Director of Public Prosecutions v Heisman (a pseudonym)

[2019] VCC 423

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JONATHAN HEISMAN (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 April 2019
DATE OF SENTENCE:	1 April 2019
CASE MAY BE CITED AS:	DPP v Heisman (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 423

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MS B. BLEAZBY
For the Accused	MS M. ALTMAN

1HIS HONOUR:  Jonathan Heisman[1], you have pleaded guilty to one count of sexual penetration of a child under the age of 16 years whilst under care.  The maximum penalty for that offence is 15 years' imprisonment.  You also pleaded guilty to two counts of the sexual penetration of a child under the age of 16 years.  The maximum penalty for each of those offences is 10 years' imprisonment.

[1] Jonathan Heisman is a pseudonym name

2You do not have any prior convictions, but you have some relevant subsequent matters.  I will return to those matters later in the course of these sentencing remarks.

3You fall to be sentenced as a serious sexual offender on Charges 2 and 3.  The Crown tendered the prosecution opening on plea.  A summary of your offending is as follows:

4In the period September 2003 to early March 2004 your brother-in-law was dying of cancer.  Your sister, Christy[2], had to care for her ailing husband, Marcus Manna[3].  She was working three jobs to support her family.  She was also raising and caring for six children.

[2] Christy Manna is a pseudonym name

[3] Marcus Manna is a pseudonym name

5You were training to become a priest who had previously worked as a teacher for a number of years before commencing your new vocation in your late 30s, early 40s.  The family looked to you as a figure of learning, a mentor and a person who could be trusted implicitly.  Moreover, you were described by your victim as Marcus Manna's best friend since your teen years.  Your offer of support was immediately accepted when you offered to take Edward[4] into your home, and you also stayed at your sister's house.

[4] Edward Manna is a pseudonym name

6The purpose of this period away and the visits to your family at their home was supposed to be to provide some respite for your sister, who was enduring this most terrible time in her life.  She thought in this time that her boys, in particular Edward, would be looked after and nurtured.  For his part, Edward could have expected the same, and without a moments though about it, to feel safe.  Instead, you used the occasions as a 43, 44-year-old man to initiate multiple instances of anal intercourse with a 12-year-old boy.

7You took Edward to sporting and other activities.  When you stayed at your house, the pair of you were isolated from others.  Prior to your offending on the first charge, you gave him a massage.  You tried to maintain a bond between you and your young victim by referring to him as "a special child" and as "a child of God".

8When you offended in your sister’s family home, you did so when you slept on a mattress on the floor in the two younger boys' room.  You still had intercourse with him, although others were present in the house. 

9The offending only stopped when, just before his father died, Edward asked you to stop.

10Your offending remained secret until 2016 when, at age 25, Edward reported it to the police.  He engaged you in a pretext call.  It is significant that you made some limited admissions and you made some expressions of apology, but for the most part you sidestepped the essence of what he put to you.

11You failed to recall acts of anal intercourse with Edward as a child and when arrested by police, you made a no comment record of interview.  When charged, you maintained a plea of not guilty until 10 December 2018, when, after negotiations, you entered a plea to the current three charges.  You were remanded in custody on that date and you have now spent 203 days pre-sentence detention, excluding today.

12The victim impact statements of Edward Manna, his mother Christy Manna and his sister Lily Evans[5] were read in court.  It is necessary to say something about the detail of Edward Manna's statement.  Although Mr Manna read his statement with dignity and courage, it is apparent that you have had a devastating effect on his life.

Mr Manna feels that he has lost the ability to trust.  You have played havoc with his physical and mental well-being and he constantly battles suicidal thoughts.  It is apparent that your actions have destroyed much of the quality of his life and any ability to enjoy or to want to look forward to the simple pleasures of interacting with other people.

[5] Lily Evans is a pseudonym name

13His mother, your sister, could not bring herself to attend the hearing.  She felt utterly betrayed by her own brother and helpless towards her son; that you would do this at a time when the family was at such a low ebb. Your offending has done much to break the fabric of the Manna family and, I suspect, has fractured relations between you and your siblings.

14Lily Evans spoke of the hurt that you have caused her and her relationship with her brother.  It was easy to sense from the manner in which she read hers and her mother's statements to the court that there remains an enormous anger and a deal of unexpressed emotion and also untold sadness for her brother caused by your actions.

15The Crown referred to the passage from DPP v Toomey [2006] VSCA 90 where the Court of Appeal stated, and I quote:

It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all.  In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.  The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability.  The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.

16In my view, that pronouncement is appropriate to bear in mind here.

