Director of Public Prosecutions v JT
[2013] VCC 1635
•24 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JT |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2013 | |
DATE OF SENTENCE: | 24 October 2013 | |
CASE MAY BE CITED AS: | DPP v JT | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1635 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr T. Hoare | Office of Public Prosecutions |
| For the Accused | Mr J. Lavery | Ann Valos Criminal Law |
HER HONOUR:
1 JT, you have been found guilty following jury verdict of four charges of incest. You were originally before the jury on Indictment No C13325603 in relation to eight charges. The jury returned a verdict of not guilty in relation to Charge 6, verdicts of guilty in relation to Charges 1, 2, 4 and 8, and were unable to reach a verdict in relation to Charges 3, 5 and 7 and on those discharged without verdict. The Director at your plea hearing on 3 October 2013 filed a Notice of Discontinuance in relation to those three charges.
2 The maximum penalty applicable to the charge of incest is 25 years’ imprisonment.
3 At the time of your offending you were 26 to 27 years of age, and the complainant EO was 13 to 14 years of age and you were her stepfather. At sentence, you are 30 years of age.
4 By way of background, you met the complainant’s mother, CO, in 2001 and commenced a relationship. You moved in together initially into your parents’ home in Braybrook when EO was approximately 4 years of age. Both yourself and CO subsequently had four children together. You are now separated from CO.
5 Six months after you met CO you then moved to Maidstone, where you lived with her for a while. EO went to live with her maternal grandparents for approximately five years from 2003, it would appear as a result of your physical violence towards EO. It was during those years you and CO’s four children were born.
6 EO returned to live with you, CO and her siblings in approximately late 2007. EO gave evidence that from soon after moving into the house in Albanvale with her family, you committed a number of sexual acts with her. These were led during the course of the trial as ‘uncharged’ sexual acts as tendency evidence. EO also gave evidence you used to physically discipline the children, including EO, and some evidence was given about this by EO and CO during your trial.
7 In relation to the charges before the jury on which verdicts of guilty were returned, the jury were satisfied in relation to Charge 1 that between 14 November 2009 and 9 January 2011, you sexually penetrated EO by putting your penis into her vagina. EO said that occurred at the back of the house in what was called the studio when no one was awake. She said she had been watching a movie with you, and the other children were asleep in bed. She thought it was late, around 12 o’clock, on a weekend. She went to her bedroom. You woke her, and she then went to the studio, where she described the sexual penetration as alleged in Charge 1.
8 In relation to Charge 2, the jury accepted that on that occasion, when you were in your bedroom, EO was required to perform oral sex upon you. In the VARE EO said this occurred about a month or two after the occurrence of Charge 1. That it occurred when her mother was out and the other children were in the bedroom.
9 Turning to charge 4, the jury accepted EO’s evidence regarding your penetration of her vagina with your penis. On this occasion you did not use a condom and as a result she had to hurry to the shower after the penetration. Your not wearing a condom is an aggravating feature, consistent with R v Khem[1].
[1](2008) 186 A Crim R 465
10 Turning to Charge 8, EO described an occasion where you penetrated her anus with your penis. This occurred in the studio at night time when her mother was asleep.
11 Each of the four charges represents offending on four separate occasions, that is, not part of a single episode of offending.
12 It is not necessary for me to recount in any greater detail the facts of this matter, as they are on transcript, the matters having been canvassed in detail during the course of your trial.
13 I sentence on the basis of the circumstances of the offending of which you have been found guilty. It is sufficient for present purposes to simply say the facts in this case in my opinion are most serious and disturbing.
14 There are a number of aggravating aspects of your offending, including the gross breach of trust involved, not only in relation to EO’s trust in you, but also in relation to CO, who trusted you with her daughter. I have already referred to your non-use of a condom relevant to Charge 4.
15 There was also an element of pre‑planning in your offending, in that you committed these offences when EO’s mother was out of the house, or asleep. There was a further aggravating aspect of your offending, in that you told EO not to tell her mother of your offending.
16 Victim impact statements were before me from EO and CO. It is clear from the contents of those statements that both have suffered considerably as a result of your offending, and I shall return to pass some remarks on that shortly.
