Director of Public Prosecutions v James

[2014] VCC 877

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PAUL JAMES (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	3 April 2014
CASE MAY BE CITED AS:	DPP v JAMES
MEDIUM NEUTRAL CITATION:	[2014] VCC 877

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms R. Schell
For the Offender	Ms D. Lamovie

HER HONOUR:

1Mr James[1], you can remain seated until I tell you to stand. Paul James, you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16 contrary to s. 47A of the Crimes Act and one charge of making or producing child pornography contrary to s.68(1) of the Crimes Act.

[1] A pseudonym

2The facts underlying your offending are as follows:  The complainant in this matter, C, was the daughter of your wife's sister and was 15 at the time of these offences.  At the time of this offending you and your partner and five children shared a rural property with C's family, that being your sister-in-law and her husband, the complainant and her three siblings.  At this time you were 35 years old.  The offending occurred between 1 July 2010 and 26 March 2011. 

3C had a boyfriend who had moved into the house with you but then moved out about two weeks later as he caused trouble in the family.  About two weeks later, C was talking to you and you told her you thought you loved her and kissed her on the lips.  These actions comprise of uncharged act.  A few days later you asked her to come and speak to you in the kitchen where you apologised for kissing her but told her you did love her and began kissing her again.  These actions comprise a second uncharged act.  C kissed you back and the two of you then had sexual intercourse.

4The next day you told C to meet you behind a shed on the property where you again had sexual intercourse.  Meeting behind the shed continued on a twice-weekly basis, sexual intercourse occurring in that time until you left the premises in November.

5On 15 November 2010 you fought with your partner, police were called and arrested you, releasing you the next day, and that night you again met up with C and again had sexual intercourse with her.  About a week later you moved out of the premises to a unit in Sunshine. 

6At about this time as a result of problems C's parents with having with her attending school, it was arranged she lived at her brother's house at Laverton where she moved in early 2011, she then contacting you and arranged to meet up with you on weekends.  Thereafter she would spend every weekend at your unit in Sunshine as well as going to your unit during the day rather than attending school.  Each time she visited you the two of you had sexual intercourse. 

7When C turned 16 in March 2011 she moved into the Sunshine unit with you, staying there for about three months.  In that time her family did not know where she was living.  In May 2011 C discovered she was pregnant and told you and her mother and moved back to her brother's home as your former partner was still living with C's family and there were concerns about how she would react to C's pregnancy.

8You and C continued to meet about twice a week during her pregnancy, on each occasion having sexual intercourse.  This continued until she was about six months pregnant and she then moved back with her family who had by then moved addresses. 

9C's child, a son, was born on 14 December 2011.  DNA analysis revealed a strong support for the proposition you are the child's biological father, and indeed it appears you do accept you are this child's father.

10On 27 October 2011 police searched your house at Altona, seizing a mobile phone and arresting you.  Examination of the phone revealed sample movies and images of you and C engaging in sexual intercourse and masturbating, these images predating C's 16th birthday.  The sexual intercourse that took place between you and C until her 16th birthday underlies Charge 1 on the indictment, and the movies and images discovered on your Nokia phone underlie Charge 2.

11In a record of interview you admitted having sexual intercourse with C, but insisted it did not occur until after her 16th birthday.  You said she had a crush on you and started coming around.  You said you knew there were pictures and videos of C on your phone, which were sometimes sent by her, but you admitted also taking some of them yourself.

12I now turn to your personal circumstances.  You are 38 years old and were born in Western Australia, the second of five children born to your parents.  Your father was a welder and your mother had the occupation of home duties.  You described an unhappy childhood to psychologist Carla Lechner whose report dated 30 November 2013 was tendered on the plea.  You told her that as an older child you were expected by your parents to undertake an excessive amount of housework, which included sweeping, vacuuming, washing and doing the cooking as well as being responsible for your younger siblings.

13You completed Year 11 by which time you had moved out of home and which resulted in a major schism with the rest of your family which remains unhealed to this day.  You apparently requested financial assistance to undertake Year 12 but your parents refused.  You then got a job in a timber yard in Perth which you held for about 18 months and continued in fairly steady work until you were about 27, both as a machine operator in the timber furniture industry and then as a head machine operator in the steel industry, which latter job you held for five years.

