Director of Public Prosecutions v Kavanaugh (a pseudonym)
[2020] VCC 1034
•14 July 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN KAVANAUGH (A PSEUDONYM) |
---
| JUDGE: | HIS HONOUR JUDGE CAHILL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 July 2020 |
| DATE OF SENTENCE: | 14 July 2020 |
| CASE MAY BE CITED AS: | DPP v Kavanaugh (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1034 |
REASONS FOR SENTENCE
---Subject: sexual penetration of a child under 16 and others
Catchwords: Guilty plea – three child victims aged between 7 and 12 years – offending in 1980s and 2000s - offender now 66 years old – high risk of reoffending
Legislation Cited:
Cases Cited: DPP v Walsh [2018] VSCA 172; R v Clarkson [2011] 32 VR 361, [26], [33]; Adamson v R [2015] VSCA 194, [56]; HMcL v R [2000] 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]; DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59.
Sentence: 12 years 9 months imprisonment, non-parole period 11 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Cookson (For Plea) | |
| Mr P. Pickering | ||
| (For Sentence) | ||
| For the Accused | Ms E. McKinnon |
HIS HONOUR:
(1)Nathan Kavanaugh[1], you have pleaded guilty to:
[1] A pseudonym
· one charge of indecent assault of a female under 16 years,
· three charges of sexual penetration of a child under 16 years,
· three charges of indecent act with a child under 16 years and
· one charge of possession of child abuse material.
(2)Your crimes, committed against three young girls who were aged between seven and 12 years, occurred between 18 February 1981 and 31 December 2004.
(3)The circumstances are set out in the prosecution upon the plea. They are agreed facts.
(4)I will not refer to your victims by name in order to preserve their anonymity, as the law requires.
Sofia Lazarev[2]
[2] A pseudonym
(5)You indecently assaulted your stepdaughter, Sofia Lazarev, on an occasion in February 1981, when she was seven years old. You were aged 27 years and living in central Victoria. When her mother was out, in your bedroom, you rubbed your penis up and down, through her legs, onto her bare vagina while she was on her knees. That conduct constitutes Charge 1, indecent assault.
Lilian Heathershaw[3]
[3] A pseudonym
(6)Alice Scobie[4] is your daughter. After you separated from her mother, she stayed with you, at your home in central Victoria, on weekends and during holidays.
[4] A pseudonym
(7)Lilian Heathershaw lived with her mother next door to you. The two girls became friends and Ms Heathershaw spent time at your home.
(8)Between September 2000 and May 2001, you sexually assaulted Ms Heathershaw. She was nine years old; you were 42 years old. You also committed indecent acts with both Ms Heathershaw and Alice Scobie, who was also nine years old.
(9)One time, you were watching pornography on your computer while Ms Scobie and Ms Heathershaw were sitting on your knees.
(10)Another time, when the two girls were having a sleepover at your home you played the ‘Full Monty’, a film about male strippers, for them to watch. Towards the end of the movie, when the screen characters covered their genitals with cowboy hats and then threw the hats away, you came out of the bedroom naked, with a hat covering your penis, and in front of them threw the hat away.
(11)After this episode Ms Heathershaw got off the couch and went home. She did not tell her mother what you had done but simply said she did not want to go back. Her mother told her she should. When she did, you pushed her against a wall near the front door and asked her what she had told her mother. You told her, if she ever told her mother, you would kill her little brother.
(12)Another time, when Ms Heathershaw was at your home and playing hide and seek, naked, you touched her around the chest and legs area.
(13)Those circumstances are put by the prosecution as contextual material to your offending.
(14)A number of times during that period, with Ms Scobie present, Ms Heathershaw was naked in your bedroom. You put her on a bed, where you spread her legs apart and kissed and licked her clitoris and inside her anus. That conduct represents Charge 2, a representative count of sexual penetration of a child under 10 years.
