Director of Public Prosecutions v L.S.G
[2013] VCC 1146
•23 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. 12-01076
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| L.S.G. |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 July 2013 (Plea) | |
DATE OF SENTENCE: | 23 July 2013 | |
CASE MAY BE CITED AS: | DPP v L.S.G. | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1146 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Guilty plea - Gross indecency – Sexual penetration of child under 10 years – Incest - Offences occurring between 1989 and 1993 – Offender aged between 15 and 19 at time of offending
Legislation Cited: Sex Offender’s Registration Act 2004
Cases Cited: Miller v The Queen [2011] VSCA 143
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O'Hallaron | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr B.W. Johnson | Balmer & Associates |
HER HONOUR:
1 L.S.G. you have pleaded guilty to 1 charge of gross indecency, 2 charges of sexual penetration of a child under 10 years and 1 charge of incest.
2 The maximum penalty for the gross indecency is 2 years imprisonment. The maximum penalty for the sexual penetration offences is 20 years imprisonment and the maximum penalty for incest is 7 years imprisonment. These maximum penalties tell you that the offences which you have committed are very serious.
3 I will now refer to the circumstances of each of the offences which you have committed.
4 The victim of each of the offences was your half sister, LJ and all of the offences were committed at the house where you both lived when you were growing up.
5 The prosecutor told me that each of the offences occurred in the context of continuing sexual abuse by you which started when LJ was only 4 or 5 years old. It commenced with you putting your penis into her mouth when you were both in the lounge room.
6 Charge 1 is the first offence for which I sentence you. The victim was 7 or 8 when you committed this offence, which means you were as young as 15 or as old as 17 at this time. She was wearing a new dress which you told her to take off. When she refused, you told her to lift it up and take off her underpants. She did this and you told her to lie on the floor in the lounge room, you told her that you were going to ejaculate on her. You knelt beside her and pulled your trousers down then masturbated until you ejaculated on her stomach. The victim did not appreciate what you had done and sat up as she was frightened as to what you had done. You told her to take a shower, which she did.
7 The basis for Charge 2 is that on a different occasion when the victim was between 7 and 8 you were in the lounge room with the victim once more and no one else was home. You were 16 or 17 at this time. You lay on top of the victim while she was facing you. While the victim’s pants were off you put your penis inside her vagina and continued to do this for a few minutes. You did not use a great deal of force in order to achieve this but you were a good deal bigger than the victim and she felt that she was being crushed when you were on top of her. After you had done this the victim was crying as she was scared and in some pain. She thought about telling a Catholic priest about what you had done but you told her that no one would believe her and she would be taken away from her mother. She believed you about this and so she told no one.
8 In relation to Charge 3, when the victim was about 8 years old she took some tampons home from her sister’s place and asked you what these were. You told her that they were used for sex and made her lie down on the floor. Her clothing was removed so that she was naked from the waist down. You knelt between her legs and repeatedly inserted a tampon into her vagina for several minutes, to her perception. You then returned the tampon to the victim who disposed of it. You were 16 or 17 at this time.
9 The basis for Charge 4 is that on a date during a 12 month period commencing 7 January 1992, when the victim was ten years old, she was showering at home. Your mother, who is also the victim’s mother was also home.
10 After the victim got out of the shower, you told her to kneel on the floor. Once she had done this you turned off the bathroom light and you inserted your penis into the victim’s vagina and continued to penetrate her for what she felt was one or two minutes. You did not ejaculate and stopped when your mother was approaching. You told the victim to tell your mother that you were in the bathroom helping to look for a lost earring. The victim became distressed as she was wearing both earrings at the time. LJ gave this excuse as instructed by you. You were 18 or 19 at this time.
11 I sentence you on the basis of the four charged occasions but in the context of the first sexual assault perpetrated by you when the complainant was 4 or 5 and you were 12 at youngest and 14 at the most, and I also sentence you in the context of the following acts which are not the subject of any charge. These include:
· you touching the victim’s vagina or making the victim touch your penis
· you kissing the victim on the mouth
· you fondling or penetrating the victim’s vagina with your hand or penis
· putting your penis into the complainant’s mouth
· licking the victim’s vagina
12 While I cannot and I do not sentence you in respect of these other occasions, I sentence you on the basis that the 4 charged occasions were not the only times that you sexually offended against the victim.