14When you were 27 you were involved in a major motor vehicle accident where you ran off the road at high speed hitting several trees.  You suffered serious injuries including a broken neck, crushed sternum, two broken knees and your scalp was "peeled back."  You were knocked unconscious and apparently remained that way for some time, being treated in a hospital in Bunbury for two months and having to wear a halo brace for your broken neck.  You recuperated at the home of your paternal grandmother who was a retired registered nurse and who had offered you accommodation in the past.  You have some memory involving how the accident occurred, having been told it may have been a suicide attempt, but you are unable to actually recall that.  At the time of the accident you were married but you and your wife separated whilst you were in hospital. 

15You lived with your grandmother for a few more years before meeting your partner, L, and moving in with her.  You and she have now six children ranging in age from 10 years down to nine months.  Your relationship began in 2000 and you separated in December 2010 after L confronted you over the possibility that C had replaced her in your affections, which you admitted.

16Ultimately the Department of Human Services were called in after a report from another of your wife's sisters, and as a result of that investigation police were involved, although it took some time for charges to be laid, you not being interviewed until 27 October 2011 and C not making a statement in this matter for some months after that.

17You began drinking alcohol at age 16, drinking heavily for many years, and also began marijuana use at that age, which continued on a daily basis until you were 37, reporting that smoked between one to three grams a day.  At the time of this offending you were apparently drinking and smoking heavily.  You were largely unemployed and in that context the relationship between you and L very much deteriorated. 

18In the aftermath of your revelations of the relationship between yourself and C, you and L made some serious attempts at reconciliation, and as a result your sixth child, a boy now aged nine months, was born in 2013.  However, it appears the relationship has now broken down irrevocably. 

19After leaving the house you shared with L you moved addresses several times in Melbourne, ultimately moving to Bendigo in about June or July of last year, you residing ever since in a share house there.

20L has prevented you from having much contact with your children and you have not seen them for a period of about two years, which your counsel informs me is a matter of deep regret to you. 

21Since your accident you have continued to experience a wide range of physical problems, including pain, restricted movement and twice-weekly migraines.  You continue to take medication for pain.  In addition it was the opinion of both Ms Lechner, and neuropsychological Martin Jackson that you are presenting with symptoms of serious depression for which you are currently medicated.  Reports from your general practitioners, both in Melbourne and Bendigo, detail that you have and continue to take medication for restless sleep syndrome, an aftermath of your car accident, medication for your back pain, Pristiq, a significant anti-depressant, and Valium, which you have taken on a regular basis in recent times to assist you in giving up cannabis use which you have apparently done successfully over the last six months.  The anti-depressant medication has been recently increased from 100 to 150 mls per day, which I accept is a major dosage and indicative of your depressed state.

22You have some psychiatric history of note.  In November 2010 you were registered with the Werribee Mercy Mental Health Program; in June 2012 with the Mid West Area Mental Health Service, and in July 2013 with the Bendigo Hospital.  You have been hospitalised in psychiatric wards on three occasions; the first being from 24 April to 10 May 2012 with the Werribee Mercy Mental Health Program; the second for three days in June 2012 at the Mid West Area Mental Health Service; and the third from 16 to 18 June 2012 with the Mid West Area Mental Health Service.  You have not been subject to any community treatment orders.  The hospitalisations post-dated your being charged with the offences before this court.

23You told Mr Jackson you had had several admissions to psychiatric hospitals in Western Australia and Victoria, and a search of your psychiatric history reveals a diagnosis of mental and behavioural disorders due to the use of cannabis.  There is no mention of schizophrenia. 

24You have a brief offending history between 1994 and 2002 involving five appearances before the Court of Petty sessions primarily at Bunbury in Western Australia on charges of fraud, receiving and stealing in 1994, for which you received probation, driving offences in 1995, for which you were fined, a charge in April 2000 for receiving, for which you received a 12-month ISO, and a final appearance on 24 April 2002 for driving an unregistered vehicle for which you were fined $50. There no further offending after this until these matters came to light. There has been some subsequent offending.

25On 25 May 2012 you were placed on a non-conviction and adjournment to be of good behaviour on charges of unlawful assault and criminal damage which occurred following the separation from L when you went to the premises where she lived to try and see your children, in the process breaking a door, and pushing your then de facto mother-in-law.  Again on 17 January 2013 you were placed on a further adjournment on charges of unlawful assault and breach of an intervention order, which occurred when L came to visit you at your house where you had been living six months after the offending before this court, where an argument broke out and you struck her.

