Director of Public Prosecutions v Harris

[2014] VCC 2223

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

NATHANIEL HARRIS (A Pseudonym)

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	24 November, 10 December 2014
DATE OF SENTENCE:	18 December 2014
CASE MAY BE CITED AS:	DPP v Harris
MEDIUM NEUTRAL CITATION:	[2014] VCC 2223

REASONS FOR SENTENCE
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Subject:  Sentencing; plea of guilty

Catchwords: Failing to comply with reporting obligations; sexual penetration of a child under 16 (aged 9); prior offending against other female children; whether s 6D requires disproportionate sentence to protect community

Legislation Cited:                   Sentencing Act 1999; Sex Offenders Registration Act 2004
Cases Cited:

Sentence:TES: 3 years, 9 months; Non-parole period: 2 years, 8 months; Pre sentence detention: 8 days; Forensic Sample Order

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N. Hutton	OPP
For the Accused	Mr M. Langlois	VLA

HER HONOUR: 

1Nathaniel Harris[1], you have pleaded guilty to one charge of failing to comply with reporting obligations under the Sex Offender Registration Act 2004 and one charge of sexual penetration of a child under the age of 16. You have also admitted prior offending to which I shall refer shortly.

[1] A Pseudonym

2The maximum penalty for the charge of failing to comply with reporting obligations is five years' imprisonment.  For Charge 2, sexual penetration of a child under the age of 16, it is in these circumstances 25 years' imprisonment because the child was under the age of 12.

3These respective maximum penalties, and in particular for Charge 2, reflect parliament's view of the relative seriousness of these offences.  I have taken those respective maximum penalties into account in deciding your sentence.

4To explain the circumstances that gave rise to these charges, a little needs to be said at this stage about your prior criminal history, which is the background to both of these offences.

5In January 2010, you were convicted in the Magistrates' Court of Queensland on 11 charges relating to sexual offences against children.  One of those children was a niece, aged under 16 at the time of the offence, and the other charges involved two girls aged under 12, both being your granddaughters.  I shall not repeat the details of those offences, but have read summaries of them and note that each arose in circumstances when you were alone with one of the girls related to you and you committed various indecent acts with each of them.

6Those charges resulted in your being sentenced to four years' imprisonment, of which you served 16 months, and the balance was suspended for a period of five years.

7Following your release from prison in Queensland, you moved to Victoria where you were registered on the Sex Offenders Register and became subject to the reporting conditions under the Victorian legislation, that is the Sex Offenders Registration Act 2004.  Reporting conditions required you to notify police, amongst other things, of any change in your employment, of any social media accounts you used, and also prohibited you from having unsupervised contact with children, unless with prior permission.

8You moved to Victoria with the assistance and ongoing support of your mother and stepfather.  They knew of the nature of your offending in Queensland and gave you a second chance.  So did your brother and his wife, who live in Victoria, and they were prepared to trust you enough to involve you with their family.  This resulted in your developing a close relationship with their daughter, who was aged nine to ten at the time of the offending which brings you before this court. You would take her shopping, buy her gifts and had regular contact with her via the internet through Facebook, instant messaging and video voice calls.  She was also allowed to stay overnight with you on occasions.

9In April 2013, you commenced employment as a relieving manager at a local motel.  You would stay there overnight when working the night shift, but otherwise lived in a nearby unit.  In the first week you worked as the motel manager, you arranged for your niece to stay overnight with you.  She was to assist you in the morning with making beds and preparing breakfasts for guests, and you gave her money for doing so.

10You and she slept in separate beds in the same room.  However, one night she woke you and told you that she could not sleep.  You told her that she could sleep with you in your bed.  She got into bed with you and you rubbed her on the back and bottom and then digitally penetrated her vagina, causing her pain.  She told you to stop and you removed your finger.  She then returned to her bed.

11On another occasion during the next few months, you arranged for her to stay overnight with you again whilst you were working at the motel.  When she was in bed, you went into her room, told her you were going to help her get to sleep, got into bed with her, rubbed her back and bottom and then again inserted your finger into her vagina.  She started crying and told you to stop and you did so.  You then left the room.

