Director of Public Prosecutions v Hermanus (a pseudonym)

[2014] VCC 2018

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTIN HERMANUS (A pseudonym)

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	28, 29, 30 October 2014, 5, 6, 7, 10, 11, 12, 13, 14, 17, 20 November 2014
DATE OF SENTENCE:	21 November 2014
CASE MAY BE CITED AS:	DPP v Hermanus (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2014] VCC 2018

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	Mr K. Doyle Mr N. Donaghey (for sentence)	OPP
For the Offender	Ms R. Sleeth with Ms D. Lamovie	VLA

HER HONOUR:

1Martin Hermanus,[1] you have been convicted of two charges of buggery and one of indecent assault of a girl under 16.  As the language of these charges makes clear, these offences occurred a long time ago.

[1] A pseudonym.

2All three charges concern acts committed by you on your daughter in 1975 or 1976 when she was eight years old.

3Carla’s[2] evidence, of which the jury must have been satisfied beyond reasonable doubt, is that you took her to your bedroom one evening in 1975 or 1976, when your wife was still at work and she was in your sole care, undressed her and anally penetrated her.  She screamed, because it hurt so much, and you hushed her, and persisted.  She said she blacked out for a time from the pain.  When you finished, you packed tissues between her cheeks, and made her have a shower.  Later, when she went to the toilet, she saw blood on the toilet paper she wiped herself with.  She was too scared and confused to tell her mother when she came home that night.

[2] A pseudonym.

4This was the first time you had sexually assaulted your daughter.  You were acquitted of two charges of indecent assault associated with this charge.  In contrast to the clear and consistent account that Carla gave of this first act of anal penetration, her evidence concerning the two acts of indecent assault charged was confusing and contradictory.  In my view, the acquittals on those charges do not undermine the reliability of the conviction on the charge concerning this act of anal penetration.  Nor do the acquittals on those two charges undermine the reliability of the conviction on the other two charges of which the jury found you guilty.

5Those remaining charges concern a further act of anal penetration occurring two days later, again when Carla was in your sole care after school and before her mother came home from work.  On this occasion, as you took her to the bedroom she protested and tried to resist.  You told her it would not hurt.  You rubbed Vaseline on your penis, and on her cheeks and anus, and again penetrated her.  Again, it hurt, and again she cried out.  You covered her mouth and continued.  It is the rubbing of the Vaseline on Carla’s anus that constitutes the charge of indecent assault.

6I accept the submissions made by your counsel that this act should be regarded as part of a single episode culminating in the act of anal penetration, the subject of the other jury verdict of guilty, and that the sentence imposed upon you should reflect that.

7Again, after the act of anal penetration was concluded and you had withdrawn your penis from her anus, you packed her cheeks with tissues, and made her have a shower.  Again, she said nothing to her mother when she came home from work.

8These two discrete acts of anal penetration must be seen in the context of the other evidence at trial.  Carla gave evidence that you continued to anally penetrate her from that time until she was 16 or 17 years of age.  You of course can only be sentenced for the two acts of penetration, and the indecent assault associated with the second act, but I am satisfied beyond reasonable doubt on the evidence before the jury and, in my view, consistently with the jury's verdict, that you continued to regularly sexually abuse Carla in by anally penetrating her until she was 16 or 17.  It follows that I do not treat these charges of which the jury as found you guilty as isolated, never repeated acts.

9Although it was not until 2012 that Carla made and followed through a formal complaint to the police which led to you being charged, there is evidence in the trial, which I accept, that in 1980, when she was about 13, she and her 10 year old cousin Celia Marigold[3] spoke to each other and told each other you had “touched” each of them.  I accept that they then told your wife, and that no action was taken.  There was also evidence at the trial, which I accept, that in 1986, when Carla was 16 or 17, at about the time or shortly after the abuse stopped, she told her then boyfriend and two of her aunts that you had sexually abused her over a number of years.  There was also evidence at the trial which I accept, that at the latest by the time Carla was 19, your wife had been made aware Carla had disclosed to other people you had sexually abused her throughout her childhood, and that Carla had confirmed it to her mother, your wife, when asked, although she declined to go into detail with her mother at the time as to what had happened.

