Director of Public Prosecutions v Harmer (a pseudonym)
[2019] VCC 651
•9 May 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Not Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEAN HARMER (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Trial 1: 11 February 2019 – 19 February 2019 Trial 2: 25 February 2019 – 5 March 2019 Plea: 29 April 2019 |
| DATE OF SENTENCE: | 9 May 2019 |
| CASE MAY BE CITED AS: | DPP v Harmer (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 651 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW – Sentence
Catchwords: Child Sexual Offences – Seven charges of incest (lineal descendant) – Five charges of indecent act with a child under 16 – Family setting – Grandparent - Serious examples of offences – Offending more serious because of breach of trust and familial relationship – Grooming – Previous good character – Notion of social rehabilitation – Principle of denunciation – Serious sexual offender - Relevant principles concerning context evidence and uncharged acts – Current Sentencing Practices - Use of Force – Premeditation
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Sex Offenders Registration Act 2004
Cases Cited: DPP v DJK [2003] VSCA 109, discussed; R v Ware [1997] 1 VR 647; DPP v Wilson (a pseudonym) [2018] VSCA 263, considered; DPP v Dalgliesh (a pseudonym) (2017) 262 CLR 428; DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; DPP v Dalgliesh (a pseudonym) [2017] VSCA 360; DPP v Carter (a pseudonym) [2017] VCC 478; DPP v Niall (a pseudonym) [2018] VCC 767; DPP v Boyle (a pseudonym) [2015] VCC 1641, considered
Sentence: Total effective sentence 12 years’ and 10 months imprisonment, with a non-parole period of 8 years’ and 6 months.
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. MacDougall Ms G. Mazzone (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr R. Edney Mr A. Furstenberg (Sentence) | Furstenberg Law |
HIS HONOUR:
1Dean Harmer[1], after a seven day trial on 5 March 2019, a jury found you guilty unanimously of charges 2, 4, 5, 6, 10 and 13 on the indictment and by majority of charges 1, 3, 7, 8, 9, and 11 on the indictment. That is seven charges of incest (lineal descendant) and five charges of an indecent act with a child under 16. You were found not guilty of one charge of incest, charge 12.
[1] A pseudonym
2You were first tried on the 11th of February 2019 when the jury was unable to reach a verdict. I am now required to sentence you in accordance with law and in accordance with the jury verdict. Your counsel on the plea accepted that you were to be sentenced essentially in accordance with the prosecution opening which, save for charge 12, the jury must be taken to have accepted beyond reasonable doubt.
3The maximum penalty for incest is 25 years and the maximum penalty for an indecent act with a child under 16 is 10 years.
Circumstances and seriousness of the offending.
4You are the paternal grandfather of the complainant. She was born on
29 April 2003 and her biological father is your son Joshua Tardent[2]. Her mother was Mikayla Gow[3]. You were in a relationship with Molly Metcalfe[4] when Joshua Tardent was born but that relationship ended. You essentially had full time care of your son Joshua.[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
5You had a close relationship with your grandchildren and would often babysit your grandchildren from about 2012 when the complainant was aged nine or 10. The complainant was born on 29 April 2003. She has one older brother and one younger brother. The babysitting occurred when the complainant and her brothers would be taken to your home address, where the children would stay overnight.
6The offending that you have been found guilty of occurred over seven individual incidents spanning a period where the complainant alleges that she was aged between nine and 12. The offending came to light after there was an altercation between her father (your son), and you at a family function in approximately June 2016 which led to a reduction in contact between you and the children of your son. Subsequent to that the complainant, who had been having difficulties at school, made a complaint to a youth worker at a camp, then sometime later raised the matter with the school and the matter was taken to the authorities.
7The prosecution in the trial led evidence of offending over seven separate incidents over the period April 2013 to April 2016. In addition, however the prosecution led relationship and context evidence in relation to two other events which were not the subject of a charge. The complainant also gave evidence that the offending occurred on more than 10 occasions over the period when she was in your care, not the subject of specific charges. I am required to sentence you in accordance with the jury verdicts and you are not to be punished for conduct that is not the subject of particular convictions. The context evidence is, however, relevant to place the charged incidents within their full context. It also goes to illuminate your culpability for the charged incidents.