17 This matter proceeded to trial with pleas of not guilty being entered by you. To proceed to trial was of course your right, and you are not penalised for that. However, you do not receive a discount for pleading guilty to these charges. There is nothing before me to indicate remorse by you for your offending behaviour.
18 Mr Lavery, who appeared on your behalf, relied upon the report tendered from Ms Alison Mynard, Clinical Psychologist, dated 28 September 2013. In her report she outlined details of your background and history. You were born in Melbourne. Your parents came to Australia from Tonga. During your childhood you described a close relationship with your family and extended family. As the oldest male in the family you believed your role was to set a good example to your siblings. Your father also had high expectations of you. Your father worked hard, and you basically only saw him on weekends.
19 Your mother was diagnosed with schizophrenia when you were very young, which meant you often had to take on extra responsibilities as a child. Your parents remain together, and your father supported your mother and her struggles with schizophrenia.
20 You began a relationship with CO when you were 17 years of age. She had two children from a previous relationship, a son and daughter, EO. EO was 4 years of age when you first met her. Thereafter you and CO had four children, three boys and a girl, born between 2002 and 2008 and you married CO in 2008. For a period from about the age of 5, EO lived with her maternal grandmother for about five years, as a result of the Department of Human Services becoming involved for a while.
21 You described your relationship with CO as often involving arguments, and ultimately the relationship deteriorated. You explained to Ms Mynard that a major source of the relationship stress was due to CO’s parents, who interfered and criticised CO. In 2011 you assaulted CO during an argument. You were arrested for assault, but CO dropped the charges. You remained together until 2011.
22 Following the separation from CO in 2011 you saw the children regularly, until about a year ago when CO stopped you from seeing the children. There was also an intervention order against you preventing you seeing the children. You were also charged with these offences shortly thereafter.
23 At primary school you described yourself as being average academically, and that you would often be the ‘class clown’.
24 When you were 16, your then girlfriend became pregnant and you and she moved to New South Wales. Your girlfriend miscarried. You went back to school, but lasted only one week before beginning employment. Thereafter you have worked in various jobs, including rubbish removal, making whiteboards, warehousing and factory work. As a result you left school and worked for a period of time. You were in New South Wales for about eighteen months and then you decided to return to Melbourne.
25 Most recently you had worked as a security guard for two years. A reference was before me from Mr Joe Nihat, Director, TFPRO Security. He has known you for over three years. He described you as dedicated to your family and having a high degree of work ethic and morals. You were recently employed with Securecorp Security at South Wharf Shopping Complex as a supervisor. He described you as a gifted and devoted person with potential to excel in any path you choose for your future.
26 I accept that you have been committed to your employment over the years to maintain your responsibility to your family.
27 Illegal substance use and alcohol have not been a problem in your life. Further, you have never previously engaged in psychological intervention, apart from some counselling relating to your marriage issues.
28 Your history, from my interpretation of Ms Mynard’s report, appeared to be quite unremarkable. I note no prior court appearances are alleged against you nor anything subsequent.
29 Upon presentation with Ms Mynard you did not have any thought disorder or perceptual abnormalities. You appeared of average intelligence with no evidence of personality disorder. She conceded you genuinely displayed sound judgment in regard to decisions in your life, although you were somewhat emotionally immature. You continued however to maintain denial of any sexual involvement with EO.
30 Turning to an assessment of your risk, Ms Mynard utilised the Static-99 R and RSVP assessment tools. The results were outlined in her report (pages 4 and 5). Combining static and dynamic risk variables, she placed you in the low to moderate risk category for future sexual recidivism. She identified a number of pro‑social factors in your life, including your sustained employment, ongoing family support and pro‑social friends.
31 In her opinion you had a largely unremarkable childhood, apart from a mother with a mental illness. Your psychosexual history also appeared to be unremarkable. You did not appear to have a history of mental health issues. Your offending appeared to be contrary to your Christian upbringing, your strong family values, and your stated attitude towards this kind of behaviour.
32 Regarding your low to moderate risk of re‑offending, should you engage in appropriate treatment that would likely, in her opinion, reduce your chances of re‑offending even further.
