Director of Public Prosecutions v La

[2014] VCC 129

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-01520

DIRECTOR OF PUBLIC PROSECUTIONS

v

LA

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 2014
DATE OF SENTENCE:	10 February 2014
CASE MAY BE CITED AS:	DPP v LA
MEDIUM NEUTRAL CITATION:	[2014] VCC 129 – First Revision

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Indecent assault – Plea of guilty - Father/daughter historical offending – Major depressive disorder

Legislation Cited: Sex Offenders Registration Act 2004

Cases:R v Verdins (2007) 16 VR 269 – First Revision

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantonio	Mr C. Hyland, Solicitor for Public Prosecutions
For the Accused	Mr P. Matthews (Plea) Ms J. Caust (Sentence)	Lewenberg & Lewenberg

HER HONOUR:

1LA, you have pleaded guilty to three charges of indecent assault upon your daughter, LAL. At the time you committed these offences, the maximum penalty for this offence was five years imprisonment. Had you committed these offences in more recent times the maximum penalty would have been much higher.

2The charges are representative in nature, which means that I must sentence you in respect of the occasion concerning each charge which has been nominated by the Crown as that which they rely on for the purposes of sentencing. I am unable to inflate any sentence imposed to allow for the other occasions which are represented by the sample offence. However, I must also sentence you on the basis that the three sample occasions were not isolated, lest it be said that they were; and I allow for the impact which all of your offending, encapsulated in the charges, has had upon your daughter, the victim.

3Your offending was opened by the Crown as follows: The offending occurred between 24 August 1986 and 31 December 1987 at Balwyn and Doncaster.

4You were aged between 38 – 40 years at the time of the offending and you are the biological father of the victim.

5The victim was born on 4 September 1981 and was aged between five and six years at the time of the offending. Between the ages of three and eight years the victim suffered from selective mutism. She stated “I remember as a very little girl my father and I had a special time alone where no one else was around. The sexual abuse that was to unfold, my father told me was our own secret. He got into my head ‘this is our secret’ and you’re not allowed to tell anyone.”[1]

[1]    Statement of LAL paragraphs 3, 10-11; Statement of AC paragraph 5.

6The Crown did not put that your offending caused this condition of selective mutism, nor could they have in light of the commencement time of this condition and the first alleged offence. Further, I do not sentence you on the basis that you knew your child had the condition, and exploited this in the course of your offending.  The Crown did not advance this and I do not sentence you on that basis.

7The victim lived with her parents and siblings - that is, lived with you, her mother and siblings - at the family home in Balwyn. The offending occurred at the family home and outside the Doncaster Library.  

8The circumstances of the offending were obtained from three sources of evidence I was told:  that is, from the victim herself, the victim’s mother - that is your wife at that time (AK), and from you in your record of interview.

9Charge 1 – Indecent assault

10In relation to Charge 1, this is a representative charge which concerns two occasions, the first of which was relied upon for the purposes of sentencing. One occasion occurred at the family home in Balwyn and I believe another occurred in Doncaster.

11On 24 August 1986 at 8.00 a.m., your then wife, Mrs AK, heard you reading to the victim in her bedroom. She thought this was out of character and after a while the reading had stopped and there was silence. She went to the victim’s room to investigate as she had concerns. Upon entering the bedroom she saw you and the victim in the bed and pulled back the bedding. She saw the victim lying on her stomach with her pyjama pants removed. You were naked on top of her thrusting your penis between her buttocks and upper legs, with your hands either side of the victim so that your full weight was not on top of her. Mrs AK told you to “get out”. You were pale and shaking and appeared stunned.

12Mrs AK contacted your sister, LM and told her what she had seen. You, Mrs AK, your sister and her husband discussed what had happened. You said that you did not have a sexually fulfilling relationship with your wife, so you and she decided that you should attend counselling to save the marriage. Between 8 October 1986 and 17 December 1986, you, Mrs AK and/or the victim attended a number of counselling sessions.[2]

[2]    Statement of AK paragraphs 8-13;

13Your sister said in her statement, that during this period, you did not admit to her that you had engaged in sexual activity with the victim.[3]

[3]    Statement of LM paragraph 12.

