Director of Public Prosecutions v Harper (a pseudonym)
[2020] VCC 336
•25 March 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRANDON HARPER (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 March 2020 |
| DATE OF SENTENCE: | 25 March 2020 |
| CASE MAY BE CITED AS: | DPP v Harper (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 336 |
REASONS FOR SENTENCE
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Subject: Indecent Assault x 2, Indecent Act x 2.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr Devlin | Office of Public Prosecutions |
| For the Accused | Mr Oldham | Warren Graham and Murphy |
HIS HONOUR:
1 Brandon Harper[1], you have pleaded guilty to two charges of indecent assault of a girl aged under 16 years and two charges of indecent act with a girl under the age of 16.
[1] A pseudonym
2 There are no prior convictions but a relevant subsequent matter was dealt with back in 2007.
3 You were born in 1940 and you will be turning 80 years of age in August of this year.
4 The plea in mitigation was heard last Friday. You had spent no time in custody up until my remand of you on that day.
5 The summary sets out the correct maximum penalties so I will not repeat them now.
Facts
6 The prosecutor Mr Devlin opened this matter to me in accordance with a written agreed summary of prosecution opening dated 21 February 2020. Your Counsel, Mr Oldham took no issue with the summary. In those circumstances there is no need to describe the full factual setting as I will sentence in accordance with the agreed facts. I am dealing with sexual acts committed by you upon three children. One of those victims, Beth Harper[2], was your niece. You touched her in the two ways described. It was in the 1970’s. She was 6 or 7 at the time of the first event and 10 or 11 at the time of the later act. The first of the acts which was less serious physically, occurred shortly after she had lost her own father, that is your brother. The later act involved digital/vaginal penetration. The other two victims were your grandchildren in the sense that you had married their grandmother Gayle[3]. Those touching’s occurred in a different age. We must move forward over 25 years from the days when you first touched Beth in the early 1970’s to a specific day in July 2002. The children you touched in 2002 were Nadine[4] who was five and Carla[5] who was but two. At a family gathering that you had been invited to, you touched each of the girls under the outer garments on the vagina. The acts are not alleged as penetrative. That is why indecent act is selected. The summary describes the fallout from that day. ‘Complaint’ was made by Nadine. In addition, the act committed upon Carla had been observed by your wife at the time, that is, by Gayle. The summary describes the interaction with family members as well as the making of a complaint to police. You were interviewed at the time and made partial admissions in that you admitted touching both girls but you said it was accidental touching in the course of playing. Carla was only two so there was no VATE (or video-audio taped evidence). Nadine’s VATE was lost. The brief was not authorised.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
7 Beth had previously complained about your conduct to family members both in the 1980’s and also in 2007. She came forward in 2017 and made a complaint to police.
8 A pretext call was made in July 2017 and when she said she remembered what you had done to her you said, “Yep you’ve got a long memory.” You denied having any memory but said if she said it happened then you believed her.
9 You were formally interviewed on 26 February 2018 by the police about the incidents involving Beth and said amongst other things that you couldn’t remember and that the allegations sounded a bit disgusting.
10 You pleaded guilty on the day of the committal and the two witnesses who were there in attendance did not need to give evidence. So much then for my short summary of the summary. I sentence in accordance with the full factual summary placed before me and marked as Exhibit A. This was serious offending and that is conceded. The aspect of breach of trust is also conceded in that you were a trusted relative.
Impact
11 There are a number of victim impact statements. There has been no issue taken with the victim impact material in this case. I received them without any objection though the prosecutor correctly pointed out some of the limitations with Gayle’s statement. Nadine’s victim impact statement was read aloud by the prosecutor and Gayle and Beth read out aloud their own victim impact statements from the body of the court.
12 I take into account the impact of the crimes. I suppose I could say no more in that respect and then move on to deal with the matters that have been raised on your behalf. I am not going to do that as this represents the only opportunity that your victims have to provide information to the court about the impact of your crimes committed upon them. I have read each of these impact statements again since the day of the plea last week.
13 Much has been said here by your counsel Mr Oldham about the passage of time since the offending. The disadvantages of falling to be sentenced as a 79 year old man. That is all true and I will go into some of those matters in greater detail later in these reasons.
14 The victim impact statements make clear how your crimes have deeply affected and impacted upon the lives of your victims. The passage of time has worked no wonders for either Beth or for Nadine. Your own ex-wife who is not a direct victim of course, also speaks of the impact upon her. Your crimes are not distant memories for those who you physically touched. It is plain from the reading of the impact statements that each of these two young girl’s, that is what they were when you touched them, have been damaged by your conduct all those years ago. It is impossible for me to know one way or the other in relation to Carla. She has made no police statement. She has made no victim impact statement. Whilst there is a presumption of harm in relation to sexual offences committed against children and it is of course notorious that these sorts of offences are greatly damaging, Carla may hopefully have less recall given her age. Maybe she has none. I just don’t know about that. Anyway I cannot speculate about the level of impact in her case in the circumstances.
