Director of Public Prosecutions v Herring (a pseudonym)

[2016] VCC 122

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

AT BALLARAT
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALBERT HERRING (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	17 February 2016
CASE MAY BE CITED AS:	DPP v Herring (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 122

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 P. Bourke
For the Offender	Ms Z. Broughton

HIS HONOUR:

1Albert Herring,[1] you have pleaded guilty to two charges of sexual penetration of a child under 16.  Those offences were committed between April 2003 and October 2004.  You also pleaded guilty on a separate indictment to one charge of failing with reporting obligations under the Sex Offenders Registration Act 2004.

[1] Albert Herring is a pseudonym.

2You admitted prior convictions.  Those prior convictions were recorded many years ago for relatively minor crimes which have no direct relevance to your offending before me so I put them to one side.

3In relation to the principal indictment the circumstances were set out in the summary of prosecution opening in comprehensive detail.  That document was read to the court and was tendered and marked as Exhibit 1.  I do not propose to rehearse all of the sordid details that are set out in that document here.  It is not necessary.  That document will remain on the court file.

4At the time of the offending your victim was a young child aged between eight and 10 years.  You were born in 1959 and, accordingly, were in your late 40s at the time you seriously sexually assaulted this child.

5In April 2003 the victim and her family moved into a house, next door to where you were living.  At the time you were living alone.  You had access visits as a result of sharing the custody of your daughter, Brooke.[2]  She was often at your home for that purpose.  She was age five at the time and was about four years younger than the victim. The victim and your daughter became friendly and she began spending more and more time at your house when they played together.  She started having sleepovers at your house.  Her parents, her family, trusted you to look after their daughter when she stayed at your house.  That trust was breached in the most horrific way by you.

[2] Brooke is a pseudonym.

6When the victim was about eight you commenced committing sexual offences against her.  The indictment contains two charges of sexual penetration.  They are representative charges.  Each charge represents three specific incidents, that is, in each case the principal incident and at least two others.  In addition to that, the summary that was put before me also included a great deal of information about other acts of indecency that you committed upon this child.  That uncharged act evidence was put as context. From an early stage, when the victim was attending your home, you began to abuse her, as I have said.  The victim recalls, on one of the first occasions, watching television with you and your daughter in the lounge room when a newsreader appeared on the program known as "Naked News".  You eventually turned it off and put on a video for this young girl to watch. The video depicted adults having sex. You commenced talking to the victim about sex.  You then sat beside her on the couch, rubbed her breast and touched her vaginal area over her clothing, before putting your hand down her pants and touching her on the skin of her vaginal area.  Similarly, there were several occasions when you would walk into the bathroom while the victim was in there and touch her breasts, talk to her about sex and touch her on the vagina.  She says this occurred many times when she was in the shower at your place.  You are not charged in relation to those acts.  It is context evidence.

7In relation to Charge 1, the circumstances specifically relied upon by the Crown are as follows.

8On an occasion, between 1 April 2003 and 7 August 2004, the victim was staying at your home.  You had come into the bedroom.  She got up and tried to get away from you.  You followed her and pushed her backwards onto the bed.  You pulled her pants off.  You told her, "don’t worry, you will like this", or words to that effect.  The victim started crying but you kept saying, "don't worry, you'll like this".  You sat next to her on the bed and inserted your fingers into her vagina.  Those circumstances constitute Charge 1 on the indictment.  That offence is aggravated by the fact that the complainant was, at the time, under the age of ten.  Accordingly, the offence carries a maximum sentence of imprisonment of 25 years. There are two other incidents of digital vaginal penetration relied upon in this representative count. 

9On another occasion, in fact as far as the victim can recall, it was the first occasion when she was digitally penetrated by you, she was eight.  She and your daughter were watching television. Your daughter fell asleep.  Again, you put on a pornographic video.  You obtained a blanket and sat next to her on the couch, putting the blanket over yourself and her.  You then placed her hands onto your penis and started touching her vagina. You inserted your finger or fingers into her vagina.  This incident constitutes one of the other occasions represented by Charge 1.

10On another occasion, when the victim was at your premises, you walked up behind her, lifted her T-shirt and felt her breasts while she was in the kitchen.  While holding her from behind you put your arm around her, your hand down her pants and penetrated her vagina with your finger. 

11In relation to Charge 2, the circumstances specifically relied upon by the Crown are as follows.

