Director of Public Prosecutions v Lewers (a Pseudonym)

[2018] VCC 1773

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JASPER LEWERS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	21 May – 15 June 2018; 17 August 2018
DATE OF SENTENCE:	31 October 2018
CASE MAY BE CITED AS:	DPP v Lewers (a Pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1773

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – plea of not guilty – jury verdict – five charges of incest – two charges of indecent act with a child under sixteen – thirteen charges of common assault – one charge of make threat to kill – two charges of make threat to inflict serious injury – offending against biological twin daughters – no prior convictions – offending committed over a five year period – gross breach of trust – lack of remorse – serious sexual offender – delay – totality

Legislation Cited:     Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:DPP v G [2002] VSCA 6; DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148

Sentence:Total effective sentence of twelve years and three months’ imprisonment with a non-parole period of eight years and four months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Maguire	Solicitor for Public Prosecutions
For the Accused	Mr M. Page (Trial) Ms M. Carroll (Sentence)	Emma Turnbull Lawyers

HIS HONOUR:

1Jasper Lewers,[1] on 15 June 2018 you were found guilty by a jury of 23 charges of offending in relation to your twin daughters, Stephanie and Clara.[2] 

[1] ‘Jasper Lewers’ is a pseudonym.

[2] ‘Stephanie’ and ‘Clara’ are pseudonyms.

2Your daughters were born in 2003 in your country of origin, Ethiopia.  You fled Ethiopia due to the political situation on that very day, leaving your daughters and their mother behind.  For their first six years, they were raised by their mother in Ethiopia.  You arrived in Australia via South Africa in 2006, and commenced building a life here.  In 2009, you brought your daughters to Australia.  The dates of your offending run from 7 June 2010 to 17 October 2015.

3In relation to your daughter Clara, you were found guilty of 18 charges, comprising 11 charges of common assault (Charges 8, 9, 10, 11, 12, 13, 15, 17, 19, 20 and 28), one charge of making a threat to inflict serious injury (Charge 21), two charges of indecent acts (Charges 22 and 26), and four charges of incest (Charges 23, 24, 25 and 27).

4In relation to your daughter Stephanie, you were found guilty of five charges, comprising two charges of common assault (Charges 2 and 4), one charge of making a threat to inflict serious injury (Charge 1), one charge of making a threat to kill (Charge 7), and one charge of incest (Charge 5).

5The maximum penalties are:  common law assault, a term of imprisonment of five years; making a threat to inflict serious injury, a term of imprisonment of five years; making a threat to kill, a term of imprisonment of ten years; indecent act with a child under 16, ten years' imprisonment; and incest, 25 years' imprisonment.

6You have no prior or subsequent criminal convictions.

7I turn now to the circumstances of your offending.

8After your arrival in Australia and establishing a home here, you brought your twin daughters to live with you when they were aged six.  Shortly after their arrival, it seems that your offending against them commenced.

9The common assaults against your daughters included stepping on them whilst they were lying prone on the ground, punching and kicking them to the face and stomach, twisting their legs, kneeing them in the stomach, pushing their heads underwater when they were naked and taking a bath at your demand.

10The threats consisted in breaking every bone in Clara’s body if she ran away again, and in relation to Stephanie, whilst wielding a knife, threatening to cut her finger off, and holding a knife to her, threatening to kill her if she went out again without your permission.

11The sexual offending comprised digital penetration.  The sexual offending began in late November 2014, when your then-wife had returned to visit family in Ethiopia. 

12Clara was your first victim.  Her lips were dry, and you asked her to come to the bathroom so you could apply honey to them.  You put honey on her lips and then put honey on her tongue and started to kiss her.  This is the first charge of indecent act with a child under 16 (Charge 22).  You then removed her pants and underwear and digitally penetrated her (Charge 23).  The offence concluded with you saying, "Oh, you ate all the honey", and walking away.

13On the second occasion, when she was reading a book, you asked her to come to the toy room of your apartment and there you took off her pants and underwear and placed your finger inside her vagina, moving your finger slower and then faster (Charge 24).

14The third occasion of incest was when you had asked Stephanie to go down to the milk bar, and you again digitally penetrated your daughter Clara, moving your finger in and out, slower and then faster (Charge 25).

15The last occasion of incest committed against Clara was on 12 October 2015, when you asked her to come to the bathroom.  You removed her top and underwear, and again placed your finger inside her vagina, moving your finger in and out faster and then slower (Charge 27).  This time, you had your hand on her back, moving her body closer towards you.  You placed your tongue in her mouth, which represents the second charge of indecent act with a child under 16 (Charge 26).