8Charge 1, a charge of indecent act occurred on the day after an earlier event where the complainant was at your property along with her brothers.[5] The other children were playing and you then asked her if you could touch her private parts. She declined but you went ahead and tried to pull her pants down and put your hand under her clothing but she ran off. This event could be seen as a form of grooming.
[5] Contrary to s 47(1) of the Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1991.)
9The following day you and the complainant were watching football while on the couch. You asked her to lie on you so that her legs were over yours. You had a blanket over you, the two of you. You then exposed your penis and asked her to grab it. She was trying to let go but you kept your grip on her for a short time.
10The next charged event occurred on occasion when again the complainant was at your house and she was having a bath. You walked into the bathroom with a robe on but you were naked underneath. You lifted her out of the bath, placed her on a bench so that her legs were dangling over and she was sitting up. You then spread her legs and used your hands to play with her vagina and rub your fingers around her vagina and then penetrated her. This is the first count of incest.[6] You then bent down and licked her vagina, which is count 3, incest.[7] Then you masturbated while licking her vagina, an indecent act. She yelled out to your partner that she needed a towel and the incident ceased.
[6] Contrary to s 44(1) Crimes Act 1958 (as amended by the Crimes Amendment (Rape) Act 2007).
[7] Ibid
11The next charged event involved her in your bedroom where you asked her to help you make your bed. She did not know how to make a bed and you said you would teach her. You closed the bedroom door and told her to sit her on the bed. You then pushed her down so she was on her back, took your pants off, took her tops off and then masturbated in front of her and then ejaculated over her stomach. You told her to feel the ejaculate. Those two incidents constitute two charges of indecent act with a child under 16.[8]
[8] Contrary to s 47(1) of the Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1991.)
12In that same incident you then told her to take her pants off, you then asked her to put a G-string on. You then asked her to feel herself while you took some photos of her on the phone. This action took place for approximately
30 minutes. Her brothers were about to re-enter the house and you asked her to get dressed again. The relevant photographs were not located. The incident was led as an uncharged act or context evidence.13Another incident or event that could be said to involve grooming consisted of you discussing with the children their future careers. When she mentioned nursing you suggested that she should not wear underwear when undertaking that occupation.
14The next charged act was an occasion when the complainant was aged 10 and was reading a book in the guest room. You entered the room, shut the door and asked her what she was reading. You then threw the book away, pushed her on the bed, pulled her pyjamas down, knelt beside her and used your fingers to touch her vagina before penetrating it with your fingers. She told you to stop because of the pain. You then licked her vagina and the event was interrupted by her brother seeking to enter the room and ask whether the two of you were having sex. You denied that and said that you were just having 'tickle time'.[9]
[9] Contrary to s 44(1) Crimes Act 1958 (as amended by the Crimes Amendment (Rape) Act 2007).
15The next event was when the complainant was having a bath. She went from the bathroom to the bedroom, not having dried herself. You then threw her onto the bed, knelt on the floor and started licking her vagina. The event ended when she told you she needed to get some clothes on. This is another count of incest.[10]
[10] Ibid
16Another event occurred when she was having a bath and you walked in with a robe. You took it off, exposed your penis and told her to touch it. She sought to avoid this and you asked her to come over and do it. She remained reluctant. You then walked out and re-entered and told her 'we’ll try this again'. You grabbed her shoulder so she was closer to you beside the bath. You then grabbed her hand and got her to masturbate your penis until it was erect. This went on for some time. You then grabbed her head from the back and pushed head onto your erect penis, penetrating her mouth. She exclaimed that she was choking 'I can’t breathe' and you then stopped. These events comprise charges 9[11], 10[12] and 11[13].
[11] Ibid
[12] Contrary to s 47(1) of the Crimes Act 1958 (as amended by the Crimes (Sexual Offences) Act 1991.)
