Director of Public Prosecutions v Herring
[2015] VCC 148
•13 February 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
GEORGE HERRING (a pseudonym)[1]
[1]To ensure that there is no possibility of identification of the individuals concerned, these reasons have been anonymised by the adoption of pseudonyms in place of the names of the accused and the victims.
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JUDGE: | His Honour Judge Smith | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 January 2015 | |
DATE OF SENTENCE: | 13 February 2015 | |
CASE MAY BE CITED AS: | DPP v Herring | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 148 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sentence
Catchwords: Persistent sexual abuse of a child under the age of 16 – Indecent act with or in the presence of a child under the age of 16
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Warda | The Office of Public Prosecutions |
| For the Accused | Mr S. Tovey (Plea) Mr B. Casey (Sentence) | Doogue O’Brien George |
HIS HONOUR:
1 George Herring[2], you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16 in breach of s.47A of the Crimes Act (1958) and also to one charge of committing an indecent act with or in the presence of a child under the age of 16 to whom you were not married, contrary to s.47(1) of the Crimes Act.
[2]George Herring is a pseudonym.
2 You have three children. Your youngest child is Heather[3]. She is currently aged 15. Between January 2008 and August 2012 she was aged between eight and 12 years. You have pleaded guilty, as I say, to the charge in breach of s.47A which was particularised in some detail by the prosecutor at the hearing.
[3]Heather is a pseudonym.
3 In essence, these offences consisted of the following:
(a) in 2008 sexual penetration of Heather by introducing your penis into her vagina. This occurred regularly over the period of some four and-a-half years at your home in Melbourne, and at Lake Eppalock;
(b) sexual penetration of Heather by introducing your tongue to her vagina on an occasion between September 2008 and September 2009;
(c) an act of sexual penetration by permitting Heather to insert a vibrator into your anus on an occasion on about 30 December 2010;
(d) sexual penetration of Heather by introducing your penis into her anus on an occasion in 2011 at which time she was approximately 11 years old;
(e) producing child pornography by taking digital photographs of Heather at a time between September 2008 and September 2010 at which time she was wearing a G-string;
(f) sexual penetration of Heather by introducing your penis into her mouth on an occasion between September 2011 and August 2012;
(g) Wilfully committing indecent acts with Heather as follows:
(i) directing her to wear two different varieties of G-strings between 1 September 2008 and 31 August 2009;
(ii) masturbating your penis in her presence on an occasion between 1 September 2010 and 1 September 2011;
(iii) directing her to pull her pants down and bend over in front of you on an occasion between 2 September 2011 and 5 September 2011;
(iv) rubbing her breasts at a public beach between 1 September 2010 and 1 September 2011;
(v) shaving her pubic hair on an occasion between 1 January 2012 and 4 August 2012.
4 As I say, details of those occasions were more fully particularised by the prosecutor in her opening address, I do not consider that it is necessary to particularise them further at this time.
5 The offending behaviour occurred mainly at your family home in Melbourne, but also on various camping holidays and on one occasion, as I have said, at a local beach.
6 You are currently aged 41. By way of background, you were raised in Kalgoorlie in Western Australia, you had a difficult upbringing. When you were aged about six your parents separated and you accompanied your mother to live in Melbourne. At a relatively young age you were returned, for reasons that were not made entirely clear, to Kalgoorlie to live with your father, which resulted in you being separated from your mother and your siblings. By that time your father had formed a relationship with another woman who was described in the submissions as your step-mother.
7 It appears that you suffered some verbal, physical and emotional abuse from both your father and step-mother in that period. You left their home aged about 12 and lived with friends. For a time you were a ward of the State. In due course you came to live with your grandmother.
8 You left school after Year 10 and you demonstrated a good work ethic. You worked in a number of labouring jobs initially, you then completed an apprenticeship as a cabinet maker, and you have worked in that capacity since. You commenced your own business which you continued until the time you were remanded in custody in November 2012 as a consequence of these offences.
9 At some time before 1992 you had commenced a relationship with a partner who later became the mother of your three children. You and your family resided in Victoria. You and she parted company in 2004 when she moved to Western Australia. The three children remained with you at the family home in Melbourne. From that time you were their sole parent.
10 There are a number of aggravating features of your offending. You commenced abusing Heather in about 2008 and continued until 2012. Over that period she was aged between eight and 12 years old. You were aged between 35 and 39 years.
