Director of Public Prosecutions v Kestler
[2017] VCC 2027
•22 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN KESTLER[1] |
[1] A pseudonym
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 November 2017 | |
DATE OF SENTENCE: | 22 December 2017 | |
CASE MAY BE CITED AS: | DPP v Kestler | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2027 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Sexual abuse of a child under 16 – Sexual Penetration of a child under 10 – indecent act with a child under 16 – indecent assault of a child under 16.
Cases Cited:R v Lomax [1998] 1 VR 551 – Ibbs v R (1987) CLR 447 – R v Sheriff (unreported) 19 March 1998 VSCA – DPP v Toomey [2006] VSCA 90 – R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – HMcL v R (2000) 174 ALR 1 – Gordon [2013] VSCA 343 – DPP v Dalgliesh [2017] HCA 41
Sentence: TES – 20 years 3 months’ imprisonment with a minimum of 18 years before eligible for parole. Sex Offenders Registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms L. Dipiertrantonio for plea Ms A. McVean for sentence | OPP |
| For the Accused | Mr J. Williams for plea Ms K. Mildenhall for sentence | VLA |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the accused and each complainant in these reasons. The accused will be called Steven Kestler. The oldest complainant will be called Janet. The next oldest will be called Rhonda. The youngest will be called Catherine. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. That is the reason for the use of pseudonyms.
[2] Section 4 Judicial Proceedings Reports Act
2 Steven Kestler, you have pleaded guilty to a large number of serious sexual offences against your three biological daughters. These are:
· one charge of persistent sexual abuse of a child under 16, an offence with a maximum sentence of 25 years’ imprisonment;
· four charges of incest and one charge of sexual penetration of a child under 10 years, offences with a maximum sentence of 20 years’ imprisonment;
· one charge of indecent act with a child under 16 years, an offence with a maximum sentence of 10 years’ imprisonment; and
· two charges of indecent assault of a child under 16 years, an offence with a maximum sentence of 5 years’ imprisonment.
3 These were the maximum sentences applicable at the time of your offending.
4 I sentence you on the basis of the prosecution opening[3], which is an agreed summary. I will briefly summarise your appalling criminal conduct but I will attempt to spare the complainants from having too much detail provided in these sentencing remarks.
[3] Exhibit A
5 You were married to the mother of Janet and Rhonda, your two oldest daughters, and you also had a son together.
6 You offended against Janet from when she was aged 4 years to 19 years, and you were aged 26 to 40 years.
7 Charge 1 is representative of two occasions when you sexually penetrated Janet’s vagina with your penis when she was aged between 4 and 9 years between 1983 and 1988.
8 Charge 2 is a charge of indecent assault which occurred when she was between 6 and 7 years old in 1985. It involved penetration of her vagina with your finger, but at the time you committed this offence, only penetration with the penis was regarded by the law as sexual penetration. I must have regard to the maximum sentence for the offence to which you have pleaded guilty – 5 years – but the law is clear that the sentencing judge must look at the facts and circumstances in the particular case, and have regard to the express stipulation of Parliament on 4 August 1991 that what formerly was not characterised as sexual penetration was thereafter to be included as such for the purposes of the definition of sexual offences of the most serious kind.[4] The fact that this charge involves penetration makes it the most serious form of indecent assault of a child.
[4] R v Lomax [1998] 1 VR 551, 559 citing Ibbs v R (1987) 163 CLR 447; R v Sheriff (unreported) Victorian Court of Appeal, 19 March 1998, 11-12
9 Charge 3 is representative of five occasions when you sexually penetrated Janet with your penis when she was aged between 11 and 14 years between 1989 and 1991. On the third occasion, Janet tried to refuse your dreadful request to ‘fool around’ and you grabbed her by her clothing and threw her along the floor, and then tipped a vase of flowers over her. Understandably scared of more violence, she submitted to your penetration of her. Afterwards, you falsely apologised and said you would try not to do it again. On the fourth occasion, on a camping trip you were interrupted by your brother while sexually penetrating Janet. Once more, you said it would not happen again and that you were going to get help. You did not get help and you did not stop, despite knowing that your brother knew what you were doing, and instead you told Janet to lie to her mother about why she later ran away to her uncle’s house.
