Director of Public Prosecutions v Howard (a pseudonym)
[2021] VCC 354
•26 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HECTOR HOWARD (A PSEUDONYM)[1] |
[1] To ensure there is no possibility of identification of the victim of the sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the perpetrator. The victim and other related persons’ names have also been anonymised for the same reason.
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 March 2020 and 22 May 2020 | |
DATE OF SENTENCE: | 26 March 2021 | |
CASE MAY BE CITED AS: | DPP v Howard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 354 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Sexual penetration of biological daughter – Convicted at trial – Involving a child in the production of child abuse material – Contravene family violence intervention order – Plea of guilty – Grave breaches of trust – Lack of remorse – Victim blaming – Incest of mid-range seriousness – Particularly vulnerable victim – Suffered from abuse in childhood – Disadvantaged upbringing – Below average intelligence – No relevant prior criminal history – Good work history – Supported by family – Verdin’s principle 5 engaged – High moral culpability – Guarded prospects of rehabilitation – Significant delay – Serious sexual offender
Cases Cited:DPP v Charlie Dalgliesh (a Pseudonym) [2016] VSCA 148 – R v Ware [1977] 1 VR 647 – R v Sposito – DPP v Walsh (a pseudonym) [2018] VSCA 172 – DPP v Short [2006] VSCA 120 – Brown v The Queen [2020] VSCA 212 – Rodriguez v DPP (Cth) (2013) 40 VR 436 – Marrah v The Queen [2014] VSCA 119 – Director of Public Prosecutions (Cth) v Garside (2016) 50 VR 800 – Carter v The Queen (2018) 272 A Crim R 170
Sentence: Total effective sentence of 9 years’ and 7 months’ imprisonment with a 7 year non-parole period – Fined $900
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Dickie | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr I G Crisp | Thexton Lawyers |
HIS HONOUR:
1 Hector Howard,[2] following a 16-day trial you have been found guilty by a jury of three charges of sexual penetration of a child or lineal descendant (Charges 2, 3 and 4)[3] and pleaded guilty when arraigned before the jury to one charge of involving a child in the production of child abuse material (Charge 5).[4]
[2] A pseudonym.
[3] Contrary to s 50C(1) Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
[4] Contrary to s 51B(1) Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
2 You were found not guilty of one charge of sexual penetration of a child or lineal descendant (Charge 1).[5]
[5] Contrary to s 50C(1) Crimes Act 1958 as amended by the Crimes Amendment (Sexual Offences) Act 2016.
3 You have also consented to have this Court deal with three transferred related summary offences[6] of contravene family violence intervention order (Summary Charges 6, 7 and 8).[7] You have pleaded guilty to both these charges.
[6] Pursuant to Criminal procedure Act 2009 ss 145 & 242.
[7] Contrary to the Family Violence Protection Act 2008 s 123(2).
4 The maximum penalty for sexual penetration of a child or lineal descendant (Charges 2, 3 and 4) is imprisonment for 25 years,[8] the maximum penalty for involving a child in the production of child abuse material (Charge 5) is imprisonment for 10 years,[9] and the maximum penalty for contravene family violence intervention order is imprisonment for 2 years or 240 penalty units.[10]
[8] Pursuant to s 50C(1) Crimes Act 1958.
[9] Pursuant to s 51B(1) Crimes Act 1958.
[10] Pursuant to Family Violence Protection Act 2008 s 123(2). At the time the offences were committed a penalty unit was $161.19.
The facts
5 For the purposes of sentencing you, I accept the following facts in relation to the four indictment charges which are before me.
6 Megan Ramsey[11] is your biological daughter.
[11] A pseudonym.
7 You and Megan’s mother, Courtney Ramsey[12], had been in a relationship. Courtney cut all ties with you when Megan was aged 4. When Megan was aged 14, she contacted you via Facebook messenger.
[12]A pseudonym.
8 Megan subsequently met you and later your other children and wife. Between August 2017 and March 2018, Megan spent regular time with you at your home and work and at her home, and there was contact between you and Megan via text and other messages.
Charge 2
9 On a date between 31 August 2017 and 30 November 2017, you sexually penetrated Megan’s mouth with your penis at your home. You and Megan were at your home when, as Megan was washing her hands, she turned to see you with your pants down. You told her to ‘suck you off’ and you grabbed her hair and pulled her down until she was kneeling on the floor in front of you. You began to bob her head up and down on your penis until you ejaculated in her mouth.[13]
Charge 3
[13] See VARE Qs 72-76; Trial transcript (‘TT’) 225.23–227.09.
10 On a date between 30 November 2017 and 13 March 2018, you penetrated Megan’s vagina with your penis at your workplace. After you and Megan had exchanged text messages, you told Megan to meet you at your workplace. When Megan arrived, you took her to a first aid room and told her to lie on the bed. She lay on the bed and you removed her top and began to massage her. You grabbed Megan by the jaw and started to choke her. She flipped around and you continued to choke her. She passed out for a couple of seconds and when she woke up you were on top of her. You penetrated Megan’s vagina with your penis. You held her down on the bed by her shoulders and ejaculated in her vagina.[14]
[14] See VARE Qs 98–102; TT 132.10–14, 228.01–230.22.
11 It is apparent from Megan’s description of this offence, which I accept, that you engaged in unprotected penile-vaginal sexual intercourse with her. This is an aggravating circumstance, in the sense it increases the objective gravity of your offending conduct in committing the crimes in the subject of Charges 3 and 4,[15] and it increases your moral culpability.[16] As is the serious non-sexual violence you perpetrated on Megan in the course of committing this offence, which resulted in her momentary loss of consciousness.
Charge 4
[15] See eg BM v The Queen [2013] VSCA 3 [23]–[28] (Maxwell P, Whelan JA agreeing); R v Khem (2008) 186 A Crim R 465, 468 [13] (Ashley JA), 468–70 [14]–[20] (Neave JA),472–3 [33]–[34] (Pagone AJA); R v Magner [2004] VSCA 202 [68] (Gillard AJA, Batt and Eames JJA agreeing); R v MSK and MAK (2004) 61 NSWLR 204, 218 [66] (Wood CJ at CL).
[16] Crawford (a pseudonym) v The Queen [2018] VSCA 113 [60] (Maxwell P and Kyrou JA) (‘Crawford’).
12 On a date between 30 November 2017 and 31 July 2018, you penetrated Megan’s vagina with your penis at her home. You instructed her to go into her bedroom and lay down on the bed. You took off your clothes and told Megan to take hers off, which she did. You told her to lay face down on the bed. You penetrated her vagina with your penis. You reached your hand forward and gripped her hair and pulled her hair back. You let go of her hair and pulled both of her arms behind her back and ejaculated inside her vagina.[17]
[17] See VARE Qs 16–51; TT 230.23–231.24.
13 Once again, it is apparent from Megan’s description of this offence, which I accept, that you engaged in unprotected penile-vaginal sexual intercourse with her on this occasion. This is an aggravating circumstance, as is the non-sexual violence you perpetrated on Megan in the course of committing this offence.
14 Megan made her first complaint on 25 September 2018 and a family violence intervention order was obtained against you the next day. Megan participated in a VARE interview on 22 October 2018, which implicated you in the present offences.
Charge 5
15 Charge 5 is a rolled-up charge comprising identifiable discrete criminal acts occurring on 16 and 20 January 2019. In sentencing you on this charge, I must consider all the circumstances of the offence and your circumstances, and the totality of the harm described in the charge.[18]
[18] See R v Jones [2004] VSCA 68, [12]–[13] (Charles JA, Phillips JA and Bongiorno AJA agreeing); R v Beary (2004) 11 VR 151, 156–7 [11]–[14] (Callaway JA); and most recently, Schembri v The Queen [2020] VSCA 217 [58]–[60] (Maxwell P and Niall JA) and Lugo (a pseudonym) v The Queen [2020] VSCA 75 [49]–[54] (Maxwell P, Kaye , T Forrest, and Emerton JJA; [67]–[69] (Priest JA).
16 Between 13 January 2019 and 21 January 2019, you engaged in a series of text messages with Megan in which you intentionally involved your child in producing child abuse material, consisting of images of her genital region and images of her naked and engaged in a sexual pose. The five images were sent by Megan to you at your request on 16 and 20 January 2019.[19]
[19] See Trial Exhibit P4 (‘TEx’), photographs 26 and 27 (16.01.19) and photographs 70, 72, 88 and 89 (21.01.19).
17 This contact was initiated by Megan after you became aware she had made allegations against you that you had sexually assaulted her. The messages were in part initiated by Megan because of perceived police inaction regarding her complaint and as part of an attempt by Megan to get you to admit your sexual conduct and your perception of having had a sexual relationship with her.
