Director of Public Prosecutions v Harris (a pseudonym)

[2018] VCC 2039

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT HARRIS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 November 2018
DATE OF SENTENCE:	6 December 2018
CASE MAY BE CITED AS:	DPP v Harris (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC

REASONS FOR SENTENCE
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Subject:                   Trial - sentencing

Catchwords:           Incest - indecent act with a child under 16

Legislation Cited:    Sentencing Act 1991, Sex Offenders' Registration Act 2004

Cases Cited:

Sentence:                5 years’ imprisonment, 3 years’ non-parole period and $600 fine

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. D. Cordy	Office of Public Prosecutions
For the Accused at hearing For the Accused at sentence	Mr. J. Lowy Mr. T. Lavery	Docherty Legal

HIS HONOUR:

1Robert Harris[1], you have  been found guilty by jury verdict of one charge of indecent act with a child under 16 and one charge of incest. 

-    Indecent act with a child under 16 carries a maximum penalty of 10 years' imprisonment. 

-    Incest carries a maximum penalty of 25 years' imprisonment.

[1]Robert Harris is a pseudonym

2You are currently 60 years of age, having been born on 14 December 1957.  At the time of the offending from March 2001 to March 2003 you were aged from 43 to 45. 

3You have no past criminal history.

4By way of background, you are the biological father of the victim (who was born in 1996) and her sister (who was born in 1997). 

5You married the victim's mother in 1995.  You separated in the year 2000.  After the separation, the victim and her sister initially spent time with you on alternate weekends. 

6The offending occurred between 1 March 2001 and 1 March 2003.  The victim was about five or six years old.  At the time, she and her sister were staying with you at your home in Carisbrook which you shared with your partner at the time, Janet Reed and her children. 

7The circumstances of the offending can be summarised as follows.

8The victim recalls an occasion when she was about five or six years old.  The former partner was not at home.  The victim recalls you walking into the bedroom after having a shower.  She recalls you calling out to her, "[Name], come in here please." 

9The victim went into the bedroom.  You told her to close the door.  You were sitting on the bed.  You told her to come to you and sit on your lap.  She did as she was told, and you said, "Can you do something for me?" She said, "Yes."  You opened your robe and she saw your penis and scrotum.  Your penis was hard.  You then grabbed her hand and put her hand on your penis.  You put your hand to move her hand up and down your penis, masturbating you.  This conduct gives rise to Charge 1, indecent act with a child under 16. 

10She tried to pull her hand away but you held onto it tightly.  After about five minutes you told her to hop off and get on the ground in front of you.  She then stood in front of you facing you.  Your legs were open and she was standing in front of you.  She was standing in front of your legs.  You told her to kneel down, which she did.  You then put your hand on the back of her head.  You pushed her head forward so that her mouth was towards your penis.  She was pushing back against your hand.  You were saying, "It's all right, it's all right, you can do it."  The victim said, "I don't want to" and started crying.  You said it was okay, and pushed her face near your penis.  You then put your penis in her mouth.  This conduct gave rise to Charge 2, incest.

11While she was kneeling, you opened her mouth by putting your thumb on her chin and pulling down on her chin.  You were holding your penis in one hand and with the other hand pushing her face to your penis until your penis went into her mouth.  The victim was crying as you moved her head back and forth.  Initially, you did this slowly then got faster.  You ejaculated into her mouth.  You were moaning.  You then said, "You can swallow it" and she did.  She got up off the floor and ran to the door.  She was crying and coughing.

12

In late 2015, the victim reported the matter to police.  On 21 March 2016, you were interviewed by police.  You denied the allegations and stated that on no occasion were you on your own with the girls.    

13Victim impact statements from both the victim and her mother were tendered on the plea.  The victim has suffered feelings including isolation, distrust of others, stress disorder and depression.  Her mother has suffered emotional trauma from being reminded of past experiences, nightmares and the return of a post-traumatic stress disorder condition.  She felt the need to relocate interstate and is in the care of a psychiatrist. 

14I now turn to your personal circumstances. 

15You were born in 1957.  You enjoyed a basic but caring home environment, free of excessive drinking and violence.  You were the eldest of five siblings.  I note that first a neighbour and later a member of the Catholic priesthood sexually abused you, so your childhood was not without significant trauma despite the loving home environment.