13 LJ first told a school counsellor about some aspects of what you had done in 1998 when she was 16 years old. She also made some disclosures to a boyfriend in 2003 and to a friend in 2011. In November 2010 she told her sister, Michelle and her mother about your offending then contacted you on Facebook. She reported the allegations to police on 25 November 2010 and on 7 October 2011 you voluntarily went to the Moorabbin police station where you were arrested and cautioned. You were interviewed by the police and, amongst other things, you said that there was roughly a ten year age difference between you and your sister. You denied all of the allegations that LJ made against you. As well as this, you said that you did not recall the allegations she made in respect of Charges 1 and 3.
14 At the plea hearing LJ courageously read her victim impact statement to the court. You heard of the terrible ways in which your offending has affected her life. She described what you had done as a life sentence for her and she spoke of the attempts that she has made to harm herself and to end her life because of your offending. The things that she spoke about in her victim impact statement are things that many victims say about the lasting effects of sexual abuse. You should understand that what you have done to your half sister has had devastating effects upon her and will continue to do so. She was further traumatised by cross examination at a committal hearing. In sentencing you I take into account the severe impact that your crimes have had upon the victim.
15 There was a 10 year gap between your half sister and you. Your offences are most serious and are deserving of just punishment and denunciation in all of the circumstances. Some of those circumstances are that you were a child yourself when you committed 3 of the offences, although a teenager. When you committed Charge 4 you were 18 or 19 years old, so you were a young person in the eyes of the law. I also accept that at the time that you committed the offences, you had an impairment of mental function in the nature of brain injury or impairment which impacted upon your ability to exercise appropriate judgement, to make calm and rational choices and which disinhibited you. I make this finding on the basis of Dr Vowels’ diagnosis that you have an acquired brain impairment resulting in intellectual disability which is most likely to have been a developmental one related to unknown events as an infant. The diagnosis is supported by material tendered on the plea from another neuropsychologist who assessed you when you were 11 years old and some further material relating to your speech and language skills when you were 13 and a half. You have a very low IQ although, I do note
Dr Vowel’s qualification of assessment in this regard. I also take into account Dr Vowel’s findings in respect of your present mental state including the fact that you are suffering from depression.
16 While you were afflicted by an acquired brain injury at the time of offending, you had a deal of cunning about you when you committed some of the offences and an appreciation that what you were doing was wrong. you were able to silence the victim from disclosure after committing Charge 2, by threatening that she would be taken away from your mother. In relation to Charge 4, you were quickly able to dictate to her a false excuse for you being in the bathroom with her. In all of the circumstances, namely your young age and impaired mental capacity, your moral culpability is somewhat reduced as is the weight that I would otherwise attach to specific deterrence. I shall address the question of general deterrence a little later on.
17 I also take into account your self-report of physical and sexual abuse at the hands of your step-father and sexual abuse at the hands of your step-father’s brother. The first matter was something you told the police about in your record of interview and I also heard evidence from a friend of yours who said that you were both 15 years old when you told him that your step-father had sexually abused you. I was told that your step-father’s brother sexually abused you from when you were 11 to 13 years of age. It is certainly not uncommon for perpetrators of sexual abuse to be victims themselves and may explain your behaviour toward your half sister which commenced at such a young age. This is difficult to ascertain in your case as there is no expert material to indicate such a link, but in any event, I take these matters into account as part of your background.
18 I take into account other aspects of your background which were referred to at the plea hearing. You, the victim, and your older sister all had different fathers from various relationships that your mother has had. You did not have any contact with your natural father as you were growing up. You first met him when you were 16 years old. It appears that you had a fairly difficult upbringing, in circumstances where your step-father, who came into your life when you were 7, abused alcohol. As well as being assaulted yourself, you witnessed your mother being assaulted by your step-father from time to time. You misbehaved at school, which was probably due to your intellectual deficits. I was told that you would be disciplined at school when you misbehaved but that your step-father would follow up with more severe punishment at home. You were placed in St Vincent’s boys home for ten months at one stage then went to High School for a time before attending a Community school for children with special needs.
19 When you were 18 or 19 you commenced a relationship with a woman with whom you had a child. That child is now 15 years old and lives with his mother. You have no contact with him.