(15)During those times, you directed Ms Heathershaw and Ms Scobie to lick each other's vagina. After they did, you directed Ms Scobie to lay on her back and Ms Heathershaw to sit on top of her so their vaginas were touching. While they were in that position, you moved Ms Heathershaw's hips back and forth so their vaginas were rubbing against each other. Your conduct in respect of Ms Heathershaw constitutes Charge 3, a representative count of indecent act with a child under 16. Ms Scobie does not remember these things occurring.
(16)Another time during that period, when Ms Heathershaw was lying naked on your couch, with your penis, you penetrated her vagina, which caused her considerable pain. That conduct constitutes Charge 4, sexual penetration of a child under 10. When Ms Heathershaw told you she did not want to get pregnant you withdrew your penis and asked her if she had ever had a period. She did not understand what you meant and said no. You then lifted up her legs and forced your penis into her anus, again causing her considerable pain. That conduct constitutes Charge 5, sexual penetration of a child under 10.
(17)In June 2001, when Ms Heathershaw's mother told her that Ms Scobie and you were coming over for coffee, Ms Heathershaw said she never wanted to see you again. She told her mother about your vaginal and anal penetration of her and the threat you had made about her brother. Ms Heathershaw's mother sought assistance for her at CASA.
Alice Scobie
(18)After you separated from Ms Scobie's mother, Ms Scobie stayed with you at your home in central Victoria on weekends and during school holidays.
(19)When Ms Scobie was aged between seven and nine years she would sleep in your bed when she stayed with you. One time, when she woke, you were naked and rubbing your penis against her leg. She was wearing pyjamas. This conduct gives context to your offending against her.
(20)You were living at a bayside Melbourne suburb between 2002 and 2004. Ms Scobie stayed with you on alternative weekends and during holidays. You sexually assaulted her at your home, between February 2002 and December 2004, when she was aged between 10 and 12 years and you were aged between 44 and 46 years.
(21)One time, while she was swimming in your spa you sat naked on the spa's edge and watched her. That allegation is contextual material.
(22)A number of times, when she stayed with you, you spread her legs and licked her on her vagina. She put a pillow on her face and could not see what you were doing. When you finished she would get out of bed and watch TV. That conduct constitutes Charge 6, a representative account of indecent assault with a child under 16.
(23)Another time, while the two of you were naked, on the lounge room floor, you had her lie with you in a top-to-toe position where you licked her vagina and had her lick your penis. The conduct of her licking your penis constitutes Charge 7, indecent act with a child under 16.
(24)On 8 February 2019, police executed a search warrant at your home. On your computer hard drive were eight category 1 images of female children under the age of 10 years naked and exposing genitalia. Your possession of that material constitutes Charge 8, possession of child abuse material.
(25)Police questioned you on the same day and you told them:
· your daughter stayed with you every second weekend in 2000 and 2001 [58 and 82];
· you remembered Lilian Heathershaw, who you described as having 'bad ADHD’ [72];
· she was aged between nine and 11 at the time [76]; and
· she stayed for a sleepover at your home one night [107].
(26)You denied threatening to kill her little brother if she said anything [119]. You also denied you had sexualised images of children on your computer and said that you 'abhor' such images [160].
(27)When police asked you about allegations of sexual misconduct against the girls, you substantially exercised your right to remain silent.
(28)Police questioned you again on 24 April.
(29)You said you had seen pornography in the past, just to '… see what it was all about' [1 to 3].
(30)You said there was no truth to the allegations of sex crimes made against you [153].
(31)After you were charged, a committal hearing was listed on 16 December 2019. Before any witnesses were cross-examined, you agreed to plead guilty to the charges on the indictment now before the court.
Victim impact statements
(32)I received victim impact statements from the three girls and the mother of one of them. They make for harrowing reading.
(33)Sofia Lazarev wrote: 'For most of [her] life [she] buried what was happening to [her]'. She said you did not let her be a normal child. She was angry at her mother and, at 17, she left home, and school, to get away. On her own, she struggled emotionally and financially. Even today, she is guarded and defensively protective of her own children.