12On a further occasion, she was with you at your unit staying overnight.  While lying on the couch in the lounge room, you sat next to her and rubbed her on the vagina and again digitally penetrated her.  She again started crying and told you to stop a number of times.

13Two to three months later, whilst she was staying with her maternal grandmother, her grandmother asked what was upsetting her having noticed a change in her behaviour.  She disclosed that she did not like what you do, that was naming you as her uncle, and then explained what it was you did.  The following day, she disclosed those matters to her mother and police were contacted.

14Charge 2 is a representative charge based on you have committed digital penetration of her vagina on three occasions.  The first occasion is the basis of the charge.  That means that it is the circumstances of that first occasion which I consider in assessing both the objective and subjective seriousness of your offending under that charge.

15Objectively, the deliberate sexual penetration of a child aged nine can only be regarded as very serious, and all the more so in circumstance where there was such a great disparity in ages, you being more than 40 years older than her, and you being in what ought to have been a protective relationship as her uncle. You had been entrusted with her care and welfare by her parents letting her stay overnight with you.  It was also an aggravating factor that you were subject to a suspended sentence at the time, which ought to have made you even more careful to avoid any temptation to offend against another child.

16As to the subjective seriousness, I regard the circumstances of the first occasion covered by this charge as reflecting opportunistic offending rather than it being pre-planned, even though your attention to her had overtones of grooming to it.  What I regard as opportunistic is that on the first occasion, she approached you when you were in your bed to say that she couldn't sleep, rather than you seeking her out for the physical contact which followed.  That in no way excuses you, but your offending seems to have been opportunistic on that occasion.  The same cannot be said about the latter two occasions represented in this charge, but it is the first I must and have assessed.

17Charge 1 is a rolled up charge of failing to comply with reporting obligations under the Sex Offender Registration Act 2004.  The charge consists of you failing to notify within 14 days that you had obtained employment, failing to report creating two Facebook accounts, and having unsupervised contact with your nine year old niece without notifying that intention and seeking permission.

18There was no explanation for this offending offered during the plea hearing, but from what it is reported you told a forensic psychologist, you had burnt the paperwork about your reporting obligations, and did not regard these various matters that you failed to report as anything unusual.

19In my view, it reflects very poorly on you and your professed desire to be assisted to learn strategies to avoid further offending, that you did not take seriously enough the reporting obligations under the Sex Offender Registration regime to keep a copy of the requirements and learn their contents.

20While with hindsight, it is clear that you used your new place of employment for the first of the offending against your niece, that was before the 14 day time limit for notifying that employment, and your Facebook account was only one of several ways you had ongoing contact with her.  However, it is very clear that having unsupervised contact with your niece would not have been permitted without investigation of the proposed venue and circumstances had you complied with your obligation to seek permission, and that was central to your committing Charge 2.

21A couple of days after your offending against your niece was discovered, your sister-in-law conducted a pretext telephone conversation with you, into which police were listening, and during that conversation you stated that you would sleep with your niece and wrestle with her.

22There can be no question that your conduct towards your niece was a huge betrayal of the trust that she, as a child, and your brother and sister-in-law had placed in you - the latter, your brother and sister-in-law, knowing of the offences that you had committed in Queensland.  Apparently, your mother and stepfather continued to support you, even after this became known, but your relationship with your brother and his family has been hugely damaged, I assume, probably irreparably.

23I have read victim impact statements of both your brother and sister-in-law, the parents of the child involved.  I shall not repeat details of what they say, but they describe the impact on their daughter's personality, as she has lost her previous confidence, and it is clear that both of them feel personally betrayed by your actions after giving you the second chance that you sought.  It is also clear that your brother has felt isolated from other members of his family, including his and your mother, who has since died.

24Your niece has been receiving counselling, which is appropriate, and it is to be hoped that in time she recovers from the effects of your offending.

25In the hearing before me, you chose to go into the witness box where, on oath, you told me that you do not seek to make excuses and you recognise that your offending may have long term impact on your niece.  You apologised to your brother and sister-in-law.  You also thanked them for the trust that they had originally placed in you on your return to Victoria.  You say that you want help through programs to teach you how to avoid future offending of this type.  You seem to realise that what you have done is wrong, and express remorse for it, but also seemed to me to be waiting for some cure for your inclinations towards these young girls.