26A neuropsychological assessment was sought on the recommendation of Ms Lechner, who was concerned at a possible acquired brain injury in you following your car accident, but testing did not reveal anything of note.  It was Mr Jackson's view that you have a low-average to average ability and intelligence with some areas of superior functioning, and he found no evidence of an acquired brain injury.  He noted you had ongoing mood and behavioural difficulties comprising depression, low frustration and social isolation, stating, "He presented clinically as being mildly depressed but with no other evidence of mood or behavioural disorder, although on formal questioning he reported symptomatology suggestive of extremely severe depression, anxiety and stress." 

27You also reported some psychotic symptoms such as auditory hallucinations, however, it was Mr Jackson's view based on the documentation provided by Victorian Psychiatric Services that your admissions and ongoing treatment were due to drug-induced psychosis arising from cannabis use and not a primary condition such as schizophrenia.  It was Mr Jackson's view that you do not and have never had coped well with stress, that when you do become stressed there is "an increase in substance use and a deterioration in his mental state."

28In the years following your accident you have had difficulty obtaining and maintaining employment, which were told Ms Lechner and Mr Jackson were due to you believed memory or cognitive problems that you developed since the accident and physical restrictions arising from the injuries you suffered.  You have unsuccessfully applied for a disability support pension.  It was Mr Jackson's opinion that your inability to keep a job was not to do with memory or cognitive problems but due to your physical status and taking too many days off.  He believed your reports of day to day memory problems could be accounted for by your use of medication, particularly pain killers.

29Mr Jackson stated, "Overall there is an overwhelming history of substance abuse, mental health problems and poor coping skills prior to the motor vehicle accident.  These physiological problems were present at the time of the offences and are still ongoing.  His mood disorder continues and is being exacerbated by his current legal issues and a lack of involvement with his children.  His substance abuse may be a form of self-medicating as poor coping technique, so it is admirable that he has managed to cease it.  However, there is little to no evidence that he has sustained a significant traumatic brain injury in a motor vehicle accident given his most intact cognitive profile and that the slow processing seen on assessment can be accounted for by his ongoing mood disorder." 

30It is evident from the materials that the relationship between you and C was consensual, but as the authorities make it clear, this is in no way a mitigating factor.  Furthermore, one of the dangers specifically referred to by the authorities as being persistent for children engaging in regular sexual intercourse too young, that is pregnancy has come about.  In her victim impact statement C made it clear the consequences of her involvement with you had been a loss of her childhood, a probably permanent interruption to her education and a loss of the freedom usually attached to teenage years.  Further, there has been an ongoing and significant breakdown with her family.  She no longer lives at home, and this is again a severe consequence for such a young person.

31I accept your counsel's submission that your offending against C was not marked by violence or coercion and that you did not reject her on the revelation of her pregnancy.  Certainly C's victim impact statement is redolent with regret, understanding by your now 18-year-old victim that in engaging in the relationship with you that she did she sacrificed very important areas of adolescent life that she will not recover.

32While you expressed remorse and shame to both Ms Lechner and Mr Jackson and while I accept the contested committal conducted in this matter was limited to determining questions of proof as to the age of the complainant when your sexual relationship with her began, and that your entry of a plea following a negotiated agreement in 2013 has meant the saving to the community of the time and expense of a trial, and in particular the stress and distress cross-examination would have wrought upon the complainant, I also note that in some respects you lack insight into your offending in that you continue to lay responsibility to some extent for it on the complainant who you have described as coming on to you and chasing you.  Obviously you must and will be given credit for your plea of guilty.

33I also accept that due to the depressive condition which I am satisfied you now suffer will mean a sentence of imprisonment may be harder for you to endure than another prisoner.  I am not satisfied, however, that that depression is a condition which was in existence in its present form prior to this offending, but does derive largely from the consequences of it, and must therefore be given lesser weight.  In saying this I do accept the Verdins limb relating to this aspect of sentencing you does have some application.

34Overall, however, there are a number of aggravating features to this offending, they being the disparity in age, the serious breach of trust, she being your wife's niece, the duration of the offending, the birth of a child to C at far too young an age.  Essentially, as I remarked during the trial, whilst this offending may not be seen as frankly paedophilic or predatory or involving the callous premeditated grooming practices often seen in sexual offending against children, it is my view this offending was self-indulgent and self-centred offending with a clearly vulnerable and impressionable young victim, as I stated, the consequences for her being heavy indeed.  It has not been suggested I should deal with you in any way other than the imposition of a sentence of imprisonment.

