Director of Public Prosecutions v Jarvis

[2019] VCC 1943

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY JARVIS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	21 November 2019
DATE OF SENTENCE:	21 November 2019
CASE MAY BE CITED AS:	DPP v Jarvis
MEDIUM NEUTRAL CITATION:	[2019] VCC 1943

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr D. Swan	Victoria Legal Aid

HIS HONOUR: 

1Gregory Jarvis,[1] you have pleaded guilty to two charges of incest.  That crime carries a maximum penalty of 25 years' imprisonment.  You are now 69 years of age and the offending occurred in and around 2018.  Often in these situations, the offending has occurred much earlier in life.  You have pleaded guilty to those two charges as I have indicated and you must get the benefit of that plea of guilty.  I accept that the plea was made early despite the fact that there were denials of everything except one particular incident.  You must also of course get the utilitarian benefit of that plea of guilty which in a situation such as this must be regarded as significant.

[1] This is a pseudonym.

2Insofar as remorse I will give you the benefit of the doubt.  It is a situation where you have engaged in what I regard as essentially victim blaming but you have admitted to one and the plea of guilty would indicate there must be some level of remorse.  It is interesting in the psychological material that has been tendered that it may be a situation where you are not really capable of expressing remorse, so I am being careful how I deal with that.

3You have no prior convictions of any description and you have no matters pending.

4Because of the charges and the sentences I will impose, you will be placed on the Sex Offenders Register and I must advise you that the reporting conditions will be for life.  I will just ask you to sign the acknowledgement of that. if you would not mind going with my associate please, Mr Swan?

5Because there are two charges, you are not to be sentenced as a serious sex offender.

6A summary of the matter is that the complainant is your natural daughter. 
She was born on 8 November 2007.  Accordingly, at the time of the offending, was aged between 10 and 11 years.  She is still only 11 years of age.  She has a full scale IQ of 50.  She has two brothers who are slightly older than her and I am told and accept from the Bar table that each of them has very similar intellectual difficulties and cognitive deficits.

7Obviously between the ages of 10 and 11 years, one can fairly safely assume that she was prepubescent and I note that throughout each of these offences, there appeared to have been no protection used by you at all.

8You, as I have indicated, are her biological father.  What you would do, according to her and as I understand it at least one of her brothers is that you would click your fingers as a 'special way' for her to go to your bedroom and engage in sexual intercourse.  This happened 'lots of times' and I indicate that I have read the transcript of her second VARE.  Both of her brothers observed you to do this and observed her to go to your room on a number of occasions.

9There are two distinct charges, the second one is rolled up but clearly the circumstances are such that the incident relates to one incident.  What can be said is that so far as the VARE is concerned, this matter could have proceeded had the Crown so chosen as a course of conduct and it cannot be said that either of these two incidents happened in isolation, not only in respect of each other but, as I said, she said this happened lots of times.

10The first charge of sexual penetration is that when interviewed by police, you told them that you introduced your penis into her vagina on an occasion between 29 October 2018 and 11 November 2018.  That is approximately two to three weeks before the interview.  You told the police that it occurred in circumstances where she led you from the kitchen to your bedroom by your hand.  In the bedroom, where you both sat on the bed, according to you, she asked you if you would make love to her.  You claimed 'Oh sweetheart, that's a bit much.'  To which she responded 'Please.'  And 'But Daddy, I want you.'  She then got off the bed, according to you, took her pants off and went back to the bed and said 'Come on Daddy.'

11When she pulled her pants down, you obtained an erection.  You then inserted your unlubricated penis into her vagina, you claim for about half a minute and said to her 'No, Wendy,[2] this is all wrong.  Get your clothes on and let's stop this.'  You told police you felt guilty as you put your penis inside her vagina and pulled almost straight out.

[2] This is a pseudonym.

12I indicated during the course of the plea, I think that is a load of absolute nonsense.  I think what has happened here is you have simply described one of the lots of times that she referred to and with your apparently limited capacity, you tried to describe it in a way which exonerates you.  The concept of this intellectual disabled IQ of 50 10 year old having that conversation, performing those actions with you is, in my view, ludicrous.

