Director of Public Prosecutions v Johns (pseudonym)
[2014] VCC 2107
•9 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARCUS JOHNS (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 November 2014 |
| DATE OF SENTENCE: | 9 December 2014 |
| CASE MAY BE CITED AS: | DPP v Johns (pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 2107 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Incest
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:
Sentence: 7 years' imprisonment, non-parole period 4 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms N Warda Ms R.Schell | Office of Public Prosecutions |
| For the Offender at hearing For the Offender at sentence | Mr B Nibbs Mr J. Behan | Robert Stary Lawyers |
HIS HONOUR:
1Marcus Johns[1], you have pleaded guilty to two charges of incest. This offence carries a maximum penalty of 25 years' imprisonment.
[1] Marcus Johns is a pseudonym.
2You are presently aged 33 years, having been born on 26 March 1981, and you were aged 32 when this offending occurred in 2013.
3You have no prior convictions.
4The background to your offending is as follows.
5The victim in this matter was born on 13 November 2000. She is presently 14 years of age. At the time of the offences she was aged between 12 and 13.
6You are the stepfather of the victim.
7You commenced a relationship with the victim's mother, Elaine Johns[2], on or about 2008. Soon after you resided together and in late 2009 Elaine became pregnant to you. On 22 August 2010 she gave birth to your daughter, Jennifer[3]. On 26 March 2011 you and Elaine married.
[2] Elaine Johns is a pseudonym.
[3] Jennifer is a pseudonym.
8Throughout this time the victim had, from approximately the age of 5 until approximately the age of 12, been residing with her maternal aunt. During that time the victim would visit her mother and you regularly, you having first met her when she was approximately 7 years old. In late 2012 the victim moved in with her mother and you on a permanent basis. The victim was in Grade 6 when she moved in. Shortly after moving in she began to refer to you as and call you "Dad".
9On or about January 2013 Elaine Johns again became pregnant to you. On an occasion between 1 August and 12 September 2013 when the victim was away at school camp Elaine Johns became ill during her pregnancy and was admitted into hospital.
10When the victim, who was 12 years of age at the time and in Grade 6, returned home from school camp the following day she was informed of her mother's circumstances. The victim stayed at the family home with you and her sister Jennifer whilst her mother was in hospital. On the Saturday night you and the victim watched a movie in your bedroom. The victim fell asleep on your bed and awoke the following morning.
11She entered the lounge room and sat on the couch next to you and watched television. You then kissed the victim on the head and said "Good morning". She in turn kissed you on the cheek and said "morning". She then went to move her head away and you kissed her on the lips. She was in shock and went to get her little sister, Jennifer. This indecent act is an uncharged act as to context and demonstrative of your sexual interest in the victim.
12Later that evening you and the victim went to visit Elaine Johns in hospital. Upon returning from hospital the victim and you sat on your bed and watched a movie. The victim turned to give you a kiss and you moved your head and started kissing her. You then moved your body sideways to the victim and began "dry humping" her. You were fully clothed at the time and were grinding your body on her. You then moved yourself on top of her and continued to "dry hump" her. This indecent act is relied upon as an uncharged act as to context and demonstrative of your sexual interest in the victim.
13On an occasion between 1 August 2013 and 31 December 2013 the victim and you were sitting on the couch in the lounge room watching television. On this occasion Elaine Johns was having a nap in bed. You grabbed the victim and put her hands behind her back so she could not move. You then took her clothes off and while taking her pants off you ripped her pants which caused a large hole. You then took her top off and then undressed. The victim tried to scream out to her mother but you placed your hand over her mouth. You were using your other hand to rub her breast.
14You then lay on top of her and tried to insert your penis into her vagina. During this time the victim was trying to close her legs together so that you could not do it, but you then spread her legs and kept trying to insert your penis into her vagina. As you did this your penis struck her thigh. This again is relied upon as an uncharged act as to context and again is demonstrative of your sexual interest in the victim.
15On 12 September 2013 Elaine Johns returned to hospital for the birth of her baby. After the birth of Janet[4], Elaine Johns remained in hospital. You returned home with the victim. That night you put your hands down the victim's underwear and touched her vagina. The victim touched your penis on the outside of your underwear. This is relied upon as an uncharged act and again as to context and your sexual interest in the victim.
[4] Janet is a pseudonym.
16On an occasion between 1 August 2013 and 31 December 2013 you, the victim and Jennifer were at home. Elaine Johns was in hospital having given birth to Janet. The victim was in the lounge room and so were you. You pushed the victim on the couch and got on top of her. The victim pushed you off and went to her room. You both later visited her mother in hospital.