33 A number of recommendations were set out within her report (pages 5 to 6). Ms Mynard recommended you engage in individual counselling sessions to work through a number of issues, including increasing your self-insight, self-awareness and increasing responsibility for your actions. She urged education about ongoing effects of abuse on a child, learning to identify your own emotional state, and challenging cognitive distortions that had minimised your past behaviour. You could benefit from learning to confront your own distress and discomfort about your past behaviours instead of using denial and minimisation. There should be exploration of your own history of abuse or victimisation should this in fact be disclosed. Counselling would assist you to develop victim empathy in relation to this offending, address boundary issues for future relationships, and assist you with future goals and direction to help you re‑engage in meaningful roles again in the community.
34 Mr Lavery, as I have said, during the course of the plea hearing relied heavily upon the report of Ms Mynard. In particular he conceded that the principles in R vVerdins& Ors[2], were not applicable to you. Such was, based on the material before me, an appropriate concession.
[2](2007) 16 VR 269
35 In Court to support you were various members of your family including your father, and girlfriend. Both have been visiting you regularly whilst in custody. As I said there were two victim impact statements before me, one from EO and one from CO. The statements are eloquent. It is difficult to do justice to the sentiments and feelings expressed in these brief sentencing remarks, but I have read both statements.
36 EO described that she felt ashamed, disgusted and felt she had betrayed her mother. That she did not deserve to be CO’s daughter. She had difficulty sleeping and eating and had anxiety attacks at school. She found it difficult concentrating at school and was often absent, which caused her to fall behind in her school work. As a result of her lack of attendance at school, she dropped out of school. She no longer felt comfortable around men and does not want to be left alone with a man. She continued to have problems sleeping. The dark scared her and brought back memories of your offending and she struggled with depression. She did not like sleeping over at friends’ houses as she felt anxious and uncomfortable with a male in the house. She was also more self conscious about her body. She was seeing a counsellor which she found helpful.
37 CO read her victim impact statement to the court. She described becoming aware of your offending and feeling anger and pain. She was hurt, betrayed and scared. She was angry with you as she had trusted you. She could not understand how you could have offended in that way with her daughter. She referred to your betrayal of EO and of her as your wife. CO described being fearful of how she would cope and deal with the situation and yet remain strong for EO. She had to deal with her feelings quickly to be able to assist EO. She encouraged EO to be strong. CO also described having difficulty sleeping and having to push herself to make contact with others.
38 CO described how difficult it was for her watching EO suffer with depression, anxiety and struggling with nightmares and flashbacks. CO has found it difficult since your offending to socialise with others, especially males, as she lacked trust and was cautious. CO and her family, as a result of your offending, had to move house and change schools. EO found it particularly difficult to adjust to her changes in schooling. CO was determined to move forward with her family. The trial process had been draining physically and emotionally, not only for EO but also CO.
39 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[3], in which his Honour Justice Vincent referred to social rehabilitation citing DPP v DJK[4] (allowing again for the factual differences between that case and the present case). His Honour stated:
“… each of the victims, including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically [scar] him and in a tangible way, has affected many aspects of [his] behaviour". With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.
This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation. As the sentencing judge in the present case has pointed out, the damage has been profound. That, in the experience of this Court, is by no means surprising. The possibility that very substantial harm can be sustained by child victims of sexual abuse underlies, in part, the legislative enactment of substantial maximum penalties for the commission of the offences encompassed by counts 4 and 5" in that case.
[3][2006] VSCA 90
[4](2003) VSCA 109, paras 17 & 18
40
The effects upon a victim are a relevant sentencing consideration (see
s. 5 Sentencing Act 1991). I am conscious, however, that I must not allow the effects upon a victim to swamp the sentencing process.
41 There is no doubt that the courts regard offending against children as very serious indeed. In particular, the court has referred to sexual offending by a parent/guardian. In PG v R[5], the Court of Appeal stated:
“There are many obligations of parenthood. Those persons who have relevant expertise will also have a greater claim than judges to give detailed consideration to these; but about one obligation there can be no doubt. Parents must refrain from the knowing infliction of unnecessary harm upon their children. The appellant (in that case) was criminally in breach of this fundamental duty. The gravity of his offending is of particular importance in deciding upon the appropriate sentence.