12On an occasion between 8 August 2003 and 31 October 2004, whilst the victim was at your home, in bed, staying the night, you entered the bedroom and pushed her backwards onto the bed; which was the bottom bunk.  Your daughter was asleep on the top bunk.  What an appalling picture.  You pulled the victim's clothes off and got on top of her.  This child was telling you to stop, you were telling her to keep quiet.  You were touching her breasts and vagina. You took your own pants off and were trying to force her hand onto your penis.  You lay on top of her, attempting to force your penis into her vagina.  She was telling you that it was hurting, you kept replying, "keep quiet" or she would wake your daughter in the top bunk.  You then penetrated her vagina with your penis.  She has described this as, "really hurting".  She told you to stop in a louder voice, and then screamed.  With that you withdrew your penis, got off her, pulled up your pants and left the room.

13The Crown rely on two other events of penile penetration of her vagina as part of the representative charge.

14On another occasion, when the victim believes she was eight or nine, after having tea, the victim, your daughter and you were on the couch watching television; the Crown concedes that in this instance it cannot prove that she was below the age of 10 years.  Again, your daughter fell asleep and you put on a pornographic movie.  You removed your own penis from your pants and began touching the victim's vagina with your other hand.  You then pulled her pants down, lifted her up by her armpits and put her on your lap.  You started trying to push your penis inside her vagina using your hand to guide your penis.  She says that you managed to penetrate her "a little bit" and it was hurting and she kept asking you to stop.  You then stopped and carried your sleeping daughter to her bed.

15On another occasion when the victim was staying at your house, again, you put your hand down the front of her pyjama shorts and then took her shorts off.  You began touching her vagina.  You then laid on top of her and pushed your penis inside her vagina.  Once again, she was telling you to stop but you did not, you just kept pushing your penis inside her.  She stated that this really hurt.  Eventually you withdrew your penis and left.

16Several other uncharged acts are described in the summary, which I do not propose to repeat here, save to say it is clear to me that the context of your offending involves a continuing course of conduct over a period of time, something less than 18 months, when you sexually abused this child, who was in your care with the permission of her family, who trusted you.  You not only failed to look after her as they expected you to do, but you positively took advantage of her in the most vile way, in a way that has damaged her severely.

17I have read the victim impact statement, which was marked and tendered.  In that, your victim describes, poignantly, the devastating impact of your offending upon her.  She describes at the time feeling confused and too scared to tell anyone what had happened, feeling intimidated, being fearful of telling her mother for fear of what her mother might do if she found out, and her brother who she feared would get "ballistic".  As the summary makes clear, when the victim was about 17, and shortly after seeing you in a Salvation Army store, where you were working as part of a community-based order, she was so affected by panic and fear that she eventually told her mother what had happened years earlier, as a result of which, the police were contacted. In her victim impact statement, she describes obtaining some relief by virtue of the fact that, once you had been charged, an intervention order was obtained.  She says, however, she still has nightmares, this still continually plays on her mind; she often wakes up feeling panicked; she has a fear of males; she fears going out on her own; she has feelings of anxiety and nervousness and a sense that she is being watched.  She has been studying hairdressing, but now experiences difficulty and anxiety when a male customer comes in to have his hair cut. She hopes that once these proceedings are over that she will gradually be able to deal with these feelings and put them behind her.  However, as I have commented in other cases in these sittings, it cannot be denied that whilst you might be rehabilitated one day, a lot of work will need to be done, a lot of time will pass, and further pain experienced, before your victim is rehabilitated.

18When you were interviewed by the police, although they were significant, you did not make full admissions. You admitted having touched her on the breasts and the vagina.  You admitted caressing her legs and rubbing her vagina.  You denied, however, ever penetrating her.  You admitted that you had touched her vagina about 10 times but said you really could not say how many times it was.  You told the police that you were very sorry for what you had done and you felt disgusted with yourself. 

19A one-day contested committal was conducted in these proceedings on
13 January 2015, a little over a year ago.  The complainant was cross-examined about these matters.  Subsequently, in September 2015, you offered to plead guilty. You were arraigned on 3 September 2015 and entered your pleas. 

20As a result of this offending you will be placed on the Sex Offenders Register, upon which you are already listed as a result of a subsequent matter, which I will refer to in a moment.  However, now you will be required to report for the rest of your life.  You are to be sentenced as a serious sexual offender; however, the Crown has conceded that it is not necessary to impose a disproportionate sentence in this case because the sentence available to the court will be sufficient to satisfy the sentencing objective of protection of the community.

