Director of Public Prosecutions v King (a pseudonym)
[2022] VCC 1866
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
General List
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH KING (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE GWYNN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 September 2022 | |
DATE OF DECISION: | 29 September 2022 | |
CASE MAY BE CITED AS: | DPP v King (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1866 | |
FOR SENTENCE
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Subject:Criminal Law
Catchwords: Indecent assault of a girl under 16 years; Carnal knowledge of a child above 10 years and under the age of 16 years
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
DPP v Mellor [2022] VCC 1327
Sentence: Total effective sentence 3 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms. N. Deltondo | Office of Public Prosecutions |
| For the Accused | Mr. L. Waugh | Slater and King Lawyers |
HER HONOUR:
1Joseph King,[1] you have pleaded guilty on indictment in relation to two course of conduct charges – one of indecent assault of a girl under 16 years and one of carnal knowledge of a child above the age of 10 years and under the age of 16 years.
[1] A pseudonym.
2A course of conduct charge is a single charge incorporating multiple incidents of the same offence committed over a specified period of time which allows the prosecution of serial offending where specific details of any instance may not disclosed in enough detail by the evidence. A court must sentence within the maximum penalty for the charged offence but must also reflect the totality of an offender's conduct.
3In this particular instance, the indecent assault charge relates to your digital penetration of Stephanie Lewis[2] between 3 May 1978 and 31 December 1979.
[2] A pseudonym.
4The charge of carnal knowledge relates to you penetrating Stephanie Lewis’ vagina with your penis between 30 May 1978 and 30 June 1980.
5At the time of your offending Stephanie was aged between 13 and 15 years and you were aged between 20 and 22 years.
6In sentencing you for your crimes I must have regard to the maximum penalty for the offences you have committed. Indecent assault of a girl under 16 years carries a maximum penalty of 5 years imprisonment and carnal knowledge of a child over the age of 10 years and under the age of 16 years carries a maximum penalty of 10 years' imprisonment.
7These penalties reflect the seriousness with which Parliament regards each offence.
8The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening For Plea Hearing' dated 28 September 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty, as well as the factual basis on which I am to sentence.
The offending
9I turn now to the offending, noting that the Crown document was just read to the Court.
10In 1978 you commenced a relationship with Diane Brown.[3] Diane was pregnant at the time from a previous relationship and gave birth to a daughter, Sarah,[4] in March of that year. You do remain in a relationship with Diane who is now known as Diane King.
[3] A pseudonym.
[4] A pseudonym.
11The child who is the victim of your offending was Diane’s younger sister by 4 years, Stephanie, now known as Stephanie Lewis.
12Stephanie and Diane came to live in Shepparton from New South Wales with their father in 1978 after their parents separated. Stephanie enrolled at Year 7 at Wanganui Park secondary school.
13In 1978 Stephanie would regularly visit and stay overnight on the weekends with you and Diane.
14You began sexually assaulting Stephanie by May of that year when she was 13 years of age. You initially fondled her breasts over her clothing and told her not to tell anyone or she would get into trouble. This occurred on more than 10 occasions. You also rubbed Stephanie’s vagina.
15This activity was in the lounge, but you also assaulted the victim in her bedroom in a similar way – that is fondling her breasts and rubbing her vagina. When the victim would push your hand away you told her that it was okay and not to tell anyone or she would get into trouble and not be allowed to visit.
16These facts set the background to the allegations.
17You are not charged with the touching already described. These acts are relied on by the Crown as context evidence so that on your plea the Court can have regard to the full circumstances of the offences before it, to enable a more realistic assessment of the offending to be made. The context in this sense bears upon matters such as the extent of your culpability, the need for specific deterrence and your prospects of rehabilitation. You will not be sentenced for any uncharged acts set out in the agreed summary of prosecution opening.
18The touching of Stephanie’s vagina progressed to penetrating her vagina with your fingers when she was 13 years of age and is the commencement of Charge 1 – indecent assault of a girl under 16 years. The first time this occurred it was in the lounge room after Diane had gone to bed. It caused Stephanie pain. You told her that it would be all right and not to tell anyone.