15 Beth describes in her Victim Impact Statement trying to put from her mind your conduct only then to have something occur that will trigger the memories. She was confused as a child. Anxious and worried that it might happen again. She describes the confusion. She had lost her father and the family were relying on family to help. You were part of that family. She also speaks of a feeling of guilt. She did not speak out and then she learnt many years later that you had touched others. As I said as she was about to return to the body of the court having read her Victim Impact Statement, she should have no feelings of guilt at all on that score. None. Now that is not the way she feels. The fact is though that she was a little girl offended against by you, a trusted adult. Everything that occurred to her and to others at your hands is your fault entirely. It has nothing - nothing - to do with her. You are entirely to blame. Not her. She will never forget your conduct.
16 Nadine also speaks of the deep impact of nightmares, and feelings of being messed up. She had trust issues. It had an impact on the level of freedoms extended to her in her childhood by her family. She will never forget what you did. There are so many things that trigger the memory in her case. She still all these years later, feels upset and angry at what you did to her. She did not get as she puts it ‘the childhood she deserved.’
17 Your ex-wife has a sense of shame at bringing you into the family and speaks of the damage that has been brought about to various family connections. Now I will not act on the materials touching upon the abusive nature of the relationship, the failings in the marriage or any concepts of grooming that are referred to in her impact statement. I am not dealing with those matters.
18 The impact of a crime is one of a large number of matters that I must have regard to as a judge. I do not let the impact swamp other considerations here.
19 However, I take into account the serious impact of your criminal conduct as the law requires me to.
Plea in Mitigation
20 Your counsel Mr Oldham, raised a number of matters in mitigation in a most thorough plea conducted on your behalf. He took me to your background in detail. He made submissions about the offence seriousness and the relevant sentencing purposes. He prepared an excellent written outline of plea submissions which was marked as Exhibit 1 on the plea. He relied upon a report from a psychologist Mr Parker, a report under affidavit from your GP as well as a character reference from your neighbours. He conceded that the report from Mr Parker had some pretty sizeable limitations.
21 Mr Oldham relied primarily upon:
· Your early guilty plea;
· The presence of some remorse;
· Your age and state of mental and physical health;
22 He conceded the seriousness of the offending and the aspect of breach of trust in this case. He conceded that a prison sentence was warranted here. He argued though, that in light of the various matters raised on the plea, it would be open to wholly suspend any prison sentence imposed in this case. I should interpose, that the suspended sentence is no longer a sentencing option for fresh offending in this State. Suspended sentences were abolished in Victoria and have been for many years. It is though still available as a possible sentencing option for offences as old as these as they predate the abolition date. That is only if firstly the sentence is no greater than three years and secondly, the court holds the view that it is desirable to suspend a term of imprisonment or portion of it having regard to amongst other things, the need to adequately denounce, to deter you and others and to adequately reflect the gravity of the offence.
Prosecution
23 Mr Devlin, who appeared on behalf of the Director of Public Prosecutions argued that a term of imprisonment was warranted here, and one requiring a head sentence with the fixing of a non-parole period. The prosecutor took issue with a handful of matters raised on the plea including the suggestion that the offending was opportunistic and the relevance of your age and poor health. By that I mean the prosecutor queried the cogency of evidence touching upon the impact of your health conditions and any suggestion that you had a reduced life expectancy if sent to prison. He raised issues as to the reliability and the usefulness of the report from Mr Parker and took the Court to a number of cases spelling out some of the principles dealing with aged offenders, poor health and also delay. See RLP [2009] VSCA 271 and TRG [2011] VSCA 337. I am not going to restate those various principles in full detail now or even later actually in these reasons but I take them into account.
Background
24 I turn to your background but will do so very briefly as it is set out in detail in the expert report as well as in the excellent outline of plea submissions that has been prepared. There were also some brief oral submissions as to your background. I have no reason not to accept the personal background placed before me and I see no utility in my now rehashing it in these my reasons.
25 Very briefly, you are 79 years of age born on 21 August 1940.
26 You were born in England and came to this country as an 8 year old with your parents and two older brothers. I have checked in this respect, and I am told that you are definitely an Australian Citizen. That has been confirmed this morning and that is important as there are no issues as to your potential deportation to take into account in the exercise of my discretion.
