Director of Public Prosecutions v Kelly (a pseudonym)
[2012] VCC 1578
•9 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| OSWALD KELLY (A PSUEDONYM) |
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JUDGE: | HIS HONOUR JUDGE ALLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 October 2012 | |
CASE MAY BE CITED AS: | DPP v Kelly (A pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1578 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | |
| For the Accused | Mr Vrachnas |
HIS HONOUR:
1 Oswald Kelly[1], you have pleaded guilty to three counts of sexual penetration of a child under the age of 16 and one count of indecent assault.
[1] A pseudonym.
2 You have no relevant prior convictions.
3 The circumstances of the offending are set out in detail in the Summary of Prosecution Opening, which was tendered and marked as Exhibit A. Those circumstances might be summarised further as follows:
4 You are 47 years of age, having been born on 23 November 1964. At the time of the offending you were aged between 42 and 44. At the time of the offending the victim was aged between 13 and 16 years. She came to live with your family in May 2007. The victim's mother believed that you were the victim's father. The Crown cannot prove beyond reasonable doubt that you are her father. However, she came to live with you in circumstances where the Department of Human Services asked you, effectively, to care for her. The victim believed you to be her father and you never, as I understand it, disabused her of that belief. You are not being sentenced on the basis that you committed incest with her, due to the inability of the Crown to prove that biological relationship. As was conceded by your counsel, you are being sentenced on the basis that you were in a position of trust, that your relationship with the victim was effectively one of father and daughter; that is, she believed you to be her father.
5 The victim did not meet you until May 2007 and shortly after that came to live with you and your family. Just prior to her 14th birthday, only weeks after she came to live with you, she was in bed with you cuddling you at your home in Bayswater. You rubbed your erect penis against her vagina and at some point penetrated her by pushing your penis just inside her vagina. That conduct represents Charge 1, the first charge of sexual penetration on the indictment. It is a representative charge. I take into account in assessing the context of that charge the fact that on another occasion, just prior to her 16th birthday, you again penetrated her vagina with your penis, on that occasion ejaculating inside her. You did not wear a condom and she was not taking a contraceptive pill. When she asked you what would happen if she fell pregnant you said to her "We'll just have to abort it."
6 Charge 2 on the indictment is another count of sexual penetration of a child under 16 under your care, supervision and authority. In April or May 2009 the victim was again in bed with you when you inserted your finger into her vagina. This is also a representative charge because that conduct occurred on at least one other occasion, the occasion described in Count 1, just prior to her 16th birthday. Whilst you were in bed with her on that occasion, when you ejaculated inside her, you also inserted your finger into her vagina.
7 Count 3 on the presentment is the third charge of sexual penetration of a child under 16 under your care, supervision and authority. Approximately mid 2009 you asked the victim "Do me a favour, give me a head job." You told her to put your penis into her mouth, which she did. You held her head for a short time as you penetrated her mouth with your penis. She stopped co-operating after a short time and refused to continue. You then inserted your tongue into her vagina.
8 Charge 4 on the indictment is a charge of indecent act with a child under 16. On the same occasion as described in relation to Count 2, you rubbed your hands over her breasts and genital area. That constitutes the conduct subject of Charge 4.
9 After the victim turned 16 you continued to sexually abuse her intermittently and the examples of that abuse are set out in the summary. There is no need for me to rehearse them now. That conduct is only relevant because it is evidence of your subsequent conduct and, of course, it deprived your counsel the opportunity to say that the conduct ceased upon the episodes described in relation to the particular counts. As with the representative conduct, you are not to be separately punished in relation to that subsequent conduct; rather, it provides the context in which your offending occurred.
10 The last occasion of any sexual contact with the victim occurred in December 2010. She went to your home one morning at about 11 am and found you in bed watching a movie. She got into bed with you and, as you had done previously, you commenced to rub her breasts and genital area. She told you that you had broken your promise, in that you had said previously that that would be the last time. You apologised to her and said you had missed her. You inserted your finger into her vagina again, she began crying. I interpolate to emphasise again that you are not being punished in relation to this conduct; however, it is part of the circumstances. When she began crying you stopped and removed your finger. She got out of bed and went to the toilet. She returned to the bedroom and said to you, "All right, let's do it." You replied "No." You admitted having sexual feelings towards her, but told her "Maybe you shouldn't come here by yourself anymore." Eventually the victim disclosed to a friend what had occurred, and a little later to her mother. She also disclosed the circumstances of the offending to a family therapist. As a result of this the police became involved.
11 You attended the Knox Police Station on 20 March 2012 by appointment, voluntarily. You were interviewed. During the course of that record of interview you denied the allegations. You were subsequently charged. To your credit, within a short time, that is by June 2012, you had indicated your intention to plead guilty. Accordingly, although a contested committal had been arranged, that proceeding did not continue. You accepted a hand-up brief at the committal and no witnesses were called for cross-examination. The Crown has conceded that this represents a plea at an early stage in the proceedings.
