Sentence: Four years and three month sentence with a non parole period fixed at three years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R Champion | Office of Public Prosecutions |
| For the Accused | Ms D La Movie (Plea) Mr A Pyne (Sentence) | Victoria Legal Aid |
HER HONOUR:
1 Kelan Harford,[1] you have pleaded guilty to one charge of indecent act with a child under 16 and one charge of incest.
[1]Kelan Harford is a Pseudonym.
2 The incest charge is, by agreement between the parties, a representative charge that refers to multiple incidents of similar conduct. In this case there were five occasions when you made your daughter suck your penis.
3 This practice of charging as a representative charge means that it precludes it being said in mitigation that the offence was isolated and enables the court to consider the offending in its full circumstantial context. see DPP v SBL [1999] 1 VR 706, [1998] VSCA 144, per Batt JA at [70]. The representative nature of the charge means, that it is likely to attract a greater sentence than an isolated offence. See the remarks of Nettle JA said in DPP (Vic) v EB.[2]
[2](2008) 186 A Crim R 314, 318.
4 You have admitted your criminal record. There is one prior Court appearance involving a charge of sexual penetration with a child under the age of 10 and one charge of indecent act with a child under the age of 16 for which you were placed on a “without conviction” community-based order by His Honour Judge Smith on 1 November 1995. That is of some relevance in sentencing you today having regard to the fact that your prior offending involved sexual offences against a young child.
5 I shall proceed to sentence you on the basis of the Crown opening. No issue was taken with its contents during the course of the plea hearing.
6 Mr Harford, your offending is serious, and that is reflected in the relevant maximum penalties prescribed by Parliament: 25 years' imprisonment for incest, and 10 years' imprisonment for indecent act with a child under 16.
7 The victim of the offending is your biological daughter. She was aged between seven and eleven at the time of the offending. You sexually offended against her by sexually penetrating her on five occasions, in the manner described and you committed an indecent act with her on one occasion.
8 You were aged between 32 and 36 at the time of the offending. You are now thirty-seven. You married Stephanie Harford[3] and have two children from that marriage. The complainant is the elder of your two children.
[3]Stephanie Harford is a Pseudonym.
9 The context of your offending was that in around 2009 you believed that your wife was cheating on you. There were many financial pressures. Your wife was working until 6.30pm, and you began locking yourself in your study. On an occasion when your wife was not home you were in the study and you thought the door had been locked. The complainant walked in on you masturbating and asked you what you were doing. You did not tell her to go away nor did you try to hide anything.
10 A few weeks later you were again in your study. Your wife was at work. You were watching pornography and masturbating. The complainant came into the room again and asked you what you were doing. You did not stop masturbating. You sat back in your chair and told her that she could touch your penis. She reached over and touched and grabbed your erect penis for about half a minute (Charge 1, indecent act with a child under 16). You touched her vagina whilst she was also watching pornography on the computer.
11 On an occasion between January 2010 and 2012 the complainant came home from school whilst your wife was at work. She was supposed to be doing the housework but was watching television instead. You then asked her why she had not cleaned the house, and she told you she could not be bothered. You offered to help her if she would “play” with you. She said “Okay”, and on that occasion you took her into your room and started touching her vagina over her clothes, and then made your daughter suck your penis (Charge 2, incest, representative charge).
12 Thereafter on four subsequent occasions between January and November 2012 and June of 2013 you made the complainant suck your penis.
13 The complainant did not tell anyone about these incidents until 15 October 2014. On that day she was at school and was upset. She had met with a teacher to discuss an incontinence problem. The teacher asked her if somebody had been sexually abusing her, and she cried and indicated that it was her father. After school she went to a friend’s house and told her friend’s mother about the conversation that she had had at school with her teacher, and she said that she did not want to go home. Later that day she called her mother and was crying and hysterical. Your wife then arrived and spoke with the complainant, who told her what you had been doing and that you made her suck your “willy”. You were then confronted by your wife. You denied everything initially.
14 Your daughter stayed at her friend’s home, and after your wife had confronted you, you attended at your daughter’s friend’s home and told her that the family would not be able to go to America as planned and organised, that you did not want to go to jail, and that you did not want a divorce. Later that evening your wife confronted you again, and you again denied the offending.
15 On the next day the teacher spoke to the complainant about what had happened the night before. She became upset and told her teacher she did not want you to go to jail or for her parents to get divorced, and that she did not want to have anyone move out.