17When you returned from hospital you grabbed the victim's arm, twisted it and pushed her to the ground. You took her pants off and then started talking to her. You told her that you "can't wait till you're 18" and you were saying to her "I wish I had you all to myself, ….I wish you were mine". As you said this you removed your penis and attempted to insert it into the victim's vagina. The victim told you "No, no, no" and you eventually stopped and the victim got up and walked off. This is another occasion relied upon as an uncharged act.
18On an occasion between 1 August 2013 and 31 December 2013 you and the victim were at the family home. You lay on top of the victim and inserted the head of your penis into her vagina. This is one of the representative occasions of Charge 1 of incest.
19
On an occasion between 1 August 2013 and 31 December 2013
Elaine Johns held a party at her home for her birthday. During the party you were drunk and were trying to get the victim to have alcohol. You made her a drink but she tipped it down the sink. After the guests left and Elaine Johns went to sleep you, who were drunk, stayed up with the victim in the lounge room. This time you told the victim that you "didn't want her to be with anyone else" and you told her that "I can't wait until you're 18 so it's not illegal".
20You both then started to kiss and you undressed the victim. You then pushed her on the ground and pulled her onto the couch. You inserted your finger into the victim's vagina. She told you "No, just stop, just stop". Later you fell asleep on the floor and the victim fell asleep on the couch. That represents Charge 2 of incest on the indictment, and this charge is representative of four occasions.
21On an occasion between 1 August 2013 and 31 December 2013 the victim was at home with you and her two sisters. Elaine Johns had been out at a friend's party. You put the two younger girls to bed and then you returned to watch television with the victim in the lounge room. The victim kissed you on the cheek and you kissed her back on the head and then on the lips. This is relied upon as an uncharged act as to context and demonstrative of your sexual interest.
22You and the victim then undressed and you began touching the victim's vagina, moving your hands onto her breast. You continued to kiss the victim and then inserted your penis into her vagina. You continued to penetrate her until just prior to ejaculation when you pulled your penis out of her vagina. You were wearing a condom at the time. You then went and had a shower. After showering you returned to the lounge room and continued to touch the victim and this continued until Elaine Johns telephoned to say she was returning home. This represents Charge 1 of incest on the indictment, and this charge is representative of four occasions.
23At this point the victim then got up and told you that she was going outside to look for her cat. When she returned you asked her "Did you go ‘cause mum's coming, pretend that we didn't have sex?". The victim denied this and you suggested that she go and shower herself. The victim complied and a short time later Elaine Johns returned home.
24During this time you provided the victim with a mobile telephone. You would communicate with her about your sexual relationship. In early January 2014 Elaine Johns seized the victim's mobile telephone. You returned the telephone to the victim and told her to delete the text messages contained on it. Unbeknown to you the victim never deleted the messages on her mobile phone.
25Elaine Johns retained the mobile phone and placed it on the mobile charger. She observed you trying to unlock the mobile phone but were unsuccessful in doing so. A short time later Elaine Johns observed numerous messages contained on that mobile phone from you to the victim stating "Do you want me to keep talking to you because I always nearly make you cum…..Do you want to have sex with me"
26Elaine Johns confronted the victim who eventually disclosed what had been occurring. Elaine Johns then telephoned you at work and confronted you with the allegations. In that conversation you told her "Don't call the cops, I didn't rape her El, it just happened". You immediately left work and returned home and told Elaine Johns that "it just happened" and admitted to having had sex with the victim. You admitted this also in the presence of the victim.
27On Sunday 5 January 2014 police attended upon your address and arrested you. You were taken to the Werribee police station for interview. You made a “no comment” interview.
28Victim impact statements from the primary victim and her mother, Elaine, were tendered.
29The victim has expressed her feelings of shock and fear of saying anything to anybody about what was happening. She has experienced insomnia and nightmares, eating issues, thoughts of suicide and the sadness of the breakdown of the family life. She remains conflicted with a secret because she cannot tell friends why she is away from her family. She has further experienced loss of trust in men and has received professional psychological support.
30The victim's mother has suffered anxiety and depression from what has occurred together with the recurrence of unpleasant memories of sexual abuse which she herself suffered as a child.
31I now turn to your personal circumstances.
32As I noted earlier you are aged 33 years of age having been born on 26 March 1981.
33You did not perform well at school, receiving remedial attention in secondary school and eventually leaving at the end of Year 10. You also have described pervasive social difficulties throughout your schooling, feeling ostracised and bullied. You developed few friendships during this time.
34Subsequent to leaving school you have mainly participated in semi-skilled employment. This has predominately involved factory and warehouse work. For the past two years you have worked as a forklift operator.
35You have described your relationship with Elaine Johns as initially being very positive and fulfilling. However it deteriorated and the quality of the intimacy between you diminished considerably after the birth of your second child. You separated in late 2013 but continued to live together until this offending came to light.