This is not the occasion to attempt to allocate degrees of seriousness to the crimes a parent might commit against his or her child. It is enough to observe that the sexual penetration by the parent of that child is a total repudiation of not only the high obligation of trust which ought necessarily to adhere to the relationship between the two, but also of the respect which every person, but especially a parent, owes to the psychological integrity of everyone else, especially his or her children.
The other indecent assaults of which the appellant stands convicted display a lesser, but nevertheless serious, failure to fulfil a core parental duty: the provision of a safe, loving and nurturing environment.” [102] – [104]
[5][2013] VSCA 9
42 Whilst the offences for which PG were to be sentenced were different in some respects from that before me, the seriousness with which courts regard a parent’s sexual abuse of their children is apt when sentencing you for the charges that are before me.
43 Also significant is the maximum penalty of 25 years set by the legislature for offending of this type. The high maximum also reflects the serious nature of this offending.
44 As stated previously, the courts have repeatedly referred to the seriousness of sexual offending against children. See R v Shields[6], Clarkson[7], Roosmalen[8], Parente[9], DPP v PJT[10]. This list is by no means exhaustive.
[6][2005] VSCA 150
[7][2011] VSCA 157
[8](1989) 43 A Crim R358,
[9]20/2/1966 CA Vic
[10][2006] VSCA 90
45 The Courts have a duty to protect children as they are vulnerable and especially vulnerable to abuse of trust. They are immature in their understanding of right and wrong and are dependent upon adults responsible for their care not to abuse that immaturity. Courts have a duty to mark by custodial punishment criminal abuse of that trust.
46 I have also read the decision of GJW v The Queen[11] which I have also found helpful in a number of respects relevant to sentencing principles.
[11][2010] VSCA 193
47 Having said that, as I discussed with counsel, it is difficult comparing cases factually as the circumstances of the offending and matters personal to offenders in mitigation can vary enormously. As I also discussed with counsel, sentencing statistics, whilst important, are also limited in their value when comparing cases. The principles relevant to offending such as yours seem to me, however, to provide very similar themes.
48 Following terms of imprisonment being imposed on Charges 1 and 2, you are to be sentenced on Charges 4 and 8 as a serious sexual offender. I am aware when sentencing of s. 6D and s. 6E Sentencing Act 1991, also of the statements in R v RHMcL[12]:
“The need for judges not to compress sentences is especially important where the accused person is a ‘serious sexual offender’ within the meaning of s16(3A) of the Sentencing Act and similar provisions. Section 16(3A) gives effective to a legislative policy that serious offenders are to be treated differently from other offenders. It was plainly intended to have more than a formal effect which is the effect it would frequently have if its operation was subject to the full effect to the totality principle. Given the terms of s16(3A), the scope for applying the totality principle must be more limited than in cases not falling within that section. The evident object of the section is to make sentences to which it applies operate cumulatively rather than concurrently. The section gives the Judge a discretion to direct otherwise. That the object of the section would be compromised and probably defeated in most cases if the ordinary application of the totality principle ground to enliven the discretion. Since the relationship between s16(3A) and the totality does not arise in this appeal, it is enough to say that sentencing judges need to be astute not to undermine the legislative policy inherent in s16(3A) by applying the totality principle to the sentences as if that section (or s6E which replaced it) was not on the statute book.”
[12]
49 More recently, the Court of Appeal in GJW at paragraphs 12 and 13, also referred to cumulation and concurrency when sentencing for multiple sexual offences, citing Mill v R[13].
[13](1988_ 166 CLR 59
50 Turning specifically to s. 6D(b) Sentencing Act 1991, I consider I am able to sentence you without the need to impose a disproportionate sentence, and I note the prosecution was not urging a disproportionate sentence.
51 By the findings of guilt in relation to the four charges before me, you are also required to be registered pursuant to the Sex Offenders Registration Act 2004. The four charges before me are Schedule 1 Class 1 offences and registration is mandatory and for life. Mr Lavery who appeared on your behalf agreed such classification and duration applied to you.