18 Within a short period, you engaged in conduct that involved your child in the production of child abuse material. For example, you sent Megan a request to send you a ‘pic after cum of your hot pussy.’ When Megan replied she had some photos she could send, you replied, ‘Shoot. I will have geez.’ Megan then sent you sexualised photographs of herself.[20]
[20] TEx P4, photograph 69.
19 You then sent Megan a message saying, ‘Send a deep pic of your clit so I can cum.’ Megan sent a photograph of her genitals, to which you responded that it was the ‘best pic of all time omg pure porn.’ You later encouraged Megan to delete the messages.[21]
[21] TEx P4 photographs 89–90.
20 The relevant photographs are blacked out in the trial exhibit because they constitute child abuse material. Nonetheless, in assessing the gravity of your offending conduct, I have had regard to the description of the photographs contained in Plea Exhibit P4. They have not been officially categorised in accordance with the Interpol Baseline 4 Tier Categorisation System (IB4TCS) or the Australian National Victim Identification Library (ANVIL) classifications. However, from the descriptions of the images, I sentence you on the basis they fall in the lowest ANVIL category, being ‘Level 1 — Depictions of children with no sexual activity’.
21 An aggravating feature of Charge 5 is that at the time of committing the offence a family violence intervention order was in place, which your offending conduct breached.[22] However, since you have pleaded guilty before me to three specific related summary offences in relation to these breaches, you will not be doubly punished by the imposition of an increased penalty on Charge 5. Instead, you will be separately sentenced on Summary Charges 6, 7 and 8.
Other relevant evidence
[22] See eg Marrah v The Queen [2014] VSCA 119 [20], [25] (Redlich and Tate JJA); Filiz v The Queen [2014] VSCA 212 [21] (Maxwell P and Redlich JA) (albeit, these cases involved the infliction of physical violence against a domestic partner or former domestic partner).
22 On 19 February 2019 you were arrested and interviewed in Queensland, and eventually extradited to Melbourne. On arrival, you were remanded in custody.
23 About a month after committing the offence in Charge 2, you started to threaten Megan. You said that if she ever left you her family ‘would be in trouble’ and you would hurt Megan’s cat called ‘Tina’.[23] Megan gave evidence, which I accept, that you said: ‘You’ll never get out of this … and your family will pay if you ever leave me’.[24] This caused Megan to fear repercussions for her family if she did not go along with your demands. You also told Megan that if she went to the police, they would not believe her, and they would think she was ‘disgusting’.[25]
[23]A pseudonym.
[24] Special hearing transcript (‘SHT’) p 25; TT 113.04–20.
[25] Ibid pp 27–28, 39, 55, 220; TT 447–448. Exs P30 & 31.
24 During your evidence before the jury in your trial you said Megan was driving the sexual relationship and she was threatening you with blackmail.[26]
[26] TT 460.
Victim impact statement
25 Two victim impact statements were tendered, one made by Megan and the other made by her mother, Courtney. Your counsel did not object to both victim impact statements being tendered and did not object to their content. They speak eloquently of the harm your conduct has inflicted on Megan and her mother.
26 According to Megan’s victim impact statement, her self-harming escalated during your offending. She said the self-harm has left her with significant scarring and nerve damage. She also said she contemplated suicide during your offending.
27 She said she is unemployed due to feeling self-conscious about the scarring and anxiety. She said she suffers from post-traumatic stress disorder (PTSD), depression and anxiety. No psychological or medical report was provided by counsel for the prosecution or Megan. However, your counsel did not object to the content of Megan’s victim impact statement in this regard. She said she fears leaving her home and experiences panic attacks in public areas.
28 She said she has struggled to maintain friendships as she has a strong distrust for people outside her family circle and struggles to feel empathy.
29 According to Courtney’s victim impact statement, your offending strained her relationship with Megan. Courtney said she felt deeply sad, fearful and helpless because of your offending. She feels like she has failed to protect her daughter and has intrusive thoughts on a daily basis.
30 Courtney also said she suffers from anxiety and depression. No psychological or medical report was provided by counsel for the prosecution or Courtney. However, once again, your counsel did not object to the content Courtney’s victim impact statement.
31 Megan said she and Courtney are working to restore their relationship.
32 I am mindful of the recent observation of the Court of Appeal in DPP v Charlie Dalgliesh (a Pseudonym):[27]
… as this Court explained in Clarkson v The Queen,[28] the absolute prohibition on sexual activity with a child is ‘founded on a presumption of harm’. The significance of the violence and harm which such conduct entails cannot be overstated.
[27] [2016] VSCA 148 [47] (Maxwell ACJ, Redlich and Beach JJA) (‘Dalgliesh’).
[28] (2011) 32 VR 361, 364 [3] (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).
33 The Court of Appeal in recent times has on a number of occasions also noted that it is ‘a well-known fact that young victims of incest carry the scar for their lives’.[29]
[29] R v KHB [2004] VSCA 219 [105] (Gillard AJA) quoted in Dalgliesh No. 2 [70].
34 Accordingly, I take into account the relevant matters regarding the impact of your crimes on Megan and Courtney in sentencing you. Clearly, your offending has had a profoundly traumatic effect upon Megan and a serious impact upon her mother.
Offence seriousness
35 Sexual penetration of a child or lineal descendant (formerly described as ‘incest’)[30] is a very serious criminal offence carrying a maximum penalty of 25 years’ imprisonment, which is the highest fixed maximum penalty in the criminal calendar. This unequivocally indicates the seriousness with which the legislature, on behalf of the Victorian community, views these offences[31] and ‘reflects the community’s abhorrence of sexual crimes against children.’[32] Your counsel conceded these are serious offences.
[30] See Crimes Act 1958 s 44 as enacted prior to the commencement of the Crimes Amendment (Sexual Offences) Act 2016 on 1 July 2017. See also the heading to Crimes Act 1958, Part 1, Division 1, Subdivision (8C) ‘Incest’ and the Interpretation of Legislation Act 1984 s 36(1).
[31] See eg Nguyen v The Queen (2016) 311 FLR 289, 332 [146] (Redlich JA, Tate and Whelan JJA agreeing); Dalgliesh [126].
[32] Dalgliesh [78], [123], [126]; Dalgliesh No. 2 [75].
36 In my opinion, Charges 2, 3 and 4 represent offences of mid-range seriousness, as your victim was to your knowledge young and particularly vulnerable, and the offending conduct involved varying degrees of assaultive behaviour, including quite serious non-sexual violence comprising, in the case of Charge 3, choking your victim to the point of unconsciousness.
37 Moreover, after committing the first and second offences, which are before me, you had opportunities to pause and reflect on your conduct, and its impact on Megan, and to desist, but you persisted, and, in my opinion, the objective gravity of your offending conduct by stages increased. It was truly appalling conduct.
38 Involving a child in the production of child abuse material is also serious offending as indicated by the maximum penalty of 10 years’ imprisonment. Again, in my opinion, this is a serious example of this offence, as your victim was particularly vulnerable, and this was known to you. Your conduct towards her was opportunistic and abhorrent.
39 More generally, sexual offending by adults against vulnerable children is a ‘most serious blight on society.’[33] Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment.[34] The crime of incest involving a child ‘strikes at the familial roots of civilised society’[35] and ‘has long been regarded as being [a crime] of particular repugnance.’[36]
[33] DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428, 447 [57] (Kiefel CJ, Bell and Keane JJ).
[34] See eg R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); DPP (Vic) v OJA (2007) 172 A Crim R 181, 196–7 [33] (Nettle JA, Ashley and Redlich JJA agreeing).
[35] R v Ware [1977] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing) (“Ware”); quoted with approval in Dalgliesh [28].
[36] DPP v Charlie Dalgliesh (a Pseudonym) [2017] VSCA 360 [66] (Ferguson CJ, Weinberg and Whelan JJA) (‘Dalgliesh No. 2’).
40 In R v Sposito[37] Marks J, with whom Hampel and McDonald JJ agreed, said:
[37] Unreported, Supreme Court of Victoria, Appeal Division, Court of Criminal Appeal, 8 June 1993.
A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are the natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim… Another feature is that the resolve of the victim to resist the demands of the offender is weakened by the natural affection which the child has for his or her parent, and by reason of other aspects of natural dependency.
…
It is difficult to imagine conduct which is more evil than that of a father, or a person in the position of a father, who preys for his own sexual satisfaction on his own young child …[38]
[38] Ibid 4–6. See also Ware 653; DPP v MJ [2000] VSCA 66 [17] (Phillips CJ, Brooking JA and Hedigan AJA agreeing); DPP v Toomey [2006] VSCA 90 [18]–[19] (Vincent JA) (‘Toomey’); OAA v The Queen [2010] VSCA 155 [42] (Maxwell P and Weinberg JA); Dalgliesh [80]; Dalgliesh No. 2 [67].
