Director of Public Prosecutions v JL
[2012] VCC 1992
•6 December 2012
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01910
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JL |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 30 November 2013 | |
DATE OF SENTENCE: | 6 December 2012 | |
CASE MAY BE CITED AS: | DPP v JL | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1992 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Incest – Indecent act with child under the age of sixteen – Grave breach of trust deserving of condign punishment
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited: R v W.E.F. [1982] 2 VR 385
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms F. Martin | Solicitor for Office Public Prosecutions |
| For the Accused | Mr S.A. Moglia | James Dowsley & Associates |
To ensure that there is no possibility of identification of the victim of the sexual offending, this sentence has been anonymized by the adoption of initials in place of all names including that of the accused.
HER HONOUR:
1 Before commencing to sentence, I want to indicate that I have anonymised the names of the prisoner, of the complainant, and other family members and have framed my sentencing remarks in such a way that the complainant cannot be identified. This is done to protect the identity of the complainant and out of respect for her privacy and that of other family members who have been affected by the prisoner’s offending. I will refer to the prisoner as “JL” and refer to the complainant as “YD”. The complainant’s mother will be referred to as “RN” and the complainant’s sibling will be referred to as “RB”.
2 I also at this time make an order under the Sex Offenders Registration Act 2004. I indicate to you JL that under that Act by reason of your conviction on these offences you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is report, after your release from custody. Details of these reporting conditions will be served upon you shortly by my associate, and I will ask your counsel to attend to an acknowledgement of that notice and have you sign that. I will have that done now Mr Moglia.
3 MR MOGLIA: Yes Your Honour.
4
HER HONOUR: Thank you, take a seat JL. You can approach the dock
Mr Moglia.
5 MR MOGLIA: Thank you Your Honour. As Your Honour pleases.
6 HER HONOUR: Thank you. JL, you have pleaded guilty to two charges of indecent act with a child under the age of 16 years and two charges of incest. None of these charges are representative in nature but it is apparent from the statement of agreed facts that you committed each of these offences in the context of ongoing sexual abuse of the complainant.
7 The maximum penalty for indecent act with a child under the age of 16 years is ten years' imprisonment and for incest 25 years' imprisonment. The maximum penalties reflect the serious nature of these offences.
8 The matter was opened by the learned prosecutor on the basis of an agreed statement of facts and I sentence you on this basis.
9 I was told the following:
10 You are the natural father of the complainant.
11 You are now 37 years old and you were at various ages between 25 and 36 years old when you committed the offences on the indictment. The complainant is now 15 years old. You began sexually abusing her when she was about four and continued to do so regularly until she was 15.
Charge 1 – Indecent Act with a child under the age of sixteen
12 The facts which give rise to Charge 1 on the indictment, being a charge of indecent act with a child under the age of 16 are as follows. The first occasion on which you sexually abused your child was in the latter half of December 2001 in the family home. Your daughter was four years old. You entered her bedroom late at night when she was in bed and gave her a back rub. She rolled over for a tummy rub, at which point you placed your hand down her pants and rubbed the outside of her vagina. Your child’s tender age makes this a most serious example of this type of offence.
13 You and the complainant’s mother separated on 1 August 2005. You moved in with some friends in another suburb. The complainant and her young sibling lived with their mother but both of the children visited you every second weekend and on holidays as agreed.
Charge 2 – Incest (digital/vaginal)
14 The facts which give rise to Charge 2, being a charge of incest are that when the complainant was eight or nine years old, you began inserting your fingers into her vagina. On one occasion, when the complainant was visiting you, you were all sleeping in your bedroom. You touched the complainant’s clitoris and penetrated her vagina with your fingers. I regard this as a serious example of incest in view of the age of your child.
15 You and the complainant’s mother officially divorced on 14 March 2007.
Charge 3 – Incest (penile/vaginal)
16 The facts which give rise to Charge 3, a charge of incest are that when the complainant was 15 years old, you gave her a back rub at the house that you were then living in. You touched her breasts and vagina, then got on top of her and had sexual intercourse with her, penetrating her vagina with your penis. You did not wear a condom, which is an aggravating feature of this offending in that you risked your daughter contracting sexually transmitted diseases. I was told by your counsel, and accept, that you had had a vasectomy before this time, and so it is not the case that you also exposed her to pregnancy.