19There were a number of further occasions on the couch in the lounge before you progressed further to introducing your penis into the victim's vagina which is part of the course of conduct Charge 2 – Carnal knowledge of a girl aged between the age of 10 years and under the age of 16 years. The first time this occurred the victim was still aged 13.
20You entered her room and got into bed with Stephanie. You touched her breasts and vagina over her clothing, removed her underwear and digitally penetrated her. You then got on top of Stephanie and inserted your penis into her vagina until you ejaculated.
21During 1978 you continued to enter the victim's room and have penis to vagina sex with Stephanie. Stephanie believes that there were at least 15 separate occasions. There were a few occasions where you digitally penetrated her first. Each time you penetrated Stephanie’s vagina with your penis you would do so until you ejaculated and did not wear a condom. Stephanie was scared and did not tell anyone.
22In 1979 you and Diane moved to a new address in Shepparton and Stephanie continued to visit and stay overnight. At this address you would enter the bedroom being used by Stephanie and penetrate her vagina with your penis. You did so on more than 20 occasions. On some of these occasions you would also digitally penetrate Stephanie. Again, no condom was used. The victim was aged around 14 years at this time
23On one occasion at those premises Diane entered Stephanie’s bedroom and found you naked in bed with Stephanie.
24From that point on you did not sexually assault the victim again at those premises. Instead, you would pick her up after school in your vehicle and assault her when driving to or from your home. You would also take Stephanie to secluded areas along the Goulburn River in Shepparton.
25The first time this occurred Stephanie was still 14 years of age and in Year 8 at school. You collected her after school and drove her to a secluded location along the Goulburn River in Shepparton. On parking the car, you told Stephanie to get into the rear seat. She complied by laying down on the backseat. You removed her underwear and your own lower clothing, got on top of her and penetrated her vagina with your penis. Afterwards you drove Stephanie to your premises.
26Stephanie estimates that you had sexual intercourse with her at least 20 separate times in your vehicle. You did not wear a condom and ejaculated inside of her.
27On 3 May 1980, just prior to her 15th birthday, Stephanie became aware that she was pregnant. You then ceased having sexual contact with her.
28A child, Jessica,[5] was born in September 1980.
[5] A pseudonym.
29The victim did not inform any person at the time of the identity of the father, but it should have been obvious to you.
30Stephanie Lewis complained to Police in September of 2019, and you were interviewed by police at Shepparton on 14 May 2020. It is a lengthy interview. You admitted sexual relationships with the victim in the lounge room of your first premises in Shepparton, stating that intercourse was consensual. You also admitted two separate occasions where similar sexual contact occurred in the back or spare bedroom. You thought that there was some 6 to 8 times that you had sexual intercourse with the victim and ejaculated inside her. You agreed that the sexual relationship continued when you moved addresses. You did not recall acts of sexual intercourse with the victim in your vehicle at various locations along the Goulburn River and you denied any digital penetration of the victim.
31There were some expressions of remorse in that interview for the offending which you acknowledged or recalled. You told police that you knew it was wrong and that it was 'something I’ll regret for the rest of my life’.
Offence gravity and victim impact
32In terms of assessing the objective gravity of your offending I must take into account the nature and extent of the offending conduct, its frequency and duration, the circumstances in which it occurred, your culpability for it and the damage to your victim.
33The offending overall is alleged over a 2 year period. Your offending obviously occurred on multiple occasions over a significant period of time.
34It is perhaps trite to say that this is extremely serious offending. It was committed against a somewhat vulnerable child whose life was undoubtedly irrevocably changed in the experience she had as your victim, the resulting child and the impact this would have had on both their lives.
35Stephanie was a child on the cusp of adolescence and you held a position of trust as her de facto brother-in-law as you also held a position of trust to Diane as her partner. The relationship between Diane and Stephanie has also been affected.
36You were some 7 years older than Stephanie. I accept that at 20-22 years of age you were still likely to be maturing yourself, but you would have been well aware that what you were doing was wrong.
37It is relevant to the sentencing exercise that on many occasions your offending would have occurred at the same time – that is, digital and penile penetration of Stephanie’s vagina. The digital penetration occurring less often overall.