26There is no miracle cure for anyone in your situation.  If you do engage in appropriate programs, it is to be hoped that you can learn how to recognise and avoid circumstances which may lead you into this type of behaviour again.  However, ultimately the onus is on you to recognise and avoid those circumstances.

27I find it difficult to believe that you would not have realised that you should not invite your nine year old niece to get into bed with you, even if she had approached you on the basis that she could not sleep.  You were still on a suspended sentence at the time for the Queensland offences and that is an aggravating factor.  It should also have been a huge warning to you to avoid the possibility of whatever temptation comes over you to deal in a sexual manner at all towards a prepubescent female relative.

28You have pleaded guilty to these charges and your counsel puts that as the main mitigating factor on your behalf.  Although the plea was not at the earliest opportunity, as the case had been listed for trial, I accept that it still attracts considerable leniency for you.  As well as the utilitarian value of saving the community the time and cost of a trial, it most especially saved the complainant from having to give evidence.  Further, it saved her parents from having the stress of knowing she had to give evidence, and indeed of possibly having to give evidence themselves. As she is still only 11 years old, the stress and upset of having to recall those events, as I have said, both for her and for her parents and grandmother, would obviously have been considerable, and that attracts considerable leniency for your plea of guilty, which has avoided that need.

29Your plea of guilty also reflects that you have accepted responsibility for your offending actions and, as I have already explained, is consistent with the remorse that you expressed from the witness box.  I shall tell you after I announce your sentence what it would have been had you not pleaded guilty.

30I turn now to your personal circumstances.  You are now aged 57.  It is said that there was nothing remarkable about your childhood, although I am told that your father left the family when you were four years old, and I am also told that you were sexually abused by an older cousin between the ages of eight and 12, although this was never reported to any adult.  Your mother remarried years later, after you had left home, and you apparently got on well with your stepfather.  Both your mother and stepfather passed away earlier this year.

31You left school aged 15, and also left home at about that age.  You started working with the railways, where you remained for some 25 years, ultimately promoted to positions of responsibility, such as safe work inspector.

32You married relatively young and had two children.  The marriage had difficult times, apparently with infidelity by both you and your wife, and with some separations but then reuniting over the years.  When your daughter suffered serious illness at age 13, you and your wife left your respective employment and moved to Queensland.  You found other work there but did not like it.  You apparently, at that stage, had an internet relationship with someone overseas and your wife left, but you subsequently reconciled and ultimately, you became the homemaker while your wife worked.

33By this stage, you had been diagnosed with a serious health condition and had undergone surgery for it.  A payout of disability insurance allowed you and your wife to buy a home in Caloundra.  However, you borrowed against that house to buy the management rights of a set of holiday units, which you then ran. It was in that setting, that is at those holiday units, that the offending against your granddaughters and niece occurred. 

34You apparently also had a long history of watching pornography, which came to include child pornography, and you say that that turned from watching it to reality in the settings you found yourself with your young relatives in Queensland. 

35On that Queensland offending becoming known, you and your wife separated finally.  She moved back into the house in Caloundra and the business was sold.  I have already said that you underwent a term of imprisonment there.  On coming out of prison, you were homeless and your mother financially assisted you to move to Victoria.

36You have suffered a number of medical conditions over the years.  While in Queensland, you suffered, as I have said, a tumour in the pericardium, for which you underwent surgery.  You spent six months in hospital recovering from that in October 1998.  You apparently have also been diagnosed with neurological problems, the subject of investigation more recently by Professor Steven Collins in a report tendered to me.  You are on medication for this condition and have been having intravenous infusions weekly or fortnightly.  I was told at the plea hearing that this is under review as you need them more regularly than fortnightly.  Presumably, this will be investigated and you will receive appropriate ongoing treatment whilst in custody. You have other medical conditions and are on medication for those and a long list has been provided. 

37You have also suffered depression and anxiety and in 2011, were diagnosed as suffering Bipolar Disorder.  You were treated by a consultant psychiatrist, Dr Scott Eaton.  You are prescribed medication, which your general practitioner has continued to prescribe for you.  There is apparently a strong family history of schizophrenia and Bipolar Affective Disorder.