17Your offending on these three occasions represents a gross breach of trust.  As I have already observed, you were described as Marcus Manna's best friend since your teenage years.  You offended against a close family member, when you were supposed to be supporting the family in a time of need and vulnerability.  You were training, after all, to be a priest at the time.

18As a 12-year-old boy, Edward Manna was entitled to rely on you as his uncle for safety and support in his time of great need.  Instead your acts, which must have involved planning and opportunism, were callous to the family's plight.  Your offences in the family home were just brazen.

19As a friend, brother, uncle and trainee priest, acting as you did in light of the family's grief, your moral culpability is very high.  This is accentuated by the observation that they were not simply three isolated acts coming out of the blue; rather, they must be seen as a pattern you engaged in at this point, your offending was repeated over a five or six-month period.

20Your acts deserve utter condemnation.  Every right minded person in our society abhors the sexual abuse of children.  Your abuse of your family's trust and your callousness in taking advantage of their dire situation in order to meet your lascivious and depraved desires is utterly disgraceful.  Your supposed calling as a priest can only be seen as part of this whole sham.  I condemn your actions.  Your actions must be met with the dominant principle of general deterrence.  In this case that means severe punishment, periods of imprisonment for each offence.  The effect of the declaration of your status as a serious sexual offender means that there will be significant cumulation of the sentences.

21I turn now to your personal circumstances.  You are 59 years of age and you were born the third of six children to Greek immigrant parents.  Although you had a difficult relationship with your father, you reported no significant academic, behavioural, disciplinary or social problems at school or within your family.

22After completing Year 12 you undertook a Diploma of Teaching and worked as a teacher between 1982 and 2000.  After that you say you felt a calling to religion and you were ordained a priest in 2004.  I make the observation that says something of your ability to delude yourself; that you were able to take your ordination vows knowing you had committed these horrendous offences.

23It was not long after your ordination that your first subsequent matters of offending occurred.  In 2006 you were charged with committing an indecent act on a child under the age of 16 when you started to massage one of the alter boy's backs after he had performed altar boy duties.

24Sometime after that when the police searched your home in response to those allegations, they found 90 images of pubescent and adolescent boys on your computer.  For these offences you were placed on a fully suspended sentence and then a community based order and you were required to undertake the sex offender's behaviour course and you were registered as a sex offender.

25In more recent times you have trained and worked in an accounting practice.  The references from your employer speak in positive tones of your work ethic and your contribution.  Indeed, the other references provided on your behalf speak to a different side of you; of a man who is capable of good deeds, of making a significant contribution to the community in which he lives and has worked, at times, for the support of others.  Present in court to support you is one of your sisters Judy[6] and her husband Sebastian[7] and your fiancée Charlotte Boyd[8].

[6] Judy is a pseudonym name

[7] Sebastian is a pseudonym name

[8] Charlotte Boyd is a pseudonym name j

26Section 5AA of the Sentencing Act 1991 (Vic) provides that I must not have regard to your previous good character or lack of previous findings of guilt if I am satisfied that your previous good character or lack of previous findings of guilt was of assistance to you in the commission of your offences. I certainly make that finding.

27In the circumstances I do not consider that your otherwise good character and previous lack of convictions should particularly mitigate the sentence I impose upon you.  In this respect, I turn now to consider the issues raised on your behalf in respect to your remorse and your prospects for rehabilitation.

28It was submitted on your behalf that your plea of guilty, although late, must be taken to exhibit some remorse.  Mr Moglia of counsel further submitted on your behalf that there was some expression of remorse to the psychologist Patrick Newton (and I refer in particular to [34] of Mr Newton's report) and in the fact that limited admissions were made at the time of the pre-text call.

29The expression of your remorse to Patrick Newton was, indeed, limited:

I'm sorry that it's still affecting the complainant to this day.  I don't know what I can do to make it better or to help him to recover.  If serving gaol time will make the complainant happy, then I'll do it; if that will bring him some closure, then so be it.  I was prepared to leave the complainant all my possessions after I die to help him move on, but I'm not sure that would really help.

30The pre-text call contains only limited and bare admissions.  I consider it to be largely evasive, especially for the fact that you do not admit the nature of your behaviour or your offending.  More disturbing on the question of remorse, and it touches on the prospect of your rehabilitation, is found in what you say to Mr Newton in November 2018 about your offending in 2003, 2006 and 2009.

31First, Mr Newton noted that you were convicted of an indecent act (the offending to which I have referred when you were a priest) and on a charge of possessing child pornography.  You told Mr Newton that, as for the altar boy offence, "I was set up by that kid", and that the complainant had "twisted things" out of malice.

