Director of Public Prosecutions v Kerr, Glenn (a pseudonym)
[2012] VCC 2057
•17 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BENDIGO & WARRNAMBOOL
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLEN KERR (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LECKIE | |
WHERE HELD: | Trial – Bendigo Plea – Warrnambool Sentence - Warrnambool | |
DATE OF HEARING: | Trial: 7 November 2012 – 9 November 2012; 12 November 2012 – 14 November 2012. | |
DATE OF SENTENCE: | 17 December 2012 | |
CASE MAY BE CITED AS: | DPP v Kerr, Glenn (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2057 | |
REASONS FOR SENTENCE
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Catchwords: Trial - incest
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Lewis | OPP |
| For the Accused | Mr D. Farrelly | VLA (Bendigo) |
HIS HONOUR:
1 Glenn Kerr, you have been found guilty after trial of three counts of incest. You have also pleaded guilty before the jury to one charge of indecent act with a child under the age of 16. The maximum penalty for the offence of incest is 25 years' imprisonment, whilst the maximum penalty for an indecent act with a child under 16 is 10 years' imprisonment.
2 The offences for which you were found guilty involved your grandson, Coby Kerr[1], who I will refer to as the complainant. During the period of offending which was between June 2008 and December 2010 the complainant was living in Melbourne with his mother. However, during some of his school holidays he would stay with you at your home in Wedderburn. You were living in Wedderburn on your own on a pension during this period.
[1] A pseudonym
3 In June 2008 during some school holidays the complainant came to your home to stay. The complainant was about 10 years old and you were then about 69 years of age. The complainant said on one occasion you were drunk. You were walking around naked and walking into things. The complainant said he was on his bed going to sleep when you got on top of him and "put your dick in his bum" for about 10 minutes. He said he did not know what was happening because he was only young. You told him to "shush" and not tell his mother so consequently he did not say anything. That constitutes Charge 1 of incest which the jury found you guilty.
4 On another occasion in April 2009 the complainant was again visiting you. He said you came home from the pub and you pushed him onto a bed and again, "put your dick", as he said, "in his bum." He said he hit you and you eventually got off him. This sequence of events constituted Charge 2 of incest which the jury found you guilty. The complainant also described an occasion on the morning of 24 December 2010 again whilst he was staying with you at your home at Wedderburn. He said he was laying down, it was in the morning and he was sleeping. He said you told him to be quiet and pulled his pants off. You then penetrated his anus with your penis and ejaculated. The complainant then said he had a shower and you told him to keep it a secret and not tell anyone. The complainant then said he told you he wanted to go home and you took him back to his mother in Melbourne. This constitutes Charge 5 of incest again which the jury found you guilty.
5 In March of 2011 you were interviewed by police about the allegations and you denied ever sexually penetrating your grandson. However, you did admit that on one occasion your grandson was laying naked on a bed after having a shower and when you came out of a shower, naked, you laid on top of him. You said that you were drunk and you must have thought it was a girlfriend and when you realised you got off him.
6 You pleaded guilty before the jury to Charge 3 which was the indecent act with a child under 16 on the basis of this incident which you described in your record of interview.
7 These are most serious offences. They involve a significant breach of trust. The complainant came from a troubled family and looked forward to spending time with his grandfather in Wedderburn. You took advantage of the situation on three different occasions which occurred over a period of three years to indulge your deviant sexual appetite on a very vulnerable young person who was entitled to feel that he would be safe and protected in the custody of his grandfather. You also attempted to keep the child from saying anything by telling him to keep it a secret. I note, however, that the complainant has not chosen to provide a victim impact statement in this case.
8 In mitigation your counsel tendered a report from Elizabeth Warren, psychologist, which was dated 5 December 2012 which became Exhibit 1. This sets out your personal history and circumstances and some psychological opinions which I have taken into account. You are now aged 73 years. You were born in Rockhampton in Queensland and raised by your mother and a stepfather. Both of your parents are now deceased and you have no contact with your stepbrothers or stepsisters. Your education was limited and you achieved Grade 7 and had to leave school because of the poverty of your family. You have had various form of employment over your working life. They include working as a baker, in sugar mills and in cane cutting.
9 You left Queensland when you were around 21 years of age and moved to Shepparton and there was employed picking fruit. You then moved to Melbourne and had steady work in factories for the next 23 years. You retired at the age of 62 and since then have been receiving an old age pension. You married when you were 22 and had two sons but your wife died relatively young and your sons were placed in a boys home. Your re-partnered and have two daughters with whom you still have some contact but your partner died some nine years ago.
10 In the report of Ms Warren she said testing placed you or your IQ score at the 14th percentile. She said:
"His best results at this assessment indicate sound verbal reasoning capacity with no deficit as contributory explanation towards his behaviour towards his grandson and none that precludes him from understanding or benefiting from verbally based therapy should that be considered necessary."
11 As to your physical health you reported to the psychologist that you have high blood pressure and cholesterol levels but they are being effectively treated with medication. At p.5 of Ms Warren's report she said,
"Further details regarding his attitude and recall are also well summarised in his words. He essentially continues to deny that he committed the alleged offence of penetration and he generally thinks he did little wrong, while he does acknowledge some minor wrongdoing."
At p.6 Ms Warren said,
"While this man's denial indicates lack of insight, empathy and remorse, it does not necessarily mean that it makes him a risk of re-offence. His lack of insight primarily centres around the notion that he was a victim of the boy rather than the boy being a recipient of his wrongdoing."