38You obviously tried to hide your behaviour given it took place when Diane was not around and, once her suspicions were raised, you took to offending in your car. You would also caution Stephanie not to say anything or it would be she that would get into trouble and not be able to visit. Such threats were designed to instil fear and allowed you to not only offend on more than one occasion, but it meant that it was Stephanie who felt like the wrongdoer and kept your secret. Stephanie, of course, had done nothing wrong.
39Your offending was clearly for your own sexual gratification and is aggravated by your failure to wear any protection risking Stephanie’s exposure to disease or pregnancy, a risk that was realised.
40Your moral culpability has to be assessed at high.
41You shunned Stephanie once it was known she was pregnant and took no responsibility for the child that was born.
42The ramifications for her were enormous – she had to leave school and, as a child, raise a child.
43The purpose of a victim impact statement is to give those affected by your crime the opportunity to participate in the criminal justice process by informing the court about the effects of the crime upon them.
44In her victim impact statement dated 27 September 2022, Stephanie Lewis describes suffering severe depression and to losing her ability to trust and love others. She has been affected by the matters coming up 40 years after the events and she is sad for her daughter, also your daughter, Jessica. Stephanie still struggles to feel safe.
45Stephanie Lewis’ victim impact statement serves to highlight the harsh reality that offenders move on from their wrongdoing where victims of sexual offending simply do not. I am told by Mr Waugh that you have been made aware of the contents of the victim impact statement - as such the profound impact of your offending on Stephanie Lewis cannot be lost upon you.
46As I said at your sentence indication hearing, it is obvious to say that sexual offences against children are serious. The victim is necessarily vulnerable and dependent on adults and the law seeks to protect young persons from harm. Sentences imposed by the courts tend to reflect the personal damage that is inflicted by such behaviour and the horrid reality that rehabilitation of the victim can be far more difficult to achieve than those who perpetrate such wrongdoing. Accordingly, another factor in any sentencing exercise is for the courts to protect future victims by attempting to deter others, who may be so inclined, from engaging in such activity.
47General deterrence and denunciation are paramount sentencing considerations.
Plea
48The Sentencing Act 1991 obliges me to consider the stage at which you entered your guilty plea.
49It is clear from the chronology provided by the Prosecution that you were trying to resolve this matter shortly after proceedings commenced in the Magistrates Court.
50You formally entered your plea after sentence indication on 14 September 2022. You were arraigned and pleaded guilty to the charges on the indictment on that date.
51Sentence indication is a process which permits a judicial officer to give a defendant a general indication of the sentence that would be likely to be imposed if the defendant pleaded guilty at that stage of the proceedings. The sentence indication process can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or otherwise electing to continue to proceed to trial.
52The sentence indication given by me was that should you determine to plead guilty to the charges on the indictment than I would impose a term of imprisonment. I did indicate that on the information before me at that time any non-parole period imposed would be under 2 years imprisonment and that any head sentence would exceed 3 years.
53You entered your plea after the sentence indication was given and being aware of the ramifications for you. Overall, given the context I have described, I still consider your plea to be at an early opportunity.
54Your decision to plead guilty has facilitated the course of justice in sparing the Court the time and expense of contested proceedings, and importantly, the need for the witnesses to attend to give evidence and relive traumatic events from many years ago. This has particular relevance to your victim and sparing Stephanie Lewis the added trauma of giving evidence is a significant matter in your favour.
55Your decision to plead guilty in the context of the COVID-19 pandemic has additional value as it provides certainty and finality to all parties in circumstances where the court's operations have been disrupted and many trial dates remain unfixed.
56In the recent decision of Worboyes v The Queen[6] at [39] the Court of Appeal said:
' a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…'
[6] Worboyes v The Queen [2021] VSCA 169
57I accept that you have expressed remorse for your conduct.
58These factors will all be taken into account in your favour.
Personal circumstances
59You are now 65 years of age and continue to reside in Shepparton with Diane.
60You were 18 months of age when your mother abandoned you and your father and you have not seen your mother since.
61Your father worked as a builder and would regularly travel around regional Victoria for work. He was also a heavy drinker. Your father was unable to properly care for you as a single parent but did not want you taken into State care. You would therefore frequently be left in the care of other families having contact with your father on weekends. You recall living in at least 15 different homes. You lacked a stable home life or consistent role model.