[3] A pseudonym.

10Although it would appear Carla’s allegations were known within the family circle, or some members of it, by the time she was 19, and although by then, it would appear you had been confronted by family members about it, the matter was not reported to the police.

11In 1999, Carla’s cousin, Celia, made a complaint to the police about sexual abuse at your hands when she was aged between five and ten.  That is, between 1975 and 1980.  It was the last act the subject of her complaints in 1980 which had led to the disclosure between Carla and Celia of the fact that each of them had been touched by you and their complaint to your wife to which I have already referred.  In her evidence on a voir dire, held after verdict on these charges, Celia said she was prompted to make a complaint to the police, in 1999, 24 years after the commencement on the acts on her, because she heard through family members another child had made allegations against you.

12As part of the investigation into Celia’s complaint in 1999, Carla was contacted by the police in late 1999 or early 2000.  She told them you had not abused her.  At your trial, she said that was a false denial, made as a result of pressure from her parents.  On your wife’s account, Carla had by then, that is when she was in her 30’s, told her that the abuse involved anal penetration and the use of Vaseline.  Although it would appear your wife had some contact with the police at the time they contacted Carla in respect of Celia's complaint in 1999 or 2000, your wife did not, it would appear, tell the police of the disclosures that Carla had made to her, or that she was aware that Carla had made to other people.  This is the more concerning because, it would appear from the evidence, by then she believed Carla.  It would appear that by that stage, that is 1999, members of the family circle were aware other girls, both within, and outside the family circle had also made allegations you had sexually abused them, and the family was divided between those who believed the complaints and those who did not.

13In any event, perhaps in part at least because Carla had denied being abused by you, the brief to prosecute you in respect of Celia's allegations was not authorised.  There matters rested until the mid to late 2000’s, when Carla, possibly in 2006, but definitely in 2008, made complaint about your sexual misconduct towards her to the police.   In 2008, she made a draft statement, nine pages long, which detailed the events which gave rise to the charges on this indictment, but she did not at that stage complete the statement and the investigation did not proceed.

14It was not until 2012 that she revived the complaint, and the investigation was reactivated.  By this stage, Carla had two sons, who were in their late teens or early 20’s.  They were from her first marriage, which had taken place at the age of 19.  She also had five children, four girls and a boy, all under 12 from a later relationship.

15In early 2012, shortly before Carla revived her complaint, the five younger children had been removed from her care, and had been placed in the care of you and your wife.  As a result, it would appear, of representations made by Carla to the Department of Human Services, and it would appear, your wife’s apparent acceptance of the truthfulness of Carla's allegations against you, you were prevailed upon to move out of the family home, thus permitting the placement of the children in your wife’s care to continue.

16This led, not only to the revival of Carla’s allegations and a police investigation in respect of that, but a reinvestigation of the complaint concerning Celia Marigold.  You are facing trial on a separate indictment in respect of two discrete acts occurring in Victoria in 1975 based on allegations made by Celia Marigold in respect of your conduct towards her.

17Yesterday I refused a stay in respect of the trial on those charges, although I ruled out evidence of uncharged acts occurring in Melbourne and Canberra after the two acts the subject of the charges, and also excluded evidence of the 1980 complaint.

18I have set out this chronology in some detail as it serves to explain, in part, the delay in the making of complaint and the laying of charges and what happened in the intervening time.  I want to make it clear, I set out the details of the other allegations because they form part of the sequence of events, and the allegations concerning Carla and several other girls, which became known within the family circle well before 2012.  I cannot and do not make any findings about the truthfulness of any of the other allegations.  I do not sentence you on these charges of which the jury convicted you on the basis you have or may have offended against other girls as well.