41 In Dalgliesh[39] the Court of Appeal said:
Society, the legislature and the courts are at one regarding the objective seriousness of sexual offending against children, and of incest in particular. Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their welfare. In Ryan v The Queen, Kirby J said:
Courts must uphold the law which treats sexual offences against children and young persons as extremely serious crimes, particularly where (as is often the case) such offences involve breaches of trust and responsibility on the part of those who had such young persons in their care.[40]
[39] [2016] VSCA 148.
[40] Ibid [43] quoting Ryan v The Queen (2001) 206 CLR 267, 302 [117] (Kirby J) (‘Ryan’).
42 More recently, the Court of Appeal in DPP v Walsh (a pseudonym)[41] said:
Incest involving a child is an appalling crime. It involves a breach of trust of the most fundamental kind, and an inexplicable abdication of parental responsibility. Just as seriously, it involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.[42]
[41] [2018] VSCA 172.
[42] Ibid [1] (Maxwell P and McLeish JA) (citations omitted). See also DPP v Amaral (a Pseudonym) [2020] VSCA 290 [33] (Maxwell P, T Forrest and Weinberg JJA).
43 General deterrence, denunciation and just punishment must be given significant weight in sentencing you for these offences.[43] Your natural daughter, only recently reunited with you, was deserving of your love and protection and not your sexual abuse.
[43] See Dalgliesh [129]; Browne (a Pseudonym) v The Queen [2015] VSCA 274 [71] (Robson AJA); Toomey [10]; Ryan 283 (McHugh, J); DPP v G [2002] VSCA 6 [9]–[10] (Winneke P).
44 Your offending conduct involved grave breaches of the trust you owed to Megan and her mother and a profound disregard of your parental responsibilities. It is noteworthy that your offending conduct commenced within two months of Megan making first contact with you.
45 Charge 4 was committed in Megan’s home where you had a duty to protect her and she had a right to feel safe. You debauched your daughter in order to satiate your sexual lust. The moral repugnance of your offending cannot be overstated. It requires denunciation in the strongest possible terms and the imposition of condign punishment.[44]
[44] See eg R v WEK [1998] 2 VR 385, 387 (Winneke P); R v RND [2002] VSCA 192 [1] (Ormiston JA).
46 It is also evident that you show no remorse for your offending conduct comprised by Charges 2, 3 and 4. You continue to deny your offending conduct, despite the jury’s verdicts, and you blame your victim for your current predicament; claiming she threatened to blackmail you and destroy you and your family. Clearly, you completely lack insight into the reasons why you so debauched your vulnerable daughter.
47 ‘The Courts, when dealing with … cases [like the present], must have regard to the vindication of the community’s social values, pre-eminent among which are the protection of the personal integrity and physical safety of its citizens.’[45]
[45] DPP v Short [2006] VSCA 120 [42] (Vincent JA) (citations omitted), quoted with approval in Dalgliesh No. 2 [74].
48 Moreover, the Court of Appeal held in 2016 that ‘… sentences for incest offences in the mid-range of seriousness should be … increased so as to properly reflect the objective gravity of this offence.’[46] The range of sentences is to be ‘uplifted and substantially expanded’.[47]
[46] Dalgliesh [7], [128], [131].
[47] Ibid [131]. See also Carter v The Queen (2018) 272 A Crim R 170, 189 [80]-[81] (Weinberg, Beach and Hargraves JJA) (‘Carter’); Grantley v The Queen (2018) 272 A Crim R 340, 345–7 [19]–[26] (Maxwell P and Kyrou JA) (‘Grantley’).
49 The prosecutor relied on a number of circumstances present in your offending which he said made your offences ‘extremely serious’. Your victim was ‘particularly vulnerable’. She had only just met you, and she told you she suffered from anxiety and had been sexually abused in the past. Knowing your daughter was particularly vulnerable, you exploited that vulnerability on three occasions over a seven-month period.
50 The prosecutor, correctly, in my view, emphasised that you manipulated your daughter by telling her you loved her romantically and you encouraged her to respond in kind. You further manipulated her by using what the prosecutor described as ‘cruel; and derogatory language about her appearance’, despite knowing she suffered from ‘body image problems’.[48]
[48] Ex P1 ‘Prosecution Outline of Sentencing Submissions Post-trial’ dated 16 March 2020 [11] (‘Prosecution Plea Submissions’).
51 The prosecutor also emphasised the facts that in each incident sexual penetration was accompanied by non-sexual violence, and you ejaculated in Megan’s mouth (Charge 2) and vagina (Charges 3 and 4) without using a condom. So far as Charges 3 and 4 are concerned, he submitted by ejaculating in Megan’s vagina you ran the risk of her becoming pregnant or contracting a sexually transmitted disease. He characterised this as being an aggravating circumstance of your offending conduct in relation to those charges. I accept this is correct.
52 The prosecutor also submitted that your crimes were not spontaneous, but involved a degree of organisation, planning and grooming. I accept this characterisation of your offending conduct.[49]
[49] Ibid.
53 So far as Charge 5 is concerned, the prosecutor correctly submitted that despite moving interstate and being aware that Megan had reported your crimes to police and obtained a family violence intervention order against you, when given the opportunity by Megan you continued to express a sexual interest in her and you sent very graphic sexual messages to her, and encouraged her to send you very graphic sexual images of herself.
54 You told police in your record of interview that ‘most of the times’ when you were texting Megan you were intoxicated.[50] This is not a mitigating circumstance in your case.[51]
[50] Record of Interview conducted 19 February 2019 Q 494.
[51] See eg R v Redenbach (1991) 52 A Crim R 95, 99; Hasan v The Queen (2010) 31 VR 28, 37 [33][; Morrison v The Queen [2012] VSCA 222, [18]-[19], [25]-[26].
Personal circumstances
55 At the time of your offending you were 45 to 46 years old and you are now aged 49 years.
56 You are the fourth child in a sibship of five. You have an older sister, Kate;[52] a younger sister, Judith;[53] and two older brothers, Paul[54] and Simon,[55] the latter being deceased. Your mother and father are both alive and live in rural Victoria. Your mother worked on occasions as a process worker but was most involved in looking after the family. Your father has consistently worked in a number of manual labouring jobs.
[52]A pseudonym.
[53]A pseudonym.
[54]A pseudonym.
[55]A pseudonym.
57 You have little contact with your father and have had no contact with Paul for over 10 years. Your mother and sisters are supportive of you and attended the plea hearings in this matter. You daughter, Joy,[56] was also present in court supporting you. Judith and Kate provided written outlines of your personal history[57] and Judith provided a written character reference.[58]
[56]A pseudonym.
[57] Exs D3 and D5 respectively.
[58] Ex D4.
58 During your childhood, your father was a heavy drinker and he was physically and emotionally abusive towards you, your siblings and your mother. You and your sisters were regularly sexually abused by Paul when you were aged 11 to 13. This included you and your sister Kate performing sexual acts on Paul and Paul inappropriately touching Judith.
59 You told Mr Martin Jackson, a consultant clinical neuropsychologist engaged by you legal representatives, the abuse by Paul also involved threats with a knife. Paul threatened to kill you if this was disclosed to anyone else. You did not tell your parents or the police.
60 You also engaged in some sexual play in Grade 5 at the behest of older boys.
61 When you were eight years old, Paul persuaded you to go into your parents’ room and take the keys to a motorbike. Paul and Simon took the motorcycle and were involved in a police chase which ended in a crash. Simon acquired a significant brain injury as a result of the crash and spent many years in a coma, before dying from his injuries. You blame yourself for your role in the crash and feel guilty about Simon’s death.
62 You undertook primary education at Maidstone Primary School, repeating Year 6. You then attended Braybrook High School for Years 7 and 8 and Tottenham Technical School for Years 9 and part of Year 10. You were often in trouble at school and were bullied because of your impoverished home life and poor academic skills. You were repeatedly suspended and eventually expelled from Braybrook High School. You moved to Tottenham Technical college but were not permitted to complete Year 10 due to your behaviour. You then completed a 2-year apprenticeship in sheet metal at Footscray TAFE.
63 You have previously worked in roles including a machine operator, forklift driver and warehouse operator. You have had some short periods of unemployment but have otherwise worked in a number of jobs for many years. You were working up until the time of your arrest. I accept you have a good work history which augers well for your future employment.
64 You met your wife, Connie,[59] when you were at school. When you were 18, you began dating and now have four children together: Joy[60], aged 28; Jake,[61] aged 26; Theodore,[62] aged 20; and Adam,[63] aged 9. They are all in good health and live in Victoria.