36You have described depressed moods in the past and depressed and angry periods throughout the last two years in response to ongoing conflict in your relationship with Elaine. You have consulted two different psychologists over the past two years and have previously been prescribed medication for anxiety and depression by your medical practitioner. You have also reported periods when you binge-drank alcohol in order to relieve emotional distress.
37A report from Dr Mathew Barth, psychologist, was tendered on your plea.
38Dr Barth has reported that your experiences of bullying and harassment at school were extremely detrimental to your self-esteem and caused you to view yourself as socially inept and inadequate. This has impacted on the relationships in your life. In addition Dr Barth has opined that you remain a very immature man for your age, and your understanding of the essential elements required to sustain a mature adult relationship is underdeveloped. Your problematic interpersonal adjustment has adversely affected your sexual adjustment including difficulty in you delineating between filial affection and erotic attachment, resulting in the development of a dysfunctional interest in your step-daughter. These offence-supporting cognitions allowed you to attach erotic meanings to the victim's behaviour which you regarded as sexually precocious.
39Dr Barth concludes that your symptoms are sufficiently severe to warrant a diagnosis of "Adjustment Disorder - with mixed anxiety and depressed mood", that without the provision of sustained psychological treatment you are at significant risk of developing a more serious mood disturbance and that your risk assessment of sexual recidivism is regarded as ‘Moderate’, provisional until you have had the opportunity to engage in sex offender treatment programs.
40Notwithstanding your emotional vulnerabilities, your offending is very serious. In the particular circumstances of this case it involved a significant breach of trust on your part: the victim was 12 to 13, and you were her stepfather. You took advantage of the absence of her mother. Your conduct was predatory, manipulative, possessive, at times involved force and perpetrated simply for your own irresponsible sexual gratification.
41You are not to be sentenced on the uncharged acts but the charges are representative of a context of wider offending. No young girl should have to experience the agony of anxiety and fear that you ultimately visited upon this victim.
42There can be no justification for your claim that the victim knew what she was doing and manipulated you. She was a child, 12 to 13. You were an adult, her stepfather. She was entitled to be protected by you, not exploited.
43In mitigation, I accept the submissions of your counsel including:
· Your plea of guilty being significant and in the circumstances betokens genuine remorse. You have spared the victim and her mother from the ordeal of having to give evidence either at committal or trial.
· You have no previous convictions for any offence.
· With sexual offender registration and participation in the Sexual Offender Program there is less likelihood that you will re-offend in a similar way. This will be enhanced if you choose to engage in psychological intervention.
· Your fractured emotional development, which I accept, is likely to have made you more vulnerable to acting in the way you did. You had been consulting psychologists and taking medication for depression prior to this offending.
· That because of your psychological condition the period that you spend in custody will be more onerous for you than upon a person in normal health.
44Notwithstanding these important factors in mitigation, principles of general deterrence, that is, making an example of you in order to deter others, as well as specific deterrence, remain important and require emphasis. You were well aware of the illegality of your actions demonstrated by your expressions to the victim that you could not wait until she was 18 when the conduct would be legal.
45Mr Johns, could you please now stand.
46On Charge 1 of incest you are convicted and sentenced to a term of imprisonment of five years.
47On Charge 2 of incest you are convicted and sentenced to a term of imprisonment of five years.
48Charge 1 is the base sentence.
49I direct that two years of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
50The total effective sentence is seven years' imprisonment. The sentence starts today.
51I direct that you serve a minimum period of four years' imprisonment before being eligible for parole.
52Pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty the sentence that would have been imposed is nine years' imprisonment with a non-parole period of six years.
53There is a further matter to which I need attend. You may take a seat for a moment, Mr Johns.
54The offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offender's Registration Act 2004. By reason of you being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations required and imposed by that Act.
55Pursuant to s.50 of that Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of the reporting period which in your case is for life.
56
My Associate will shortly hand to you the Notification Of Reporting Obligations form which I have already signed and your representative in court today will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notification form and to return the Acknowledgement to my Associate. Could that offender's registration material be now passed to
Mr Johns through his counsel.
57Thank you. There is one further matter. At the plea hearing the Crown sought an order, which was not opposed, for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order was not opposed and the granting of the order is in the public interest.
58I must inform you that, if at the time of the request for the taking of the sample, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Johns? You have to say yes, this is being recorded.
59OFFENDER: Yes, Your Honour.
60HIS HONOUR: Thank you. At the plea hearing the Crown also sought a disposal order which was not opposed, and I have also made that order today. Are there any other matters from counsel?
61MR BEHAN: No, Your Honour.
62MS SCHELL: No, Your Honour.
63HIS HONOUR: Thank you.
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