10 Charge 4 is representative of four occasions when you sexually penetrated Janet with your penis when she was aged between 16 and 19 years between 1995 and 1997. You separated from the mother of Janet and Rhonda in the early to mid-1990’s, but still had contact with your children. In late 1997, you visited Janet, and two of the occasions represented in charge 4 involved you orchestrating a situation whereby Janet told her mother a lie so that Janet would be alone in the car with you in order for you to continue to obtain your sexual gratification even when you were no longer living in the same house. On the fourth occasion, she punched you and tried to get you to stop, but you refused, instead demonstrating the depths of your depravity by telling her that it would not hurt if she tried to enjoy it.
11 In August 1997, Janet discovered she was pregnant and, understandably, lied to her mother about who had impregnated her. Despite the fact that you had been having unprotected sex with your daughter for all of her post-pubertal years, you were apparently shocked at her pregnancy. Worse still, you called her insulting names. Janet had a termination.
12 There are a number of aggravating features of your offending against Janet, which were outlined by the prosecutor in oral submissions at the plea hearing, and which you conceded through your counsel. In summary, these are Janet’s extremely young age at the beginning of the offending; the length of the offending period (continuing into her adulthood); frequency and number of occasions of contextual sexual activity (weekly over a 15 year period); the representative nature of all but one of the charges involving her; the unprotected sexual penetration which exposed her to the risk of disease and in fact led to her getting pregnant; the use of violence over and above that inherent in penetration of a child; your persistence, when she resisted, and even when discovered by your brother; your perverted attempts to normalise the sexual activity; and your manipulation of Janet, including making her lie to her mother to create opportunities for you to gain your sexual gratification.
13 You first offended against your second daughter, Rhonda, when she was aged 5 years and last offended against her when she was 15 years, and you were aged between 31 and 41 years at the relevant times. Rhonda has an intellectual disability.
14 Charge 5 is representative of two occasions when you indecently assaulted Rhonda when she was aged between 5 and 7 years between 1988 and 1990 by touching her vagina. On the second occasion, you told her to watch a pornographic movie you put on the television, and she described you touching her in such a way that it constitutes penetration of her vagina. As with charge 2 involving Janet, at the time you committed this offence, only penetration with the penis was regarded by the law as sexual penetration. The fact that this charge involves penetration makes it the most serious form of indecent assault of a child.
15 You did not offend against Rhonda between 1990 and 1997, when she was aged about 7-14 years. Of course, as I just outlined, you were abusing your eldest daughter during those years. However, after you had separated from her mother, there was an occasion when Rhonda was aged 14 in 1997 that you came to bingo where Rhonda was with her mother and asked to take Rhonda home. You did so, and this enabled you to commit the offence in charge 6 of incest by anally penetrating her with either your finger or penis, even though you were no longer living in the same house. She screamed and hit you and you stopped.
16 Around the same time, between 1997 and 1998 when Rhonda was aged 14 years, you committed the offence in charge 7 of incest by sexually penetrating her vagina with your penis, and the offence in charge 8 by touching and rubbing her vagina.
17 There are a number of aggravating features of your offending against Rhonda, which were outlined by the prosecutor in oral submissions at the plea hearing, and which you conceded through your counsel. In summary, these are Rhonda’s extremely young age at the beginning of the offending; her increased vulnerability due to her disability; the length of the offending period, although there was a break of seven years; the resumption of sexual activity when she was 14 years old after a seven year break and you were no longer living in the same house; the use of pornography; and the representative nature of charge 5.
18 After separating from the mother of Janet and Rhonda, you formed a relationship with another woman and with her you had your third daughter, Catherine, as well as a son. You separated for a period of time, and then the mother and children came to a regional centre to live with you again.
19 You offended against Catherine from when she was aged 9 or 10 years to 15 years, and you were aged 53 to 58 years.
20 Charge 9 is a charge of persistent sexual abuse of a child under 16 years, committed by you between 2010 and 2015 and includes three separate occasions of sexual penetration: one of anal penetration when she was aged 9 or 10, the second of vaginal penetration when she was aged 10, and the third of vaginal penetration when she was aged 15. However, that offence is to be seen against a background of a prolonged course of conduct which encompasses a range of sexual activity you inflicted on her over a 10 year period from when she was aged 5 or 6 years. That conduct is summarised in paragraph 78 of the prosecution opening, and was admitted by you in your interview with police about Catherine’s allegations, summarised in paragraph 89 of the prosecution opening.