Finally she stated that she regarded you as a very low risk of re-offending.
12 You admitted before me to prior convictions. There are five convictions from three court appearances between 1969 and 1971. They all involve violence and you received shorts periods of imprisonment on two of those matters. But they are not offences of a sexual nature and you have not been in any further trouble for 37 years. I do not regard these as particularly relevant to my task in sentencing you today.
13 In all the circumstances I do not accept that you have any remorse for your conduct or any empathy for your grandson who was the victim of your offending. In light of the psychologist's opinion that you are a low risk of re-offending, I regard your chances of rehabilitation at best as fair, provided you receive and respond to any counselling that may be offered to you in the future.
14 Your counsel realistically conceded that only a period of immediate incarceration was warranted in a case as serious as this one. I totally agree with that submission that there is no other alternative but to immediate imprisonment.
15 General deterrence is highly relevant and important to my task in determining an appropriate sentence. Although the psychologist's opinion was that you are of a low risk of re-offending, I must still consider the protection of members of the community from you. Denunciation of conduct such as yours is also important and on behalf of the community I roundly denounce conduct such as this as the preying on young children, particularly by a trusted family member. I must also overall seek to impose a just punishment.
16 As a consequence of your conduct and conviction on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3 and 5 pursuant to the Sentencing Act 1991. Section 6D of the Act states that I must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed and I may impose a sentence that is longer than that which is proportionate to the gravity of the offence. The learned prosecutor very fairly did not urge the court to consider the second part of this provision and give a disproportionate sentence and in my view that was a correct appraisal of the situation.
17 In relation to Count 3, the indecent act with a child under 16, your counsel submitted that a fair assessment of that matter was that it was the lead-up to Charge 5, the charge of incest. In other words, it was the same incident. You admitted lying naked on the complainant but you said you did not penetrate him. However, the jury did find that at around that time you were guilty of sexually penetrating your grandson, which was Charge 5. There is merit in my view in that argument and I understood the learned prosecutor did not urge otherwise, as the complainant recalled no incident where you only laid upon him naked and did not penetrate him. In those circumstances it is my view that it is more probable than not that this was one and the same incident as Charge 5 but it was the preliminary part to the charge of incest. Indeed, the Crown argued the matter at trial as that what you were doing at trial was confessing and avoiding in the sense you confessed to part of the offending behaviour but then denied the rest of it to try to gain credibility with the jury. In these circumstances I propose to order concurrency of the sentence on this count and with the other charges.
18 Mr Kerr, you are convicted of all the charges and on Count 1 of incest you are sentenced to five years' imprisonment.
19 On Count 2 of incest you are sentenced to five years' imprisonment.
20 On Count 3, indecent act with a child under 16, you are sentenced to 12 months' imprisonment.
21 On Count 5 of incest, you are sentenced to five years' imprisonment.
22 I direct that one year of the sentence on Count 2 and one year of the sentence on Count 5 be served cumulatively on Count 1 and on each other. The total effective sentence is seven years' imprisonment. I order that you serve a minimum term of four years and eight months before you are eligible for parole. I declare that you have served 33 days pre-sentence detention and that that be reckoned as having been served under the sentence here that I imposed and is directed that this declaration and its details be entered in the records of the court. I direct the fact that you are sentenced as a serious sexual offender on Charges 3 and 5 be entered in the records of the court.
23 Section 6E of the Sentencing Act states that the sentence for offences which are characterised as relevant offences for a serious offender must be served cumulatively unless otherwise directed. However, I am also obliged to consider proportionality and also to consider totality and after considering these sentencing matters and my observations in relation to Charge 3 as it relates to Charge 5, I have decided to exercise my discretion and only order some cumulation of Charge 5 and none on Charge 3.
24 As a consequence of your offending you are now a registrable sex offender and the period for which you must report is for the rest of your life. I will have a document taken up to you in a moment for signing which acknowledges that you have been provided with the terms and conditions which now exist in relation to you as a registrable sex offender. I have also made an order for you to provide a forensic sample to the authorities. It is a saliva sample which means that you will be required to allow a properly authorised person to place a cotton bud in your mouth to take a sample of your saliva which will then be analysed for DNA and placed on the Register. I am obliged by law to inform you that should you not comply with such a process a properly authorised police officer may use reasonable force to obtain the sample. Do you understand that?
25 PRISONER: Yes, Your Honour.
26 HIS HONOUR: Do you wish to go down and see your client, Mr Farrelly?
27 MR FARRELLY: Yes if I may, Your Honour.
28 HIS HONOUR: Thank you, I would be grateful for your assistance. Thank you, Mr Farrelly.
29 Are there any matters arising from your sentencing remarks?
30 MR LEWIS: Yes, s.6AAA, Your Honour?
31 HIS HONOUR: In light of the fact that he was found guilty on the three major charges, what am I supposed to - - -
32 MR LEWIS: Sorry, Your Honour, no it is quite right.
33 HIS HONOUR: He did plead guilty to the one charge of indecent - it seems to me to be a nonsense to be stating what I would have given him but for the plea of guilty on that.
34 MR LEWIS: Again, it becomes very artificial.
35 HIS HONOUR: It is ridiculous, in my view.
36 MR LEWIS: Yes. I take the matter no further, Your Honour.
37 HIS HONOUR: I still am grateful for your caution but it is not necessary in this case, in my view. Yes, would you remove the prisoner, please?
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