19You are facing, what your counsel acknowledged, is a significant prison term.  As she acknowledged, this is serious offending.  Carla was only eight.  And you as her father owed her a responsibility, a duty, to care for her and protect her, not to debase her, to subject her to the degrading and extremely painful abuse that she suffered.

20Your conduct denied her the safe, and happy childhood she should have had.  In her evidence at trial, and in her victim impact statement, she referred to the happy confident child she was before the abuse, and the quiet, withdrawn and low achieving child she became.  A parent who abuses the trust he has to his own child as you did, deserves stern disapprobation and punishment.  We as a civilised community must uphold the rights of children to be free from molestation, and the right to be protected by, not abused by their parents.  The sentence must reflect that.

21That Carla continued to have contact with you and her mother after the abuse stopped, and into her adulthood just demonstrates the confusion and ambivalence she, like so many victims of sexual abuse we see in the court, feel towards an abusive parent. As I said to Ms Lamovie in the course of her careful and considered submissions on the plea, although you and your wife were actively involved in the care of all of Carla’s children, the continued contact, even after her mother found out and apparently accepted the truth of what Carla had said you had done, only serves to demonstrate your sense of impunity, and her continued powerlessness in the parent adult child relationship.

22I take into account the absence of any convictions in the period up to the commission of these offences, and the absence of convictions for any other type of offending in the period since the offending.

23This offending occurred nearly 40 years ago.  You are now 76, and facing imprisonment for the first time, at that mature age, for offences that occurred so long ago.

24You are estranged from your wife, who had continued to live with you and support you until 2012 when, faced with a choice between remaining with you and caring for Carla’s children, elected to ask you to leave the home.  It appears this is, so far as she is concerned, the end of the marriage.

25You are one of a large family, many of whom, like you, came to Australia from Sri Lanka as young adults to start a new life here.  Your wife is also Sri Lankan born and followed you shortly after you had arrived in Australia to join you and bringing with her, your daughter Carla.  You and your wife both worked hard from the time of your arrivals in Australia in 1971.  You have a long history of stable employment.  You started work soon after your arrival in Australia as a tram conductor, and you remained in Tramways employment until your retirement in 1994, long after tram conductors had disappeared from our scene.  You and your wife bought a house, and have through your endeavours, paid it off.  You have been retired now for over 20 years.  Since being asked to leave the family home in 2012, you lived with a brother for a period before moving into an aged care hostel, where you remained until the time of your conviction and remand in custody.

26The extended family, the brothers and sisters and their spouses who settled here, and their children – that is, your brothers and sisters and your wife's brothers and sisters and their spouses who settled here, and their children – had formed a large family and social group.  The airing of the allegations by Carla and other girls in the family circle has divided the family.  You still have the support of two of your brothers and at least one of their spouses.  They were present at the plea, and I am told they will continue to support you in custody and upon your release.

27I take into account the fact that imprisonment for the first time is difficult for anyone, difficult for a person who has no previous convictions of any sort, and more so for a person of your mature years.  You have some health problems, diabetes, high cholesterol and arthritis.  There is no suggestion they will not be able to be adequately managed in custody.

28Your denial of the offences, and the conduct of your defence, alleging your daughter Carla, your only child, was a malevolent liar, motivated by a desire to get out of trouble, or hatred of her mother or for some other unknown reasons, to make base allegations against you, and being prepared to collude with her cousin, Celia Marigold, to fabricate a complaint, your trawling over her unfortunate history as an adult, her dishonesty offences, her history of poor choices in relationships, her history of difficulty in mothering and having her children removed from her care, indicates you have no remorse and no insight.  That does not, in my view, bode well for your prospects for rehabilitation.  Counterbalanced against those factors that count against your prospects for rehabilitation are your age, and the limited opportunities you will have on release for unsupervised access to children.  Nonetheless I consider your prospects for rehabilitation should properly be regarded as poor.