16You completed school up to Year 10, achieving reasonable grades. 

17You have been employed in a variety of jobs from a train carriage cleaner to a welder, last working in horticulture/gardening in 2011 whilst completing an adult apprenticeship in viticulture. 

18You have two adult children, a son and a daughter from a five-year relationship you had between 1982 and 1987.  You remain in contact with those children. 

19You were in a relationship with the mother of the victim from 1995 until 2000 and then with your partner at the time of this offending from around 2001 until 2005.  You and your former partner moved to a rural city in 2004 and you remained there until you were remanded.  To this day you remain close to both her and her daughter.

20

Your younger daughter came to live with you in her teen years and continued to live with you on and off after the birth of her daughter.      

21Having previously injured your back in around 2001 in the workplace, you ceased work in 2011 and have since been on the Disability Support Pension.   You now suffer long-term hip and spine issues. 

22Prior to incarceration, you were receiving pain treatment in the form of Tramadol and Meloxicam - which I understand is a non-steroidal anti-inflammatory with some analgesic effect.  Since being remanded, your only pain relief for a considerable period was Panadol.  You only just re-commenced being provided with Meloxicam in late September.  As a result, whilst in remand custody you have suffered a substantial amount of pain which has significantly affected your sleep. 

23You have recently undergone testing for leukaemia due to some irregular blood activity.  As I understand it, you are not receiving adequate pain management for your persisting and chronic back pain, making your time in custody more onerous than it would otherwise be for someone in good health.

24In mitigation, I take into account the matters urged on your behalf by your counsel, including the period of time that has elapsed since this offending, that you have no record of previous or subsequent offending, that your offending was an isolated and opportunistic act never repeated, your age, your physical condition and your prospects of rehabilitation. 

25According to the report of Mr Warren Simmons tendered on your plea, you scored zero on the STATIC-99 assessment which categorised you as at a low risk of sexual offending.  This, coupled with your previous and subsequent good character and the extent of time that has passed without reoffending, suggests that your prospects of rehabilitation are high.  These prospects are also enhanced by the support you have from your son and daughter, and from your former partner Janet and her daughter.

26The offending, nevertheless, is obviously serious and carries high moral culpability.  The sexual abuse of children by parent-child incest is a most abhorrent abuse of trust - due in part to the inherent vulnerability of children - and is intolerable. 

27In a case like this, just punishment and curial denunciation, as well as general deterrence, are important sentencing objectives.  Although isolated to one incident, this was a disturbing case of incest without remorse or insight.  Your victim was five to six years old.  She was forced into the act against her wishes.  She was frightened and confused and you ejaculated into her mouth and made her swallow.  She had to experience the trauma of a trial. As her victim impact statement attests, she has carried the emotional scars for years.

28Mr Harris, could you please now stand.

29On Charge 1 of indecent act with a child under 16, you are convicted and sentenced to 18 months' imprisonment. 

30On Charge 2 of incest, you are convicted and sentenced to five years' imprisonment. 

31I have not directed cumulation on the basis that the two offences essentially arise out of the same incident. 

32The total effective sentence is five years' imprisonment.

33I direct that you serve a minimum period of three years' imprisonment before being eligible for parole. 

34Pursuant to s.18(4) of the Sentencing Act I declare that the period of 93 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.

35There is a further matter to which I need to attend.  You may take a seat for the moment.

36The offences of which you are found guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004 and by reason of you being sentenced for these offences, you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.

37Pursuant to s.50 of that Act, I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.  I am also required to inform you of the length of the reporting period which, in your case, is for 15 years. 

38My associate will shortly hand to the barrister representing you the Notice of Reporting Obligations form which I have already signed.  Your representative, Mr Lavery, will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notice and return the Acknowledgement to my associate. 

39The Sex Offenders Registration material can now be passed to Mr Harris.

40All right, I understand that has now been acknowledged. 

41At the plea hearing, the Crown sought an order for the taking of a forensic sample.  I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the order, the order is by consent and the granting of the order is in the public interest.

42I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and the police may use reasonable force to enable that procedure to be conducted.  Do you understand that, Mr Harris?

43ACCUSED:  Yes, Your Honour.

44HIS HONOUR:  Thank you.  I will leave the court. 

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