Charge 4 – Indecent Act with a child under the age of sixteen years
17 The facts which give rise to Charge 4, indecent act with a child under the age of 16 years are that on 1 July 2012, when your child was 15 and again staying at your house, you entered her bedroom late at night. You touched her breasts and tried to touch her vagina. The complainant told you that she did not feel like it and you then left the room.
18 The following day, the complainant told a friend that she had been sexually abused by you. On 3 July 2012, she disclosed this to her mother, telling her that you had been sexually abusing her for a number of years. The complainant’s mother then reported the matter to police and on 4 July 2012, she took part in a VARE (Video Audio Recorded Evidence) interview. That same day, the complainant’s mother took part in three pretext phone calls with you. During the calls, you admitted touching the complainant’s vagina but denied any penetration.
19 On 5 July 2012, you took part in a record of interview, exercising your right to make “no comment” answers. You were charged at the end of the interview.
20 The first committal mention took place on 12 September 2012. To facilitate plea discussions, this was adjourned to a committal case conference on 3 October 2012 where the matter was resolved, subject to consultation with the complainant. The matter proceeded by way of straight hand-up brief on 19 October 2012, with you entering pleas of guilty to the charges. It is accepted by the Crown, and I sentence you on the basis that you entered your pleas of guilty to the charges at an early stage.
21 Your offending is most serious, the offences having been committed over a span of nine years, the most part of your child’s life. It commenced when she was only four years old. You have grossly abused the trust of your child who was entitled to look to you for guidance and protection. You have also breached the trust that her mother placed in you to take care of her in the way that a father should. In offending against YD continually from such a tender age, you have effectively normalised, to a degree, abhorrent behaviour. Your attempt at rationalising this conduct, namely that you thought that the complainant was enjoying what you were doing, ought be seen against this background.
22 As is evident from the complainant’s Victim Impact Statement, you have devastated her life, depriving her of a normal and happy childhood and of engaging in healthy and happy relationships when at an appropriate age to do so. She experiences feelings of guilt and self-loathing because of what you have done. As I said at the initial plea hearing, there is nothing that the complainant has done that she should feel guilty about. You have used your position as her father to distort a father/daughter relationship in order to satisfy your selfish needs. She continues to suffer dreadfully from your actions. She feels that she is slowly dying on the inside. She describes herself in a number of her poems, which were part of the Victim Impact Statement, as “broken”. She struggles to cope in school and to cope in everyday life. She suffers sleeplessness and it is apparent that she may well have engaged in suicidal thoughts and self-harm.
23 The complainant’s mother, who courageously read aloud all three Victim Impact Statements, spoke of “bearing witness to the devastating effects” of your wrongdoing. She spoke of watching on helplessly while the complainant struggled to focus and complete simple tasks, quitting her job and wagging classes at school. She speaks of the complainant’s failure of subjects and inability to complete her homework and other tasks where once she could do this. The complainant has told her that she does not want to live a few times and they are obtaining psychological help for her.
24 She spoke of the broader ripple effect that your offending has had through family members including her other child and her own father. Your offending has impacted on her sense of security, trust and finances, as your inevitable imprisonment will deprive her of maintenance and parental support which had been the subject of a verbal arrangement in the past. She has had to put her own life on hold, suspending her studies, to attend to full time employment so as to be able to provide financially for the children. She details the various ways in which the lack of financial support will impact on herself and the family. She speaks of her own daily anxiety and panic attacks and her sense of guilt for placing her children in your care. She says that she feels helpless, lost, bewildered and fearful for their future and ongoing recovery because of the impact of your offending.
25 Your offending has also affected your younger child who spoke of being unable to concentrate at school and feeling sadness at seeing her sister go through the significant distress because of your offending.
26 You heard the learned prosecutor read a number of passages from different cases where the courts have made it clear as to the approach that will be taken to offending such as yours. As the learned President Winneke, as he then was, said in R v W.E.F. [1982] 2 VR 385 at paragraph 20:
27 "……………This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all that they stand for but it is now well know that it has a capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle……………………….."
28 Your daughter’s Victim Impact Statement readily manifests the destruction that you have wreaked in her life, effects which she will continue to endure for years to come, no doubt. Your offending is deserving of condign punishment and must be denounced. There is nothing which reduces your moral culpability which I regard as very high. After being sentenced on Charge 2, you will be declared a serious sexual offender and there is a presumption of cumulation of sentences thereafter. However, as your child was four and then nine when you committed Charges 1 and 2, I am of the view that some cumulation is warranted after Charge 1.