21 There are a number of aggravating features of your offending against Catherine, which were outlined by the prosecutor in oral submissions at the plea hearing, and which you conceded through your counsel. In summary, these are Catherine’s extremely young age at the beginning of the offending; the anal penetration which you perpetrated when she was very young and was afflicted by severe constipation; the length of the offending period; the use of pornography; the use of alcohol; the recording of some of the sexual activity; the representative nature of the offence; frequency and number of occasions of contextual sexual activity (once every two weeks over a 10 year period); the use of force over and above that inherent in penetration of a child and the use of threats; your persistence, when she resisted; the resumption of sexual activity when she was 15 years old after the family moved back to live with you after there had been a separation; your perverted attempts to normalise the sexual activity; the unprotected sexual penetration on all but one occasion which exposed her to the risk of disease and pregnancy; the arrangement you made to have her take the contraceptive pill from the age of 13, instructing her to say it was because of heavy periods, but which was of course to prevent another occurrence of you making a daughter pregnant; and your manipulation of Catherine, including creating opportunities for you to gain your sexual gratification by going for drives, and telling her that you used to abuse Janet, and in a sick and twisted way, trying to make Catherine ‘compete’ with her.
22 This appalling sexual abuse of every kind, perpetrated over such a long period of time[5], against three daughters, across two families, starting at extremely young ages, with overlapping abuse of the two eldest, with one becoming pregnant, one abused despite a disability, and one compared sexually to her abused older half-sister, is familial offending of the utmost gravity.
[5] Recognising that there was a gap of 7 years.
23 All of these charges involve a breach of trust of the grossest kind. Your daughters were entitled to your love, respect and protection as a parent, and entitled to feel safe in their own home. The victims of your crimes received none of these entitlements, instead receiving prolonged abuse of the worst kind. The only reason put forward to account for your behaviour, is your apparently excessive consumption of alcohol. I find that to be no excuse. It is a significant aggravating factor that you sexually abused your own children, in breach of the trust which a civilised society expects of any person with children in their care, but never more so than for a parent. I find that your moral culpability is high.
24 I received victim impact statements from Janet, Rhonda, Catherine and Catherine’s mother[6] about the devastating effects of your abuse. Janet’s statement was read out by the prosecutor, Catherine’s by the solicitor for the prosecution, Catherine’s mother read out her own, and Rhonda did not wish her statement to be read out.
[6] Exhibit B
25 Each statement was an eloquent and moving recital of the hurt, betrayal and longstanding issues that your offending has caused each of your victims.
26 It has been recognised by the courts[7] that
“rehabilitation of the victim may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired…
The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.”
[7]DPP v Toomey [2006] VSCA 90, [22]
27 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological[8], and which includes future harm[9]. In this case, the harm you caused to each of your daughters covers all these aspects, with Janet feeling she was kept in a paralysing sadness for half of her life; Rhonda suffering emotionally, physically, financially and socially; and Catherine suffering deep depression leading to self-harming, anorexia, suicidal thoughts and as a young child developing severe constipation to the extent of needing hospitalisation, as a result of her fear of going to the toilet. The harm has spread across the whole of the family, as your youngest son is full of rage and out of control after learning what you did to his sister, Catherine, with the revelation of the abuse leading to him having no contact with you now.
[8]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[9]Adamson v R [2015] VSCA 194, [56]
28 I want to say some things to Janet, Rhonda, Catherine and her mother. Nothing I can say or do can erase your suffering. But each of you has shown your inner strength by reporting the offending, and you have been vindicated by knowing that said he was guilty out loud in court for all to hear. You should always remember that you are not to feel guilty, you are not to blame and you did nothing wrong; the only one who is guilty, who committed the wrongful acts, and who is to blame is the one who pleaded guilty to abusing you. Each of you should consider yourself as a strong person who has survived and I hope that with this sentence being passed, you can begin to live, and not just survive. I also hope that now that this case has been dealt with, there will be something brighter in your future. I wish you all well.
29 Returning to you Mr Kestler, as against this most serious offending, I must consider some factors that are to be taken into account in your favour.
30 The first of these matters is the fact that you pleaded guilty and did so at the earliest opportunity. This shows that you now accept responsibility for all your offending, and also demonstrates remorse for the impact on your daughters of what you did to each of them.
31 I pause to note that this was not always the case. After Catherine reported to the police in October 2016 what you did to her, you made admissions to that offending when interviewed by the police, although you expressed some distorted views about the sexual activity. In November 2016, Janet and Rhonda reported their abuse to the police, but you denied any offending against them when interviewed by the police in January 2017 and suggested Janet and Rhonda were seeking revenge against you. However, you indicated your intention to plead guilty to charges involving them in May, only a month after you had done so for Catherine.