27 You left school at 15, worked as a rural labourer and then you did an apprenticeship and worked as a linesman for some 15 years. You then had other short term jobs and at one point ran a shop with your second wife. You have been married twice. There were three sons to the first marriage. Your second marriage was in 1995. There have been some issues with mental health. They are described in the report of Mr Parker and also the GP. You have been on anti-depressants. There are some physical health issues as well but they do not strike me as being particularly onerous in terms of impact upon you or as providing any great difficulties of being appropriately managed in a prison setting. I will come back to that issue shortly. There are no prior convictions at all but you were dealt with in 2007 by Judge Hampel of this Court for conduct targeting another granddaughter and one of the friends of the granddaughter. Those reasons are marked as Exhibit B. As can be seen from those reasons, the two charges were dealt with on a representative basis and related to external touching of the vagina in 2003. The two girls were eight years of age. You received a term of imprisonment with a non-parole period. Interestingly, a report from a psychologist Mr Healey was then placed before the sentencing Judge on that occasion. You had given Mr Healey an account of touching those girls innocently or accidentally in the course of playing with them and said no such things had occurred in the past. That traversal of the plea was correctly not permitted to stand by the Judge. Mr Healey was not to know it, but we learn now, that you had touched Beth in the early and then mid to late 1970’s and Nadine and Carla in 2002. Now of course Judge Hampel was not fixed with any of this detail and sentenced you as someone who had never acted in that way before as that is what she was told. She had no option but to act on that, so she sentenced you as an otherwise law-abiding citizen.
28 You pleaded guilty to that 2003 conduct but in discussions with the new psychologist Mr Parker have seemingly even denied that offending now.
29 Prior to my remand of you, you lived on your own on a boat moored up in Lakes Entrance and you are quite isolated from your family. No doubt that is owing to the discovery at the time of some of these offences and the offences dealt with previously as well. By your conduct, you have fractured all the family relationships that you would otherwise have had.
30 When interviewed by police back in 2002 in relation to the touching of Nadine and Carla in 2002, you described the touching as being accidental touching in the course of play. So the same sorts of things that you told Mr Healey over a decade ago about other criminal conduct that of course was plainly deliberate as well. As I said a short time ago, you seemingly denied to Mr Parker in March of last year having engaged in the 2003 indecent touching of the other girls the subject of the sentence imposed by Judge Hampel. Of course I ignore that denial and I focus instead on your guilty pleas. You have now by guilty plea entered on two occasions admitted sexually touching five young children.
31 You acted in this way in the early and mid to late 1970’s with Beth, with Carla and Nadine in 2002 and with the other two girls, Myrtle[6] and Alice[7] in 2003. Plainly, you had some strong sexual attraction to children when you acted as you did all those years ago, whatever account you now may give on that topic. It is hard to accept any account from you as to the nature or setting of the offending. I am certainly not satisfied that you have forgotten these acts. You still have great difficulty acknowledging what you have done. Judge Hampel commented on that back in 2007 and she was right and here you are now in 2020 even denying the acts that you admitted in front of that Judge in 2007.
[6] A pseudonym
[7] A pseudonym
32 There is however no reason for me to think that whatever motivated you to offend persists to this day. I must say I don’t draw much comfort from the risk assessment in the expert report. Mr Parker may well have factored in your denial of the past offending. I note he has received an account from you of there being no history of alcohol problems. I note also your diagnosis of alcoholic cirrhotic liver disease. It strikes me as strange that Mr Parker would not set out your account of the current offending, either that, or not ask you about it, or have available the sentencing remarks in relation to the prior crimes. That risk assessment by him was performed prior to your even admitting your guilt of these matters that I am dealing with. Plainly he should not have just acted on your account but he seems to have, to a degree. So there are some real problems with the report as is conceded by your counsel. However, I have your advanced age and your relatively poor health as providing some comfort in terms of reducing any future risk of reoffence.
Guilty Plea
33 Let me then to turn to consider some of the submissions that have been made on your behalf. The first of these relates to your guilty plea. It was your right to book the matter in for a committal so you are not to be punished for doing so. However, that led to witnesses being brought to Court. That was Nadine and Beth. Happily the matter settled and they were then not cross examined. Though not given at the very earliest opportunity, your plea will still be treated as an early plea. That is a significant matter. By pleading guilty, you took responsibility for this offending, at least in a legal fashion. There is a utilitarian benefit that applies when someone pleads guilty. Giving evidence in this sort of case can be pretty traumatic even many years after the event. Your victims have been spared the experience of coming to court and reliving in the witness box these unpleasant experiences which occurred to them as children. These cases are generally word on word. One of your victims of course was only two at the time. Enough people chance their arm and run the matter to trial. You chose to admit your guilt and that is worth a great deal. Your victims hear the word “guilty” from your mouth. You admit to them, to the court and to the world at large your guilt of this offending. They are of course totally vindicated. You admit that you have offended against them. The community has also been saved the time, cost and effort of a contested hearing. You must be rewarded for your early guilty plea. As a matter of law, I must pass a lesser sentence than would have been imposed had you pleaded not guilty. So I do take into account your guilty plea as a matter of real significance in this case.