29 General deterrence is also a principle to which significant weight should be accorded. Regardless of what might be said by agencies such as the Sentencing Advisory Council about the effectiveness of sentences serving this purpose, it is clear that general deterrence is an important consideration in cases such as this. I observe in passing that it may well be difficult, if not impossible to properly gauge how many people have not committed offences because they have turned their minds to the penalty that might well ensue if they do.
30 It was not you who took a conscientious decision to stop offending, but it took your daughter making a complaint which brought your offending to an end.
31 I accept that your offending was not accompanied by aggravating features such as violence or acts of degradation beyond the controlling and degrading nature of the sexual acts themselves, and the exploitation of your father daughter relationship in order to perpetrate them. But I accept that there are worse cases than yours and I have regard to the absence of aggravating features in your offending, in placing it in the spectrum of cases of this type.
32 You pleaded guilty at an early stage and in doing so you are entitled to a significant discount in the sentence you would otherwise receive. This is because you have saved the witnesses especially the complainant the trauma and time of giving evidence and you have saved the community the time and expense of running contested proceedings. I am also satisfied that your pleas of guilty are indicative of some genuine remorse, although as was accepted on the plea, the overall question of your remorse is a complicated one. In assessing this, I have taken into account that you made limited admissions in the pretext conversation with your ex-wife, somewhat minimising your behaviour at that time. I accept that there may have been a number of reasons for doing so, and the positive aspect of this is that you were prepared to take some responsibility at that time in your conversation with her.
33 You made a no comment record of interview but this was done on legal advice. This was your right but as at that time, you were not prepared to take full responsibility and act in a way which was consistent with heartfelt remorse. You have been progressing with your development of insight and heartfelt contrition. On the one hand you have engaged in four months counselling with Dr Grech and have taken steps to sign over your house to your daughters but you have also sought to rationalise your offending behaviour on the basis that you felt that your daughter enjoyed what you were doing. Dr Grech said that your outlook in this regard was consistent with some feature of Asperger’s syndrome but you have not been diagnosed as having this condition.
34 I do not speculate as to the explanation for you seeking to rationalise your behaviour in this way; even if I could, it is not and cannot be relied on as a mitigating feature. The relevance of such rationalising is the part it plays in assessing remorse. In assessing this, you did not and do not seek to shift blame to your daughter as many have done in such situations by saying that she was the initiator of any sexual misconduct. Your Counsel read a passage which you have written which seemed to reveal a deeper glimpse of insight and regret. Such expressions should be seen in the context of you sexually abusing your daughter over a nine year period. In saying this, I bear in mind that I am only sentencing you in respect of four offences which are not representative charges, but which are not isolated incidents.
35
So in looking at matters such as remorse and impact on the victim I am entitled to assess these in the overall context of what you have done. In the end I find that you have some genuine remorse for your offending, as I have said, but that your remorse and insight are works in progress which have some way to go. But, it appears that in the four months that you have seen
Dr Grech, you have made some progress, which will hopefully continue, notwithstanding that Dr Grech will not be able to assist you with this whilst you are incarcerated. It is to be hoped that you avail yourself in an open and honest way with all of the programs and treatments which are relevant to your offending which are on offer in prison. In this regard I take into account your preparedness to further engage in psychological counselling.
36 You have some prior matters which I take into account when assessing your prospects of rehabilitation. On 19 October 1994 you were dealt with in the Magistrates Court for ten charges of indecent assault. I was told that you offended against a stepsister who was 15 years old when you were 19. You were sentenced to a 12 month Community Based Order, to perform 150 hours paid community work. I understand that some attempts were made to obtain further details as to the offending but this has proven fruitless. However this matter does have some relevance to the matters before me.
37 But I do take into account that this offending took place more than 18 years ago and at a time when you were still quite young and apparently only four years older than the victim. The disposition you received perhaps reflects the level of seriousness of the offending, and so while I have some regard to this prior matter I do not place undue emphasis on it. But it does mean that you were placed on notice, if you needed to be, at an early stage of your life as to the wrongness of sexual offending, and yet you chose to sexually abuse your daughter after this.
38 The only other matter is a drive whilst suspended for which you were sentenced to 30 days imprisonment wholly suspended and for exceeding speed limit for which you were fined. I factor these matters into my assessment of the weight I need give to specific deterrence and your prospects of rehabilitation. In that regard, I also take into account the assessments performed by Dr Grech and his opinion that you do not appear to have paedophilic tendencies and that you would fall within the lower end of the risk continuum as compared with other sex offenders provided that you receive “sustained intervention as provided by the statutory sex offender program”.(p7)
39 I accept that notwithstanding your dreadful offending which has permeated the victim’s life you have provided for her and your family in financial and other supportive ways, and you have worked long and hard as a provider. In this respect I take into account the reference provided by your employer who speaks very highly of your competence and diligence. I note that in fact you have worked for the same person for some 16 years. I also take into account the character references provided by various members of your family who attest to your otherwise good character.