32 I also take into account that your plea of guilty has not only saved the community the time and cost of a trial, but importantly it has saved your daughters from the ordeal of giving evidence. As a result of your plea of guilty, the sentence I will impose is less than would have been imposed had you been found guilty by a jury after a trial.
33 I also have regard to the apology you made to your daughters through your counsel on the day of the plea. He explained that you found it difficult to find your own words, but through him you said you accepted that you had ruined their lives, that you were not seeking forgiveness but wanted them to be able one day to move on with their lives, and for that reason specifically instructed that there be no challenge to any aspect of the prosecution case, so as to not cause them any further suffering.
34 Also through your counsel, you have conceded that the offences to which you have pleaded guilty are serious examples of serious sexual offences at the upper end of seriousness, and call for a substantial sentence of imprisonment. You have acknowledged to Mr Cummins, a psychologist who provided a report to the court, that you realise that you may die in custody, because of the likely length of the sentence, given your physical ill health. I find all of this demonstrates remorse.
35 Next, I take into account your personal circumstances and background. You are now aged 60, shortly to turn 61. You are the eldest of 9 children, and grew up with a violent alcoholic father. In your childhood you witnessed physical and sexual violence by your father to your mother, and were physically abused by him yourself. Apparently your mother frequently told you to get your drunken father away from the house and in this context, he introduced you to alcohol at the age of 9. A drinker ever since, you describe yourself as an alcoholic since your twenties. Your criminal record bears this out, as you have a number of convictions for drink driving offences from the mid 1990’s when you were in your twenties.
36 I note that you have no convictions for sexual offending, but that is not unusual when sentencing for sexual offences dating back many years, which cover a long period of time, and which relate to a number of victims. The best that can be said is that you had not sexually offended before 1983. I also note that your father served a term of imprisonment for sexually abusing one of your sisters, so you were no doubt well aware when you were offending against your daughters what the inevitable consequences would be for you.
37 Your childhood was unstable with many changes of housing and schooling, such that you never learned to read or write, to this day. Because of your parents’ neglect, you were placed in two different boys’ homes, and were physically assaulted in one of them. Despite your illiteracy and alcoholism, you got by, and held down unskilled jobs over a number of years.
38 Your health is not good. You were diagnosed with emphysema in 1992, but continued to smoke and are now permanently out of breath. As Victoria’s prisons are smoke-free zones, you will have had to stop smoking since you went into custody in September. You will also have stopped drinking alcohol. You had a heart attack in 2015, and before going into custody, were receiving treatment for chronic obstructive pulmonary disease, emphysema, gastro-oesophageal reflux disorder, and depression and anxiety.
39 I accept that because of your ill health, both physical and mental, prison will be more burdensome for you than for a person in normal health, and also that at the age of 60, you have entered prison for the first time. I also accept that you had an abusive and disadvantaged childhood. However, the reduction in the sentence for these mitigating factors will be slight, because of the overwhelming seriousness of your offending.
40 You were assessed by Mr Cummins, a forensic and clinical psychologist[10]. He assessed you as being both a paedophile, and a hebephile, “limited to incest” meaning you are sexually attracted to females both pre- and post-pubescent who are related to you. He was of the opinion that your risk of re-offending is at least moderate-high, and that your capacity to have victim empathy is limited. I note that you report that you were yourself a victim of sexual abuse by a drunken man on one occasion. You do not think that was relevant to your lengthy period of offending, and I agree.
[10] Exhibit 2
41 Mr Cummins also referred to your view that on the one hand on occasions your consumption of alcohol led to some disinhibition in your behaviour, and on the other hand, that your offending was not related to your alcoholism or level of intoxication at the time of the offending. Mr Cummins did not express any opinion of his own about this. As I said earlier, your consumption of alcohol is not an excuse for your offending.
42 You were also assessed by a neuropsychologist, Dr Scally[11], to see if you had an alcohol related brain injury. She found no strong indication of that, although she thought that your alcohol consumption may have contributed to your current cognitive profile where you had some reduced performance on testing.
[11] Exhibit 3
43 I find that your risk of reoffending is reduced by your ill health, and also by the fact that you will have no opportunity to access your target group, being underage females related to you, for some years to come as a result of your prison sentence, or at all. However, the risk remains, and any prospects of rehabilitation will only be promoted if you do a sex offenders’ program while in custody.
44 There are three final matters before I turn to sentence. The first is that application has been made for an intimate forensic sample to be taken from you and you have not opposed this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have not objected, if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place.