16 On 13 November 2014 you were arrested, and participated in a record of interview that was taped, during which you made numerous admissions the subject of the charges.
17 Charge 1 is based on an admission contained in your record of interview.
18 On 30 January 2015 the matter was resolved prior to committal mention. You entered a plea of guilty at committal mention.
19 Mr Harford, your offending represents a very serious breach of trust by a father against his natural daughter. This is a serious example of this very serious offence of incest. The offending spanned a period of about four years when she was 7-11 years old. Your daughter was young and vulnerable. You offended, on occasions that you were alone with your daughter at home. You initiated the inappropriate sexual contact. She has suffered greatly as a consequence of your abuse. It has potentially the same sad destructive effect on your daughter as you suffered as a young man. In her Victim Impact Statement she states that she is very angry, has difficulty sleeping, and is having counselling to deal with her difficulties. Your offending has further had significant ongoing consequences to your wider family. Your relationship with your family has effectively been destroyed.
20 There are, however, mitigating factors in your favour. I have taken into account that you made full admissions in your record of interview and in fact volunteered the information that constitutes the subject of Charge 1. You pleaded guilty at the earliest available opportunity, and thereby spared the witnesses, in particular the complainant and other family members, from the further trauma of having to come to court to give evidence on your trial. There is real utility in your plea. You have facilitated justice and your sentence will be discounted accordingly. I accept that you now acknowledge that your conduct was wrong and you accept responsibility for your offending. I accept that you are genuinely remorseful.
21 As stated earlier you have relevant prior criminal history. Your earlier offending related to you abusing a young boy. You were only seventeen at the time and had no prior convictions. The circumstances were that you had been left at home alone by your parents with a young boy aged four years and eleven months. You exposed your erect penis and inserted your penis into the mouth of the boy, and subsequently licked his exposed penis. The young boy told his mother, and thereafter you were arrested. You were completely cooperative with the police on that occasion, and made frank admissions, following which charges were laid. You were dealt with by the court at age eighteen. Without conviction you were released on a Community Based Order for 12 months with the condition that you submit to psychiatric assessment treatment and that you participate in programs to prevent relapse. Sadly you did not receive appropriate treatment and did not have a proper opportunity to address your underlying sexual deviance.
22 Your previous criminal record is of relevance given it involved sexual offending of a not dissimilar nature.
23 By way of background, you were raised by a stay-at-home mother, and your father was in regular employment, mainly in the furniture industry. You are the second of four children. As a consequence of your father’s work you moved from time to time and you attended four primary schools. You repeated but did not complete Year 11. You experienced problems with bullying throughout your high school years.
24 You have an excellent employment history. You worked with one company, Bricotech[4] until 2011 when that employment ceased because of decline in the car-manufacturing industry. Around the time of these offences were committed you were heavily committed financially and in debt.
[4]Bricotech is a Pseudonym.
25 Because of the stresses of your financial difficulties, declining working hours, and associated unpredictability of your work, you were suffering severe stress at around the time of the offending. Your relationship with your wife had become strained. You were emotionally isolated, and were withdrawing, playing computer games, and watching adult pornography in your study. Once employment with Bricotech ceased you started working for Dare Co[5] in 2012 at their warehouse, and continued working until you were charged. Your employer was made aware of these charges, and you were referred to a counsellor, Mark Rowley, who has seen you for 8 sessions. You were dismissed from your employment primarily because you were not coping with being charged and its consequences.
[5]Dare Co is a Pseudonym.
26 Whilst on bail you have been residing with your parents.
27 Following the laying of these charges you have disclosed, for the first time, being the victim of sexual abuse as a child from ages four to fourteen, and have identified your older sister as one of the perpetrators. The abuse stopped when she moved interstate. You also disclosed being sexually assaulted by an older friend at the age of twelve and thirteen, and by a friend of your sister’s at the age of fourteen. You had not told anyone about this previously because of being ashamed and embarrassed about what had been done to you. This is not an unusual feature associated with child sexual abuse.
28 Following the laying of these charges you now acknowledge the impact of that prior sexual abuse. You do however acknowledge that it does not reduce your moral culpability with respect to this offending, but merely provides a context, explanation and background to your offending.
29 You have had counselling with Mr Mark Rowley, and also have sought assistance from your family doctor, Dr Stephen Loosemore, who prepared a Mental Health Treatment Plan, and referral to Dr Dadeech, psychiatrist. You have not been able to continue any treatment due to your remand.