38You also have a history of alcohol abuse and some illicit drug use, but say that you promised yourself on being imprisoned in Queensland never to return to use of alcohol or those other drugs, and have managed to abstain from them since being released.

39As I have said, you have an acknowledged history with anxiety and depression in the context of your Bipolar Disorder.  Although you have undertaken counselling, you have been unable to continue to afford it.  It seems clear that your mental health requires further treatment, both by way of medication and counselling.

40I have taken into account, as requiring some moderation of your sentence, that your various medical conditions are likely to make the burden of your time in prison more onerous than that time would be for someone not suffering from those various conditions.

41You have been recently assessed by forensic psychologist, Pamela Matthews.  She outlines your personal and psychological history as you related it to her.  Her assessment was that you presented as a depressed, anxious man concerned about a return to custody, and you reported suicidal ideas, saying that you had made five attempts over the past five months.  You had apparently also made attempts around the time that you were charged with offences in Queensland.  You are taking Seroquel which makes you sleepy.

42Ms Matthews assesses your understanding to be in the average range, with some insight into your offending, although she notes that while intellectually you would acknowledge some long term impact on the victim of your offending, you were emotionally dismissive of it in stating that, "She is resilient, she will bounce back."

43Ms Matthews applied what she calls modern risk prediction and management considerations, in making an assessment of the risk of you reoffending.  She noted evidence of chronicity of offending, taking into account the similar matters in Queensland.  She noted that your present and previous victims are in a similar age range so there was no suggestion of diversity and no evidence of escalating sexual violence. There was no use of deceptive conduct.  You express a desire to overcome your behaviour, but also blame the Queensland prison system for not providing treatment, and she felt this resulted in your meeting the criterion for attitudes that support or condone sexual violence.

44Ms Matthews took into account that you consider yourself vulnerable to psychological stress, have some insight into the social isolation and mood disturbance you were suffering being connected with the dynamics of your offending.  She commented that you describe having problems from your own experience of child abuse, that you do not evidence forms of personality disorder, and that you report a history of anxiety and depression, agoraphobia and Bipolar Disorder and therefore meet the criterion for major mental illness.

45She considers that you would meet the diagnostic criteria for paedophilia, as there is evidence of a persistent pattern of behaviour for six months or more.  She also noted a small number of psychosocial supports to counteract that.

46By not complying with the terms of the Sex Offender Register order, she felt you meet the criteria for problems with supervision, and it is her you told that you did not think there was anything unusual in the activities that ought to have been reported.

47She concluded that your risk of future offending in a similar manner is estimated to be high.  When you gave evidence before me, you were asked how you assess your risk of future offending, and you called it medium.  I take into account that if you regard it as medium and she regarded it as high, it is in a range that must be a very serious concern in my sentencing of you.

48Ms Matthews finally noted that you reported beginning to view adult pornography at an early age and that in approximately 2004, you stumbled across child pornography.  She notes that unlike many people who view child pornography, you progressed to contact offending.  She also notes of relevance the diagnosis of Bipolar Disorder, which predates the current offending, and says that that can have a direct connection to increased sexual activity during hyper-manic or manic phases, but notes that it does not account for sexual preference.

49She noted that factors likely to increase the risk of your reoffending include access to children under the age of 18, and in particular female children, access to child pornography, unstable mental state, psychosocial stress, lack of employment or daily occupation, lack of sexually intimate relationship with a consenting adult, social isolation and lack of social supports.  There was also risk if you had a substance misuse relapse, and lack of access to treatment focussed on sexual offending. Factors likely to decrease offending were strategies that address the risks that she mentioned.

50In light of your prior offences against young female relatives, there clearly needs to be a strong element of specific deterrence in your sentence.  That means that the sentence must be a salutary warning to you that further offending of this nature will attract stern punishment.  That need is highlighted by the fact that at time of the offences on which I am sentencing you, you were still subject to the partially suspended sentence imposed in Queensland.  My sentence plays no role in punishing you for breaching that sentence, but it is clear that neither the 16 months you served in prison there, nor the sanction of the suspended balance of the sentence hanging over you, was sufficient to deter you from engaging in further offending of a similar nature.  The sentence I impose must address that purpose.