[59]A pseudonym.
[60]A pseudonym.
[61]A pseudonym.
[62]A pseudonym.
[63]A pseudonym.
65 In 2000, you began a relationship with Megan’s mother, Courtney, whom you met through work. You left Connie to continue your relationship with Courtney. You and Courtney had an on and off relationship for a few years.
66 Courtney became pregnant with Megan, but by the time Megan was born, you had separated. Courtney would visit you from time to time with Megan. Megan was aged 4 when contact between you ceased.
67 Following the breakdown of your relationship with Courtney, you returned to Connie and married her in 2004. You and Connie have had many arguments and you have limited capacity to manage this, particularly when you have suspected her of infidelity.
68 You have assaulted her and engaged in controlling behaviour such as threatening to kill yourself or making suicide attempts, which were in part designed to make her feel responsible. The relationship was turbulent, with some separations. Despite this history, Connie has been and remains supportive of you.
69 When Megan was about 14 years old, she decided she wished to reconnect with you. She sent you a Facebook friend request, which you accepted. Megan told you she wished to re-establish a daughter/father relationship. You told Mr Jackson that following a discussion with Connie, you agreed Megan could visit you. Connie was very supportive of you re-establishing contact with Megan. Megan visited you for the first time on 30 September 2017. I note this is after the commencement of the period charged in Charge 2 (31 August 2017). Nothing turns on this.
70 Megan confided in you that she had been sexually abused by an older cousin and that she had been raped by one of your best friends. You went with Megan to see a psychologist to discuss the abuse and attended four sessions with her. You also said Megan had told you she was using drugs and suffered from depression and was self-harming.
71 According to your wife, it was evident you became significantly involved with Megan’s difficulties with prior sexual abuse, drug use, depression and self-harm.
72 It seems you became obsessed with Megan, perhaps in part owing to guilt at your own absence in her life. Dr Danny Sullivan, a consultant forensic psychiatrist engaged by your legal representatives, opined that Megan’s re-entry into your life was associated with a range of apparently well-intended but inept efforts to assist her with her problems, but also with a profound sexualisation of the relationship.
73 You told Mr Jackson and Dr Sullivan that your contact with Megan caused increased marital stress with Connie, and so you and your family moved to Townsville, Queensland, in May 2018. Megan obtained an intervention order against you in October 2018.
74 You were arrested in Townsville on 19 February 2019 and extradited to Victoria. At the end of your committal hearing on 12 July 2019 you were granted bail, but surety was not provided. You were released on bail on 19 July 2019. Following the guilty verdicts, you were remanded in custody on 12 December 2019.
75 You told Dr Sullivan that until the COVID-19 pandemic, family members including your sisters, mother and Connie visited you in prison. Your daughter, Joy, also visited you in prison before the COVID-19 restrictions came into operation.
76 You said you have a good relationship with your sisters, especially with Judith. You also have regular telephone contact with your mother, sisters and Joy whilst you are in custody, particularly since the COVID-19 restrictions have seriously reduced visiting rights.
77 Apparently, you find these family visits hard to manage and at times you would cut visits short because you would become distressed or have disagreements.
78 You live in Jackson Unit in a cottage with five other men at the Hopkins Correctional Centre in Ararat. Apparently, you relate adequately with them. You are relating adequately with staff and have not been involved in any incidents. You are employed making custom motor vehicle number plates.
79 You told Dr Sullivan that you have generally spent time on remand in protection units and at times had restrictions placed on you because of a perceived risk of self-harm.[64]
[64] Ex D8 [50].
80 I agree with your counsel’s submission you have no prior convictions directly relevant to the present offending. Whilst you have a number of prior convictions and findings of guilt for relatively minor offences involving violence and offences against public order, you have no prior offences involving sexual offending. Moreover, your prior criminal history ends in June 2008, nearly 13 years ago.
81 You spent six months in gaol in 1998 in relation to two Commonwealth dishonesty offences, before being released on a recognizance. These offences apparently involved frauds on Centrelink.
82 Apart from the Centrelink fraud offences, your prior convictions comprise: (1) an unlawful assault on your wife, Connie, in 2001, for which you were convicted and fined $1000.00; (2) intentionally causing injury to a service station attendant in 2006, for which you were fined $250.00 without conviction; and (3) two charges of assaulting police, use insulting words in a public place and being drunk in a public place in 2008, for which you received an aggregate fine with conviction of $750.00. Your counsel told me all of these offences (other than the fraud charges) were committed whilst you were intoxicated.
Physical health
83 You suffer from a number of health conditions which are outlined in Dr Sullivan’s report.[65] None of these are particularly relevant from a sentencing perspective. Your counsel did not suggest otherwise. Nonetheless, it is noteworthy that you have lost a significant amount of weight whilst you have been in gaol. You entered custody on 12 December 2019 weighing 94 kg and in May 2020 you weighed 74 kg.
[65] Ex D8 [19]–[23].
Mental health
84 You were seen by Mr Bernard Healy, a consultant clinical psychologist engaged by your legal representatives, who assessed you on 14 March 2020 over a 3½-hour period.
85 He administered the Wechsler Adult Intelligence Scale IV. Testing was indicative of below average intellectual capacity with a full-scale IQ of 85, placing you at the 16th percentile, meaning that 84% of peers would perform better.
86 Administration of the Minnesota Multiphasic Personality Inventory (2) led to an ‘inference’ that you experience ‘quite an elevated level of depression’, which is in part reactive to your present circumstances. A ‘significant social introversion withdrawal dimension and a raised level of anxiety’ was also found to be present. In the past you have occasionally had suicidal ideation.
87 However, as I read Mr Healey’s report, he did not formally diagnose you as suffering from any mental illness or personality disorder which would engage Verdins principles.
88 I also note that Mr Jackson was somewhat critical of Mr Healy’s methodology and conclusions.[66] He was ‘somewhat surprised’ that Mr Healy did not ‘investigate [your] emotional trauma, addictive behaviours and psychiatric issues in more detail’[67] and that ‘the conclusions in [Mr Healy’s] report were basically a repetition of the information contained in the history and assessment.’[68]
[66] See ‘Neuropsychological Report’ dated 4 May 2020 (Ex D7) pp 17–18.
[67] Ibid p 18.
[68] Ibid.
89 Mr Healy flagged the possibility you may suffer from an acquired brain injury. As a result, you were assessed by Mr Jackson at the Hopkins Correctional Centre in Ararat over an almost three-hour period on 21 April 2020.[69]
[69] Ibid p 2.
90 Mr Jackson opined, you presented clinically as ‘clearly depressed with a lowered mood and reduced range of emotional affect. There were also clear signs of anxiety and stress in the form of some restlessness and rhetoric agitation. There were no signs of decompensation [or] … psychotic symptoms.’[70] He said: ‘Overall [you are] a man of estimated Low Average premorbid verbal intellectual abilities and Average premorbid perceptual intellectual abilities.’[71]
[70] Ibid pp 10 and 14.
[71] Ibid p 11.
91 Mr Jackson concluded that you do not have cognitive impairment due to past traumatic brain injuries. Nor is your profile consistent with alcohol related brain injury.[72] Rather, he opined that your ‘current neuropsychological profile’ is explicable by your ‘clearly impaired mental health status’ related to you displaying symptoms ‘suggestive of extremely severe depression, anxiety and stress’.[73] At the time you saw Mr Jackson you were prescribed the anti-depressant sertraline (Zoloft - 150 mg per day). You did not take any other prescribed medications.[74]
[72] Ibid p 17.
[73] Ibid.
[74] Ibid p 9.
92 Mr Jackson compared the results of his assessment to those obtained six weeks earlier by Mr Healy and concluded ‘[your] working memory skills and processing speed had deteriorated significantly’ over that period.[75] He opined ‘the only possible reason for this deterioration is a deterioration in [your] mental health status’ caused by increased levels of anxiety and depression.[76]
[75] Ibid pp 16–17.
[76] Ibid p 17.
93 Mr Jackson noted that you ‘reported a history of an excessive sex drive and that you always wanted sex’. You told Mr Jackson ‘if [you] did not get sex, then you would masturbate and watch porn 2-3 times a day’. Mr Jackson said you asserted your ’sexual thoughts never involved children and were always about adults.’[77] Mr Jackson opined ‘there is no evidence of a disorder of impulse control’.[78]
[77] Ibid pp 3 and 13.
[78] Ibid p 13.
94 Clearly, this aspect of your personality profile is highly relevant to the present offending and will need to be addressed if you are to be fully rehabilitated so as to reduce your risk of future sexual reoffending.