Remorse
34 A guilty plea is usually indicative of some remorse. Here it is hard to find any other evidence of remorse. Nor does your counsel suggest there is any on display in the materials. Whilst admitting the conduct by your guilty plea, you still find it difficult to acknowledge what you have done. As I have said already, the expert report is totally silent on the offending. It discloses your challenge to any past offending against the past victims where you have previously admitted your guilt. That is not particularly encouraging. Nor was it greatly encouraging that you initially pleaded not guilty to Charge 1 when it was put to you in the course of the arraignment the other day.
35 The interview had no admissions of any note. You claim no memory. I also have your earlier denials in relation to Carla and Nadine when interviewed back in 2002 with the same theme surfacing of this all just being innocent play with accidental touching.
36 I will treat your plea as being indicative of some limited remorse and I take that into account in mitigation. I am certainly not satisfied on the balance of probabilities that you are particularly remorseful.
Age and health
37 I turn then to your age. Not just your age but the combined effect of the physical and mental issues spoken of in the two reports placed before me.
38 You are 79 years old turning 80 later this year. Just looking at your age alone, it strikes me that prison would be more difficult for one of your age. I then throw into the mix the physical issues spoken of in the reports in combination with the mental health issues spoken of and I have no doubt there is some increase in your custodial burden.
39 I do not intend to work my way through the report of Mr Parker or the report from the GP in any further detail. As I have said there are some pretty unsatisfactory aspects of Mr Parker’s report. There is just complete silence in the report as to your conduct or your account of it. Mr Parker in no way posits any opinion as to why you did what you did and maybe that is because at that stage when you saw him in March 2019, you had not admitted your guilt. You after all went along to a contested committal in September of that year and that is when the case settled. So the risk assessment has to be seen in that light as well as in the light of the false retreat from your past criminality. It is also, by the way, an old report arising out of that assessment in late March 2019.
40 Still, I do take into account those various reports in the ways urged upon me by your counsel in this sense. Mr Oldham was explicit in submitting that there were no Verdins principles engaged in this case, not even the 5th and 6th limbs dealing with custodial burden and impact. He conceded that the report had no cogency in that respect. So the six principles set out in the case of Verdins were specifically disavowed, correctly so in my view. But I take the various conditions into account in a non-Verdins fashion when considering the experience of one such as you at your age entering prison with these conditions. I also take into account the increased burden of one of your age entering prison in the midst of this global pandemic that we are encountering. It is a very uncertain world we live in and you will experience anxiety as to your ability to manage this issue in a custodial setting. You are at a vulnerable point given your age and relatively poor health. The consensus of advice is that people of your age ought very greatly limit contact with others. Indeed, so swiftly have these events moved, that late yesterday afternoon, essentially staff in this building who were greater than 65 years of age were told not to attend work and to work from home if it was possible. So you are in a vulnerable class. Whilst we are all anxious and concerned as to what lies ahead, at least in the community one can have a sense of having some autonomy and some choice in the level of contact that one has with other members of the community. You will have no real autonomy as a prisoner and it is fair to say that we in the criminal justice system are really all waiting with bated breath as we consider the possible impacts of this global pandemic if and when it hits the prisons. The Court of Appeal dealt with this concept in a decision earlier this week. See the case of Brown v R [2020] VSCA 60. It is too early to know how this is all going to play out in the prisons. I am not free to speculate about that. But it is a rapidly evolving setting, changing almost on a daily basis. Undoubtedly it is generating stress amongst us all, and it must be doing so amongst prisoners and their families. As I understand it, all personal visits have been suspended but with the hope of having increased ability to communicate in other ways, including electronically. It is for those reasons that I raised these matters with the parties upon coming onto the Bench this morning, making them aware of the directions and media release/circular and also the decision of the Court of Appeal in the case of Brown. I think as a matter of completeness, is I will mark the Corrections document that I placed on the Bar table as an exhibit in this proceeding, Exhibit F. I take these various matters into account as well.
Advanced age
41 Quite aside from the increased burden posed by the age and health issues, one undoubted consequence of the passage of time of course, is that you fall to be sentenced not as a 33 or 36 year old in the 1970’s or a 62 year old in the early 2000’s but rather as a 79 year old in 2020. You have some health issues which I have already taken into account. It is appropriate that I take into account not just the difficulties posed by one of your age going into custody but also the fact that the length of the sentence that I will impose may well represent a substantial proportion of the remaining period of your life. I hope I am wrong but at your age, you may not see life outside a prison again. So this aspect of age bears upon the severity of your incarceration and the case law in this area suggests that general deterrence can surrender some ground owing to your age and the need to give consideration to aspects of mercy in my sentencing task. So I take that into account. I am not persuaded that there is any material touching directly upon limited life expectancy or acceleration of any of the health conditions in a prison setting. I am not satisfied of that at all. Nor is there material placed before me suggesting that the various health conditions are greatly onerous or unable to be adequately managed in a prison setting. I have to act on the materials placed before me and those materials do not satisfy me of those matters on the balance of probabilities.