51It also should go without saying that a sentence of this type must convey a strong element of general deterrence - that is, to send a message to others tempted to engage in this type of conduct, that stern punishment is likely to result.

52Further, owning to your prior sexual offences against children interstate, you fall to be sentenced as a serious offender on Charge 2. That means that if a sentence of imprisonment is justified, which in my view it is, pursuant to s.6D of the Sentencing Act in determining the length of a term of imprisonment, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed.  In this case, the prosecution submitted that to achieve that, protection of the community, a sentence longer than that which is proportionate to the gravity of the offence should be imposed.

53I have already said that the forensic psychologist who assessed you estimated your risk of reoffending as high.  She mentioned as a risk factor, you having contact with children under the age of 18. Her opinion was not specific as to that being only with young female relatives.  To protect the community, it seems to me that I should assume that the risk includes other young girls outside your family, were you to have unsupervised contact with them.

54In the circumstances, however, I do not consider protection of the community from you requires a disproportionate sentence from what other sentencing factors would attract, but I have certainly regarded the protection of the community as the principal purpose for the length of time in prison that I shall impose.

55There can be no doubt, and it was conceded on your behalf, that no sentence other than one of immediate imprisonment is appropriate, and I remanded you in custody last week for that reason.  The eight days you have been in custody since then will count towards your sentence.

56It is anticipated that you will have access to appropriate sex offender programs whilst in custody.  You seem to acknowledge that it is in your own interest to undertake such program or programs.  It is clearly in the community's best interest that you do so in an effort to minimise the risk of you reoffending.  However, I have no control over the provision of programs to you.  It is to be hoped that you can undertake appropriate programs as soon as possible and for as long as possible during your term of imprisonment.

57Another consequence I have raised before starting these reasons for sentence is an issue that goes to the technicality of whether both of these sentences are cumulative on each other or not.  Obviously the longer sentence for the more serious charge is on Charge 2. In my view there should be some cumulation of the sentence I will impose on Charge 1, noting that it was a separate offence from your actual actions against your niece, and noting that it was one of those failures to comply with the reporting conditions that enabled the other offending.

58Have you clarified that Mr Hutton?

59MR HUTTON:  I apologise, Your Honour, for interrupting at a crucial moment in the sentence, Your Honour expressed perhaps a preliminary intention to make the sentence on Charge 2 the base sentence.

60HER HONOUR:  Yes.

61MR HUTTON:  My reading of s.6E says that the sentence on Charge 2 must be, unless otherwise directed, ordered to be served cumulatively on any other sentence imposed previously or at the same time.

62HER HONOUR:  Well that is the very problem that normally the larger sentence would be the base sentence.

63MR HUTTON:  But you cannot cumulate something that does not exist.

64HER HONOUR:  But if they were both cumulative, then I would order a certain amount of concurrency.

65MR HUTTON:  Yes.

66HER HONOUR:  You say that I cannot do it this way, that I would have to direct partial concurrency of the second sentence on the first?

67MR HUTTON:  As best I can make sense of s.6E, firstly s.6E applies in my submission.

68HER HONOUR:  Yes.  But it applies to Charge 2, not to Charge 1.

69MR HUTTON:  And if you made Charge 2 the base sentence and announce that to be the base sentence, then there is nothing upon on which Your Honour can order cumulation or indeed concurrency until you get to the sentence on Charge 1.

70HER HONOUR:  I would be doing that and I have set it with the concurrency direction for that same amount.

71MR HUTTON:  As long as Your Honour is content with that, just that it has puzzled me, I must say.

72HER HONOUR:  Those provisions puzzle me too because we understand what the intention behind them is, but it just does not necessarily fall when there are multiple charges and there is another complication which is how the computer program, which has to be used, has been programmed.

73MR HUTTON:  Yes.

74HER HONOUR:  All right, Mr Langlois, do you have anything to add?

75MR LANGLOIS:  Your Honour, I do not really have anything much to add.  I agree with my learned friend.  It is clear in the Act Your Honour that the sentences for relevant offences must be served cumulatively.  Charge 1 is not a relevant offence.

76HER HONOUR:  So it does not get served cumulatively on Charge 2, except to the extent that I order it to be.