Lilian Heathershaw
(34)Lilian Heathershaw read her victim impact statement to the court. You denied her the chance to enjoy her first sexual experience. Instead, you made your daughter and her masturbate each other. She described the episode when you penetrated her vaginally and anally as brutal. From the age of 12, she started to self-harm and, when she left school, she resorted to alcohol and drugs to try to numb the pain. She became sexually promiscuous to try to feel better about herself. Looking back, it now makes her feel 'sick and ashamed'. She has needed in-patient and out-patient psychiatric services to help her deal with her battles for a number of years. The birth of her child has been the happiest time in her life and has given her the desire to want, and make, a better future for herself.
Isla Heathershaw[5]
[5] A pseudonym
(35)Her mother also made a victim impact statement. She has felt overwhelming guilt. Supporting her daughter through counselling and medical intervention has been exhausting. She herself has needed psychiatric treatment for depression.
Alice Scobie
(36)In her victim impact statement, your daughter wrote she felt violated, humiliated and degraded by what you did to her. She felt she could not say anything and '… for years [she] put on a brave face' and kept contact with you. She has tried to suppress her memory of your abuse. With that, she has lost happy memories as well. For nearly 20 years she has had to deal with her shame, while you lived a happy life. Now she feels strong in the fact that hopefully you will feel how she has felt.
(37)I turn to your personal circumstances.
(38)You have no criminal record.
(39)You were born in 1954 and are aged 66 years.
(40)In helpful and comprehensive written and oral submissions, your counsel Ms McKinnon, relied on a report prepared by Pamela Matthews, forensic psychologist, who assessed you on 19 May 2020, and letters from your wife and members of her family.
(41)You told Ms Matthews you were born in central Victoria, where your parents raised you with your older brother and sister. You said your grandmother, who lived with you, was your primary carer. You reported a relatively happy childhood without incident other than your mother's physical discipline, smacking you around the back of your head when you were small, and regular conflict between your parents.
(42)Your father died nearly 45 years ago and your mother around 25 years ago. Your sister died two years ago. Your brother, who is now 80, has retired and cares for his wife.
(43)Your father owned a hardware store. You went to local schools and completed Form 5. At secondary school you played squash, to a high level, and cricket.
(44)You have a solid work history. At 16, you got your first job as an apprentice electrical mechanic, but your employer went broke after three months. After that, you found work at a meat factory. You have also worked in the family hardware business, on a camel farm in Alice Springs, and for the State Waters and Supply Commission. You have driven trucks, worked with an arborist and on bridge construction projects. In February this year, you retired after working for an engineering company for 15 years.
(45)You have had three significant relationships.
(46)When you were 23, you met your first wife. You married when you were 26. Your wife had a daughter, your stepdaughter, Sofia Lazarev. With your wife you had two children: a son, who is in his late 30s, and your daughter, Alice Scobie, who is now aged 26.
(47)After 18 or so years of marriage you separated from your wife. Soon after, you lost contact with your son. Your daughter kept in contact with you until 18 months ago.
(48)After the separation from your first wife you had a short relationship with another woman.
(49)In 2004 you met your current wife. You married her in 2010. She described you as a kind and considerate husband. She had never seen you behave inappropriately and was shocked when police came to her home with a search warrant and she learned of the crimes you committed. She was 'hurt, disgusted, dismayed' but will stand by you. She said since you have pleaded guilty you have isolated yourself and have less energy. She said you are 'sincerely sorry' and will take responsibility for what you have done. Her sister, brother and son describe you as hard worker and loyal husband who has generously helped their extended family, from grandparents to grandchildren. They were stunned by your offending but will continue to support you.
(50)As well as helping members of your wife’s family, you have a good record of community service. You were an active SES volunteer, as an emergency vehicle driver, for around 10 years until the late 1990s.