62By the time you were 15 years of age you left school at your father’s request and began working with him on building sites. Your formal education did not progress past Form 2. You have been in full-time work since.
63For the last six years you have worked at a hardware store in Shepparton, assisting customers with their timber needs.
64As already outlined, you have been with Diane since 1978. She gave birth to her daughter, Sarah, in March of that year whom you raised as your own child. You also had a son together, Eric.[7]
[7] A pseudonym.
65You were interviewed by police on 14 May 2020 but not charged until 27 September 2021. I accept that the period of time from being interviewed until this matter has been finalised, some two years later, would have been a period of considerable stress.
66A reference tendered on your behalf authored by Liam Middleton[8] speaks of meeting you at a local club in 1985. You have been firm friends ever since. He describes you as a good person who is loyal to your friends. Mr Middleton is aware of your offending and attended the sentence indication hearing and, as I understand it, your plea. According to Mr Middleton your offending is in conflict with the man that he otherwise has known for over 30 years. He has observed your mental and physical health decline since you have been interviewed by police for your offending and describes you as becoming reclusive. He also describes you as 'a shattered soul burdened with guilt'.
[8] A pseudonym.
67Mr Richard Cline[9] has also provided a reference. To him, you are a person of fundamentally good character. You have been friends for 50 years. He is also aware of your offending. Mr Cline is also aware of your commitment to your local club and speaks of the hours you have voluntarily given as a groundsman and maintaining club records. You have, as I have said, disclosed your offending to Mr Cline. He describes your remorse and awareness as to how much hurt your offending has caused. You have lived and worked in your local community all your life and are genuinely concerned about that community discovering your wrongdoing, being well aware that it will affect more people than just yourself.
[9] A pseudonym.
68In your particular case you have already been shunned by your two children who are aware of your offending. Sarah and Eric each have their own children, so you have also been prevented from seeing your grandchildren. This has been an added burden upon you and Diane as she is now also estranged from her two children as a result.
69You are concerned for Diane when you go into custody as you are the financial provider, and she is now isolated from other family.
70In addition, Diane is of relatively poor health. A letter authored by Dr Alan Wallace dated 7 September 2022 confirms that she regularly suffers from headaches and migraines as a result of a motor vehicle accident in 1974 at which time she incurred an acquired brain injury. She also requires regular monitoring and treatment for pituitary adenoma, hyperthyroidism, chronic generalised pain and is prescribed a complex range of heavy medications. She is regularly confined to her bed and has difficultly functioning independently. Dr Wallace states 'for Mrs [King] to function independently in the community without the support of her husband would be difficult'.
71I accept that your awareness of this reality will add to the burden of your imprisonment.
72I also take into account that going into custody at your age and stage of life will be difficult as you have never before been exposed to that setting. I understand presently that the Corrections System in on the tail end of its need to respond to the COVID-19 pandemic. However, there is still a requirement to quarantine on reception. I take this into account in a general sense.
73Given your age and the fact that you have no criminal history prior to these matters and that there has been no further offending in a period of time which now exceeds 40 years, specific deterrence and protection of the community are sentencing factors which carry limited, if any weight, in the sentencing exercise.
74Given that efflux of time, your prospects of rehabilitation would have to be considered as realised or complete. I note the contribution you have made to your local community as outlined in the references provided and that you have otherwise had a hardworking life.
75There is merit in the circumstances of you having access to an extended period of a supported return to the community via Parole. This does offer in my view community protection and supports and reinforces your rehabilitation.
76I accept that I am obliged to sentence with regard to current sentencing practices which references those in effect at the time of sentencing, not those that existed at the time an offence was committed. This must take place alongside the maximum penalty that applied at the time of the offending which, for Charges 1 and 2, is likely to be a significantly lower maximum penalty than that would now apply to similar conduct.
77I did refer counsel to a number of County Court cases I had read where each offender had been sentenced for carnal knowledge and the allegations were historical, albeit none involved a pregnancy resulting from the offending.
78The prosecution has provided me with a comparative case of DPP v Mellor[10] to assist with the sentence indication, and in effect the plea, and assessing current sentencing practices. I have read the case provided.