14The victim stated that “things still happened after my mum had seen him in my room but I did not tell her as he had ingrained in my head that it was our secret”.[4]

[4]    Statement of LAL paragraph 5.

15On another occasion, in the late afternoon on a Saturday, you drove the victim and her two brothers to the Doncaster Library. You parked your car in a darkened area of the car park and told the boys to go to the library while you and the victim waited in the car. When the boys had left, you reclined the front seat back and removed the victim’s bottom clothing and told her to lie on her stomach. You then thrust your penis between the top of the victim’s legs against her vagina for a short period of time.[5]  

[5]    Statement of LAL paragraph 8; Statement of LP paragraph 1; ROI Q&A 188-233.

16Charge 2 – Indecent assault

17In relation to Charge 2 this concerns two occasions of offending, the first of which is relied upon by the Crown for the purposes of sentencing.

18Both occasions occurred at the family home in Balwyn between 4 September 1986 and 31 December 1987.

19On an occasion between 4 September 1986 and 31 December 1987, you were at home alone with the victim. You and the victim were playing “doctors and nurses”. You told the victim to take her clothes off except for her underpants. The victim lay on her bed and you stroked her vagina for about five minutes over her underwear. You believed at that time that the victim found it “pleasurable”.[6]

[6]    ROI Q&A 45-82.

20On a second occasion, a few weeks later, you and the victim again played “doctors and nurses”. It was probably a Saturday afternoon and no one else was home. You told the victim to take her clothes off. She lay on her bed and you rubbed one of your hands over her stomach and stroked her vagina under her underwear for approximately five minutes.[7]

[7]    ROI Q&A 33-35, 83-100.

21Charge 3 – Indecent assault

22In relation to Charge 3, this charge concerns four occasions, three of which occurred at the family home in Balwyn and the fourth occasion at Doncaster between 4 September 1986 and 31 December 1987. The Crown relies on the last occasion at Doncaster for the purposes of sentencing.

23In relation to the first occasion, on an occasion between 4 September 1986 and 31 December 1987, a month or so after the offending detailed previously occurred, you were at home with the victim.  You and the victim were playing “doctors and nurses”.  You told the victim to take off her clothes and lay on her stomach on your bed. You then used your finger to play with her anus for about ten minutes. You believed the victim enjoyed it. No one else was home at the time.[8]

[8]    ROI Q&A 108-179.

24This type of offending - that is using your finger to play with the victim’s anus - occurred on another two occasions at the victim’s home.[9]

[9]    ROI Q&A 178-179.

25On the fourth occasion, you drove the victim to the Doncaster Library. You parked your car in a darkened area of the car park and asked her if she would like you to play with her anus. You reclined the front passenger seat and instructed her to turn over onto her stomach. You then pulled down the victim’s underpants and used your finger to play with her anus for about ten minutes. You told police that at that time you believed the victim was enjoying herself.[10]

[10]   ROI Q&A 187-233.

26Other matters

27In relation to other matters referred to by the Crown in their opening, I was told by way of background and surrounding circumstances, that LP (that is the victim’s brother and your son) recalled on Saturday afternoons, when Mrs AK was at church, you told he - that is LP - and his brother LM to stay out of the victim’s room and leave you alone, to play outside and not disturb you and the victim.  Also, LP recalled going to the Doncaster library with LM, you and the victim.  He said that you would drop them off at the front and go to the car park to listen to the radio with the victim.[11]

[11]   Statement of LP paragraphs 8 and 11.

28Mrs AK, you and the victim continued counselling sessions (both for the victim and for the marriage) in 1987 to January 1988, with numerous doctors and counsellors. The victim attended counselling at CASA in 1997 in relation to nightmares she was experiencing. Mrs AK and you separated on

[12]   Statement of AK paragraphs 24-30, 36 -7

13 January 1988.[12]

29The offending ceased when you and Mrs AK separated, with you leaving the family home.[13]

[13]   Statement of LAL paragraph 9

30In 1998, the victim told a school friend about the sexual abuse and in 2000 she told another school friend about this.[14]

[14]   Statement of LAL paragraph 13; Statement of BELSKI; Statement of LIN.