(51)You told Ms Matthews your health was generally good. When you were six years old you contracted polio. As a result, one of your feet is smaller than the other. In the late 80s you had two significant falls from a truck. In the first accident, you broke bones in your right foot. In the second, you fractured your fourth and fifth lumbar vertebrae. Both times you were hospitalised for a lengthy period. You have had recent problems with the joints in your hands and are prescribed medication for gout. You described a harsh home environment, when you were a childhood, but have no history of mental health problems.
(52)When Ms Matthews interviewed you, your mood was low. She diagnosed mild anxiety and depression associated with these proceedings. In her opinion, you are relatively resilient and your mental health symptoms are likely to settle as your legal status resolves.
(53)Apart from some word-finding difficulties and mild memory impairment, which might be related to a long history of high-level alcohol consumption, your cognitive testing produced results within normal limits.
(54)In a comprehensive assessment of your risk for sexual violence Ms Matthews noted:
· Firstly, your offending, comprising multiple acts of sexual assault on three child victims over three separate periods between February 1981 and December 2004, and the child abuse material on your computer found in June 2019, suggest you have a chronic sexual interest in pre—pubertal female children.
· Secondly, there was physical coercion attached your offending when you pushed Ms Heathershaw against the wall and threatened to kill her brother if she told on you and when you forcefully penetrated her vaginally and anally with your penis.
· And, thirdly, you had groomed Ms Scobie and Ms Heathershaw by exposing them to adult pornography and a movie involving full frontal male nudity.
(55)She also noted your behaviour had deescalated over time from contact to non—contact offending.
(56)Because you chose not to talk about your crimes against the three young girls and minimised your responsibility for the child abuse material on your computer, Ms Matthews was of the view you struggle to accept responsibility for your actions and lack insight into them.
(57)Ms Matthews concluded the nature of your offending shows:
'Over an adult lifetime [you have] exhibited recurrent intense sexual interest and behaviours involving sexual activity with pre-pubescent female children'.
(58)In her opinion, you meet the DSM-5 diagnostic criteria for paedophilia.
(59)Overall, in her opinion, the persistence of your offending over the periods 1980, 2000 to 2001 and 2002 to 2004 with the discovery of 'recently sexually congruent child abuse material' on your computer suggests a persistent deviant sexual interest which indicates your risk of reoffending remains high. In her view, to foster your rehabilitation you will require intensive sex offender treatment in prison and, when you are released, supervision in the community.
(60)Because of your low mood and affect, and reported poor appetite, poor concentration and heavy drinking, Ms Matthews considers you meet the diagnostic criteria for adjustment disorder with mixed anxiety, depression and behavioural symptoms.
(61)However, she does not believe your mental health and cognitive presentation will make imprisonment harder for you to any great degree.
(62)I accept her opinions, which were unchallenged.
(63)In mitigation of penalty, Ms McKinnon relied on:
· your guilty plea;
· your remorse;
· the absence of any other offending;
· your age;
· your physical and mental health problems;
· your history of solid employment and service to family and community; and
· the increased hardship of prison due to the anxiety and concern of the COVID-19 pandemic.
Prosecution submissions
(64)Mr Cookson, who appeared for the prosecution, described Charges 1 and 8 as outliers. In relation to Charges 2 to 7, which concerned Ms Heathershaw and Ms Scobie, as he submitted, you offended in multiple instances during two separate periods against two separate victims who were more than 30 years younger than you. He submitted your behaviour as a stepfather, de facto guardian and father, was a gross betrayal of the trust of 3 children and their mothers.
(65)He acknowledged you are entitled to the full utilitarian benefit of your guilty plea.
Analysis
(66)The maximum penalties for the crimes you committed are:
· for unlawful and indecent, Charge 1, five years' imprisonment;
· for indecent act with a child under the age of 16, Charges 3, 6 and 7, 10 years' imprisonment;
· sexual penetration of a child under the age of 10, Charges 2, 4 and 5, 25 years' imprisonment;
· and possess child abuse material, Charge 8, 10 years' imprisonment.