16The single charge of incest committed by you against your daughter Stephanie occurred on Thursday 15 October 2015, when your daughters had their cousin staying in their room.  Stephanie had cut her finger and needed a bandage for it.  You told her to come to you when her sister and cousin were asleep, and she did as she was told.  When she came to your room, you whispered in her ear, “This is for experience. I’m just getting you ready.”  You then placed your finger inside her vagina (Charge 5) and started kissing her on the lips, saying to her, “I’m just helping you. I’m just teaching you.”  It hurt Stephanie.  She felt a burning sensation. 

17The threat to kill made against Stephanie (Charge 7) was made by you on the following Saturday after the girls had been out with their cousin and your now-separated second wife.  When they arrived home, your wife interceded on their behalf, clearly seeing that you were angry.  After she had left, you gave full effect to your rage that your daughters had disobeyed you.  This, it seems, was the last straw for your long-suffering daughters, and on the following Monday they made a complaint to their school, having summoned up the courage so to do.

18You denied the offending, which was of course your right.  At your trial your daughters gave evidence and were each cross-examined over several days.  On 15 June 2018, the jury returned verdicts as outlined above. 

19Your daughter Clara provided a victim impact statement, Exhibit 2 on the plea.  She wrote:

"From the moment that he chose to make himself known as my father, he turned my life, the life of my sister and the life of my mother into a nightmare, a nightmare that we are continuing to live.  He never behaved as a father should.

From the moment we came to Australia, he made it clear to my sister and I that we were to become objects which he possessed.  I don't believe that he ever saw us as his daughters.  Slowly, I lost all hope of being rescued and believed that he would sooner or later kill us.

I lost my voice to speak out, because when I tried, I suffered more abuse and more violence.  At times, I feel angry.  I tried to be a good Christian and not feel angry, but he pretended to all the people at our church that he was a good Christian.  But he had this double life, and tortured me and used my body for his own needs.

I find it hard to see my body as anything good, and sometimes feel ashamed.  I want to have a family and children, but to have kids means that I have to be intimate with a man, and I struggle with this thought.

The physical and emotional scars are only part of the things he stole from me.  He stole hope, hope that I would have a future."

20Whilst of course, Mr Lewers, such a statement must not be permitted to overwhelm the sentencing process, there can be no doubt as to the lasting, indeed, potentially lifelong impact of your offending upon your daughters.

21I turn now to your personal circumstances.

22You were born in 1975 and you are now 43 years of age, and aged 35 to 40 during the offending period.  You were born and raised in northern Ethiopia, and you were one of five children.  You were primarily raised by your mother as your father resided in Addis Ababa, and rarely ventured north to visit his family.

23Your family was of Christian faith to which they strictly adhered.  Your family apparently flourished under the rule of Emperor Haile Selassie before your birth.  Following the overthrow of the imperial regime in 1975, the ensuing civil war presented far more difficult times for your family.  You reported having lost relatives and members of your community, and witnessed violence and brutality at the hands of the military.

24You moved to Addis Ababa in 1995 at the age of 20 and attended Addis Ababa University to study accounting. You began a relationship with Amina,[3] and at some stage during your relationship with Amina, you were also involved with another woman, Sara.[4] 

[3] ‘Amina’ is a pseudonym.

[4] ‘Sara’ is a pseudonym.

25After approximately eight years of living in Addis Ababa, you fled to South Africa in 2003 as your political activities had put you at risk.  You reported that you left Ethiopia on the same night that Sara gave birth to your twin daughters, Stephanie and Clara.  Amina joined you in South Africa and you married there.  The two of you moved to Australia in 2006 on humanitarian visas and had a daughter, Felicity,[5] around 2008.  You returned to Ethiopia in 2009 to collect Stephanie and Clara and bring them to Australia.

[5] ‘Felicity’ is a pseudonym.

26In Australia, you completed a Masters of Accounting.  You worked for a financial institution from 2011 up until entering custody in June of this year.

27Your mother passed away in 2006 and your father is alive and living in Ethiopia, but is in ill health.  You reported that you were supporting him prior to your incarceration on these matters.  Three of your siblings remain in Ethiopia, and the fourth is here in Australia.  You separated from Amina in 2015 in the wake of Stephanie and Clara’s disclosures of your offending.