31The matter was reported to police on 17 July 2012.

32You were arrested and a record of interview was conducted on
15 November 2012.

33You made admissions to the offending and provided details.  Further, you stated to police:

34“……..in relation to A’s complaint it was …a play thing for... on about 6 occasions. …it involved playing doctors and nurses... and it developed into playing with her anus… approximately six to eight occasions”[15]

[15]   ROI Q&A 21-4, 36.

35You also said to police: "she" referring to the victim "would have been about 5 or 6...” and you agreed that the offending went on for about 15 months, mainly on Saturdays when you and she were alone.[16]

[16]   ROI Q&A 32, 155, 166, 263, 272-7.

36You said: “K [sic] picked up that something was wrong... accused me of touching her, which I admitted… then she said ‘don’t do it again’ and I did it a couple of more times after that” and later on you said ”so K [sic] suspected… so I admitted that I had played with her anus… four or five times by that stage… I did it twice more after that and then K [sic] said “Well look I think you better go”.[17]

[17]   ROI Q&A 36, 137-9, 142, 175, 236.

37You also said:  “I thought it was a bit of pleasure for both of us… playing down there”.[18]

[18]   ROI Q&A 154 and 529-533 and 556-559.

38When asked the reason for your offending, you said “my marriage was very stressful…a lot of pressure in the relationship, which I finally cracked under and… found solitude in playing doctors and nurses… used the doctors and nurses as an escape” as you said you were not getting sexual gratification from the marriage.[19]

[19]   ROI Q&A 247-51 and 568.

39In relation to the offending on 24 August 1986, you said:  “I’d had a bit to drink… I had been reading a book to A... K [sic] thought… inappropriately… with my hand on her bedspread… K [sic] said something which I denied… I think that’s when she started to watch me more.” You denied being under the covers and having your penis between the victim’s legs, and later said that you did not remember the incident as Mrs AK had described it.[20]

[20]   ROI Q&A 254-5, 414-453 and 549-554.

40Further, you said that the victim called you into her room and that it was not out of character for you to read her a book.[21]

[21]   ROI Q&A 519-523.

41In relation to the ‘doctors and nurses’ game, you said:  “…it’s a children’s game… in a stressful relationship and A was our last child… just felt stresses… so I had that little play… just a very pleasant suggestion of a game…” and you further said “it was just playing but it developed into… a little bit further… initially I thought it was just a fun thing to do but then when it got to the eighth time, I realised that – yeah, eventually I just stopped.”[22]

[22]   ROI Q&A 269-270 and 525-527.

42You admitted the two occasions at the library on Wednesday nights, but said you went to the library alone with the victim.[23]

[23]   ROI Q&A 279-282, 333-432.

43You agreed that you told the victim it was “our little secret" and you said "I didn’t want her to tell her mother so I’ve said “its our little secret.  Full stop.”[24]

[24]   ROI Q&A 306-316.

44When the offending at the library, which gives rise to part of Charge 1, was put to you, you said:  “I thought it was my finger, I’ll have to think about that one”.  Initially you agreed with the victim’s account but later maintained it involved your fingers.[25]

[25]   ROI Q&A 344-346 and 544-546.

45You said that you were not aware that the victim suffered from selective mutism.[26]

[26]   ROI Q&A 356-364.

46Mr LA, your offending is most serious, especially in view of the fact that your child was of tender years when you committed the offences, and that you were significantly older than she. Also, it is an aggravating feature of your offending that you grossly breached the trust of your child who was entitled to look to you for love, care and protection. In relation to Charges 2 and 3 your moral culpability is heightened further by the fact that notwithstanding your offending became known to others after the first occasion which is the basis for Charge 1. You continued to offend against your child, swearing her to secrecy. Whilst it is true that the precise nature and quality of the counselling you received is not known, you knew that you had been caught offending against your child and that this had precipitated a discussion with your sister and others, and had led to counselling to address issues which apparently concerned you, your marriage and the victim. Notwithstanding this you continued to offend against your child.