(67)They indicate Parliament's view of the gravity of the offences. I have had regard to them in determining the appropriate sentence in your case.
(68)In two chapters, between September 2000 and May 2001, nearly nine months, and between February 2002 and December 2004, nearly two years, you offended against two young girls, one, who was left in your care by her mother, and the other, your daughter, a number of times. You also offended against another girl in a single episode nearly 20 years earlier. Involving, as it did three victims, with multiple occasions of offending, it was repeated and persistent.
(69)You offended against them while they were in your care at your home, where they had a right to feel safe.
(70)By exposing Ms Heathershaw and Ms Scobie to adult pornography and male nudity you groomed them for your perverse sexual gratification.
(71)While there was no non-sexual violence, there was an element of coercion of Ms Heathershaw insofar as you threatened to harm her younger brother if she told anyone you had sexually abused her and Charges 4 and 5 involved forceful penetration, causing her vaginally and anal pain, beyond the inherent violence involved in such acts on a child (DPP v Walsh [2018] VSCA 172).
Harm to victims
(72)All children are presumed to suffer harm from a sexual offence being committed against them. The harm is unaffected by the presence of apparent consent. It can be long-term and serious, and both physical and psychological, (R v Clarkson [2011] 32 VR 361, [26], [33]) and include future harm (Adamson v R [2015] VSCA 194, [56]).
(73)Your three victims have each suffered significant psychological, and in Ms Heathershaw's case physical, harm. The psychological damage is ongoing. Their victim impact statements give a clear picture of the years of trauma they have suffered. Powerfully, they have set out the terrible impact of your offending on them.
(74)Each of them impresses as a brave and resilient woman who will not let her future life be defined by what you did to them. The crimes you committed against them will always be there, but each of them has shown a strength to move forward and make a happy future.
(75)The courts must protect children from the harm that comes from premature sexual activity and deter adults who would contemplate having sex with someone under the age of 16.
(76)In assessing the gravity of your offending, I take into account:
· firstly, the impact of your crimes on the three victims;
· secondly, the substantial age difference between your victims and you;
· thirdly, the power imbalance arising from that age difference and your position of responsibility for their care;
· fourthly, the breach of trust arising from those circumstances;
· fifthly, your grooming of Ms Heathershaw and Ms Scobie to normalise grossly abnormal sexual behaviours;
· sixthly, your use of coercion against Ms Heathershaw to silence her and to forcibly have sex with her;
· and, seventhly, the recurrence and continuation of your offending.
(77)Accordingly, I assess your offending as very serious and your moral culpability as high.
Mitigating factors
(78)I am satisfied your guilty plea has high utilitarian value and you are entitled to a sentencing benefit for it.
(79)I accept your age and medical problems will make imprisonment harder for you than a younger man not suffering the same ailments.
(80)I also take into account your personal circumstances, including your age and your health problems, and your history of solid employment and community service. However, they do not loom large in the sentencing synthesis.
(81)Following your offending, you continued to live a normal and happy life; you married again and formed conventional relationships with your wife's family. By your abhorrent crimes, you robbed your victims of the same opportunity. You stole their innocence and sense of self and damaged their capacity to engage in healthy relationships.
(82)While I accept your guilty plea and your expressions of regret to others are evidence of some remorse, it is qualified by your avoidant answers to police questioning and lack of insight when Ms Matthews interviewed you.
(83)I take into account the additional hardship of the increased anxiety and concern for prisoners due to the health pandemic.
(84)I must also consider your prospects of rehabilitation. You have a chronic sexual interest in pre-pubescent children and, while over time, it has moved from contact to non-contact offending, your deviant sexual interest persists and your risk of reoffending remains high.
(85)You will require intensive sex offender treatment in prison and, when you are released, supervision in the community. Accordingly, I will fix a non-parole period which will allow you a reasonable opportunity for your rehabilitation to continue in the community after you are released from prison.