13In any event, apparently after the incident, you said that you told her 'We mustn't do this, it's very, very wrong.'  And 'Sweetheart, please don't ever do that again.  That's very, very naughty.'  Again, I do not believe that for a second but what it does do is it indicates your understanding of the criminality of penetrating your natural daughter in the way that you have.

14You in your interview said that was the only sexual contact that ever happened and you then tried later on to assert that she endeavoured to do it on other occasions with you.

15Charge 2 is a sexual penetration again of a lineal descendent being incest and is rolled up of digital and penile.

16On 25 November 2018, you clicked your fingers as was your want and the complainant went into your bedroom.  You told her to take her clothes off, which she did.  She then laid flat on back.  You touched her vagina with your hand and inserted your finger into her vagina.  You then took your penis out and inserted it into her vagina.  She asked you to stop because she did not like the 'Penis in the 'gina,' and you did not stop and you said that you wanted more and lasted for about 10 minutes.  You then got dressed and went to the lounge room.  She cleaned herself up with some toilet paper as prior to inserting your penis into her vagina, you placed cream on your penis.  In effect, as I pointed out during the course of the plea, that realistically it was a rape but in any event, you are charged with what you are charged with.

17She also recalled an occasion as being uncharged acts, simply as to context, when she did the 'doggy stand,' which she described as 'you put your knees up to the bedroom and then you put your hands on the bed.'  You would then do the same thing that she told police about which obviously is penetration.

18One of the brothers described an occasion when he went into your bedroom and the complainant was fully naked on the bed.  She covered herself with sheets.  You were wearing pants but had no top on.  On other occasions, that son had observed you lifting her dress up and touching her vagina.  He also overheard her telling you to 'Stop it.'  And you responding, 'No, give me more,' which seemed to be corroborative of what she had said herself.

19Your son Jeremy[3] said he had heard you making clicking noises to the complainant almost every day and sometimes you would do it when you were in bed.  On one occasion, he went into the bedroom to ask if he could have an icy pole.  You were in the bed with her, kissing her, you were lying on top of her.

[3] This is a pseudonym.

20In any event, on 26 November 2018, because of DHHS concerns, Victoria Police were informed.  A disclosure interview took place on that day and she said that she had been sexually penetrated the night before both digitally and with your penis.  She was conveyed then to the Monash Children's Hospital for forensic medical assessment.  On that day, she was examined by a forensic medical officer.  The genital examination did not reveal signs of acute or past genital trauma. That is hardly unusual in these circumstances.  Also that report did describe that she was subject to neglect.  She had multiple dental cavities, hair lice, dirty nails and unwashed hair.  Her physical health needs had not been met.

21At that point in time, vaginal swabs were taken.  She then was engaged in a VARE and made allegations.  She was then involved in a second VARE and it is the second one of course that I have read.  Again, when interviewed, you denied any further offending other than the incident you described. 

22You denied that you had been penetrating her vagina over a period of a couple of years and you claimed in that record of interview that on approximately a dozen occasions, she offered you her vagina in exchange for lollies and apparently you said you had refused.  Again, I think that is victim blaming and I do not accept it for a second.

23What subsequently occurred was that the swabs taken from her vagina on the 26th revealed that inside her vagina was your spermatozoa.  So the one incident where police happened to have reason to talk to her and swabs taken on that day, that very day, sperm is found inside her vagina.  I think I would be very hard pressed to find that that was simply coincidental and that in my view, the circumstances of that confirm that these acts were not done in isolation, though obviously I have to be very careful to only sentence you for the charges that are before me.

24This is a sentence that involves the concept of standard sentencing and I will refer to that again.

25The circumstances here are that she was your natural daughter and still is and you took gross advantage of her.  You must have been aware of her mental incapacity and you simply used her as a sexual toy clearly for your own gratification.  It is a disturbing set of circumstances indeed.  There are no victim impact statements before me.  That is hardly surprising when each of the children as an IQ as low as 50.