42 Your age is still important, I make that plain. I take it into account in a mitigatory fashion. I apply the matters that I was taken to that are set out in the various cases that have been placed before me, including the two I mentioned, RLP and TRG, as well as the case of R v Iles [2009] VSCA 197
43 These matters of age and poor health cannot be allowed to dominate my task. There is nothing in the delay since the offending which has changed the inherent seriousness of this offending or its deep impact upon your victims. Your age and relative poor health is one consideration and an important one obviously, one which I think does permit some sensible moderation of specific and general deterrence. But this is still very serious offending. You knew it then and you know it now. There is nothing in any of the materials placed before me that in any way reduces your culpability at the time of the commission of these offences. The use of alcohol at the time of Charges 3 and 4 is not relied upon in a mitigatory fashion. It is not mitigatory.
Delay
44 I turn now then to the aspect of delay. These offences occurred many years ago of course . Your counsel describes it as historical offending. That is not unusual at all. It is very common for the courts to deal with very old offending and that is because it is very common for victims not to be in a position to actually complain or for that matter to feel that they are in a position to complain. No doubt that arises as part of the dynamics of this sort of conduct. Very young victims and a trusted relative. There can be confusion, there can be fear, there can be shame and there can be embarrassment. There can be fear of not being believed. There can be fear of family dissolution or fragmentation. There can even be fear of punishment for the victim or concern felt by the victim as to what might happen to the family member. All sorts of things can and do conspire to cause delay and in the case of Carla and Nadine, we have the non-authorisation of the brief which I sense was far more common back then than now.
45 So we undoubtedly have a sizeable delay. I have offending in the early and mid to late1970’s. The most recent offences I am dealing with occurred in 2002. I have then the subsequent offending in 2003 which was dealt with in 2007 and no other material suggesting any later offending. So there is no evidence of any later conduct other than the 2003 conduct. But I must not speculate about anything untoward occurring since then.
46 As I say though, delay either in reporting of sexual abuse or delay in the sentencing of an accused in child sexual abuse cases is not unusual. Indeed, it is very common and it does not confer some automatic right to reduction of sentence. You no doubt hoped that this day of reckoning would never arrive. You hoped that your conduct in the 1970’s in relation to Beth would never be reported. When your conduct against Carla and Nadine was reported in a timely fashion back in 2002, you chose to avoid your liability and lied to the police. That was your right. It is not in any way a matter of aggravation that you took that course. Your description of accidental touching in the course of play no doubt was factored into the decision not to prosecute. You hoped that none of these matters would ever see the light of day in a court. You continued living your life. Well, so did your victims. Beth and Nadine were growing up with all the impacts of your, to that point, unacknowledged criminal conduct plaguing them.
47 I have no doubt that there is a disadvantage to you and to them with these matters being dealt with so long after the event. I also in this case have the fact of that 2007 sentence for the 2003 offences. Plainly had you been dealt with at the same time for those two charges and for instance the two dealing with Carla and Nadine, you would have received a more significant total effective sentence. There would have been two additional victims and no ability to claim an otherwise law-abiding life. You were sent to prison back then by the Judge.
48 The passage of time and the lack of reoffence by you since 2003 must bear upon your prospects of rehabilitation, upon the lack of likelihood of reoffending and the extent to which the court must give weight to specific deterrence and community protection and even general deterrence.
General
49 I turn them to make some general remarks in this case. As I have said, delay is not unusual. Old age and poor health do not justify the imposition of an unacceptably inappropriate sentence. I must pass appropriate sentences and general deterrence, must still loom large here.
50 I must take into account the nature and the gravity of the offending and the maximum penalty in play. I have to take into account the impact of the offending here and it has been large.
51 When dealing with someone for sexual offences against children, normally, specific deterrence, that is deterring the offender, and community protection are very important sentencing factors. It seems to me that the need for specific deterrence and community protection can be moderated here owing to your current age, the passage of time, the lack of any reoffending post 2003 and your current health. I also give some limited weight to the view of the expert Mr Parker as to the low risk of reoffence. Those two purposes then, specific deterrence and community protection, though they cannot be altogether ignored, can be given much less weight in this case than often may be the case.
52 You must be punished justly and proportionately.
53 I must also denounce your conduct. That is an important consideration. This was serious criminal conduct offending against these innocent young girls. Your relatives. It was disgraceful. I am prepared to conclude that you have a low enough risk of reoffence, mostly brought about by your age, health and isolated state. I have the reference from your neighbours, marked as Exhibit 4 in the proceedings which I have not really mentioned to this point. They can only ‘call it’ as they see it I suppose, but they are acting on your account of what is alleged and what has been alleged and proven in the past and you are plainly not a reliable historian in that respect. Have you for instance denied to them as you have to Mr Parker the commission of the 2003 offences? What have you told them about the current offending? What do they actually know about any of this? Do they think it relates to some accidental or innocent type of touching? Who knows? However I am not free to ignore that they have known you for many years and have never seen anything untoward occur in your dealings with their sons or grandchildren. Rehabilitation of an offender is another sentencing purpose which of course comes into play here as well. I have the large gap between offending. I am prepared to find for the reasons I have elicited, that you have a low risk of re-offence.