28Tendered on the plea was a bundle of references (Exhibit 5), all speaking of your high standing in the Ethiopian Australian community and in your church.  Mr Lewers, you have clearly worked hard to establish yourself in your new country.  Your public persona is of a man held in great regard, but clearly, behind closed doors, another side of your character emerged; a man who was controlling, angry, violent, and one who sexually preyed upon his own flesh and blood.

29A report from Mr Ian Mackinnon, consultant psychologist dated 11 August 2018 (Exhibit 4), found in you no psychological disorder or abnormality of thinking.  You continued to deny the offending, maintaining that the Department of Health and Human Services had waged a campaign against you.  You have apparently been assaulted in prison whilst awaiting sentence.  Mr Mackinnon's opinion was that your offending was essentially contextual, and that whilst “He will continue to pose some level of risk to children in his care or in his close company, he does not appear to pose a high level of risk of reoffending to children and young women in general.”  Mr Mackinnon observes that you do not appear to be well-equipped for parenthood, and significantly, your continued denial precludes you from engaging in offence-specific therapy and treatment. 

30Mr Mackinnon concludes that you are likely to find the prison environment especially arduous and distressing.  Since being remanded, you have already been the victim of physical assault on several occasions, and you face enormous social and cultural barriers in the prison system which will make your adjustment to a custodial setting more difficult than others who do not share your cultural background.

31Mr Maguire, on behalf of the prosecution, submitted correctly that the only appropriate disposition was a term of immediate imprisonment.  He referred me to recent decisions of the Court of Appeal for cases of incest as an indication of current sentencing practices. 

32He conceded, most fairly, that your prospects for rehabilitation could be viewed as generally positive.

33He conceded there was a delay between you being interviewed in relation to this matter at the end of October 2015 and being charged nearly two years later, a delay to which I should afford some weight. 

34He rightly described your offending as a course of serious criminal offending committed over a five-year period.  The offending constituted a gross breach of trust and parental responsibility, occasions of incest and indecent acts, punctuated by threats and physical assaults.  The regime of physical violence perpetrated by you was the context in which the sexual violence was enabled and in which it occurred. 

35He submitted that you demonstrated a complete lack of remorse.  Of course, the fact that you continued to deny this offending cannot in any way aggravate the objective gravity of your offending; it does mean, however, that there is no mitigation in this regard.

36Mr Maguire submitted that the primary sentencing purposes were general and specific deterrence, denunciation, and just punishment. He reminded me of the provisions of s.6 of the Sentencing Act 1991, and that, as you were to be sentenced as a serious sexual offender, primacy in sentencing purpose must be given to protection of the community.

37Mr Page, counsel on your behalf, accepted that the inevitable disposition was a substantial term of imprisonment.  He accepted that protection of the community was the primary sentencing purpose under the legislation, and that general and specific deterrence and denunciation were also to the fore.

38He accepted the absence of remorse and the impact this may have had on your prospects of rehabilitation.  I regard your complete denial of the offending as inevitably throwing a question mark over those prospects. 

39He pointed to your prior good character, although, as I understood it, he recognised this carries less weight in intrafamilial sexual offending of this nature.

40He pointed to the support of your community, which you still enjoyed. 
He identified this as a protective factor for the future. 

41He reminded me of your personal history, of you having to flee your native land, how you arrived in Australia as a refugee, and of how you had worked hard to build a life here.

42He urged upon me the delay between your original interview and your being charged, during which time you have been separated, not only from your victims but also from your younger child, Felicity.   I will give such weight as I can to that matter.

43This will be your first time in custody, and although you are fluent in English, Mr Page submitted you will be culturally isolated.  It does seem, however, from the material provided to me, that you will continue to have the support and visits from members of your community. 

44He accepted protection of the community as the primary sentencing factor, and urged a sentence that reflected the seriousness of the offending yet paid sufficient regard to the principle of totality.

45Mr Lewers, you have been found guilty of most serious offending.  You sought to exercise complete control over your daughters.  When your daughters displeased you in the slightest degree, when you perceived that they disobeyed you, when you felt they did not apply themselves sufficiently hard to their studies, you would punish them.  This punishment went far beyond any lawful chastisement and became, in my view, systematic and persistent child cruelty.  Your daughters lived in fear of you. 

46These years of violence perpetrated against your daughters alone represent a gross breach of parental duty and care.  Your daughters were entitled to look to you for love and for caring guidance.  Instead, you took them from their motherland, brought them to your home, where they were in effect prisoners.  You reduced them to the status of mere possessions.  That was not an end of your degradation of them, for the family violence became merely the prelude for the sexual crimes committed by you against them.