21In relation to the second indictment, you were convicted on 17 May 2011, at the Melbourne County Court. The indictment comprised of three counts of indecent act with a child under the age of 16. You were sentenced to a partially suspended sentence and a community-based order in relation to those matters, you were also placed on the Sex Offenders Register. You were required to register for a period of eight years. You were given a notice of your obligations under the Sex Offenders Registration Regulations 2014; those obligations included notification of any child-related employment.

22About four years later, on 3 April 2015, you were managing a children's jumping castle at a Rodeo. You were observed by a witness assisting children on and off the jumping castle, sitting them down and helping them remove their shoes.  On 4 April the police were notified of this.  You were arrested and questioned in relation to this on 5 May 2015.  When interviewed you admitted that you had been occasionally offered extra shifts managing amusement rides for children.  You made full admissions, in particular to managing the jumping castle, on 3 April 2015.  You told the police "I just didn't twig, I didn't see anything wrong with it."  I find that difficult to accept, that you did not know that, as a result of being placed on the Sex Offenders Register, you were obliged to inform the authorities of any child-related employment.  The maximum penalty for that offence is five years' imprisonment.  In the circumstances I regard that as a serious example of that offence. 

23People are often brought before this court for failing to inform the authorities of a change of mobile phone number, purchasing a new car, moving from one unit to another within a block of flats.  They are far less serious examples of this offence.  Your breach involved actually working with children, physically touching them and helping them off the jumping castle, removing their shoes and putting them back on, and so forth.  Your duties, effectively, involved you being in a position of trust in relation to those children.  I will come back to that in due course.

24A comprehensive plea in mitigation was made on your behalf by your counsel, Ms Broughton.  From the outset she emphasised that you had pleaded guilty to these charges and conceded that the seriousness of the offending warranted the imposition of a serious sentence of imprisonment. 

25She relied upon the following matters by way of mitigation:  first, your plea of guilty.  Whilst conceding that it was not an early plea and that there had been a contested committal, she submitted that the plea, nevertheless, had strong utilitarian benefit.  I accept that submission.  I bear in mind in particular what Bongiorno JA said in R v Davy,[3] namely, that a plea of guilty is especially valuable in respect of child sexual offending and that a real discount for such a plea should be provided.

[3] [2011] VSCA 98 at [34]

26Your counsel relied on the words of Priest JA in Reid (a pseudonym) v The Queen, where His Honour said:

Charged individuals faced with the choice of either pleading guilty or electing to contest a trial need to know that a plea of guilty will find real discernible, palpable recognition…[4]

[4] [2014] VSCA 145 at [111],

I accept, of course, that that statement of principle applies in this case.

27Secondly, in relation to your plea of guilty, she submitted that it evidenced remorse on your part.  I am prepared to accept that your initial expression of remorse to the police, although not accompanied with full and frank admissions, was genuine; that is, that you did feel disgusted with yourself. I accept that your plea is consistent with that and, at the very least, represents an acceptance of responsibility on your part.

28Next, your counsel relied upon your prospects of rehabilitation.  She relied upon the statement of opinion in the report of Dr Dion Gee that your risk of re-offending was moderate and unlikely to escalate, even in the absence of clinical intervention.  Ms Broughton relied on the fact that it is now nearly five years since you were sentenced to the community-based order and the partially suspended sentence.  You had complied with both of those dispositions and have not re-offended.  I accept that you have reasonable prospects of rehabilitation.

29Your counsel, Ms Broughton, also relied on the hardship that you will suffer in gaol in the knowledge that your father, who is currently aged 81 and seriously ill, is dying; and that your elderly mother, who you provided significant assistance to in recent years, will be left alone to care for him, without your support.  You are an only child, there is no-one else.  I regard that as a significant burden for you to carry in gaol, and as a part of your punishment, that as a result of your own misconduct, your parents will be effectively abandoned in their days and months of immense need and hardship.  You will not be with your mother when your father dies.

30Finally, she relied on the matter of delay.  Whilst usually delay between offending and being sentenced is not a significant matter in mitigation in cases of this kind, in this particular case there was a significant unexplained delay between the date upon which you were interviewed and made your admissions - at the very least you admitted to serious examples of sexual assault of this child - until you were charged, and then from the date of charge until now.  Consistent with authorities going back at least as far as R vMiceli,[5] that is a matter that is properly taken into account because the fact that these matters have been hanging over your head for some time in itself represents a form of punishment.