[13] Contrary to s 44(1) Crimes Act 1958 (as amended by the Crimes Amendment (Rape) Act 2007).
17The final charged act involved where she was playing a game of Monopoly. Her brother lost the game, left and went back inside from the balcony. The younger brother followed leaving you and the victim on the balcony. You then put your hands down her pants before she told him to stop. You stated you just needed to do something and proceeded to insert your fingers into her vagina.
18She told you to stop because of the pain. You said, 'it’s okay you’ll get used to it'. She pushed your hand away and walked off after about a minute. This is another count of incest by digital penetration.[14]
[14] Ibid
Seriousness of the offending
19Sexual offences involving children can occur in a variety of circumstances. The essence of the offence of incest is sexual penetration against the societal taboo of a lineal descendant. The act occurs in a variety of ways often involving lingual, digital and oral penetration. The particular mode does not lessen the seriousness of the offending but the overall criminality can vary in seriousness.
20Here, as I have indicated, there was grooming behaviour. Also in relation to charges such as charge 1 and charge 6 there was physical force used by you in the course of the offending. Further the charge of oral penetration involved your use of some force in order to force the complainant’s mouth over your penis. There was also the matter of premeditation in that when the complainant at first refused to accede to your demands, you left the bathroom and then returned and committed the other two offences.
21It is notable that in a number of the events the offending ceased at the instigation of the complainant such as by her complaining of pain or making an excuse in order to have you cease your exploitation of her. So, while I accept that your offending lacks some of the aggravating features often seen in this type of offending such as threats, filming, a risk of pregnancy or sexually transmitted diseases. You persisted in some of these offences when the complainant had made it clear she was resistant to your demands.
22Your counsel on the plea did not dispute the overall seriousness of the offending here. Given that the offending was relatively protracted, and did involve some use force, I regard the overall offending as serious. Some of the indecent acts were particularly gross. Your offending had also continued notwithstanding that the complainant had asserted right from the first uncharged act that she was unwilling to comply with your demands, yet your offending escalated and included the uncharged context and relationship evidence that was led by the prosecution. I am satisfied beyond reasonable doubt that this grooming behaviour that included the taking of photographs of the complainant did occur. It thus is relevant to the overall gravity of your offending and enhances your moral culpability. However, you are only to be punished for the charged acts for which you have been found guilty.
Victim impact statements.
23Both the complainant and her mother submitted victim impact statements. The complainant says in her victim impact statement that the offending has made her feel disgusting and ashamed. She has felt sad and angry as well as guilt and confusion. She felt scared and unable to speak about the matter for fear of judgement and disbelief, which made her frustrated. It has affected her schooling and she would stay at home because her mind was in a really dark place. She did not want to open up to her peers and felt that she needed to shut herself out. She is now undertaking counselling to improve her positive outlook. She feels she may not be able to get over this completely and may still be saddened by this.
24The complainant’s mother, Mikayla Gow[15], indicates that she suffered massive regret as a result of your conduct. It caused a strained relationship with her daughter and she no longer trusts people. She has anxiety doing normal day-to-day activities and cries a lot when she is reminded of this crime. She has found it hard to go to work anymore and has had to take off many months employment due to court commitments and appointments for her daughter.
[15] A pseudonym
25Both victim impact statements indicate that your offending has had a significant impact on the complainant and on her mother. The impact of your offending is a factor that I must take into account. I also note that there is a presumption of harm associated with premature sexual activity on the part of children.[16]
[16]DPP v Dalgleish [2017] VSCA 360 [69]
Matters in mitigation.
26In a submission your counsel submitted that there were a number of matters in mitigation that I should take into account and I do so.
27You are now in your late 50s. You were aged in your early 50s when this offending occurred. You are of prior good character and evidence was led as to your contribution to the local community.
28You have been employed in marketing. In 1998 you had a significant car accident, received a payout, and subsequently purchased the Green Lake store[17].
[17] A pseudonym
29You have had two long-term relationships including with the mother of your son Joshua, and for the last six years you have been in a relationship with your now wife, Ms Griver[18]. In evidence was a reference from your wife who you have been with for six years and married for four. She found you distraught and upset by the charges and you have maintained your innocence.[19]
[18] A pseudonym
[19] Exhibit 2 on the plea.