47As your daughter’s victim impact statement reveals, your offending has affected her life most profoundly in a myriad of ways - infecting her personal relationships, her education, her career, her social skills, her ability to be intimate and she has struggled a great deal with her mother’s failure to protect her from you. To her immense credit, she has refused to give in and is making some significant inroads into the dreadful impact of your offending upon her. I also take into account the impact of your offending upon the victim’s mother, who has also struggled with what you did to her child, and no doubt is struggling with the way in which she dealt with the situation at the time.

48Your offending must be denounced and is deserving of the imposition of a just punishment in all of the circumstances. There is nothing which detracts from your moral culpability which I regard as high. I attach strong weight to general deterrence in a bid to deter others who might be tempted to behave as you did.

49In your favour, you have no prior convictions and in the 26 years since the offending you have not re-offended. Therefore you have used the intervening period to demonstrate that you have rehabilitated and the sentiments you expressed to Mr Newton, psychologist, indicate that you have appropriate insight into your offending and you have expressed remorse for it. You pleaded guilty at an early stage, having made significant admissions to the police. Indeed, your extensive admissions are the basis for Charges 2 and 3 on the indictment. Since the offending you have worked fairly solidly and have remarried; your wife was in Court to support you and it appears that her family is supportive of you. In light of all of these matters I find that your prospects of rehabilitation are very good and that I need only place minimal weight on specific deterrence and the need to protect the community. It is to be hoped that in due course you can bring yourself to actually apologise to your daughter for what you have done - if, indeed, she is disposed to hear such a sentiment from you.

50In your favour I allow for a significant discount in the sentence that you would otherwise receive because of your early plea of guilty and the admissions that you made to police. Your early plea of guilty has meant that you have saved the witnesses, especially the victim, the trauma and time of giving evidence and you have saved the community the time and expense of contested proceedings.

51I also allow for the fact that you have already endured some punishment for what you have done, albeit that a good measure of this was caused by your own wrongdoing: you were ejected from the family home it would appear; you lost your family and friends and lost your job shortly thereafter. You suffered financially and also you have suffered severe mental health issues for a long time, although these appear to have been most acute shortly after your offending and again, more recently in January 2013 when you were admitted to hospital – I note that this was about two months after you gave the Record of Interview. You suffer from a major depressive disorder and when admitted to hospital recently, your condition was attended with psychotic features. You have engaged in suicidal ideation on a number of occasions and your treatment for your disorder has included electro shock treatment and medication. Mr Newton, psychologist, was of the view that at the time of the offending there were ‘two key attitudes’ as he put it, underpinning your offending - firstly, you confused filial affection and erotic attachment, which led you to develop a sexual interest in your daughter and to overcome taboos on incest. Secondly, your inadequate personality and lack of interpersonal skills meant that you weren’t able to find more appropriate ways of overcoming your sexual frustration and loneliness. Whilst these may help to explain your offending behaviour, they in no way excuse it, as you seem to appreciate.

52You have resumed your anti depressant medication; however, Mr Newton is of the view that you are still in a fragile mental state. I have factored in that any time in gaol for you would be more onerous than for someone without your condition and that you are at significant risk of deteriorating if incarcerated. Further, I have allowed for the fact that your concern for your wife, who is most dependent upon you, due to her own health issues, would add to the hardship that you would endure upon incarceration. I also take into account the concern that you have for your wife’s son in this regard and the difficulties that have arisen for you, your wife and her son and grandchild, when DHS intervened to protect the grandchild after you had been charged.

53I take into account your background which was referred to by Mr Matthews in the course of the plea hearing and which is set out in Mr Newton’s report. As a child you were bullied and you found school a miserable experience; you had low self esteem and were vulnerable to depression from an early age. I was told that you were shy and socially awkward, which has apparently contributed to your inability to apologise to your daughter. As I have said, you have a solid work history, only interrupted by the need for treatment for your mental health problems on occasion. You are now retired but contribute to the local community by attending gardening working bees every week in your municipality.