95 You also reported to Mr Jackson ‘significant gambling issues, including playing in snooker tournaments and then in later years, playing poker at the Casino and local clubs.’[79] Your counsel said, since the age of 18 years, you have gambled on horses, cars races and sports, and you even withdrew money from your superannuation fund to finance your gambling problem. Your counsel did not submit this aspect of your personality had any relevance for sentencing you for the present offences.
[79] Ibid.
96 Mr Jackson was ‘surprised’ Mr Healy had not investigated the possibility that you suffer from a ‘Borderline Personality Disorder (or Borderline Personality traits)’ and he thought this possibility ‘needs further investigation by a forensic psychiatrist.’[80] He did not formally diagnose you as suffering from any mental health condition or personality disorder, but deferred to Dr Sullivan for an opinion regarding your ‘personality and mental health issues.’[81]
[80] Ibid p 18.
[81] Ibid.
97 As luck would have it, you had already conferred with Dr Sullivan via telephone for a psychiatric assessment on 17 April 2020,[82] five days before Mr Jackson’s assessment. Dr Sullivan had access to Mr Jackson’s report prior to compiling his report.
[82] See ‘Psychiatric Report’ dated 10 May 2020 (Ex D8) and ‘Addendum Psychiatric Report’ dated 2 September 2020 (Ex D9).
98 You told Dr Sullivan you had some learning difficulties at school and described subjective memory problems. A comprehensive neuropsychological assessment demonstrated you have average to low average intellectual functioning and indicated that relative performance impairment is likely related to a mood disorder, rather than organic impairment.[83]
[83] Ex D8 [62].
99 I note, in passing, it has never been suggested that your level of intellectual functioning constitutes an intellectual disability sufficient to engage the principles discussed by the High Court of Australia in Muldrock v The Queen.[84]
[84] (2011) 244 CLR 120.
100 You told Dr Sullivan you had previous suicidal ideation, cutting your wrist some 20 years ago and throwing yourself from a car, after which you were admitted to Footscray Psychiatric Centre for treatment.
101 You told Dr Sullivan your strong and distressing emotions were significantly improved when you were prescribed an antipsychotic medication. This was prescribed when you were admitted to the Footscray Psychiatric Centre after a suicide attempt. You continued to take this medication for six to 12 months afterwards and you told Dr Sullivan you were able to return to work and managed better on the medication than you had previously.
102 It appears this condition has resolved, and there is no suggestion you presently need to take this or any other comparable medication.
103 You told Dr Sullivan that four years ago, when you had relational problems, you tried to overdose on tablets, tried to gas yourself, swallowed a rat poison and drove recklessly at high speed.
104 Dr Sullivan opined you satisfy a diagnosis of ‘harmful use of alcohol’ with no evidence of psychological dependence. You are currently abstinent in a controlled environment. [85]
[85] Ibid [63].
105 He also considered you satisfy criteria in ICD-10[86] for ‘recurrent depressive disorder, mild-moderate in severity’. Dr Sullivan opined a ‘substantial contribution’ to your mood disorder is ‘from poor adjustment to [your] current situation, while on remand and facing a further custodial sentence.’[87] You are currently on medication for this condition, which Dr Sullivan considered ‘appears beneficial’.[88]
[86] International Classification of Diseases, 10th edition.
[87] Ex D8 [65].
[88] Ibid.
106 Dr Sullivan considered you meet a diagnosis of ‘borderline personality disorder, described in ICD-10, named emotionally unstable personality disorder.’[89] It appears this was not previously diagnosed. In his addendum report Dr Sullivan considered your disorder ‘would be best described as of moderate severity’.[90]
[89] Ibid [66].
[90] Ex D9 [14].
107 Dr Sullivan opined: ‘There is no prior clear indication of paedophilic or incestuous fantasies or behaviours, and it is not clear that a diagnosis of paraphilia would be satisfied.’[91]
[91] Ex D8 [67].
108 Dr Sullivan summarised his opinion regarding the personality factors present in your offending conduct as follows:
In Mr Howard's case, the offences of which he has been convicted reflect the confluence of multiple issues. He has become enmeshed in a complex relationship with his estranged biological daughter, who acknowledges a range of psychosocial problems herself. Mr Howard describes, and others concur, that he became obsessed with her, perhaps in part due to guilt at his own absence from her life. Megan's re-entry into his life was associated with a range of apparently well-intended but inept efforts to assist her with her problems, but also with a profound sexualisation of the relationship with his underage teenage daughter. It is probable that his preoccupation with pornography facilitated the erosion of boundaries and taboos against sexual activity with his daughter. He also reports intoxication during much of his social media and phone-based offending.[92]
[92] Ibid [68].
109 Importantly, Dr Sullivan reported that although he considered you meet a diagnosis for borderline personality disorder and have intermittently met a diagnosis for depressive disorder, ‘these do not appear … causally associated with the offending of which [you have been] convicted.’[93] Nor did Dr Sullivan consider that ‘aspects of borderline personality disorder were causally associated with [your] sexual behaviours.’[94]
[93] Ibid [72]; Ex D9 [15].
[94] Ex D9 [16].
110 He opined alcohol use may have disinhibited you, impaired your judgment and reduced your capacity to think clearly and make calm and rational choices, but would not have impaired your awareness of wrongdoing.[95] As I observed earlier, while abuse of alcohol may offer some explanation for your committing Charge 5, it does not excuse your conduct or mitigate it.
[95] Ex D8 [72].
111 Dr Sullivan considered your ‘clinically significant mood disorder and personality disorder will result in incarceration weighting (sic) more heavily on you,’[96] thereby engaging Verdins principle 5.
[96]Ibid [73]. See also Ex D9 [17].
112 In an ‘Addendum Psychiatric Report’, dated 1 September 2020,[97] Dr Sullivan revisited his earlier opinions and conclusions in light of the Victorian Court of Appeal Decision in Brown v The Queen (‘Brown’).[98] It is fair to say, his earlier opinions and conclusions had not changed.
[97] Ex D9. I note Dr Sullivan and Adam Deacon have recently published on this topic. See ‘Personality Disorder and Moral Culpability: Brown The Queen’ (2020) 28 JLM 45.
[98] [2020] VSCA 212 (Maxwell P, Niall, T Forrest, Emerton and Osborn JJA). Judgment was delivered on 25 August 2020.
113 Dr Sullivan did not specifically address Verdins principle 6 in either of his reports. I note his opinion, referred to above, that a ‘substantial contribution’ to your mood disorder is ‘from poor adjustment to [your] current situation, while on remand and facing a further custodial sentence.’[99] In my opinion, this strongly suggests that there will be an abatement of your mood disorder symptoms once you are sentenced and can plan your future. There is nothing to suggest there will be any adverse change in your personality disorder, or any recurrent depressive disorder, whilst you are incarcerated.
[99] Ex D8 [65].
114 Moreover, while Dr Sullivan observed that ‘it is likely that [you] will continue to experience lowered mood and anxiety which will not be completely attenuated by medication’ and ‘[a]ccess to psychological support in the correctional system is limited’,[100] he did not conclude that ‘there was a serious risk of imprisonment having a significant adverse effect on [your] mental health’,[101] such as to engage Verdins principle 6.
[100] Ibid [73].
[101] R v Verdins (2007) 16 VR 269, 276 [32] (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
115 Accordingly, I find Verdins principle 6 is not engaged in your case. In coming to this conclusion, I have had regard to all the psychiatric, psychological and neuro-psychological material tendered on your behalf, in particular the contents of Dr Sullivan’s Addendum Psychiatric Report[102] at paragraphs [17] to [20]. While the limitations of treatment options available to you in prison may mean there will be little, if any, improvement in your mental health whilst you are serving your sentence, Dr Sullivan does not say it will worsen, and certainly not in a significantly adverse manner.
[102] Ex D9.
116 Following delivery of the judgment in Brown, I received an undated defence document headed ‘Further Defence Sentencing Submissions: Re. Brown v R. 2020 VSCA 212.’[103] In it your counsel relied entirely on Dr Sullivan’s and Mr Jackson’s reports. He conceded that your borderline personality disorder ‘has no causal association with the specific offending.’ He relied on the existence your mood disorder and personality disorder at the time of sentence to invoke Verdins principles 2, 3, 4, 5 and 6.[104]
[103] Ex D10 filed on 7 September 2020.
[104]Ibid p [3].
117 In the ‘Additional Prosecution Outline of Sentencing Submissions’ dated 15 September 2020,[105] the prosecutor accepted that Verdins principle 5 is engaged in your case, but submitted this ‘ought to have limited significance commensurate with the potential impacts outlined by Dr Sullivan and in the context of Mr Howard’s very serious offending.’[106]
[105] Ex P5.