29There are no sentences or sentencing statistics available to assist me to assess current sentencing practices for anal penetration of an eight year old child by her father 40 years ago.  The maximum sentence then was 20 years imprisonment, and that is to be noted in the context of the sentences at that time for other sexual offences, which, compared to the maximum sentences available today are extremely low.  I accept that as a general principle, a sentence imposed 40 years ago for such conduct would be less than that imposed today, and that, to some extent, I must be guided by that.  Although, taking into account, as I must, the fact that there is much more known these days about the vice and the harm of sexual offending against children and sentences have gone up to reflect that.

30I accept Mr Doyle's submission that the most assistance that I can obtain from comparable sentences, are the sentences that are imposed for incest, and that indeed is what would have been charged today, had these offences occurred under the current criminal law.

31It is clear that denunciation, general deterrence and just punishment are the significant sentencing factors.  You come to be sentenced for the second charge of anal penetration as a serious sexual offender.  I agree that there is no need to impose a disproportionate sentence in order to achieve that stated statutory primary purpose of protection of the community.

32There is no need, indeed it would offend against the principles of totality and proportionality to totally cumulate the sentence on that last charge with the sentences on the other two charges.  To do so would be to impose a sentence that was crushing.

33Balancing these matters, the matters I have identified that point to the significance of general deterrence, denunciation and just punishment, with the matters I have identified in relation to proportionality, totality and not imposing a crushing sentence, and matters I have identified that were relied upon in your favour, I have fixed upon the following penalties.

34Martin Hermanus, on the three charges on which the jury found you guilty, you are convicted.  I declare that in respect of the last of those charges, Charge 5 on the indictment, you are sentenced as a serious sexual offender.

On Charge 3 on the indictment of buggery, that is the first act, you are sentenced to be imprisoned for a period of six years.

On Charge 4 on the indictment of indecent assault, you are sentenced to be imprisoned for a period of two years.

On Charge 5 on the indictment, the second charge of buggery, you are sentenced to be imprisoned for a period of six years.

I direct that you serve three years of that cumulatively upon the sentence on Charge 3.

That makes a total effective sentence of nine years, and I fix a period of six years as the time that you must serve before being eligible for parole.  I note that I have fixed that period taking into account your age and the age of these offences.

I declare that you have spent seven days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.

I have already made the order in respect of the Sex Offender Registration Act.  You are registered for life.

I make an order for the taking of a forensic sample from you.  I am noting that that is by consent.

35So far as the forensic sample is concerned, Mr Hermanus, I must tell you that I have direct that that sample be taken by way of a buccal sample, that is a mouth swab.  I must tell you that if you do not cooperate in the provision of that sample, which will require you to rub a swab like a cotton bud on the inside of your cheek until a sufficient sample has been obtained, then the police are authorised to use reasonable force to obtain that sample and it is at least likely that they will use the more invasive of obtaining a sample, namely a blood sample.

36Are they all the orders that are required to be made?

37MR DONAGHEY:  Yes, thank you, Your Honour.

38HER HONOUR:  Do the orders reflect what I said I intended to do?

39MR DONAGHEY:  Yes, Your Honour.

40HER HONOUR:  Any further orders required to be made and is your arithmetic correct?

41MR DONAGHEY:  That's fine, Your Honour.  Thank you.

42MS LAMOVIE:  Yes, Your Honour.

43HER HONOUR:  Mr Hermanus, I must remain on the bench whilst you are here in the dock, but given that you have your brother and sister-in-law here, I will remain here for a short time whilst you say goodbye to them.  You are not allowed to touch, but you can speak to him before he is taken out.

44OFFENDER:  Thank you, Your Honour.  Thank you.

45HER HONOUR:  So the people sitting the back can speak to Mr Hermanus before he is removed.

46All right, thank you.  Could you remove Mr Hermanus please?

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