54I sentence you bearing in mind that sentences imposed at the time you committed these offences would have attracted lesser punishments than now and also bearing in mind the lower maximum penalty. However, I also must bear in mind current community attitudes to such offending, the seriousness of which is more clearly understood.

55I have factored in that the offending occurred over a period of 16 months and involved the same victim. You are to be sentenced as a serious sexual offender after Charge 2 which will be noted on the records; but there is no need to impose a disproportionate sentence. Although there is a presumption of cumulation in respect of Charge 3, a level of cumulation is also warranted in my view, as between Charges 1 and 2, to reflect the separate occasions on which you offended against your child. As I have said, such offending continued despite you being on notice, if you needed to be, but your behaviour had been discovered and was intolerable.

56I have considered the sentencing submissions of your Counsel and the learned prosecutor, Mr Matthews, who conducted an exemplary plea on your behalf.  He submitted that a wholly suspended sentence was appropriate in all of the circumstances including the matters put in mitigation. The learned prosecutor submitted that an immediate term of imprisonment was warranted, and when invited, she submitted that a range of between two and three years head sentence with a non-parole period of 12 to 18 months was appropriate. She submitted that the range was given, allowing for the matters raised in mitigation including relevant Verdins principles.

57I have given this matter long and anxious consideration. While there are strong mitigating factors in your case, I am afraid that your offending is just too serious to result in a wholly suspended sentence. However, in view of all of the matters put on your behalf I have come to the view that a sentence at the bottom of the Crown range is appropriate.

58Would you please stand up.

59First of all you are convicted of each of the charges.

60Firstly I will make the ancillary orders.

61Registration-Sex offenders Register

62     By reason of your convictions for 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 report these details within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you now by my associate.  I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.

63     Further I make an order for a forensic sample to be taken from you by way of a scraping from the mouth. I make the order because it is not opposed by you, because of the seriousness of the offences and because it is in the public interest to do so. Notwithstanding your present lack of opposition to the order I warn you that if you do not co-operate with the officer who is authorised to take the sample reasonable force may be used to ensure your compliance.

64You are sentenced to the following periods of imprisonment:

65Charge 1 - 18 months which will be the base sentence.

66Charge 2 - 14 months.

67Charge 3 - 16 months.

68I direct that two months of the sentence on Charge 2 and four months of the sentence on Charge 3 be served cumulatively with each other and with the base sentence, producing a total effective sentence of two years imprisonment. You are to serve 12 months imprisonment before becoming eligible for parole.

69If not for your pleas of guilty I would not be sentencing you on the basis of representative charges, but on individual charges for each occasion referred to in the prosecution opening, assuming that you were found guilty of each of these by a jury. On that basis, I would have sentenced you to five years imprisonment with a non-parole period of three years.

70HER HONOUR:  Take a seat please sir.  Is there anything arising out of the sentence?

71MS DIPIETRANTONIO:  Excuse me Your Honour.

72COUNSEL:  No Your Honour.

73HER HONOUR:  All right.  I will ensure that the authorities are advised of - - -

74MS CAUST:  Thank you.  Your Honour has just anticipated what I was about to say in relation to his - - -

75HER HONOUR:  - - -yes, of his mental health issues - - -

76MS CAUST:  Thank you Your Honour.

77HER HONOUR:  - - - and ensure that he is closely monitored.

78MS CAUST:  I appreciate that.  And Your Honour, just the medication Endep, if that could be noted as well:  25 mg a day.

79HER HONOUR:  Yes, all right.

80MS DIPIETRANTONIO:  One matter Your Honour, for the sake of the record.  Pre-sentence detention.  I appreciate there is none, but for the sake of the record.

81HER HONOUR:  There's nothing to declare, so - - -

82MS DIPIETRANTONIO:  Yes.

83HER HONOUR:  Yes, all right.  Thank you, you may remove the prisoner.

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