[106] Ibid [2].
118 In my opinion the matters relied upon by Dr Sullivan in support of Verdins principle 5 are significant, and I will make an appropriate allowance for the added burden of custody on you by reason of your mental health conditions, in addition to an allowance for increased custodial hardship caused by COVID-19 restrictions.
119 The prosecutor submitted no other Verdins principles are engaged in this case. He submitted:
In Brown, the Court of Appeal emphasised that, with respect to the relevance to sentencing of personality disorders, the same approach of a rigorous evaluation of evidence is required and can be confidently expected of sentencing courts. A personality disorder is likely to engage the Verdins principles only in a case of some severity. In this instance, the expert evidence does not establish a clinically significant impairment of mental functioning. Thus its impact is confined to potential application of limb 5 identified in Verdins and, with respect to this, only to a very limited extent.[107]
[107] Ibid [4] citing Brown v The Queen [2020] VSCA 212 (‘Brown’) at [63], [68] and [69].
120 For the reasons discussed later, sentences of imprisonment are mandatory on Charges 2, 3 and 4.[108] In any event, I am of the opinion that imprisonment is the only form of disposition that is appropriate in all circumstances of your case. Accordingly, Verdins principle 2 is not engaged to bear ‘on the kind of sentence that [is] imposed [on these charges] and the conditions in which it is to be served.’
[108]Infra [171].
121 Turning to Verdins principles 3 and 4, I accept the prosecutor’s submission that these principles are not engaged in your case for the reasons advanced by him. You have committed very serious offences against your vulnerable daughter and your offending conduct is very grave. It is accepted there is no causal association between your offending conduct and your mental health conditions. Your moral culpability is high and, in my opinion, is not reduced by reason of your mental health conditions.
122 It is to be emphasised, the law requires ‘that a personality disorder is likely to engage Verdins principles only in a case of some severity.’[109]
[109] Brown [68].
123 In my opinion, in this case, ‘a rigorous evaluation of the evidence’[110] demonstrates ‘clear, well-founded expert opinion’ of the nature, extent and likely impact of your mental health conditions at relevant times[111] sufficient to demonstrate the nature and severity of the symptoms of your mental health conditions as exhibited by you, and the effect of those conditions on your mental capacity, at the time of commission of the offences and at the time of sentience, is lacking. Accordingly, the nature and extent of your mental health conditions are not such as to justify any moderation or elimination of general or specific deterrence as sentencing considerations in your case.[112]
[110] DPP v O’Neill (2015) VR 395, 412 [68], 416 [80] (Warren CJ, Redlich and Kaye JJA); Brown [62]–[62].
[111] See Brown [61].
[112] See Verdins 276 [31] principles 3 and 4.
Substance abuse and problem gambling
124 You told Dr Sullivan you had longstanding heavy alcohol use, for which you had not previously sought treatment. Dr Sullivan opined you would satisfy a diagnosis of ‘harmful use of alcohol’, however, there was no indication of physiological dependence. You reported you are abstinent in a controlled environment. Mr Jackson opined your profile is not consistent with an alcohol-related brain injury.
125 Dr Sullivan reported that although alcohol may have disinhibited you, impaired your judgment and reduced your capacity to think clearly and make calm and rational choices, it would not have impaired your awareness of wrongdoing.
126 You also told Dr Sullivan you had a history of significant problem gambling.
Mitigating Circumstances
127 You pleaded guilty to Charge 5 on the Indictment at a relatively early stage in the proceedings. You first indicated an intention to plead guilty to this charge in your Defence Response filed on 30 October 2019, having been committed for trial on 12 July 2019. It is not the earliest plea, but neither is it a late plea.
128 You are entitled to have your guilty plea taken into account in your favour. It has utilitarian benefit and indicates an acceptance by you of responsibility for your offending conduct and a willingness to facilitate the course of justice in relation to Charge 5.
129 However, on the material before me, particularly the contents of the text messages the subject of this charge, and your trial evidence regarding them, I am unable to find your plea of guilty demonstrates true contrition and remorse for your offending conduct, other than what is to be inferred from the plea itself.
130 You counsel drew my attention to a number of answers you gave in your record of interview with Victoria police officers in Townsville which, he submitted, showed you made ‘full admissions’ to police and ‘indicated remorse’ for your actions in relation to Charge 5. I do not accept this is correct. While you did admit that your sexualised texting with your daughter was ‘not a normal response’,[113] that ‘you did not do right’,[114] and what you were doing was ‘wrong’,[115] ‘inappropriate’,[116] and ‘filth’,[117] you also told police you were ‘getting played’ by Megan.[118] In other words, you engaged in victim blaming.
[113] ROI Q 576.
[114] ROI Q 581.
[115] Ibid.
[116] ROI Qs 590 and 601
[117] ROI Q 602.
[118] ROI Q 558.
131 You also significantly minimised the seriousness of your offending conduct when you told police that by sending these indecent and disgusting text messages, you were trying to help Megan.[119]
[119] ROI Q 596.
132 You maintained a similar approach to your offending conduct in relation to Charge 5 in discussions with Dr Sullivan.[120] He observed that in your interview with him you ‘could only reluctantly profess to “sexting” while minimising that the issue [is] that this [was] with [your] underage daughter’.[121]
[120] See Ex D7 [45]–[48].
[121] Ibid [69].
133 Nonetheless, Dr Sullivan did comment that ‘over the course of the interview [you] became increasingly able to acknowledge the wrongfulness of your actions’, but only in committing Charge 5. He considered ‘it is likely that he feels ashamed and guilty and struggles to comprehend how egregious his behaviour has been.’[122]
[122] Ibid [69].
134 It is to be hoped that you are finally gaining some insight into your offending and that offence-specific treatment may assist in your future rehabilitation.
135 I accept that you have spent 620 days in custody on remand. Much of this time has been in confinement under COVID-19 conditions. I take this extra burden of custody into account in your favour.
136 You have used your time in custody to further your prospects of rehabilitation by undertaking a number of educational and treatment programs. You have obtained a construction induction card from WorkSafe Victoria and completed ‘Control traffic with stop-slow bat’ and ‘Implement traffic management plan’ courses at Federation University, together with a number of workplace safety orientated courses. You have successfully completed a 24-Hour Alcohol Treatment Program and a number of other ‘healthy life choices’ programs.[123]
[123] See bundle of documents in Ex D6.
137 You have been employed in gaol making motor vehicle number plates for 6 or 7 days per week. About two months ago you renewed your forklift operator license, and you hope to obtain employment as a forklift operator upon your release from custody.
138 I recognise the abuse of alcohol has been a constant problem for you and has contributed to you committing past offences, and probably also played a role in your commission of the offending conduct giving rise to Charge 5. It is to your credit that it appears you have remained abstinent from alcohol whilst on remand for the present offences and you have successfully completed a ‘24 Hour Alcohol Treatment Program’.[124] I note you told Mr Jackson you feel a lot better after being abstinent for well over a year and that you benefitted from participating in the alcohol treatment program. I also note you have never had involvement with illicit substances.[125]
[124] See Ex D6.
[125] Ibid.
139 While I take your rehabilitative efforts to date into account in your favour, they do not address the reasons for you committing the more serious offences for which you fall to be sentenced. Because you continue to deny committing the offences for which you were found guilty on Charges 2, 3 and 4, you necessarily lack insight into the causes behind your offending conduct and have not accepted responsibility for them.
140 Moreover, in assessing your prospects of rehabilitation, I have had regard to your ongoing persistent offending after you moved to Queensland. All this means, I can only assess your prospects of rehabilitation as being guarded.
141 The prosecutor submitted that your ‘marked tendency to act impulsively without consideration of consequences’ has the effect that your prospects of rehabilitation should be regarded as problematic and more weight should be given to specific deterrence and protection of the community.[126] I accept this submission and will give real weight to specific deterrence and protection of the community in sentencing you.
[126] Ibid [5] citing Brown [70]–[76].
142 A significant mitigating circumstance in your case is the effect of delay, particularly the delay that has occurred since the jury’s verdict was delivered on 12 December 2019. There will always be some delay in prosecuting cases of this kind and you are not to be punished for pleading not guilty to Charges 2, 3 and 4.[127] However, here there has been more than the usual delay occasioned by a number of factors which were beyond your control.
[127] See Arthars v The Queen (2013) 39 VR 613, 621 [27] (Redlich and Coghlan JJA and T Forrest AJA).
143 First, there was the Christmas 2019 shutdown and the need for your counsel to obtain a psychological report from Mr Healy.