52 In relation to the range urged by the prosecution, Mr Lavery submitted that to arrive at the figures urged in particular the highest figure in the range proffered, would result in orders of cumulation which would be excessive.
53 He submitted your offending lacked some aggravating features, specifically there were not multiple victims and nor was EO very young. Having said that, he conceded your offending involved gross breaches of trust in relation to both CO and EO. Further, you used threatening words to EO in order for her not to disclose your offending, and further you chose your opportunity to offend when EO’s mother was either asleep or out of the house.
54 I discussed with Mr Hoare and Mr Lavery the range of sentence urged.
55 Regarding your rehabilitation prospects, I accept the report of Ms Mynard and her ultimate conclusion you are likely a low-moderate risk of re-offending. Also, you have an otherwise unremarkable background. I am also aware you do not have any prior court appearances and nor is there anything subsequent alleged. You have also worked hard over many years. In all the circumstances I consider your rehabilitation prospects to be good.
56 Mr Hoare, on behalf of the prosecution, referred to your lack of remorse for your offending. Also that the victim impact statements demonstrated the significant adverse impact upon EO, in particular the breach of trust. He submitted your interest was your own selfish needs above those of a young girl going through difficult teenage years. The impact of your offending, he submitted on EO had been significant. Your offending, he submitted, required condign punishment.
57 As well as matters personal to you to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. There is also, in my opinion, an aspect of specific deterrence required when sentencing you, given that your offending occurred on four separate occasions over the approximate 14‑month period alleged in the charges. I do however note as I have said, you do not have any prior court appearances.
58 I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re‑offending. I am comforted by the conclusions in the report of Ms Mynard, including her assessment of your being a low-moderate risk of sexually re-offending.
59 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct, and generally to impose a just punishment.
60 On Charge 1 you are convicted and sentenced to 5 years’ imprisonment.
61 On Charge 2 you are convicted and sentenced to 5 years’ imprisonment.
62 On Charge 4 you are convicted and sentenced to 6 years’ imprisonment.
63 On Charge 8 you are convicted and sentenced to 5 years’ imprisonment.
64 Charge 4 is the base sentence.
65 I direct that 10 months of Charge 1 be served cumulatively upon Charge 4.
66 I direct that 4 years and 4 months of Charge 2 be served concurrently and 8 months cumulatively upon Charge 4.
67 I direct that 4 years and 2 months of Charge 8 be served concurrently and 10 months cumulatively upon Charge 4.
68 For clarity, the orders in relation to cumulation involve cumulation upon each other and upon the base sentence.
69 That results in a total effective sentence of 8 years and 4 months imprisonment, and I direct that you serve a period of 6 years imprisonment before being eligible for parole.
70 Pursuant to s. 18(4) Sentencing Act 1991, I declare you have spent 64 days in custody (up to and including 23 October 2013) by way of pre-sentence detention, and direct that this be entered into the records of the court.
71 I have sentenced you as a serious sexual offender in relation to Charges 4 and 8, and I direct that be entered into the records of the court.
72 I order you be placed on the Sex Offender Register and that that be for life.
73 The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. Mr Lavery, on your behalf, consented to the order being made. I make the order in the terms sought based on the seriousness of your offending. The order will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
74 First things first, Ms Jackson will go down to the back of the room in a moment and have you sign acknowledging the paperwork on registration. You are not being asked if you agree with it or not, I have made the order it is just signing, acknowledging the paperwork. If you don't want to sign it, that's up to you.
75 Does anyone need help with the mathematics. What about PSD, is that correct?
76 MR HOARE: 64 days Your Honour.
77 HER HONOUR: What did I say?
78 MR HOARE: You said 64, sorry Your Honour. It is correct Your Honour.
79 HER HONOUR: 64 days, do you agree with that?
80 MR HOARE: Yes Your Honour.
81 HER HONOUR: All right. Ms Jackson is just going to wander down to the back to see you and give you some paperwork to do with the Sex Offender Register, you can either sign it or not, it's up to you.
82 MR LAVERY: Can I just be excused from the Bar table?
83 HER HONOUR: Sure. Thanks very much for that. All right please explain the initials process. Thank you.
- - -
0
2
0