Comparable cases
(86)Ms McKinnon referred me to DPP v Louis Warren (a pseudonym) [2016] VCC 367, a sentence of this court on 1 April 2016.
(87)Making adjustments between the circumstances of the offending and the offender, I have had regard to the Warren sentence and a number of Court of Appeal decisions, to inform me of current sentencing practice, which is but one consideration in the sentencing synthesis.
Registered sex offender
(88)As a result of your conviction for sexual offences you become a registrable sex offender. The three sexual penetration charges are class I offences. You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and otherwise be subject to the Act for the rest of your life. My associate will provide you a document which you will be asked to sign to acknowledge that you have received notice of your reporting obligations.
Serious sexual offender
(89)Because you are to be sentenced for more than two sex offences, you are to be sentenced as a serious sexual offender on the third and subsequent charges. That means the protection of the community from you is the principal purpose for which the sentences are to be imposed. I have the power to impose a sentence greater than is proportionate to your offences in order to achieve this purpose. However, the prosecution does not seek disproportionate sentences and I do not intend to impose any.
(90)Because of your status as a serious sex offender, it is also necessary for the sentences I impose on the relevant charges to be wholly cumulative unless I order otherwise. In my view, just punishment and protection of the community can be achieved with a measure of concurrency that reflects all of the relevant sentencing considerations. In saying that, I have had regard to the limits the serious sexual offender sentencing regime places on the application of the principle of totality. (HMcL v R [2000] 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74].)
General and specific deterrence
(91)In sentencing you, I take into account that deterrence, especially general deterrence, is of the utmost importance in cases involving sexual offending against children. That means the court must seek to deter other adults from committing sexual offences against children. Further, because of your risk of reoffending, my sentence must also seek to deter you from reoffending.
(92)The court must impose a sentence that is just in all the circumstances and that reflects the community's abhorrence of sexual violence, particularly committed against children, with the damage it causes. These principles apply, no matter how long ago the offending occurred. (DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59.)
(93)By the sentence I impose, I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind. I must consider community protection and also look to your rehabilitation.
Sentence
(94)Taking into account the circumstances of your offending and its effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you, you are convicted and sentenced as follows:
· on Charge 1, indecent assault of a female under 16 (Sofia Lazarev), two years and six months' imprisonment;
· on Charge 2, sexual penetration of a child under 16, a representative count, (Lilian Heathershaw), six years' imprisonment;
· on Charge 3, commit an indecent act with Lilian Heathershaw, a representative count, five years' imprisonment.
· on Charge 4, sexual penetration of a child under 16 (Lilian Heathershaw), inserting your penis into her vagina, six years' imprisonment;
· on Charge 5, sexual penetration of a child under 16 (Lilian Heathershaw), inserting your penis into her anus, six years' imprisonment;
· on Charge 6, indecent act with child under 16 (Alice Scobie), a representative count, five years' imprisonment;
· On Charge 7, commit an indecent act with a child under 16 (Alice Scobie), having her lick your penis, four years' imprisonment; and
· On Charge 8, knowingly possess child abuse material, one year's imprisonment.
(95)The sentence of six years' imprisonment imposed on Charge 2 is your base sentence.
(96)I direct:
· 12 months of the sentence on Charge 1
· 12 months of the sentence on Charge 3
· 12 months of the sentence on Charge 4
· 12 months of the sentence on Charge 5
· 18 months of the sentence on Charge 6
· 12 months of the sentence on Charge 7 and
· three months of the sentence on Charge 8
be served cumulatively with each other and the base sentence.
(97)Accordingly, your total effective sentence is 12 years and nine months' imprisonment and I fix a non-parole release period of nine years.
(98)I declare you have served seven days of your sentence by way of presentence detention which will be reckoned as time already served.
(99)I declare, but for your plea of guilty, I would have imposed a total effective sentence of 16 years' imprisonment and imposed a minimum non-parole period of 11 years.
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