32As for the child pornography, you said that you had "clicked on pop-up windows and thus downloaded it to the computer without realising it", and you said you had been curious about that material.

33As to this offending, Mr Newton noted as follows - and I quote extensively [33], which reads in part:

He had found the sexual intimacy comforting at this time of distress and so had reasoned that the complainant would also experience it as comforting.  Mr Heisman rationalised that, since the complainant had not expressed any reticence or distress, he must have, indeed, welcomed the behaviour as much as Mr Heisman had.  Throughout his discussion of his offending Mr Heisman repeatedly expressed his perception that the complainant was 'in control' and could stop any time he wanted to.  He seemed oblivious to the power in balance that existed in their relationship and clearly attributed a degree of maturity and autonomy to the complainant that is belied by the complainant's age and the emotional circumstances surrounding their interaction.  The sexual conduct ceased when the complainant asked Mr Heisman to stop.

34Then at [40] Mr Newton states:

He attributed to both complainants the ability to take responsibility to making choices regarding their desire to participate in sexual behaviour with him and an ability to assertively bring to a close the event, if they did not wish to continue.  These misconceived beliefs provide a context in which Mr Heisman felt able to abdicate his adult responsibilities and prioritise his own pleasure and comfort since he rationalised that his victims were capable of accepting responsibility for their conduct and making choices about how they would behave.

35As for your participation in the sex offender treatment in 2009, Mr Newton reported that you said, "I wasn't like the other offenders so it didn't help me at all.  After a while, the other people in the group thought I was one of the therapists, not one of the members."

36Similarly, when Mr Newton raised the prospect of current sex offender treatment with you, he noted:

It is regrettable that, on his own report, he chose not to engage properly with this treatment.  Even now Mr Heisman rejects the idea that he is accurately described as 'a sex offender', and he expressed considerable reluctance at the prospect of participating in a further treatment program.

37In 2010 and again in 2013 you were convicted of failing to comply with your reporting obligations under the Sex Offender's Registration Act 2004 (Vic).  On the last occasion you were sentenced to six month's imprisonment, reduced on appeal to three months' imprisonment suspended.

38It was submitted on your behalf that one of the factors which militated towards you having some prospects for your rehabilitation was the fact that you have not offended towards children for over ten years.  I accept that you have not committed physical acts against children in that time.  However, it is apparent that you have little or no insight into your offending.

39Until you accept that you are a sex offender who has committed these violent, depraved acts in these egregious circumstances, it cannot be said that you have displayed genuine remorse or that you have substantial prospects for your rehabilitation.

40I do, however, accept that you are not without hope on the question of rehabilitation.  Mr Newton considers that you pose a moderate risk of reoffending.  It must be noted that you worked for a considerable period as a primary and secondary school teacher and then retrained as an accountant.

41As I have noted, your employer provided a very positive reference and holds a position open for you after your eventual release from prison.  Whether that is realistic remains to be seen.  Nevertheless, you have other protective factors presently available to you; the support of Charlotte and of at least some family members.  I take account of those factors.  I also take into account the mitigating effect of the plea of guilty in this case.

42Although you come to be sentenced as a serious sexual offender on Charges 2 and 3, the Crown does not submit that a disproportionate sentence is warranted in order to protect the community. 

43In the circumstances, whilst deterrence and denunciation must figure dominantly in the sentences I impose I, nevertheless, still have regard to the principle of totality in arriving at a total effective sentence.  I note that this principle must, at least to some extent, constrain the degree of cumulation on each of Charges 2 and 3.  Mr Heisman, could I ask you to stand, please.

44Mr Heisman, on Charge 1, sexual penetration of a child under the age of 16 years whilst under your care, supervision or authority, you are convicted and sentenced to a period of five years and six months' imprisonment.  That is the base sentence.  I now declare you to be a serious sexual offender and I order that declaration be entered onto the records of the court.  I sentence you on Charges 2 and 3 as a serious sexual offender.

45On Charge 2 you are convicted and sentenced to a term of four years and six months' imprisonment.  I order that two years and three months of that sentence be served cumulatively on all other sentences.

46On Charge 3 you are convicted and sentenced to four years and six months' imprisonment.  I order that two years and three months of that sentence be served cumulatively on all other sentences.

47The total effective sentence is therefore one of ten years' imprisonment.  I order that you serve a minimum of seven years before you are eligible for parole.  I declare the period of 203 days pre-sentence detention be reckoned as already served.  By virtue of your convictions on these offences you are ordered to be registered on the Sex Offence Register for life. 

48The 6AAA declaration is:  but for your plea of guilty, I would have sentenced you to 14 years' imprisonment with ten years and six months to serve.

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