20 Since leaving school you have worked in various unskilled positions but you have struggled to maintain employment due to your cognitive difficulties. The longest time that you have worked involved cleaning greyhound cages which started in 2008 and lasted till 2011.
21 I also take into account your present personal circumstances. You are married and have 2 children; one of these children is intellectually gifted I was told, whilst the other is struggling at school. Your wife has a child from a previous relationship who suffers attention deficit disorder and has significant behavioural problems. He is currently in youth detention in Parkville.
22 You and your family live in a Ministry of Housing flat in Narre Warren.
23 You have developed a problem with alcohol over the years and drink excessively on weekends. You suffer from diabetes. I take this and other matters into account which are referred to in your medical history contained in a letter from a Dr Pragastis dated 3 February 2012.
24 You have no prior convictions and in all of the years since you committed the offences for which I now sentence you, you have one subsequent matter in 2011 being a breach of intervention order. This offence concerned your wife but in the context of a good deal of disharmony because of problems with her oldest child. In your favour I take into account the fact that you have not committed any further offences of a similar nature to those for which I now sentence you.
25 You cannot be punished for running a committal hearing in relation to the matters before me but the discount in sentence that you would otherwise receive will not be as great because the victim has been subjected to the trauma of cross examination at that proceeding and you have not saved the community the time and expense of having such a hearing. However, you have saved the victim the time and trauma of giving evidence at trial and you have saved the community the time and expense of this, therefore, you are still entitled to a discount in sentence which is not insignificant.
26 Although you have entered pleas of guilty to all four charges and in doing so you have accepted all of the elements of each of these offences, you have outright denied any offending to Dr Vowels neuropsychologist and to psychologist, Dr Ian Joblin. Your instructions to your barrister Mr Johnson were that you do not recall the events which give rise to the allegations but you accept that you have committed the offences. It may be that the difficulties that Dr Vowels speaks of with your mental capacity explains your lack of recollection although this would be surprising as you have been able to recall events at about the same time that you said happened to you.
27 As I said at the plea hearing I have had some concern about you pleading guilty to the offences in circumstances where you have said either that you did not commit the offences or that you do not recall having doing so. However, Mr Johnston has made it clear that you do admit guilt. Having run a contested committal hearing and having disavowed any wrongdoing or not recalling any, I cannot find that you have much in the way of remorse for what you have done or any insight into it. On the other hand you are prepared to take responsibility for the offences, which is to your credit. Further you have not committed further offences of this type in the intervening period.
28 Having found that your moral culpability is somewhat reduced because of your impairment of mental function, I also reduce the weight that I would otherwise attach to specific deterrence. As you have no prior convictions and only one subsequent matter of marginal relevance I regard your prospects of rehabilitation as rather good although I am concerned about your lack of insight and remorse. In circumstances where three of the offences were committed as a child, and the fourth as a young person with impaired mental function, the principle of general deterrence does not loom large in your case, but I do give it some weight in a bid to deter others from behaving as you have.
29 I have had regard to the various legal authorities to which your barrister and the prosecution have referred me. Although not determinative of the matter, the law says that I must keep in mind that if you had been sentenced at the time that you committed Charges 1, 2 and 3 you would have been subject to the Children's Court regime where there is a greater emphasis on the offender’s rehabilitation and principles such as general deterrence do not loom large. This is also the case with immature young offenders. If sentenced at the time of Charge 4 then you would have been sentenced in this court but your youth and mental health would have probably meant that adult gaol was not appropriate. If you were sentenced at that time, in view of your young age when you committed Charges 1, 2 and 3, and taking into account your intellectual deficits, there is every prospect that you would not have been sentenced to youth justice centre; however, in respect of Charge 4, you were 18 or 19 when you committed this offence and may well have received such a disposition such is the seriousness of the offending and notwithstanding your intellectual problems. If you had committed these offences in more recent times, when an adult, there would be no question but that you would be sentenced to a fairly substantial immediate gaol term. I do hope that you understand this.
30 The Crown has submitted that you ought be sentenced to a term of between 12 and 24 months imprisonment but the way it is to be served is a matter for me. This means that the prosecution says that it is open to wholly suspend any gaol term or to partially suspend it or to have you serve a gaol term immediately. The prosecution does not submit, as it sometimes does, that an immediate gaol term is the only option available.