77MR LANGLOIS:  Yes, Your Honour.

78HER HONOUR:  But the question is whether Charge 2, being the longer, can be the base sentence.  And my understanding is that is what the computer will make it whether I order it or not.

79MR LANGLOIS:  Your Honour, I do not have anything to add.

80HER HONOUR:  The complication of those provisions of the Act mean that I am going to tell you the effective sentence I propose and then make the specific orders.

81On Charge 1 of failing to comply with your reporting obligations under the Sex Offenders Registration Act, you are convicted and sentenced to eight months' imprisonment.

82On Charge 2, being a representative charge of sexual penetration of a child under 16, you are convicted and sentenced to three and a half years' imprisonment.  That is the base sentence as I understand it.

83The total effective sentence I intend to create by my orders is one of three years and nine months' imprisonment, and I order that the minimum term you are required to serve before being eligible for parole, is two years and eight months.

84To achieve that, I direct that three months of the sentence on Charge 1 be served cumulatively on the sentence on Charge 2 and out of abundance of caution, I direct that five months of the sentence on Charge 2 be served concurrently with the sentence on Charge 1.

85I declare eight days already served in custody in respect of these offences to be reckoned as time served towards this sentence and that that be recorded in the records of the court.  Those days will be deducted from both the head sentence and from the non-parole period and that will occur administratively.

86For the purposes of s.6AAA of the Sentencing Act, I state that if you had not pleaded guilty to these charges, but had been found guilty by a jury, I would have imposed a total effective sentence of five and a half years' imprisonment with a non-parole period of three years ten months.

87Pursuant to s.6F of the Sentencing Act I declare that you are sentenced on Charge 2 as a serious offender and direct that that be recorded in the court records. 

88You are already registered on the Sex Offender Register for life, so no further orders or paperwork is required to achieve that.

89I also make an order for a forensic sample to be taken from you to enable your DNA to be placed on the state's database.  I limit that to a scraping from the mouth.  That is a swab is rubbed against the inside of your cheek.  I make that order due to the seriousness of the nature of the offending.  I warn you, as I must, that if you resist, an authorised officer may use reasonable force to take the sample, but as it is only a swab from the inside of your mouth, it is not intrusive and unless you resist, there will be no force and it will be painless.

90I am just going to check with counsel if those orders cover everything that needs to be covered and whether those cumulation and concurrency orders appear satisfactory in the circumstances to achieve what, as I say, is intended to be three years nine months total effective sentence with a non-parole period of two years and eight months.

91MR HUTTON:  The maths is correct, Your Honour.

92HER HONOUR:  Thank you.  And there is nothing else I need to declare or order?

93MR HUTTON:  Pre-sentence detention?

94HER HONOUR:  I think I did.  The eight days.

95MR HUTTON:  Thank you, Your Honour.

96HER HONOUR:  Mr Langlois?

97MR LANGLOIS:  Your Honour, the maths is correct in Your Honour's application.

98HER HONOUR:  Thank you.  It is that issue of that cumulation.

99It is just a matter of finalisation of the order, but I do not to keep everyone in court for that.  It will be done as soon as it is effected and I have signed the 464ZF order and there will be a copy for both parties.

100I have given a copy of the forensic sample order to both sides.  Mr Harris, do you understand the sentence?

101OFFENDER:  Yes, Your Honour.

102HER HONOUR:  It is a total of three years nine months, less the eight days you have already been in custody and non-parole period is two years and eight months, also less that eight days and my understanding is the Parole Board will require you to complete programs before they will consider you for parole, but in the end, it is in the Parole Board's hands when or if you are granted parole.

103OFFENDER:  Yes, Your Honour.

104HER HONOUR:  The other thing I just want to make clear Mr Harris is when I say a pseudonym is going to be used for you, that will not be in the prison system but it is so that publication of this decision does not disclose the identity of the victim of your offending.

105OFFENDER:  Yes, I understand.

106HER HONOUR:  All right.  Can we have Mr Harris removed from the court room please?

107There is nothing else you want to raise?

108MR LANGLOIS:  No, Your Honour.

109HER HONOUR:  The orders have been signed.  The directions about cumulation and concurrency come in a rather strange order but they are in the system and that should create that total.

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