45 The second matter is that you are to be sentenced as a serious sexual offender either after terms of imprisonment are imposed on charges 1 and 2, or if a term of imprisonment is imposed on charge 9 first, then for all other charges.
46 Because of your status as a serious sex offender, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that as I am of the view that usual sentencing principles will be sufficient for me to reach the appropriate sentence and protect the community.
47 It is also necessary for any sentences of imprisonment I impose today to be cumulative on each other unless I order otherwise, because of your status as a serious sex offender.
48 I want to say something to the lawyers now and then I will return to sentence you. I have had regard to the serious sex offender sentencing regime and recognise that this regime places limits on the application of the principle of totality[12]. However, I have still considered the need for today’s sentence to reflect to an extent the totality of the offending: that is, sexual offending involving penetration against three daughters over a charged period of 22 years[13].
[12]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
[13] For Janet – 13 years from 1983-1997; for Rhonda - 5 years from 1988-90, and 1997-98 ; for Catherine - 5 years from 2010-2015 = 23 years (less 1 year of overlap in 1997)
49 The serious nature of the offending means high individual sentences must be imposed on each charge. Total cumulation on the relevant charges would infringe the totality principle, even in its limited application, and involve a crushing sentence. In my view, anything more than moderate cumulation would involve a sentence far beyond the substantial term that is conceded is required, even in the post-Dalgliesh[14] landscape. As a result, taking into account the totality principle, although limited in its application, and the factors in your favour, I will order that there be other than the total cumulation required by the serious sex offender regime. This is the way I intend to exercise my sentencing discretion in light of the clear tension between the serious sex offender sentencing regime and the limited application of the principle of totality together with the expectations of sentencing in serious sex offences.
[14] [2017] HCA 41
50 Coming back to you, the third matter is that as a result of my sentence today, you become a registrable sex offender once more, for life. You will be required within 7 days of your release from custody, to report your personal details and begin a regime of annual reporting as required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. You will now be given a form by my Associate notifying you of your reporting obligations under the Sex Offenders Registration Act. Given that you cannot read or write, I will not ask you to sign the form, and your counsel will explain to you after I have finished the sentence what the form means.
51 Your counsel conceded that in your case, there is a need for my sentence to deter other men from committing sexual offences against their children, known as general deterrence; to a lesser extent, to deter you from re-offending, known as specific deterrence; to express the denunciation of the community of the crimes you have committed against your daughters; and to provide just punishment. The prosecutor submitted that only a term of imprisonment was appropriate in the circumstances of your case, where the overall offending makes it one of the most serious of its type.
52 You are convicted and sentenced as follows:
53 On charge 1 – sexual penetration of a child under 10 (representative), 9 years’ imprisonment;
54 On charge 2 – indecent assault under 16, 3 years 6 months’ imprisonment;
55 On charge 3 – incest (representative), 9 years 6 months’ imprisonment;
56 On charge 4 – incest (representative), 11 years’ imprisonment;
57 On charge 5 – indecent assault under 16 (representative), 4 years’ imprisonment;
58 On charge 6 – incest, 7 years’ imprisonment;
59 On charge 7 – incest, 7 years’ imprisonment;
60 On charge 8 – indecent act with a child under 16, 2 years’ imprisonment.
61 On charge 9 – persistent sexual abuse of a child under 16, 10 years’ imprisonment.
62 I make the following orders for cumulation in the usual terms rather than in the terms required by the wording of s6E Sentencing Act to make them easier to understand.
63 The sentence on charge 4 of 11 years’ imprisonment is the base sentence. I direct that two years of the sentences imposed on charges 6, 7 and 9, twelve months of the sentences imposed on charges 1 and 3, six months of the sentences imposed on charges 5 and 8 and 3 months of the sentence imposed on charge 2 are to be served cumulatively on the sentence imposed on charge 4 and on each other.
64 That makes a total effective sentence of 20 years 3 months’ imprisonment. I direct that you serve 18 years before becoming eligible for parole.
65 I declare that you have served 93 days in pre-sentence detention not including today. These will be deducted administratively from your sentence.
66 I declare that in respect of charges 3-9, you have been sentenced as a serious sex offender and direct that this be entered into the records of the court.
67 Finally, the sentence that I would have imposed if you had not pleaded guilty is difficult to determine, given the representative charges. Doing my best, the sentence that I would have imposed if you had been convicted of the equivalent of 17 single events and a charge of persistent sexual abuse after a trial is 30 years’ imprisonment with a minimum of 26 years.
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