[5] [1998] 4 VR 588

31I have taken all of these matters into account.  I am aware of your background.  It is set out clearly in the material.  As I have said, you are an only child.  You grew up in a happy and supportive environment.  You described your childhood once to Dr Walton as having been brilliant growing up in a small town and living on farms, surrounded by friends, sporting groups and communities in which you were involved, having solid, decent, loving family and parents.  It is a mystery to me, and I am sure to your parents, how it is you find yourself in this position now, given that background.  You are well educated, to Year 12 at High School.  Until you were retrenched in 2009, you had an excellent employment history, always being employed; particularly in transport and cold storage businesses.  Those things, namely your background, your upbringing, your employment history, are also relevant and I have taken them into account in assessing your prospects of rehabilitation.

32However, as I have said, I regard these examples of these offences as being serious.  I am cognisant of repeated statements in the Court of Appeal, in recent years, to the effect that sentencing courts may have failed to give appropriate weight to the increases in maximum sentences that have been imposed in relation to this type of offending, over the years.  The purpose of these laws is to protect innocent children.  A child of the age of eight, or nine, or ten cannot protect herself.  Your offending against this child was vile and disgusting.  It involved a significant breach of trust on your part.  It was perpetrated over an extensive period of time.  It was carried out in circumstances where on occasions, according to her account, she cried and begged you to stop.  This left a lasting impact upon her. 

33The law demands that the sentence must be a stern sentence in order to send a message of general deterrence to other members of the community that they must not fall to temptation and become involved in this sort of horrific offending.  It must send a message to you, to deter you from ever being tempted again to engage in this sort of conduct.  It must involve significant punishment to reflect the harm that you have caused.  The sentence must involve a significant level of denunciation to make it clear that the community abhors the abuse of children; and, of course, the sentence must be balanced in a way to facilitate your rehabilitation and must not be crushing.

34On Charge 1, you are convicted and sentenced to be imprisoned for five years.  That sentence takes into account the fact that the maximum sentence is 25 years and that your victim was aged eight and nine when the offending occurred. 

35On Charge 2, you are convicted and sentenced to three years' imprisonment.  Although it might be thought that the objective circumstances of that offence were more serious, because of the quirk of the law, that offence only carries a maximum sentence of ten years and that must be reflected in the sentence that I impose.

36On the second indictment, the charge of failing to comply with reporting obligations under the Sex Offenders Registration Act 2004, you are sentenced to six months' imprisonment.  I have already commented that I regard this particular example as a serious example of a breach of those provisions.

37I make the following orders for cumulation.

38One year of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1; and, three months of the sentence on the second indictment is to be served cumulatively on the sentence on Charge 1 on the first indictment.

39That produces a total effective sentence, as between the two indictments, of six years and three months and I fix a minimum non-parole period of four years.

40Pursuant to section 6AAA of the Sentencing Act, I declare that had this matter proceeded as a trial I would have sentenced you to a total effective sentence, on both matters, of seven years and nine months with a minimum non-parole period of five years and nine months.

41HIS HONOUR:  How many charges was he committed on?

42MS BROUGHTON:  There were ten charges.

43HIS HONOUR: The offender was committed on ten charges and I have factored that in to the 6AAA declaration.

44The Sex Offenders Registration Act 2004 notice must be given to Mr Herring.  I declare that you have served one day by way of pre-sentence detention.  I will leave the Bench for a moment.  When that notice is prepared, Harry, would you let me know and I will come back onto the Bench to sign and witness it being given to Mr Herring.  If everyone would remain for a minute or two.

45(Short adjournment.)

46HIS HONOUR:  Now, the notification needs to be given to Mr Herring.

47MS BROUGHTON:  If I could accompany your associate?

48HIS HONOUR:  Yes.

49MS BROUGHTON:  Thank you.

50MS BROUGHTON:  Just some custody management issues, Your Honour.  Gout and diabetes.

51HIS HONOUR: He's in receipt of medication for both of those conditions?

52MS BROUGHTON:  He is, yes.

53HIS HONOUR:  Is that right, Mr Herring?

54OFFENDER:  Yes, I'm also an asthmatic as well so you don't need a script for those.

55HIS HONOUR:  And you've got a Ventolin pump.  So in the record it'll be noted that you have medical needs and medication in relation to gout, diabetes and asthma.

56MS BROUGHTON:  Thank you, Your Honour.

57HIS HONOUR:  I will adjourn now until 2.15.

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