144 Secondly, at the first listing of the plea hearing on 20 March 2020, the plea was adjourned part-heard because of your legal counsel’s perceived need to obtain a neuropsychological report from Mr Jackson[128] and also a psychiatric report from Dr Sullivan.[129] These reports took some months to prepare and the further plea hearing was listed for 22 May 2020.
[128] Ex D7 dated 4 May 2020.
[129] Ex D8 dated 10 May 2020.
145 At that plea hearing the prosecutor fairly advised me that the Victorian Court of Appeal was reserved in a matter which could have considerably relevance to how I approach the weight to be given to your mental health conditions in sentencing you.[130]
[130] Brown v The Queen (2019) 59 VR 462.
146 Judgment in Brown v The Queen was handed down on 25 August 2020. The timetable I had previously set on 22 May 2020, resulted in my chambers being advised on 15 October 2020 that the defence would not reply to Crown submissions filed on 15 September 2020 in respect of Brown, and Dr Sullivan would not be called to give oral evidence on the plea.
147 The COVID-19 lockdown in Melbourne, my leave and other personal circumstances, and your counsel’s availability, then intervened to result in you being now sentenced some 15 months after the jury returned their verdicts.
148 The law recognises ‘delay is more likely to be a major mitigatory factor where the prosecution or the justice system is responsible for the delay’.[131] As the Victorian Court of Appeal observed in Rodriguez v DPP (Cth):[132]
Delay is normally relevant in two ways. First, it is relevant to rehabilitation that has occurred during the delay and the effect that has in turn on specific deterrence. Secondly, delay is relevant in the sense that the anxiety and uncertainty of having the prospect of a sentence hanging over one’s head during the period of delay is akin to punishment in itself.[133]
[131] Judicial College of Victoria, Victorian Sentencing Manual, online, page 142 [7.5.3.2].
[132] (2013) 40 VR 436.
[133] Ibid 445–6 [36] (Warren CJ and Redlich JA) (citations omitted).
149 So far as your rehabilitation during the period of delay is concerned, I have referred to the courses, programs and employment you have undertaken while on remand and I have taken into account all of these matters in assessing your ultimate prospects of rehabilitation.
150 So far as delay akin to punishment is concerned, since the jury delivered their verdicts you have had the prospect of a very significant sentence of imprisonment hanging over your head. Undoubtedly, this would have caused you and your family significant stress and anxiety, and it has had a deleterious effect on your mental health. I take these effects of delay very much into account in your favour.
151 By reason of the COVID-19 pandemic, your time out of cell and your ability to access programs has been restricted, and face to face visits have been suspended. I understand, you have had no personal family visits since 21 March 2020. You do have the capacity to contact your family by letter, telephone, email and video calls. You have had a number of phone calls with family members, particularly Judith. However, you have had difficulties using Skype to contact family members.
152 I do not consider you are at any particular risk of contracting the virus. Nonetheless, I accept the effects of the COVID-19 pandemic will make the manner you serve this sentence more burdensome on you for the foreseeable future. I also accept, as the Victorian Court of Appeal has recently observed, the current situation ‘is causing stress and concern for prisoners and their families, as it is for every member of the community’.[134]
[134] Brown (aka Davis) v The Queen [2020] VSCA 60 [48] (Priest and Weinberg JJA).
153 Your counsel relied on Mr Healey’s report[135] and the narratives of your ‘life history’ prepared by your sisters Judith[136] and Kate[137] to submit ‘there are a number of significant factors in [your] background leading to this offending, which in combination may explain [your] lack of judgement in relation to the committing of these offences’.[138] In summary, there ‘factors’ are:[139]
[135] Ex D2. It is clear Mr Healey drew heavily on the contents of Exs D3 and D4 for Howard’s personal history.
[136] Document headed ‘Hector’s Life 17/1/20’ (Ex D3).
[137] Document headed ‘Re: My life history’ dated 18 March 2020 (Ex D5).
[138] Ex D1 page [2].
[139] Ibid pages [2]–[3].
(a) Physical and mental abuse you suffered during childhood at the hands of your father, who was an alcoholic.
(b) Childhood ‘serious sexual abuse’ you suffered at the hands of your older brother Paul when you were aged between 11 and 13.
(c) Your guilt surrounding your involvement, when aged 8, in the circumstances leading to a motorcycle collision which, after some 10 years in a coma, eventually caused the death of your brother Simon.
(d) Bullying and rejection at school which may have been reflected in poor academic performance, although I note the relatively low level of your IQ probably also contributed to this.
(e) Your involvement in three motor vehicle collisions in which you sustained head injuries when you were aged 10, 13 and about 20 respectively, although I note Dr Sullivan’s and Mr Jackson’s opinions regarding the unlikely relevance of this ‘factor’.
(f) Your own abuse of alcohol both before and, in particular, during the period of your offending.
(g) An elevated level of depression.
(h) Your below average intelligence.
(i) Mr Healey’s testing disclosed you are demonstrating reduced delayed powers of recall with ‘major confusion in sequence’.
154 In Marrah v The Queen[140] the Court of Appeal said:
Circumstances of deprivation, abuse and other social disadvantage occurring during an offender’s formative years are more than matters of historical significance to the administration of justice. The effects of such social disadvantage do not generally diminish with the passage of time and are likely to have profound and lasting consequences. The common experience of the law is that very frequently such disadvantage precedes the commission of crime, and often explains and contributes to an offender’s criminal behaviour. The frequency with which criminal conduct can be explained by such disadvantage does not relieve each sentencing judge of the obligation to take such matters into account. Though they do not provide an excuse for offending behaviour, they must be given due weight in the sentencing calculus. That is not to say that an offender's social disadvantage has the same mitigatory relevance for all of the purposes of punishment. It may so explain the offender’s conduct that the offender’s moral culpability may be substantially reduced, yet it will increase the importance of protecting the community from the offender. It will not diminish the need for the sentence to vindicate the dignity of a victim and reflect the community’s disapproval of the offending.[141]
[140] [2014] VSCA 119.
[141] Ibid [16] (Redlich and Tate JJA) (citations omitted) (original emphasis).
155 I take your disadvantaged upbringing into account as part of your personal circumstances. It does, in my opinion, operate to reduce your moral culpability to a limited extent. Your counsel did not suggest your deprived upbringing rose to the level of ‘profound deprivation’ such as to invoke the principles applied in cases such as Bugmy v The Queen.[142] Nonetheless, I will moderate to a very limited extent the weight I give to general and specific deterrence in sentencing you for these crimes.
[142] (2013) 249 CLR 571.
156 You have prior convictions and you do not fall to be sentenced as a person of otherwise good character. Nonetheless, I have taken into account the matters raised in your sister Judith’s character reference.[143]
[143] Ex D4.
Application of sentencing principles
157 I have had regard to recent current sentencing practice for the offence of incest as informed by the decisions of the High Court in R v Kilic[144] and DPP (Vic) v Dalgliesh (a Pseudonym)[145] and the Victorian Court of Appeal’s decisions in Dalgliesh (No 2),[146] Carter v The Queen,[147] Grantley v The Queen[148] and Crawford v The Queen,[149] among others.[150] While current sentencing practice is relevant to the sentences I impose on you, it is only one of a number of sentencing considerations I must take into account in imposing just sentences in your case.[151]
[144] (2016) 259 CLR 256, 266–8 [21]–[25] (Bell, Gageler, Keane, Nettle and Gordon JJ).
[145] (2017) 262 CLR 428 (Kiefel CJ, Bell, Gageler, Keane and Gordon JJ).
[146] (2017) 271 A Crim R 1, 15–17 [66]–[75] (Ferguson CJ, Weinberg and Whelan JJA).
[147] (2018) 272 A Crim R 170, 184–9 [65]–[81] (Weinberg, Beach and Hargrave JJA) (‘Carter’).
[148] (2018) 272 A Crim R 340, 345–7 [19]–[26], 347–9 [28]-[34] (Maxwell P and Kyrou JA).
[149] [2018] VSCA 113 (Maxwell P and Kyrou JA).
[150] Including DPP v Walsh (a pseudonym) [2018] VSCA 172 [46]–[54] (Maxwell P and McLeish JA) (‘Walsh)’); Phillips ( a pseudonym) v The Queen [2018] VSCA 114; Harlow (a pseudonym) v The Queen [2018] VSCA 234; DPP v Wilson (a pseudonym) [2018] VSCA 263; McIntosh (a pseudonym) v The Queen [2018] VSCA 321; Crouch ( a pseudonym) v The Queen [2019] VSCA 30; DPP v Shearer (a pseudonym) [2019] VSCA 47; Lewers (a pseudonym) v The Queen [2019] VSCA 272; DPP v Wilson (a pseudonym) [2018] VSCA 263; Pickford (a pseudonym) v The Queen [2019] VSCA 195 (‘Pickford’); Nelson (a pseudonym) v The Queen [2020] VSCA 36; Pitt (a pseudonym) v The Queen [2020] VSCA 73 and DPP v Polat (a pseudonym). However, I note the maximum penalty for incest at the relevant time in some of these cases was 20 years’ imprisonment, and some offenders’ personal circumstances greatly vary from the current offender. The prosecutor referred me to Dalgliesh in the High Court, Grantley, Tewksbury, Shearer and Nelson.