30She noted that you have been kind natured and community minded. This was evidenced through your support of local charities and through your business. You have served as a president of the local football club and helped secured funding.
31She notes that you are hard-working, honest, dedicated, loving, and considerate man. She is prepared to provide you with full support and she has found that your incarceration has had an impact on her.
32There was also a reference from your step-son Mr Winter-Irving.[20] He has known you for seven years and found you to be a loving person and husband to his mother. He has known you to be a good family provider and maintains your position in employment.[21]
[20] A pseudonym
[21] Exhibit 3 on the plea.
33I take into account those references in your favour. I also take into account the submission of your counsel that you have always been in employment in your adult life or in business.
34In sentencing you the learned Crown prosecutor referred to section 5 of the Sentencing Act[22] which indicates that your prior good character is not to be taken into account in mitigation of sentence where it facilitated the commission of the offences.
[22]Sentencing Act 1991 (Vic)
35In a case involving intra-family offending I do not find that this makes any real difference or provided you with assistance in your ability to commit the offences. In those circumstances your lack of prior convictions is a matter to be taken into account in your favour.
36Your prior good character is also relevant to your prospects of rehabilitation. Notwithstanding your plea of not guilty, I regard your prospects of rehabilitation, given your lack of any prior or subsequent convictions as reasonable provided that you undertake an appropriate sex offender course. Further, in terms of your rehabilitation, you have the support of your spouse and your family.
37I also take into account in your favour there has been some delay in this matter and that you have had to face two trials.
38I also take into account your age but only to a limited extent in that at your age imprisonment will to some extent be more burdensome than for a younger man.
Sentencing considerations.
39The Court of Appeal has noted on a number of occasions the seriousness of the offence of incest. The court has also indicated that the sentences of the courts should express the community’s denunciation of the conduct involved. Further the Court of Appeal has noted in the case of Dalgliesh[23] that sentencing courts must give effect to the seriousness of the offence as evidenced by the 25 year maximum penalty, and it found that current sentencing practices have been inadequate in reflecting the inherent seriousness of the offence. [24]
[23]DPP v Dalgliesh (a pseudonym) [2017] VSCA 360
[24]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148 [53]
40In sentencing you, it is important to have regard to the principles of denunciation and social rehabilitation that have been articulated in a number of cases. In a well-known case, Justice Hedigan in R v Ware[25] said:
'The society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their case is degenerate. The offence of incest is particularly corrosive 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 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 damage to the victim'.
[25]R v Ware [1997] 1 VR 647
41In a recent case, the President of the Court of Appeal noted[26]:
'Incest involving a child is by definition an offence of very high culpability since it is so obviously contrary to every tenet of parental care for children and since every parent is taken to understand that sexual activity is absolutely prohibited. There is no reason why those remarks made recently in a judgment from this court ought not apply equally to grandparents, which is the case here'.
[26]DPP v Wilson (a pseudonym) [2018] VSCA 263
42In another well-known case, Justice of Appeal Vincent said:
'This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable, underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery that we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts.
'The imposition of a sentence often constitutes both a practical and ritual completion of a protracted, painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrong doing to the perpetrator. It is the balancing of values and considerations represented by the sentence which of course must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted.
'If not there will almost certainly be granted a sense of injustice in the community generally that damages the respect for which our criminal justice system is held and which may never be removed indeed from the victim's perspective and apparent failure of the system to recognise the real significance of what has occurred in the life of that person as a consequence of the commission of a crime may well aggravate the situation'[27].
[27]DPP v DJK [2003] VSCA 109 [18]
43In the course of the Plea, I was referred to some recent cases which have provided some assistance in determining current sentencing practices. [28] I have considered those cases but each case must be determined on its own merits.[29] I am required to have regard to both current sentencing practices and the maximum penalty involved and the seriousness of the offending as well as your own circumstances. Each case differs particularly in the nature of the offending, the number of offences and whether the matter was the subject of a plea of guilty or went to trial. In your case you have pleaded not guilty as you are entitled to and so you are not to be afforded the discount that is usually given for a plea of guilty to these offences.