26Obviously it is serious offending.  It calls for the application of general deterrence.  It calls for significant denunciation and calls for an appropriate punishment.  In your particular circumstances, calls for specific deterrence are not all that important for reasons I will outline later on and because of your age and the sentence that you are to undergo, I think that community protection is not really a problem either.

27What I do is refer back to the comments made by Vincent JA in the case of Toomey who quoted from a number of judges earlier.  He said:

'It is incumbent upon the courts, however long ago the offences were committed, [Toomey's were quite old, yours are not], to express the denunciation of the community of such behaviour, through the sentences imposed on the perpetrators.  They must be seen to vindicate the values that society that they represent, fundamental to which is the protection of its children.'

28As Hedigan AJA said, adopting an earlier statement of Marks J in R v Sposito and then put it in R v MJ:

'A society which fails to protect its children from sexual abuse by adults, particular those entrusted with their care, is degenerate.'

29Referring to the circumstances of the matter before him, he continued:

'The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are 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 and the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.'

30Those comments are very apt in this set of sentencing circumstances.  Also, I am not going to go into detail of it, all of those participating in this situation are aware of the decision of Dalgliesh and the very strong comments that were made in that case.  Nothing other than a very significant indeed gaol sentence is appropriate here and in determining the length of that sentence, I then turn to matters personal to you.

31Your counsel provided helpful submissions insofar as you are concerned. 
Your background was that you are the second youngest of nine children. 
You were brought up on a dairy farm.  Your father operated a milk run in the area and your mother assisted with the running of the property and the maintenance of the household.  The family was severely financially deprived throughout the course of your childhood.

32All your other siblings, and there were eight of them, attended the local school.  You were chosen by your parents to remain at the farm and never entered the formal education system.  You are unsure as to why that was that you were chosen to be deprived of an education.  You spent your childhood assisting your mother work the farm, that included milking cows, cooking breakfast, tending to cattle.  Your lack of formal education was not supplemented by any teaching at home and accordingly by the time you did leave home, you were illiterate and innumerate.  You have described to the psychologist who spoke to you that you were able to count to a degree, learning to do that because of counting stock.

33During the course of your childhood, you have reported and I have no reason to doubt that you were exposed to sexual abuse within the family home perpetrated by your father.  You reported to the forensic psychologist, Mr Gee, whose report is before me as well as that of a neuropsychologist, Ms Evans, that he endeavoured to sexually assault you when you were about nine or 10.  You were aware and have become even more aware prior to this offending that you engaged in that your father had sexually abused your sisters on multiple occasions and essentially as your counsel put it, you have hated your father for that.

34You recall that your mother never intervened in that and you believed that was due to her fear of your father.  Both your parents are deceased but the siblings all remain alive.  So as your counsel simply put, 'By the time he formally entered the workforce, Mr Jarvis did so having emerged from impoverished background with limited social interaction beyond his own family and was illiterate.'

35That is the sort of background that is referred to in Bugmy and again, I do not have to go into all the details of that.  It certainly puts your offending in later life into certainly some sort of context.

36Having left home, you commenced work at an abattoir.  You then worked as a truck driver for approximately 18 years.  When you stopped doing that, you commenced as a welder and you did that for about 12 years.  You have had other intermittent jobs, a traffic controller, gardening and labouring.  You have been in a number of relationships, three relationships and have had three children from each of those relationships.  These children are your youngest.  You have three boys from a relationship with a Marlene.  You advised your counsel that they are aware of your current predicament and know that you are in custody and know what you are in custody for.

37The three younger children that were the result of your last relationship, I am informed and accept by the prosecutor are in the care of the State.  They are in foster care and bearing in mind their intellectual disabilities and their ages, for them to get permanent foster care as a matter of judicial notice, is going to be a very difficult process indeed.