54 Despite the delay, general deterrence is still a powerful sentencing purpose here. Others must be deterred. It is as simple as that. General deterrence is always an important consideration when dealing with sexual offending against children and that is so even when sentencing many years after the event.
55 Child sexual offences are very serious. They are all too commonly coming before the courts and as I have said, I must have regard to the nature and the gravity of the particular offence. Here, in each case it is accepted that there was a relationship of trust in play. Here, I have the age of the particular victims. Carla was two years of age. Nadine was five, Beth six or seven and then 10 or 11. I have the impact arising from your crimes.
56 In Beth’s case I have two indecent assaults. Now indecent assault could cover a multitude of conduct back in those days. It could be constituted by touching someone on the outside of the clothing on a less intimate area or by a penetrative act. The first act was less serious at least in terms of the physical act but occurred when she was younger, lying in her own bed and at a point of time of course when she had lost her own father, your brother. The second act involved vaginal penetration in the setting described in paragraph 8 of the summary. It hurt her. Carla was only two and was touched on the outside of her vagina, I infer from the materials, over the underpants. Nadine was five and received the same treatment from you. All of that was occurring at a family gathering. This was serious offending make no mistake about that. To say it is opportunistic is a bit meaningless and perhaps really not actually that accurate. It is always a matter of degree I suppose. What were you doing going into Beth’s bedroom? Why were you playing with these children in the way that you were? You used that style of contact to touch them inappropriately, that much is very plain. If it is correctly to be labelled as opportunistic, you created opportunities pretty much out of thin air. Much of this offending was quite brazen. You offended in the presence of your own wife and the parents of the children on occasion.
`Current sentencing practice
57 I do pay regard to current sentencing practices though that is not a single, or controlling factor. It never has been actually. It is just one of many matters which I must have regard to, and that is, sentencing practices as of today’s date. Now immediately that presents a real difficulty. Indecent assault no longer even exists on the statute book and has not for years. It was replaced many years ago by the crime of indecent act (which is the crime charged in relation to Charges 3 and 4) and then later that crime of indecent act was itself replaced by the new charge of sexual assault. For a long time now, for those other more recent offences, be it indecent act or then sexual assault, there has been a higher maximum penalty than the five years provided for in relation to the indecent assaults I am dealing with. Back at the time of the acts committed by you in 1970’s, the law badged up that sort of conduct involving digital penetration as an indecent assault. At that point on the Statute book, there were charges of carnal knowledge but they only applied in the setting of penile/vaginal penetration. Conduct that fell shy of that, even though penetrative, was embraced by the offence of indecent assault. So as I said when dealing with the offence gravity a moment ago, the offence of indecent assault could embrace a touching on the outside of the clothing right through to penetrative acts as long as they were not penile/vaginal penetration of a girl. Now that all changed very many years ago. Crimes of sexual penetration were established on the Statute book and an act of sexual penetration was then defined in the legislation to include digital penetration. There were then from that point specific crimes dealing with sexual penetration of a child. From that point the crime of indecent assault, or later indecent act or now sexual assault would not then cover penetrative acts. Those acts were covered by the specific crime of sexual penetration which had the higher maximum penalty in play as well. So great caution must be adopted here by me in looking at sentences passed either recently or in the past for that matter owing to the differing maximums at play and differing conduct that can be embraced by the charge of indecent assault.
58 That is not to say that sentencing practices at the time of the offence are irrelevant. Concepts of equal justice would require me to have some regard to those historical sentencing practices if they can be discerned and if they disclosed a less punitive approach. It is almost impossible to discern sentencing practices all those years ago.
59 I have looked at the Sentencing Advisory Council's snapshots that are kept in relation to indecent assault but they are of no use at all. They only go back to the early 2000’s and relate to offending with a higher maximum. The Sentencing Advisory Council online data can be more focussed and can hone in as it does it would seem on s.55 offences which is what I am dealing with in relation to Charge 1 and 2. It gives some sense of the pure numbers in terms of sentences that have been imposed. When imprisonment was imposed the most common sentence seemingly imposed fell in the band from 12 months to two years. But they are just statistics. They give me no detail as to matters in aggravation or matters in mitigation. They give me no detail at all of the age of the offender or the age of the victim or the issues of delay or whether there is remorse or whether there was a trial conducted or a guilty plea, or whether there was a breach of trust. They give no detail as to the nature of the act, whether it was penetrative or not. They are just numbers. I have looked at some of the older snapshots for Indecent act going as far back as snapshot number 24 which dealt with sentences passed for that crime from 2001-2 to 2005-6. I have also looked at the new Sentencing manual case collection which has sections devoted to historical sexual offending. See 3.5.1.1
60 None of this is easy. I have done my best. My use of current sentencing practices has to take place it seems to me with a keen awareness of the maximum penalty which applied at the time. That is critical, and as I have said indecent assault no longer even exists. What I must avoid doing is visiting against you the increases in the maximum penalties or any trends if they exist of increasing sentences which would be founded to some extent on those increased maximum penalties. The fact remains it has always been a serious crime to commit an indecent assault or indecent act upon a child.