11 Those acts of abuse against Heather were often performed in circumstances where you must have known that she was in pain. On one occasion you placed your hand over her mouth to stop her cries from being heard as you penetrated her vagina.
12 On the occasion of the insertion of your tongue into her vagina she tried to push your head away but you held her down forcefully and continued, notwithstanding that she was crying.
13 Upon inserting your penis into her anus she was in pain, she told you to stop but you continued until you ejaculated.
14 On the occasion when you rubbed her breast at the beach you caused her pain. She tried to get you to stop but you persisted.
15 When introducing your penis into her mouth you pushed her head down, the effect of which was to force her to continue.
16 Your counsel submitted on your behalf that there was no real violence or threats involved in your offending. That may be so on one view but it is clear that there was a good degree of force used by you in many of the offending acts.
17 Your offending only ceased in 2012 when your eldest son advised his mother that you were showering and sleeping with Heather. Following that advice her mother travelled from Western Australia to Melbourne and took Heather back with her to Western Australia.
18 You were arrested in November 2012 and interviewed by police. You denied all allegations of sexual abuse of Heather. You were released pending summons and absconded from the jurisdiction. It appears that you later returned and the matter proceeded to a committal which was completed in July 2014. Following that committal there were protracted negotiations in relation to the charges which were resolved in your pleading to the two charges referred to in early October 2014.
19 Soon after the commencement of the committal to which I have referred, police obtained a statement from your youngest son, Adam[4], to the effect that he had also been the subject of abuse at your hands in 2008 when he was aged approximately 12. Accordingly, the extra charge relating to him was brought soon after.
[4]Adam is a pseudonym.
20 The details of your offence concerning Adam are that on an occasion in 2008, in the lounge room of your home, you directed him to attempt to insert his penis into your anus. It appears that he did place his penis in the area of your rectum but it is not alleged here that penetration actually occurred. You then masturbated him and masturbated yourself in front of him. There are no other incidents of abuse alleged concerning Adam, and for the purposes of sentencing you I accept that this was an isolated, one-off occasion with him.
21 The maximum penalties for an offence of persistent sexual abuse of a child under the age of 16, contrary to s.47A of the Crimes Act, is 25 years' imprisonment. The maximum sentence for an indecent act with a child under the age of 16, contrary to s.47(1) of the Crimes Act, is 10 years' imprisonment.
22 Section 5 of the Sentencing Act 1991 sets out sentencing guidelines, they being the only purposes for which sentences maybe imposed. These are:
(a) to punish the offender to an extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or similar character;
(c) to establish conditions within which it is considered by the court that the rehabilitation of the offender maybe facilitated; (d) to manifest the denunciation by the court of the type of conduct in which the offender engaged;
(e) to protect the community from the offender, or
(f) a combination of any two or more of those purposes.
23 Section 5(2) of the Sentencing Act requires me to have regard to a number of matters. Of relevance to this case, they include:
(a) the maximum penalties prescribed for the offences. I have previously referred to these;
(b) current sentencing practices;
(c) the nature and gravity of the offence;
(d) the offender's culpability and degree of responsibility for the offence;
(e) the impact of the offence on any victim of it and any resultant injury, loss or damage;
(f) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
(g) the offender's previous character; (h) the presence of any aggravating or mitigating factors concerning the offender or any other relevant circumstances.
24 Victim impact statements of Heather, Adam and your former partner were read out in court and tendered. I have taken these into account. It is clear from those statements that Heather and Adam have suffered significantly as a consequence of your offending. It is of particular concern to me that Heather states that she has commenced self-harming in the belief that it is giving her some control over her life that you took away from her, and gives her a sense of relief and anger release. I note that she is attending counselling twice weekly, and suffers from severe nightmares and insomnia.
25 Your former partner has also described the difficulties that Heather has and is still having, and her behavioural problems.
26 In relation to Adam, I note that he is now the father of a young daughter and has expressed concern about his expressing his natural affection for her, worrying about whether he might be doing the wrong thing.
27 I accept and take into account that the consequences of your offending upon Heather and Adam have both been serious and long-term.
28 In relation to your offending against Heather, your counsel conceded that this offending was a serious example of a serious offence, and there can be no doubt that that was so. Whilst I accept the offence concerning Adam was an isolated offence it was, nevertheless, appalling conduct by a father in relation to his 12 year old son.