38In any event, the mother of those children left you for reasons you claim not to understand about six months after the complainant in this matter was born.  Since 2005, you have not worked and have been the sole carer operating on benefits.  You have lived in rental accommodation and as I understand it, for the last few years, had been in Warragul.  You had in the years preceding this apparently some strange relationship with a former school teacher and accordingly you were given assistance with literacy.  You now apparently are able to read and have been able to tell you counsel in fact gaol, you have been able to read novels.

39You do not have any substance abuse issues.  You are not alcoholic and none of those factors come into play in this.

40We then come down to your mental health and cognitive functioning.  As I had indicated, there is a psychological report prepared by Dr Dion Gee, a forensic psychologist, and a neuropsychological report prepared by Dr Evans. 
Again, those reports go into quite a degree of detail which I do not think I need to go to in these particular circumstances.

41The report of Dr Evans essentially points out and summarises the report of Mr Gee, which I will refer to briefly in a moment.  It essentially says that you, in her view, are very likely have oncoming dementia.  That will continue to affect you and from a cognitive perspective, bizarrely enough, you are potentially assisted by where you currently are.  I do take into account however that you have to undergo a very significant sentence with declining mental capacities.

42The prospects for your rehabilitation, she says, are poor because of this underlying neurodegenerative condition and she said in regard to the risk of reoffending with ongoing cognitive decline, the decision making capacities as well as the ability to inhibit thinking and behaviour are likely to be seriously compromised over time.  She then says 'Under such circumstances I consider the risk of reoffending in the future is likely to increase as opposed to decrease.'

43In that regard, I am taking into account, as I indicated to your counsel, your age, the circumstances in which you will be released into the community if you ever are and the fact that I regard this offending as situational.  I do not think you are or have been a risk in a community sense and the circumstances are you will be on the Sex Offenders Register for life in any event and a situation or circumstances similar to this are very, very unlikely to ever occur.

44Again, insofar as remorse is concerned, she said 'As mentioned, Mr Jarvis persistently expressed his regret as well as remorse for his behaviour and possesses the skill set to appreciate such concepts.  However, his comments impressed as somewhat egocentric and hence the capacity to full express sincere remorse was questioned.'  I take it no further than that other than to confirm what I have said that I am going to give you the benefit of the doubt in relation to that.

45The report of Mr Gee goes into quite loquacious detail but as I pointed out to your counsel, I think there is one paragraph in his report that does indicate the difficulties that you laboured under and what creates a set of circumstances in which this offending has occurred.  Again, it is very properly conceded by your counsel, you were aware of the treatment of your sisters by your father and that you have done the same thing to your daughter and appear to be virtually unable to indicate any victim perception as far as they are concerned.

46I will read this paragraph from Mr Gee, 'Specifically, through numerous maladaptive processes, Mr Jarvis presents with one, intimacy and social skills deficit (that is a fearful and avoidant attachment interpersonal style, reduced coping skills, lower self-awareness, conflicted intimacy/psychosexual reciprocity, reduced social connectedness, compromised self-esteem, poor problem solving skills, compromised assertiveness, thought and conflict resolution skills, a diminished sense of identity and a mistrust of others, particular women).  Two, cognitive distortions appear to make him vulnerable to "act out" in an aberrant manner (expressed through diminished social moral reasoning, cognitive rigidity, difficulties with perspective taking, reduced consequential thinking, an external attribution style and beliefs that aberrant behaviour is a way of meeting ones needs) and to a lesser degree, three, emotional behavioural misregulation (underpinned by situational impulsivity, deficits in autonomy, lower distress frustration tolerance, distorted emotional perspective taking, difficulties with self-soothing regulating arousal and proclivity towards effective avoidance).  Four, distortion/deviancies underlying sexual scripts (that is sexual fulfilment/gratification through deviant behaviour, a self-focused approach to sexual activity, a distorted understanding of sexual intimacy, a blurring of sexual boundaries, a sense of sexual entitlement and a sexualisation/sexual objectification of prepubescent girls.'