Serious offender provisions/totality is modified
61 I turn now to the serious offender provisions and the concept of totality of sentence that is of relevance in this case. I will be sentencing you as a serious sexual offender on every charge given the sentences which were imposed back in 2007. Under the serious sexual offender provisions contained in the Sentencing Act 1991, unless I otherwise direct, the sentences passed upon you would all be served cumulatively upon each other. (See s.6E of the Sentencing Act 1991).
62 In each case, I must regard the protection of the community as the principal sentencing purpose. The court has the power to impose a disproportionate sentence in relation to those charges to achieve that purpose. No one suggests that it is open to pass a disproportionate sentence here. I make very plain that I will not do so here.
63 These serious offender provisions exist for a reason. I am not free as a judge to ignore them. The rule as to cumulation that is set out within those provisions has an evident object and one that is not to be defeated merely by the court automatically exercising the discretion to direct otherwise. To do that, to adopt that as some routine course would undermine what is a pretty clear legislative policy within these provisions.
64 These provisions give effect to the legislative will that ‘serious offenders’ are in a special category of offenders. (See Beyer v R [2011] VSCA 15, R v RHMcl [2000] 203 CLR 452, HPW 2011 VSCA 88.)
65 I must give weight to s.6E and the nature of your offending. It is clear though that I still must pay regard to the principles of totality of sentence. Whilst those principles are undoubtedly modified by these provisions, they are still important.
66 Despite the primacy of community protection, I must also inform myself on that score by reference to the level of risk of re-offending in this same way. I have commented already as to my judgement as to you posing a low risk. That is not so much driven by the risk assessment but rather by your advancing years, age and isolation.
67 I have given consideration to the overall effect of the sentences imposed by this court. I have engaged in a last look at the overall effect in endeavouring to avoid a sentence that might be crushing upon you. I strive to ensure that the overall effect is consistent with your overall criminality. Your overall criminality was very high.
68 Quite apart from the presumption in favour of cumulation that is found in s.6E, there would of course be a strong need to cumulate portions of the sentences here. None of your acts were minor crimes. They were separate acts. Separate crimes committed upon separate victims with individual impacts. True it is that the acts committed upon Carla and Nadine occurred on the same day. But they are separate victims. I do not roll them up together. One of them was two years of age. There were two acts upon Beth years apart. The need for meaningful cumulation between sentences would be obvious quite independent of the serious offender provisions directing cumulation.
69 What I cannot lose sight of is that your serious individual crimes have been committed upon individual victims. They must be reflected in the appropriate individual sentences being imposed and in the level of cumulation ordered. Necessarily though, I must to some extent otherwise order concurrency under 6E. If not, every sentence would cumulate upon the base sentence and upon each other and that outcome would be crushing, especially for one of your age. In recognition of the principle of totality, modified as it is in this case, I am going to order a decent measure of concurrency in this case.
70 Prison is always a disposition of last resort. Balancing these factors as best I can, I am left with no doubt at all that the only appropriate sentence is one of imprisonment. That is, of course, conceded by your own counsel. There is no ability to deal with you by way of a stand-alone community corrections order. It would not give adequate weight to the relevant purposes including the need to give weight to general deterrence. Even a combination type sentence, that is to say release onto a community corrections order after the service of a term of imprisonment cannot be considered here. I only have 12 months prison to combine with a community correction order and that plainly is not sufficient. A suspended sentence is different in that I have three years' imprisonment at my disposal. But it is not my task to focus on that outer limit of three years and to then consciously tailor the sentences to leave that outcome as one that is open. If the appropriate individual sentences with the appropriate measures of cumulation rules out that option, so be it.
71 I take into account all of the matters that have been raised by your counsel, including of course all the materials that have been placed before me.
72 The most serious offence in my view is Charge 2 relating to Beth and that will attract the longest sentence which I will designate as the base sentence in this case. That is so despite that offence as well as the indecent assault the subject of Charge 1 both having the lower five year maximum term of imprisonment.
73 Stand up please Mr Harper.
Sentence
74 On Charge 1, indecent assault upon Beth Harper, I convict and sentence you to nine months imprisonment.
75 On Charge 2 relating to the other indecent assault upon Beth Harper, I convict and sentence you to 26 months or 2 years and 2 months imprisonment.