30 A report from Mr Jeffrey Cummins, consultant psychiatrist, dated 26 March 2015 was tendered at the plea hearing. He described you as being cooperative, apologetic and at least moderately depressed when he assessed you. You did not blame your daughter for your offending. You acknowledged that you had been addicted to viewing pornography for many years, and stated your belief that your libido was very high because you were prematurely sexualised as a result of being sexually abused as a child and a teenager.
31 Importantly, you acknowledge that there is no excuse for your offending. You also acknowledge the trauma that you have caused to your daughter by your offending, and by your actions you have potentially caused her to become prematurely sexualised.
32 Mr Cummins applied the Static tests and concluded that your risk of reoffending was moderate, within the high end of the moderate range. He considered that you would be diagnosed as displaying sexual deviance in the form of paedophilia. He states your risk of reoffending may be reduced if you were to participate in an offence-specific treatment program, and noted that you were motivated to do so. He expressed concern that your mental health could deteriorate in prison.
33 You have the ongoing support of your parents, who were present at the plea hearing and who are willing to continue to provide their support for the future. Given your acknowledgement of the offending and acceptance of responsibility, your cooperation with the police, your full admissions, and willingness to undergo treatment to address your underlying offending behaviours, I consider that your prospects for rehabilitation are moderate. This is subject to you having treatment to address your underlying offending behaviour through a sex offender’s treatment program.
34 The Court of Appeal has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the Court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes.[6]
[6]Director of Public Prosecutions v G [2002] VSCA 6 at [9].
35 The President of the Court of Appeal, Winneke (as he then was) remarked in DPP v G; “The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge. Parents- and those in loco parentis- who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.”[7]
[7]Ibid at [10].
36 In sentencing you, both general and specific deterrence are important sentencing factors. I have also had regard to the need to provide for community protection. On behalf of the community I must denounce your behaviour and impose just punishment.
37 With respect to Charge 1, indecent act with a child under 16, you are convicted and sentenced to nine months' imprisonment.
38 Charge 2, incest, representative charge, you are convicted and sentenced to four years' imprisonment.
39 I order that three months of the sentence imposed in respect to Charge 1 be cumulative upon the sentence imposed on Charge 2, making a total effective sentence of four years and three months. I fix a non-parole period of three years' imprisonment.
40 I make a declaration pursuant to section 6AAA of the Sentencing Act 1991 (Vic) that but for the plea of guilty, the sentence imposed would have been six years and with a non parole period fixed of four and half years.
41 I make the order for the taking of a forensic sample from the offender pursuant to s464ZF(2) of the Crimes Act 1958 (Vic). Such order is in the interests of the community and is not opposed.
42 Pursuant to s.18 of the Sentencing Act 1991, it is further declared that the period which must be reckoned as a period of imprisonment already served under the sentence is 61 days as of this day, and it is ordered that the fact that declaration has been made and its details be entered into the records of the Court.
43 Finally, the offence of indecent act with a child under 16 is a Class 2 offence pursuant to Schedule 2 of the Sex Offenders Registration Act 2004 (“SORA”) and incest is a Class 1 offence under Schedule of that Act. Therefore, you must comply the reporting obligations under that Act for the remainder of your life, pursuant to s34(1)(c)(ii) of SORA.
44 My associate will approach you with your counsel and ask that you sign an acknowledgement of the notice requirements under that relevant Act. I believe I have covered everything, Ms Champion?
45 MS CHAMPION: Yes, Your Honour. Does Your Honour have a copy of the orders to sign?
46 HER HONOUR: I’m just fishing through my folder- perhaps not.
47 MS CHAMPION: I have copies to hand up, Your Honour.
48 HER HONOUR: If you could, and I’ll sign those. These are the in custody ones, yes?
49 MS CHAMPION: Yes, Your Honour.
50 HER HONOUR: All right. The only other thing I need to tell you, Mr Harford, is that with this order for the taking of a forensic sample- that involves taking a scraping from your mouth and provided that you cooperate that shouldn’t involve anything other than you being given a cotton bud to put in your mouth. I have to advise you that if you don’t cooperate, then police may use reasonable force to enable that forensic procedure to be conducted and hopefully that won’t be necessary.
51 All right, so I’ve signed those order, and I’ll sign these. Is there an acknowledgement that he has to sign? Yes, all right.
52 All right, so that’s been signed. A copy of that can be given to Mr Pyne to give to Mr Harford. I’ll leave the Bench. Thank you.
53 MR PYNE: As Your Honour pleases.
54 HER HONOUR: Thank you.