47That is a lot of words to be simply saying that you were brought up in a very dysfunctional family, you clearly have a lot of personal difficulties and lack of capacities but what it comes down to is at the end of the day, you knew what you were doing was wrong as indicated in your interview with police and on the two occasions that I have to sentence you for not being in isolation, have for your own gratification penilely penetrated your own biological daughter. 
The offending is serious indeed.

48I then turn to the matter of standard sentencing.  There is still quite a lot of discussion going on in the criminal law fraternity about what all this means. 
In a matter of Mitchell in which I sentenced, I said the following, I think it is applicable here:

'As I understand it, standard sentencing is contained and explained in a decision of His Honour Champion J of the Supreme Court [I interpolate that I have now read further decisions by Hollingworth J and Tinney J which confirm what I am about to say].  What his ruling confirmed was the standard sentences operate as a legislative guidepost and are consistent with the instinctive synthesis approach for sentencing.  A standard sentence is one of many standard sentencing factors and does not have a dominant role in sentencing.

'When complying with the statutory duty which explain how the sentence imposed in relation to the standard sentence, the court is not required to classify the objective seriousness of the offence.  In Muldrock, as has been confirmed later on, the standard sentence is a "legislative guidepost as a middle range of objective seriousness of an offence which must be considered together with other legislative guideposts of the maximum sentence."'

49In this matter the instinctive synthesis process which is what used to be used I have taken into account all of the matters that I have raised.  The sentence that I intend to impose in respect of these charges is lower than the standard sentence.  I do that because in this situation there is your age, your plea of guilty, the utilitarian benefit of that plea of guilty, your Bugmy type background and the fact that you will, by the end of your sentence, not pose a significant risk to anybody.

50This is where standard sentencing becomes very difficult.  No one seems to know whether a standard sentence is before or after a plea of guilty and it can tend to make the whole process look ridiculous.

51However, for the reasons that I have outlined and your own personal circumstances, whilst I regard as mid to high range, that is what I propose to do.

52The prospects of your rehabilitation as I have already indicated, according to the neuropsychologist, poor and the risk of your reoffending I have already dealt with.

53There is no application of the principles of Verdins.  There is no matters such as that that you can call into account other than your cognitive decline, you will be undoubtedly undergoing this sentence at Ararat where all the medical facilities for people of your age and your difficulties are now unfortunately in place.  It is a sad reflection on the community but that is the situation. I do not think gaol is going to be particularly more difficult for you than any of the other hundreds of people who have been in that particular situation.

54Accordingly, on Charge 1, eight years and on Charge 2, eight years.  I direct that four years of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.  That gives an effective head sentence of 12 years.  Because of the standard sentencing legislation, I have to impose a minimum term of 60 per cent or less.  That means that the effective minimum term I will impose is one of seven years and two months.  I make it very clear I do that only because of the legislation.  Were I not bound by those provisions, the minimum term I would have imposed would been more like eight or nine years.

55I direct that 359 days be reckoned as having been served under this sentence.

56Pursuant to s.6AAA I say that bearing in mind this is a standard sentencing process, I would have probably given sentences greater than the standard sentence, which in my view just shows how difficult all this is.  That leaves a situation where on a 6AAA, that is if you had run a trial and not pleaded guilty to it, I would have sentenced you to be imprisoned for a period of 16 years with a minimum term of nine.  Again, had I been doing that, without this legislative embargo on minimum terms, I would have imposed a minimum term of 12. 
So in a bizarre way, the standard sentencing has at least made your position open to parole a significantly earlier period than would have otherwise have been the case.  Why that should be so, I have absolutely no idea.

57Any other orders I have got to make, gentlemen?

58MR SWAN:  No, Your Honour.

59HIS HONOUR:  No, all right.  I think what I will have him taken over, Mr Swan, if you could talk to him over there, so you can sit down with him rather than hold him here.

60MR SWAN:  Yes, Your Honour.

61HIS HONOUR:  There was no 464, was there?

62MR HAMMILL:  No, he has been set up.

63HIS HONOUR:  I would have thought so, obviously.  Yes, all right.  Thanks for that, you can take him now.

(Prisoner removed.)

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