12 Sexual penetration of a child under 16 under care, supervision and authority, is a very serious offence. That is reflected by the fact that Parliament has fixed a maximum term of imprisonment of 15 years. Indecent act with a child under 16 is also a most serious offence, attracting a maximum sentence of imprisonment of ten years. The courts have made it clear, time and time again, why it is that such conduct is regarded as so serious. Victims in these cases are necessarily vulnerable and dependent upon adults. In this case there is no doubt that the victim was vulnerable and dependent upon you. An order had been made that she should live with you. The purpose of that order was to provide for her care and protection against harm. The opposite occurred. She was placed in your trust by the court. She trusted you, believing you to be her father. You betrayed that trust and you have left your victim psychologically traumatised.
13 Some years ago Vincent JA said in the case of DPP v. DJK, as follows [26]:
"The consequence of an increasing awareness in our society of the incidence of sexual abuse of children and much greater understanding of the potential destructive impact it has had and is continuing to have on the lives of people in our community, this court, has on a large number of occasions emphasised two fundamentally important considerations. First, in the assessment of the appropriate level of just punishment, conduct of this kind will be viewed as gravely serious. Sentences must involve recognition of the kind of personal damage that is occasioned by such behaviour and of the reality that the rehabilitation of the victim may be far more difficult to accomplish than that of the perpetrator. This leads to the second consideration. Through sentences they impose the courts must, in order to protect future possible victims against such damage, endeavour to deter those who may be so inclined from engaging in such activities."[2]
That is, the courts must place significant weight upon general deterrence.
[2] [2003] VSCA 109, 14 [26] (Vincent JA)
14 Offences such as these, particularly those which involve exploitation, an imbalance in a relationship and a betrayal of trust, are abhorrent, disgusting and repulsive. The courts are quick to add, however, that "a sentence is not to be driven by an emotional reaction to the offending that obscures the requirements of law. The need to do justice between the offender and the community requires that well-established sentencing principles be observed." You have seen in this case an example of the way those sentencing principles are called into play and are balanced one against the other.
15 While offences of this kind call for the imposition of stern punishment by way of statutory terms of imprisonment, in order to achieve the sentencing objectives of general deterrence and denunciation; nevertheless, it should be observed that any sentence of imprisonment, however short or long, is severe punishment for a person like you. You have had no previous experience of incarceration and have previously led a blameless life. This, like so many of these cases, involves a difficult balancing exercise. Weighing the serious nature of the offence, its serious adverse consequences upon its victim, the strong need for general deterrence and punishment, all on one hand, against the mitigating circumstances on the other.
16 In your case a plea in mitigation was made on your behalf by Ms Sutherland. A number of documents were tendered in support of that plea. They were several comprehensive and powerful character references which were marked Exhibits 1 to 5. I have carefully read those character references. I note that the writers of three or four of those references were present in court to support you and I take their contents into account. They reflect the fact that throughout your life, despite a very difficult upbringing in orphanages and boys' homes where you suffered, according to what you told your counsel, physical, sexual and emotional abuse; you had, nevertheless, built a good life. You have worked hard and had a good employment history. You had a marriage of some 16 years to a fine woman, produced a son and developed a circle of good friends, who have written these references, who appear to be people of good repute and standing in the community. The writers of these references note, without exception, firstly, that the nature of your conduct was out of character and came to them as a complete shock. Some of the writers have stated that still find it impossible to believe that you could have done such awful things. They all speak of your remorse, your shame, and the impact of the revelation of these offences upon you and your family.
17 As Vincent JA has observed, whilst you may well have excellent prospects of rehabilitation, and the Crown have conceded that you do, I must bear in mind that it may be very difficult to rehabilitate your victim. Her suffering makes your shame pale into insignificance. It can only be hoped that now that these proceedings are over, these matters have received a public airing, she has read her Victim Impact Statement publicly and in your presence, that she might be able to now put these matters behind her, as much as they can be, and move forward to build a positive future. I take into account that her capacity to move forward has, to some extent, been facilitated by the course that you have taken.
18 Your early plea of guilty did four things, four important things:
i) It represented a public acknowledgement by you that you have committed these offences; it represented an acceptance of responsibility on your part;
ii) It is consistent with remorse on your part, the remorse about which the writers of the references have spoken. It is important for your victim to know, as she does, that you have publicly acknowledged the awful things that you did and that you have expressed remorse, that is sorrow, for what you did by your plea;
iii) The course of conduct you have taken. You have avoided the need for the victim to give evidence in the Magistrates' Court at the committal. You have also avoided the need for her mother, who has also suffered, as she describes in her Victim Impact Statement, to give evidence in public, and to be cross-examined. That inevitably involves distress and emotional discomfort. It sometimes makes the impact upon the victim even worse. You have avoided that;
iv) Your plea of guilty has facilitated the course of justice. That means it has cut these proceedings short.
You were only interviewed in relation to these matters earlier this year. But for your plea of guilty these proceedings would have dragged on for months and months beyond today. You have brought these proceedings to a quick and sharp end. Again, that has been something that I am sure will assist the victim in moving forward. I take these matters into account.