31 Your barrister has referred me to a case of Miller v The Queen [2011] VSCA 143 where the offender ran a trial but was found guilty to two charges of sexual penetration of a child under 10, one charge of sexual penetration of a child under 16 and one charge of attempted sexual penetration of a child under 16. That offender committed offences on 4 isolated occasions, which is different to your position. He was an immature 14 year old when he committed the first two offences against the complainant who was eight. He was an immature 17 year old when he committed the other two offences and the complainant was ten. Mr Miller received a sentence which involved him serving three months gaol with the balance of 15 months hanging over his head for fifteen months. As he had run a trial, he received no discount for pleading guilty, in contrast to your situation. That decision and others referred to in it make it clear that where offences have been committed by an offender who is a child or who is immature and the offences are not prosecuted until many years later, and where in the meantime the offender has significantly rehabilitated himself, then usually, the penalty he receives should be somewhat reduced.
32 Even though there are some aspects of your offending which are worse than Mr Miller’s, I could not justify imposing a sentence which was as harsh as his because you have pleaded guilty, because of the more significant delay after the offending during which you have not committed another offence other than one of limited relevance, and because of your young age at the time you committed the offences before me, as well as because of your further reduced moral culpability, because of your intellectual deficits. This also impacts as I have said on the weight attributable to specific and general deterrence.
33 However, to make sure that you continue to behave yourself I will be imposing a sentence which will hang over your head for the next two years. If you commit any further offence which has a gaol penalty attached to it, then you face a very real risk of being sent immediately to gaol.
34 Would you please stand up Mr L.S.G.
Ancillary Orders
35 Firstly I make an order under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is, report, within 7 days at the police station nearest to your home. Details in writing of these reporting conditions will now be served upon you by my associate. I will ask your counsel to attend to assisting you with an acknowledgement of that notice and I will have you sign the document.
36 MR JOHNSON: May I leave the bar table Your Honour.
37 HER HONOUR: Yes, thank you Mr Johnson. This is not a smiling matter madam. I will ask you to leave the court if you think it is. Yes Mr Johnson.
38 MR JOHNSON: Your Honour thank you for that opportunity, I have explained it to Mr Lawson, he's explained it back to me in his own words, I'm confident he understands.
39 HER HONOUR: Thank you. Further I order that you undergo a forensic procedure for the taking of a forensic sample by way of a scraping from the mouth. I make the order because of the seriousness of the offending, because the order is not opposed and because it is in the public interest that the order be made. I should warn you that if you do not co-operate with the authorised member of the police force who is to take this sample then he or she may use reasonable force in order to obtain the sample from you.
40 In relation to each of the offences you are convicted and sentenced as follows:
Charge 1 5 months imprisonment
Charge 2 5 months imprisonment
Charge 3 5 months imprisonment
Charge 4 11 months imprisonment – this will be the base sentence
41 As you have now been convicted and sentenced to two sexual offences punishable by gaol you are thereafter to be sentenced as a serious sexual offender, which means that there is a presumption of cumulation. However, I do not sentence you disproportionately so as to protect the community. Also, because Charges 1 and 2 are separate instances of offending, I intend to make some orders for cumulation in respect of these also.
42 I direct that 2 months of the sentences on Charges 1, 2 and 3 be served cumulatively with each other and with the sentence on Charge 4 giving a total effect sentence of 17 months imprisonment which will be wholly suspended for a period of 2 years. If you commit a further offence in the next two years which is punishable by gaol then unless you can show exceptional circumstances as to why you should not go to gaol for 17 months straight away, then this is what will happen.
43 Do you understand that Mr L.S.G?
44 OFFENDER: Yes.
45 HER HONOUR: If not for your pleas of guilty I would have sentenced you to a total effective sentence of 20 months imprisonment and you would have been required to serve 5 months immediately with 15 months suspended for two years.
46 Take a seat please Mr L.S.G.
47 Is there anything further counsel?
48 MR O'HALLORAN: Nothing arising Your Honour.
49 MR JOHNSON: No Your Honour.
50 HER HONOUR: All right, thank you, we will now adjourn.
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