29 I take into account that you were at the time of these offences effectively the sole parent of Heather and Adam and, for that matter, their brother. The offences concerned constituted a gross breach of trust owed by a parent to a child. Most of the offences were committed at the family home where your children ought to have been able to feel safe and protected. You took advantage of both Heather and Adam in circumstances where they had no other parent to turn to and were in a particularly vulnerable position. You manipulated your position of trust.
30 Further, you engaged in sexual penetration of Heather with no condom or any other form of protection, thus exposing her to a risk of pregnancy and/or a sexually transmitted disease.
31 Your culpability and degree of responsibility for both offences is indeed high. The nature and gravity of the offences I have mentioned before but, on any view, they were grave and serious.
32 Your counsel submitted that there are a number of mitigating factors relating to sentence.
33 I accept and take into account that you had a troubled upbringing involving little, if any, parental affection or guidance.
34 I accept and take into account that you have no prior convictions of any relevance and it can therefore be assumed that, at least before these offences, you were a person of good character.
35 I note and take into account your plea of guilty. Whilst it could not be described as a plea made at the earliest possible opportunity it was a plea with significant utilitarian benefit. The time and cost of a trial has been avoided. Most importantly, your plea has meant that neither Heather nor Adam nor, for that matter, any other witnesses, will have to go through the distressing process of giving evidence at a trial concerning your offending.
36 I accept and take into account that you have effectively been ostracised by your children, family and former friends. No character evidence was tendered on your behalf. I accept that your life since your arrest has had little or no resemblance to the life that you led prior thereto, and that you are unlikely to receive much support, if any, from your family or former friends in the future. Indeed, it is possible, perhaps even likely, that you will have little or no contact with your children again, although I do note that Adam has apparently visited you on one occasion whilst you have been held on remand.
37 I accept that in all of those circumstances prison is likely to be more onerous for you than many other offenders who receive significant support from family and friends. I accept and take into account that you have to date attempted to use your time on remand constructively and have completed a number of different courses.
38 During the course of submissions I invited counsel to address me in relation to whether the recent decision of the Court of Appeal in Boulton & Ors v The Queen[5]had any application to sentencing in this matter. The decision dealt in particular with the sentencing of offenders to community-correction orders in respect of relatively serious offences which might previously have attracted a medium term of imprisonment. I have read the Court of Appeal's decision carefully and taken into account their comments and stated guidelines. I have also taken into account that your counsel conceded that such a community-correction order would not be appropriate in your case.
[5] [2014] VSCA 342
39 There was no evidence put before me that you suffer from any psychological or psychiatric illness requiring any particular form of treatment, or at least any form of treatment that could not be attended to whilst you were incarcerated.
40 Section 5(2)(b) of the Sentencing Act requires me to have regard to current sentencing practices. Both counsel provided me with references to sentencing decisions concerning conduct similar to your own. In particular I have taken into account the sentences imposed in the matters of BM v R[6], WallaceCummins (a pseudonym) v R[7], McPherson v R[8], McDonald v R[9], and Bussell (a Pseudonym) v R[10]. I have also taken into account the sentencing snapshots provided relating to persistent sexual abuse of a child under the age of 16 and indecent acts with a child under the age of 16 that were provided by each of the parties. I am conscious that such snapshots are often of limited assistance and that little detail is known of the circumstances of the offence or the offender, and such information does not include matters such as whether the offender pleaded guilty and, if so, at what stage of the proceeding. However, the authorities and materials provided to me indicate that persons convicted of an offence under s.47A are generally sentenced to a substantial term of imprisonment.
[6][2013] VSCA 3
[7][2013] VSCA 352
[8][2014] VSCA 59
[9][2014] VSCA 80
[10] [2014] VSCA 310
41 In all of the circumstances, I have determined that a period of immediate incarceration is the only sentence that reflects the nature and gravity of your offending, the court's proper denunciation of your conduct and an adequate punishment to deter you and other members of the community from committing offences of the same or similar character.
42 George Herring, in relation to the charge of persistent sexual abuse of a child under the age of 16 under s.47A of the Crimes Act you are sentenced to a term of imprisonment of nine years.
43 In respect of the charge of having committed an indecent with a child under the age of 16 under s.47(1) of the Crimes Act you are sentenced to a term of imprisonment of two years.
44 By reason of Part 2A of the Sentencing Act you are regarded as a serious sexual offender because you have been convicted and sentenced in respect of a sexual offence to which Clause 1A(8) of Schedule 1 of that Act applies.