76 On Charge 3 relating to an indecent act committed upon Nadine, I convict and sentence you to 14 months imprisonment.
77 On Charge 4, indecent act committed upon 2 year old Carla, I convict and sentence you to 16 months imprisonment.
Serious Offender
78 Unless I otherwise order under section 6E, the entirety of the sentences on Charges 1 3 and 4 would be served cumulatively or consecutively, upon the base sentence imposed on Charge 2 and upon each other.
79 So I obviously have to make orders under s.6E. What I am going to do is set out the extent of cumulation and I will do that even though the legislative framework mandates that I announce the extent of concurrency. I think it is far easier for all concerned if I deal with cumulation. Now of course that will at the same time then provide the extent of concurrency otherwise ordered under s.6E of the Act.
Base
80 I direct then that the base sentence is the 26 months imposed in relation to Charge 2 committed upon Beth.
Cumulation
81 I direct that 3 months of the sentence imposed on Charge 1 (6 concurrent), 6 months of the sentence imposed on Charge 3 (8 concurrent) and 6 months of the sentence imposed on charge 4 (10 Concurrent) are to be served cumulatively upon the base sentence and each other.
Total Effective Sentence
82 This produces a total effective sentence of 41 months or three years and five months' imprisonment.
Non-parole Period
83 That total effective sentence precludes any consideration of a suspended sentence. I have to fix a non-parole period in this case given the dimensions of the head sentence that I have imposed. I fix a period of 21 months during which you will not be eligible for release on parole.
Section 18
84 You have already served five days in custody and that is to be entered into the records of the court.
Serious Offender Status
85 So too is the fact that you have been sentenced as a serious sexual offender on each of these charges.
6AAA
86 I have taken into account your guilty plea. Had you been found guilty after running a trial I would have imposed a 5 ½ year term with a three year non-parole period. I will have you sit down now please. I need to do one further thing, but it will take a little bit of time.
Sex Offenders Registration Act 2004
87 You have been sentenced in relation to registrable offences. Pursuant to s.34 of the Sex Offender Registration Act you must comply and continue to comply with your reporting obligations under that Act for the remainder of your life.
88 I am shortly going to have handed to you a document that explains the terms of that Act and the conditions which will apply to you upon your release from prison including of course the need to report your personal details to the Chief Commissioner of Police for the remainder of your life.
89 There are very many other obligations cast upon you which you will see on that document. You will need to familiarise yourself with those provisions, as a breach of them is itself a very serious criminal offence and the provisions can easily be breached by having any association with a child.
90 Mr Oldham you would have seen these documents before. They are very long indeed. They set out his various obligations under the Sex Offenders Registration Act. I am not expecting he is going to sit down there now and read every word of the longer document coming to him. That would be just impossible. What I have printed out is what I am required to print out, his obligations under the Act which he will take away with him, and I will be asking him to acknowledge by way of signature in the appropriate place marked on the document that he has been served with his reporting obligations; do you understand that?
91 Can you go down there and just discuss that briefly if you need to and have him sign that acknowledgement please.
92 MR OLDHAM: Yes, Your Honour.
93 HIS HONOUR: All right, your client has signed that acknowledgement. So I'll get my associate to sign it and then that will be complete. Are there any other matters that I need to deal with as a matter of sentence or not ? No?
94 MR DEVLIN: Yes, Your Honour, and I may have missed this and I apologise, as I was doing the maths. Your Honour's sentence is 41 months and that all adds up, that is fine. Did Your Honour announce a non-parole period
95 HIS HONOUR: Yes, of 21 months.
96 MR DEVLIN: Twenty one months.
97 HIS HONOUR: Yes.
98 MR DEVLIN: I beg your pardon, Your Honour, I was distracted.
99 HIS HONOUR: That is all right.
100 MR DEVLIN: 6AAA Your Honour?
101 HIS HONOUR: Yes, five and a half with a three.
102 MR DEVLIN: Otherwise nothing from the Crown.
103 HIS HONOUR: All right. Look I have - anything from you Mr Oldham?
104 MR OLDHAM: Nothing from the Bench Your Honour.
105 HIS HONOUR: Any - do you - are there any issues in terms of custody management? I mean I raised it the other day?
106 MR OLDHAM: No, as raised the other day, Your Honour.
107 HIS HONOUR: All right. Yes, all right, well look, that completes the matter, I will sign the formal order in my chambers. I will see whether there is anything in the reserve list, but I may even be - we may not have a court, but it will not involve either of you I will stand down I think at this stage and just consider the reserve list. Thank you. You will go down and see him downstairs will you?
108 MR OLDHAM: I have got to zip across the road, Your Honour, but I will see him shortly.
109 HIS HONOUR: All right, your counsel will see you Mr Harper. So Mr Harper can be removed. Thank you. Yes, thank you.
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