[28]DPP v Carter (a pseudonym) [2017] VCC 478; DPP v Niall (a pseudonym) [2018] VCC 767;
DPP v Boyle (a pseudonym) [2015] 1641
[29]DPP v Dalgleish (a pseudonym) (2017) 262 CLR 428 [49]
Purposes of sentencing.
44The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
45In sentencing you, in the event that a term of imprisonment is imposed on the charges 1 and 2, then for the balance of the charges you are to be sentenced as a serious sexual offender.[30] This requires the protection of the community to be the principal sentencing factor.[31] The prosecution has not sought a disproportionate sentence.
[30] Section 6B of the Sentencing Act 1991.
[31] Section 6D of the Sentencing Act 1991.
46Further, in sentencing for a count as a serious sexual offender, the presumption of concurrency is reversed.[32] Thus considerations of totality to an extent are to be given less weight.
[32] Section 6E of the Sentencing Act 1991.
47You are to be sentenced for 12 individual counts. The offending occurred, as I have indicated, over seven discrete occasions. You are to be sentenced for five counts of indecent act with a child and seven counts of incest, comprising three counts of digital penetration, three counts of lingual penetration and one count of oral penetration. Within those occasions, the seven occasions, the individual offences are very closely related in time. In those circumstances where individual counts arise out of a single occasion then I regard it as appropriate to order very substantial concurrency for the individual sentences.
48I have considered that the offence of oral incest, which is count 11 is the most serious offence and that will be the base sentence. Could you please stand.
49On count 1 of indecent act with a child under 16 you are sentenced to one and a half years' imprisonment. On count 2, count of digital incest you are sentenced to seven years' imprisonment. On count 3, lingual incest, seven and a half years' imprisonment. On count 4, indecent act with a child, two years' imprisonment. On count 5, indecent act with a child, two and a half years' imprisonment. On count 6, indecent act with a child, two years' imprisonment. On count 7, incest, digital, seven and a half years' imprisonment. On count 8, incest, lingual, seven and a half years' imprisonment. On count 9, incest, lingual, seven and a half years' imprisonment. On count 10, indecent act with a child, two and a half years' imprisonment. On count 11, incest, eight years' imprisonment. On count 13, incest, digital, seven years' imprisonment.
50I order the following cumulation on the base sentence and on each individual sentence. On charge 2, seven months' cumulation. On charge 3, seven months' cumulation, one charge 4, three months' cumulation. On charge 5, four months' cumulation, on charge 6, five months' cumulation. On charge 7, seven months' cumulation, on charge 8, seven months' cumulation, on charge 9, seven months' cumulation, on charge 10, four months' cumulation, on charge 13, seven months' cumulation.
51This makes a total effective sentence of 12 years and 10 months imprisonment. I order that you serve a period of eight and a half years before being eligible for parole. I declare that you have been sentenced as a serious sexual offender on counts 3 to 11 and 13 and I order that that be entered in the records.
52I declare Pre-Sentence Detention of sixty-four days' imprisonment. The prosecution have sought a forensic sample and having regard to the seriousness of the offences, I order that you provide a mouth swab to the authorities and they are entitled to use reasonable force to obtain that sample from you.
53The prosecution have also sought that the G-string that was seized be forfeited to the Crown and be disposed of, I will make that order. Are there any other matters that I have not addressed, Madam Prosecutor?
54MS MAZZONE: No, there are no other matters, Your Honour.
55HIS HONOUR: All right. I want to thank you, Madam Prosecutor. I want to thank Mr Edney for his assistance in the trial. Mr Furstenberg.
56MR FURSTENBERG: If Your Honour pleases.
57MS MAZZONE: As Your Honour pleases.
58HIS HONOUR: And Ms MacDougall, the prosecutor. Mr Harmer can be taken downstairs and I will stand down temporarily.
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