19 I have taken into account all of the matters that were so carefully outlined by your counsel in the plea yesterday. I take into account that despite your extremely difficult upbringing which involved, on your account to her, what your counsel described as "hideous abuse" and “extreme hardship”, that you have demonstrated the moral fibre and strength of character to build a good life. You have certainly fallen severely. You will now spend some years in gaol, but I take into account that past history and your previous good character in accepting, as the Crown have conceded, that you do have excellent prospects of rehabilitation.
20 I have taken into account in assessing the objective gravity of your offending - and it was very grave, let there be no mistake about that; nevertheless, on the scale of this type of offending, on the spectrum, your offending does not fall at the most serious end. Your offending did not involve physical force or compulsion; there was no physical violence or pejorative language; you did not engage in unnatural acts or use objects or pornography; and, it was you who brought an end to the relationship, eventually, by saying "no" and suggesting that the victim not attend your premises unaccompanied again.
21 Your counsel conceded in the opening to her plea in mitigation on your behalf that what you did was profoundly wrong and abhorrent and represented a profound breach of trust. She told me that you accepted that no punishment other than immediate imprisonment was appropriate. I have given due weight, as I of course am bound to do, to the principles of proportionality and totality in all the circumstances of these offences.
The Crown submitted at the conclusion of the plea hearing that I should take into account that your’ offending, although not at the most serious end of the spectrum, as I accept, nevertheless, involved certain aggravating features. There was a significant age difference between you and your victim, the offending occurred intermittently over a two and a half year period. It involved a gross breach of trust, it was aggravated by the fact that it involved some grooming, and, on the occasions when you penetrated your victim with your penis you did not wear a condom. I was also urged by the prosecutor, of course, to take into account the impact of your offending upon the victim and her mother, and I do.
22 Having weighed all these matters into the balance, that is: the nature of the offending; your history; the relative gravity of the offending and its aggravating circumstances; the mitigating matters; most importantly your early plea of guilty; your prospects of rehabilitation; and, the principles of totality and proportionality, I have determined that the appropriate sentences are as follows:
23 On the first charge of sexual penetration of a child under 16 who was under your care, supervision and authority, you are convicted and sentenced to be imprisoned for four years.
24 On the second charge of sexual penetration of a child under 16 who was under your care, supervision and authority, you are convicted and sentenced to be imprisoned for three years.
25 On the third charge of sexual penetration of a child under the age of 16 under your care, supervision and authority, you are convicted and sentenced to be imprisoned for three years.
26 On the fourth charge of the indecent assault of a child under 16, you are convicted and sentenced to be imprisoned for 18 months.
27 The base sentence, of course, is the first charge, Charge 1, the sentence of four years. I order that one year of the sentences imposed on Charges 2 and 3 and six months of the sentence imposed on Charge 4, be served cumulatively. That results in a total effective sentence of six and a half years. I fix a minimum non parole period of four years before you will be eligible for parole.
28 I state pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to eight years' imprisonment with a minimum term of six years.
29 I declare that you have already served one day by way of pre-sentence detention to be reckoned as having been served pursuant to the sentence.
30 I also direct that the records of the Court record that you have been sentenced as a serious sexual offender in relation to Charges 3 and 4. I note that the Crown did not seek a disproportionate sentence in relation to those charges.
31 Pursuant to s.7 of the Sexual Offenders Registration Act, Charges 1,2 and 3 are Class 1 offences and Charge 4 is a Class 2 offence. Therefore, pursuant to s.34(1)(c) paragraph (ii) of that Act, you must comply with reporting conditions under that Act for the remainder of your life.
32 You will now be given a notice in relation to your obligations under that Act.
33 Does counsel have any questions or seek any clarification in relation to the sentence that I have imposed?
34 MS HOGAN: Not in relation to the sentence, Your Honour, just the forensic sample (indistinct)
35 HIS HONOUR: Have you got the draft order there or have you already given it to Ms Henderson?
36 MS HOGAN: I understand it was handed up to your Associate.
37 MR VRACHNAS: Your Honour, if I can approach my client?
38 HIS HONOUR: Of course, yes.
39 MR VRACHNAS: Thank you, Your Honour.
40 HIS HONOUR: Mr Vrachnas, do you have any opposition to the imposition of a forensic sample order?
41 MR VRACHNAS: No, Your Honour, we don't.
42 HIS HONOUR: All right.
43 Mr Kelly, I am making an order pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth and/or a blood sample until a sufficient standard is obtained for placement on the database. I have made that order having considered the seriousness of your offending and also taking into account that it is not opposed. I am obliged to tell you that if at the time the request for the forensic sample by way of a swab from your mouth is made, you do not consent to that, then the authorised member of the Victoria Police may use reasonable force to obtain a blood sample. Do you understand that?
44 OFFENDER: (Inaudible response.)
45 HIS HONOUR: Now is it necessary for me to make any further orders?
46 MS HOGAN: No, Your Honour.
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