[10] DPP v Mellor (a pseudonym) [2015] VCC 1327
79Mr Mellor pleaded guilty to two charges of having carnal knowledge of a girl aged between 10 and 16 years, both of which were representative charges and carried a maximum penalty of 10 years imprisonment. His offending was in excess of 40 years old. There are understandable differences - for example Mr Mellor had 2 victims each of whom were daughters of his wife. A child was also born. At the time of sentencing Mr Mellor was 79 years of age and had health difficulties. He was sentenced to a total effective sentence of 4 years with a minimum of 2 years before being eligible for parole.
Sex Offenders Registration
80The offences which you have committed require that you be placed on the Sex Offenders Register for life and I do so.
Sentencing
81Before I move onto sentencing, I just want to check with each of you, Ms Deltondo and Mr Waugh, that there has been no issues or factual errors so far.
82MS DELTONDO: No, Your Honour.
83MR WAUGH: No, Your Honour.
84HER HONOUR: The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
85I am also required to balance the interest of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, where possible, that offenders are rehabilitated and are reintegrated into society.
86I have taken into account the sentencing guidelines referred to in s5 of the Sentencing Act 1991 where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty as well as the important principles of both totality and proportionality.
87On Charge 1 – indecent assault of a girl under 16 years you are convicted and sentenced to 20 months imprisonment
88On Charge 2 – carnal knowledge of a child above the age of 10 years but under the age of 16 years you are convicted and sentenced to 38 months imprisonment. This is the base sentence.
89Four months of the sentence imposed on Charge 1 is cumulative on the sentence imposed on Charge 2 to reflect the different nature of the offending.
90Your total effective sentence is therefore one of 3 years and 6 months. imprisonment.
91I fix a period of 18 months before you are eligible for parole.
92Section 6AAA of the Sentencing Act requires me to state the sentence I would have imposed had you not pleaded guilty to the charges. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 6 years and 2 months imprisonment with a period of 4 years imprisonment before being eligible for parole
93I am about to leave the Bench shortly so that you can speak with your client, Mr Waugh, privately although I note you are in a location where you can do that in any event. Any other matters you need to bring my attention to, Ms Deltondo?
94MS DELTONDO: No, Your Honour.
95HER HONOUR: Mr Waugh?
96MR WAUGH: I am sorry, Your Honour. Could you please repeat the head sentence and non-parole period, the total effective?
97HER HONOUR: The total effective was 3 years and 6 months with a minimum of 18.
98MR WAUGH: Thank you, Your Honour.
99HER HONOUR: If I did not do it – and it is quite likely I did not – can I indicate that I am required to place Mr King on the Sex Offenders Register for life and I do so.
100MR WAUGH: Yes, Your Honour. You did indicate that.
101MS DELTONDO: Yes, Your Honour. You did say that Your Honour.
102HER HONOUR: That is all right, thank you very much. Sometimes I have to double check myself, in fact quite often.
103MS DELTONDO: Yes, Your Honour. Does the SORA paperwork still have to be provided to the offender?
104HER HONOUR: Yes, it does.
105MS DELTONDO: Yes, Your Honour.
106HER HONOUR: That will have to come to wherever he ultimately ends up.
107MS DELTONDO: As Your Honour pleases.
108HER HONOUR: All right. Well again thank you to each of you for your assistance in this matter and I will close the Court until 10.30 tomorrow, thank you.
109MR WAUGH: I am sorry, Your Honour.
110HER HONOUR: All right, yes?
111MR WAUGH: I am sorry, Your Honour. Could I note two custody management issues before Your Honour leaves the Bench?
112HER HONOUR: Yes, you can.
113MR WAUGH: Thank you, Your Honour. The first is that my client is a diabetic.
114HER HONOUR: Right.
115MR WAUGH: And the second is that he is an asthmatic.
116HER HONOUR: I will have it reflected on the warrant to imprison that he is a diabetic and asthmatic and will need medical attention.
117MR WAUGH: Thank you, Your Honour.
118HER HONOUR: I will also have it noted on the record that it is his first time in custody.
119MR WAUGH: Thank you, Your Honour.
120HER HONOUR: All right, thank you very much, Mr Waugh.
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