[151] See DPP (Vic) v Dalgliesh (a Pseudonym) (2017) 262 CLR 428.
158 As the prosecutor fairly conceded: ‘No directly comparable cases are readily identifiable.’[152] In any event, it is always difficult to gauge more than a general yardstick from so-called ‘comparable cases’, given the wide range of offending conduct that can constitute the offence of incest and the myriad of personal circumstances pertaining to individual offenders.
[152] Prosecution Plea Submissions [28].
159 Moreover, a number of recent incest cases are concerned with current sentencing practice for course of conduct charges,[153] which are unlike the ‘single incident’ charges before me. Course of conduct charges attract ‘quite distinct sentencing considerations.’[154] Similarly, many incest cases involve representative charges, which also attract sentencing considerations different from the present charges.[155]
[153] See eg Harmon (a pseudonym) v The Queen [2017] VSCA 169; Crawford [2]–[3], [63]–68]; Pickford [65] (Kyrou, Emerton and Weinberg JJA).
[154] Ibid [63]. See also McCray (a pseudonym) v The Queen [2017] VSCA 340 [17]–[18], [29], [35]–[36] (Maxwell P and Croucher AJA).
[155] See eg Walsh [19]–[21].
160 So far as Charge 5 is concerned, I have had regard to the principles espoused by Redlich and Beach JJA in Director of Public Prosecutions (Cth) v Garside.[156]
[156] (2016) 50 VR 800, 810 [25] citing R v De Leeuw [2015] NSWCCA 183 [72].
161 You stood your trial on charges 2, 3 and 4, which was your right, but this means you can receive no discount for pleading guilty to those charges. As the Court of Appeal observed in Carter:
In incest cases, an accused who pleads guilty is entitled to more than just the usual utilitarian benefits. Importantly, added benefits mitigating sentence flow from avoiding the victim, and other affected persons such as a parent or other close relative, from having to undergo the extreme stress of a trial.[157]
[157]Ibid 187 [75]. See also Pickford [69].
162 This does not mean that you are to be more harshly punished because you pleaded not guilty, however, in having regard to current sentencing practice, I must take account of the fact that many incest cases are resolved by guilty pleas and this is reflected in the sentences imposed in those cases. Indeed, in Carter the court ‘readily inferred’ that the discount for pleading guilty in one case,[158] where a sentence of five years and six months was imposed on a count of incest, would be about ‘three years’.[159]
[158] DPP (Vic) v Tewksbury (2018) 271 A Crim R 205.
[159] Carter 187 [75]. See also Crawford [93].
163 The basic purposes for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them and your personal circumstances.
164 I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, so far as is possible, you are rehabilitated and reintegrated into society.
165 General deterrence and denunciation must loom large in my instinctive sentencing synthesis. And as I said earlier, because you continue to deny committing the offences for which you were found guilty on Charges 2, 3 and 4, you necessarily lack insight into the reasons for committing these offences. This means I assess your prospects of rehabilitation as being guarded.
166 Moreover, I must give real weight to specific deterrence and protection of the community in sentencing you on those charges, after making due allowance for the mitigating circumstances I have referred to above.
167 Because you fall to be sentenced as a serious sexual offender in respect of Charges 4 and 5,[160] I must regard protection of the community from you as the principal purpose for which the sentences on those charges are imposed. In order to achieve that purpose, on each of those charges, I may impose a sentence longer than that which would be proportionate to the gravity of the relevant offence considered in the light of its objective circumstances. In your case, the prosecution does not seek the imposition of a disproportionate sentence on either Charge 4 or 5, and I will not impose disproportionate sentences on you on those charges, or at all.
[160] See SA Part 2A and Schedule 1, clause 1 (a)(iv) and (a)(xvih).
168 Another consequence of your status as a serious sexual offender is any terms of imprisonment imposed with respect to Charges 4 and 5 must, unless otherwise directed by me, be served cumulatively with other sentences of imprisonment I impose on you in this case.
169 However, I must also have regard to the totality principle, which must be ‘applied in a manner which will not undermine the legislative policy inherent in s 6E of the Sentencing Act 1991’.[161] In your case, I will otherwise direct and make orders for partial cumulation between all sentences of imprisonment, other than the base sentence.
[161] Gordon v The Queen [2013] VSCA 343 [74] (Redlich JA). See also Dalgleish [59]–[60].
170 Your counsel ultimately submitted that a sentence of imprisonment combined with a community correction order was the appropriate disposition overall in your case.[162] This was despite submitting at the plea hearing, both orally and in writing, that the appropriate disposition was a sentence of imprisonment with a non-parole period.[163]
[162] See SA s 44.
[163] See eg Ex D4 p [4] under heading ‘Sentence’.
171 However, as the prosecutor correctly submitted, Charges 2, 3 and 4 are category 1 offences[164] and, accordingly, a sentence of imprisonment (other than a sentence of imprisonment imposed in addition to making a community correction order in accordance with section 44) must be imposed on each of those charges.[165]
[164] See SA s 3 definition of ‘category 1 offence’ para (h), given at all relevant times Megan was under the age of 18.
[165] SA s 5(2G).
172 In any event, the provisions of the Sentencing Act1991 s 5(2G) aside, I consider sentences of imprisonment to be immediately served are the only sentences that would appropriately achieve the purposes for which those sentences are imposed.[166]
[166] See SAs. 5(4).
173 I note that none of the present charges fall under the standard sentence scheme introduced in 2017.[167] This is because the charged period for each incest charge on the Indictment commences before the scheme came into operation on 1 February 2018.[168]
[167] See Sentencing Act 1991 (‘SA’) ss 5A and 5B as inserted by the Sentencing Amendment (Sentencing Standards) Act 2017 s 19.
[168] See SA s 165A and Special Gazette (No. 8), 30 January 2018, p 1.
174 So far as the application of the totality principle is concerned, I consider the incest charges form connected parts of sexual offending against your daughter over a relatively short period. Accordingly, there is a degree of commonality between the discrete offences. This will be reflected in the sentences I impose and the orders for cumulation I make. There will also be a fair measure of concurrency between Charge 5 and the incest charges. This will also feed into the non-parole period I fix. I must also be careful to avoid imposing a crushing sentence on you.
175 As a serious sex offender, you will be subject to the mandatory registration and reporting obligations under the Sex Offenders Registration Act 2004. The reporting period is for the remainder of your life.
Mr Howard
On the charge of sexual penetration of a child or lineal descendant (Charge 2) you will be convicted and sentenced to imprisonment for 6 years.
On the charge of sexual penetration of a child or lineal descendant (Charge 3) you will be convicted and sentenced to imprisonment for 7 years.
On the charge of sexual penetration of a child or lineal descendant (Charge 4) you will be convicted and sentenced to imprisonment for 6 years and 6 months.
On the charge of involving a child in the production of child abuse material (Charge 5) you will be convicted and sentenced to imprisonment for 3 months.
I order 1 year of the sentence imposed on Charge 2, 18 months of the sentence imposed on Charge 4 and 1 month of the sentence imposed on Charge 5 be served cumulatively with the sentence imposed on Charge 3 and on each other, making a total effective sentence of 9 years’ and 7 months’ imprisonment.
I order you serve a minimum of 7 years’ imprisonment before becoming eligible for parole.
I declare 620 days (not including this day) as the period of pre-sentence detention to be reckoned as already served under this sentence and I direct the fact that declaration was made, and its details, be noted in the records of the court.
On Charges 4 and 5 I direct the fact you have been sentenced as a serious offender on those charges be entered in the records of the Court.
On each of the related summary offences of contravene family violence intervention order (Summary Charges 6, 7 and 8) you will be convicted and fined $300, making total fines in the sum of $900. These fines will be referred to the Director, Fines Victoria for collection and management under the Fines Reform Act 2014.
Pursuant to s 6AAA of the Sentencing Act 1991 I state the sentences I would have imposed on you but for your pleas of guilty would have been as follows: on Indictment Charge 5, a sentence of 4 months’ and 14 days’ imprisonment and on each of Summary Charges 6, 7 and 8, with conviction, fines in the sum of $450, resulting in fines totalling $1350.
Pursuant to the Sex Offenders Registration Act2004, I order that your reporting obligation under that Act is life.
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