35In sentencing you I take into account your troubled background, your psychological and physical difficulties, your plea of guilty, your attempts at rehabilitation, your limited prior criminal history and what I regard as your reasonable prospects of rehabilitation.  You have not offended for more than two years.  You are attending to the difficulties both psychological and substance abuse related that have bedevilled your life.  I do not regard as paedophilic, and I accept that the drastic personal consequences to you, that is the loss of relationship with L and your children, will be an ongoing deterrent to offending of this kind in the future.

36I note you continue to hold a somewhat forlorn hope that you and L may reconcile, although it seems you also accept this is highly unlikely.  Again, I take into account service of this sentence will be more difficult for you than other prisoners.

37I also accept your counsel's submission that Charge 2, the production of pornography, essentially arose in the context of your ongoing relationship with C, that it was consensual material, that it was not exploitative in the sense often seen in offending of this kind, it was not shared and overall fell into the lower range of seriousness of like offending. I accept there should be a degree of concurrency attached to the sentence I will impose for that charge.

38I had regard to the authorities submitted to me by both prosecution and defence which have been helpful, although there are of course distinguishing factors present in each.  It was rightly conceded by your counsel in a detailed and helpful plea that principles of general deterrence, denunciation and just punishment have a major role to play in the sentencing exercise before me.

39I therefore sentence you as follows.  Could you stand up, please, Mr James.

40On Charge 1, you are sentenced to six years' imprisonment.  On Charge 2, you are sentenced to six months' imprisonment.  I order that three months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1, giving a total effective sentence of six years and three months.  I order that you serve a minimum term of three years and six months before becoming eligible for parole.

41In so sentencing you I accept your counsel's submissions that the mitigatory factors in your case are such that in my view a longer than ordinary period of parole is appropriate in your case.

42Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you a term of imprisonment of seven and a half years and ordered you serve a minimum term of four and a half years.

43Thank you.  Have a seat.  You have got six with a three, with three years and six months on the bottom.  Okay?  You are also to be placed on the Sex Offenders Register for life.  It appears, Madam Prosecutor - maybe it was you that sent this to me, I'm not sure, that a charge of persistent sexual abuse of a child means that Mr James is a serious sexual offender.

44MS SCHELL:  Yes, that's so, Your Honour.

45HER HONOUR:  So I do sentence Mr James as a serious sexual offender.

46MS SCELL:  As Your Honour pleases.

47HER HONOUR:  I apologise for the wording of that, Ms Lamovie, in that I doubt that Mr James’ going to have taken in a great deal of it.

48MS LAMOVIE:  I can see him afterwards, Your Honour.  There was just one other thing, which is the two days presentence detention.

49HER HONOUR:  I direct that two days of this sentence have already been served by way of presentence detention.

50MS SCHELL:  Sorry, Your Honour, and also in relation to the serious sex offender, it's to be entered into the records of the court, that declaration.

51HER HONOUR:  That's why I declared it.

52MS SCHELL:  Yes, Your Honour.

53HER HONOUR:  Thank you.  The papers for the Sex Offender Register will be served on you.  I am ordering that the intimate sample obtained from you by police is to be retained.  Ms Lamovie, I usually do try and word my sentences so they are clear to everyone.  I haven't done it in this case, it was just a bit too much material to cover.

54MS LAMOVIE:  Yes, Your Honour.

55HER HONOUR:  A lot of it is not particularly of interest, I would have thought to Mr James, there are a number of matters that had to be taken into account that I have expressed purely for legal terms, so I am going to be more than usually reliant on counsel to explain.

56MS LAMOVIE:  Certainly, Your Honour.

57HER HONOUR:  In fact I'm sure all your client is really going to be interested in is how much he got in the end.

58MS LAMOVIE:  Yes, Your Honour.

59HER HONOUR:  And why, but in any event, as I said, it's far more formally worded than is usually the case.  Thanks, Ms Lamovie.  There are the orders.  Mr James can be taken down, thank you.  Counsel are excused.

60MS LAMOVIE:  Your Honour, might I just ask if your Associate can send me a copy of the sentence once it's entered into the records?

61HER HONOUR:  Yes.  Yes, I can, if you like - - -

62MS LAMOVIE:  It's all right if it's emailed, that's fine. 

63HER HONOUR:  I can photocopy something now if you like.

64MS LAMOVIE:  It's not urgent.  If it's emailed, I'll just take it from the office, thank you.

65HER HONOUR:  We'll make sure it gets to you, Ms Lamovie, thank you very much.

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