45 In respect of the sentence imposed under Charge 2, that is the two year term relating to the committing of an indecent act with a child under the age of 16, I direct that one year of that term of two years be served concurrently with the sentence imposed in respect of the offence under s.47A of the Act, that is, one year shall be cumulative and one year concurrent.
46 Accordingly, the total effective sentence imposed is 10 years. I direct that you serve a minimum of seven years' imprisonment before being eligible for parole.
47 Madam Prosecutor, what is the current pre-sentence detention?
48 MS WARDA: 459 days, inclusive of today.
49 HIS HONOUR: Sorry, did you say not inclusive of today?
50 MS WARDA: Inclusive of today. Sorry, no, not inclusive of today, sorry, Your Honour.
51 HIS HONOUR: I declare that 459 days of pre-sentence detention, not including today, be reckoned as having been served under that sentence, and I direct that a declaration to that effect be recorded on the records of this court.
52 Under s.6AAA of the Sentencing Act I am required to state the total effective sentence and non-parole period that I would have imposed in the event that you had not pleaded guilty to these offences. Had you not pleaded guilty and had you been convicted of these offences I would have sentenced you to a total term of imprisonment of 12 years with a minimum non-parole period of nine years.
53 Pursuant to s.464ZF of the Crimes Act I order that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample until a sample of sufficient standard is obtained for placement on the database. I make the order because of the seriousness of the circumstances of your offending and consider that they warrant the order. Is the order made by consent, in any event?
54 MR CASEY: It is, Your Honour.
55 HIS HONOUR: I will take that into account also. Nevertheless, I am obliged to tell you, notwithstanding your consent to the order, that if you do not ultimately cooperate with the taking of the sample reasonable force may be used to obtain a blood sample from you. Do you understand that?
56 OFFENDER: Yes.
57 HIS HONOUR: Thank you, I will make that order pursuant to s.464ZF. Madam Prosecutor, the provisions of the Sex Offenders Registration Act (2004), as I understand them, are registrable for life.
58 MS WARDA: Life reporting, Your Honour, and there is also been the serious offender provisions, Your Honour, under Part 2A.
59 HIS HONOUR: Mr Darby, have you got those reporting conditions to be signed? Thank you. Under the provisions of the Sex Offenders Registration Act (2004), by reason of these convictions, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first report after your release from custody. Details in writing of these reporting conditions will be served upon you forthwith by my associate. Is your client familiar with this aspect of the matter?
60 MR CASEY: That I will need to confirm, Your Honour. I believe it has been canvassed by counsel but I would need to.
61 HIS HONOUR: Perhaps if could just confirm. I will stay on the Bench for a moment.
62 MR CASEY: Thank you, Your Honour.
63 HIS HONOUR: Madam Prosecutor, are you able to identify any other matter that I have got to attend to in this matter?
64 MS WARDA: Serious sexual offender provisions, Your Honour, Part 2A of the Sentencing Act. It was in my Crown opening, Your Honour, that pursuant to Part 2A(6)(B) the accused is to be sentenced as a serious sexual offender upon conviction of two sexual offences. Pursuant to Clause 1 Schedule 1 incest is defined as a sexual offence for the purposes of this provision, each of which has to be sentenced to a term of imprisonment. So, s.47A(4) is under s.6B(2)(AB).
65 HIS HONOUR: Yes, and I appreciate that. I did give that mention in my reasons for sentence in my sentencing remarks, but do you say I have got to make some declaration now?
66 MR WARDA: It is an actual declaration, Your Honour, that he be recorded that he - - -
67 HIS HONOUR: What section?
68 MS WARDA: I take Your Honour to s.6F of the Sentencing Act. I have printout No. 49, so that is p.46, if Your Honour has the same printout of the Act.
69 HIS HONOUR: Yes, it is 48 I think, 49.
70 MS WARDA: Section 6F, Your Honour.
71 HIS HONOUR: "A court that sentences a serious offender for a relevant offence must at the time of doing so cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for it as a serious offender." I think I did indicate that in my sentencing reasons but, to avoid any doubt about the matter, I will - - -
72 MS WARDA: An actual declaration needs to be made, Your Honour, as opposed to just referring that it is a serious - - -
73 HIS HONOUR: I will declare that in respect of Charge 2 the offender was sentenced for that offence as a serious offender and I direct that this be entered in the records of the court in respect of that offence. Anything else that requires my attention? No. Thank you, you may take Mr Herring downstairs.
74 OFFENDER REMOVED
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