40 Your offending has cost you the loss of your family, the loss of your job and the loss of your home, assuming you do follow through with your vow to transfer your home to your children. Of course the cost of your offending that your daughter has and continues to pay is immeasurable which you appear to be beginning to comprehend.
41 I take into account that this will be your first time in gaol and the losses that you have brought upon yourself insofar as I can.
42 You have some family support to look to upon your release and an improving level of insight and sense of remorse. You have also expressed a willingness to engage in further counselling which is a positive sign. In all of the circumstances, I assess your prosects of rehabilitation as being fairly good. I place some weight on specific deterrence. I need not place such an emphasis on the need to protect the community that a disproportionate sentence is called for. I place some weight albeit minimal on this particular sentencing factor.
43 The Crown submitted that an appropriate sentence range in your case is between six and eight years as a head sentence with a minimum of between four and six years. I was told that current sentencing practice was considered in giving this range. Mr Moglia submitted that the upper end of this range was appropriate and in accordance with current sentencing practice. In essence he submitted that a sentence which exceeded this would not give due regard to your openness toward counselling and your improving your level of insight; that the mitigating features in your favour in combination with the weight that I need to give to other sentencing considerations could be properly served by the sentencing range given, albeit at the higher end of that range.
44 I placed Counsel on notice that it may be that I came to a view that, all things considered, the sentencing range was inadequate, principally because of the seriousness of the offending, and because of the weight that I needed to attach to all relevant sentencing considerations. I was also concerned with current sentencing practice, to which I must have regard. I have considered all relevant matters closely in arriving at an appropriate sentence in your case. In the end, I am of the view that the head sentence ought slightly exceed that submitted as appropriate in this case, but that the higher end of the non-parole range is sufficient.
Would you please stand up
45 Firstly I make the forensic sample order requiring a sample of saliva be taken from your mouth. I make the order because it is not opposed by you, because of the seriousness of the offences and because the order is in the public interest. Notwithstanding your present lack of opposition to the order if you do not cooperate with the authorised officer at the time that this procedure is sought to be undertaken reasonable force may be used in order for the procedure to be conducted.
46 In respect of all charges you are convicted and sentenced as follows:
47 Charge 1 Three years imprisonment
48 Charge 2 Five years imprisonment
49 Hereafter you are to be declared a serious sexual offender.
50 Charge 3 Six years imprisonment which will be the base sentence
51 Charge 4 Two years imprisonment
52 After the sentence on Charge 2 there is a presumption of cumulation, but as I previously indicated, I intend to cumulate from the sentences on Charges 1 and 2 as these are separate acts of offending inflicted on your child when she was four and nine years old.
53 I direct that 18 months of the sentence on Charge 2 and six months of each of the sentences on Charges 1 and 4 be served cumulatively with each other and with the sentence on Charge 3, producing a total effective sentence of eight years six months imprisonment and I direct that you serve six years imprisonment before becoming eligible for parole.
54 I declare that you have already served ten days imprisonment which will be reckoned as already served.
55 If not for your pleas of guilty I would have sentenced you to a total effective sentence of ten years seven months gaol and I would have ordered you to serve seven years four months before becoming eligible for parole.
56 Would you please take a seat for a moment. Is there anything arising from that counsel?
57 MR MOGLIA: No Your Honour.
58 MS MARTIN: No Your Honour.
59 HER HONOUR: Yes, thank you, you may remove the prisoner. We'll adjourn.
60 MR MOGLIA: Just before Your Honour does, I'm sorry, can I clarify did Your Honour take the view that the Sex Offenders Registration Order was subject to s.11 discretionary order or automatic? It may be (indistinct) of course.
61 HER HONOUR: I took the view that it was automatic I must say Mr Moglia.
62 MR MOGLIA: Yes, I thought that was right, I just wanted to clarify that.
63 HER HONOUR: Yes, do you say that that's not right?
64 MR MOGLIA: No, I agree, that's right, I just - not having the paper I wasn't sure.
65 HER HONOUR: Yes, thank you. Yes, we'll adjourn.
- - -
0
0
0