47In the case of DPP v G [2002] VSCA 6, President Winneke observed that:

"This court has in recent years had course to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims.  It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes.

The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care, and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge.

Parents who fail to exercise the restraint which the community expects of them and to give into their own sexual gratification must expect to be severely and appropriately punished."

48In the case of DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, the Court observed:

"Incest is a crime of violence and must be so regarded.  General and specific deterrence and denunciation must be given their proper emphasis.  The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus.  Sentences must be commensurate with the seriousness of the breach of parental responsibility involved."

49The incest charges of which you have been found guilty consisted in digital penetration.  Digital penetration is not to be viewed as a lesser form of the crime of incest.  It is merely absent some of those features which may raise the objective gravity of the offending.

50You offended against your two daughters in their own home, which they shared with you, their natural father.  They should have felt safe there.  Instead, they were subjected to your sexual perversion.  Your acts constitute a gross breach of trust and a fundamental abuse of parental authority, and a fundamental betrayal of the relationship between father and daughter.  The offences of incest were not momentary, although I cannot make a finding as to how protracted they were.  In relation to your daughter Clara, the incest offences were committed over a one-year period against a background of a history of family violence.  You then violated Stephanie, and when they stayed out without your permission, leading you to fear that they had spoken of your crimes, you inflicted yet more violence upon them, seeking to ensure their continued silence.  Fortunately, they found the courage and strength to tell the school of what you had made them endure. 

51In sentencing you, Mr Lewers, I must have regard to a range of different factors.  I must protect the community from you.  I must give effect to principles of both general and specific deterrence.  I must deter others from behaving like you did, and I must deter you from any repeat of such behaviour.  I must express the community's denunciation of your conduct.  I take into account the effect your crimes have had upon your victims, and I must have regard to both current sentencing practices and the maximum penalties imposed by Parliament for the kind of offence that you have committed.  I should also promote, if possible, your rehabilitation.  In short, I must try to balance your personal circumstances with the circumstances of your offending.

52Clearly, protection of the community, general deterrence, specific deterrence and denunciation are the primary sentencing considerations in this case.  I give such weight as I can to the mitigatory factors to which I have been referred.  However, as has been accepted by your counsel, the only possible disposition in your case is a substantial term of imprisonment.

53If you could stand up, please, Mr Lewers.

54On Charge 1, making a threat to inflict serious injury, Charge 2, common assault, and Charge 4, common assault, you are sentenced to an aggregate term of nine months' imprisonment.

55On Charge 5, incest, you are sentenced to a term of imprisonment of five years.

56On Charge 7, making a threat to kill, you are sentenced to a term of imprisonment of six months.

57On Charges 8, 9, 10, 11, 12, 13, 15, 17, 19, 20, all charges of common assault, and Charge 21, making a threat to inflict serious injury, you are sentenced to an aggregate term of 33 months' imprisonment.

58On Charge 22, indecent act with a child under 16, you are sentenced to a term of nine months' imprisonment.

59On Charge 23, incest, you are sentenced to a term of imprisonment of five years.

60On Charge 24, incest, you are sentenced to a term of imprisonment of five years.

61On Charge 25, incest, you are sentenced to a term of imprisonment of five years.

62On Charge 26, indecent act with a child under 16, you are sentenced to a term of imprisonment of nine months.

63On Charge 27, incest, you are sentenced to a term of imprisonment of five years.

64On Charge 28, common assault, you are sentenced to a term of imprisonment of six months.

65I direct that three months of the aggregate sentence imposed on Charges 1, 2 and 4, two years and three months on the sentence imposed on Charge 5, three months of the sentence imposed on Charge 7, 15 months of the aggregate sentence imposed on Charges 8, 9, 10, 11, 12, 13, 15, 17, 19, 20 and 21, one year of the sentence imposed on Charge 24, one year of the sentence imposed on Charge 25, one year of the sentence imposed on Charge 27, and three months of the sentence imposed on Charge 28, are to run cumulative to each other and cumulative to the sentence passed on Charge 23.

66This makes a total effective sentence of twelve years and three months’ imprisonment. 

67I fix a non-parole period of eight years and four months.

68Pursuant to s.18(1) of the Sentencing Act 1991, I declare that you have served 139 days of the sentence that I have passed upon you today, and I direct that that be entered into the records of the Court.

69On Charges 23, 24, 25, 26 and 27, you are sentenced as a serious sexual offender. Pursuant to s.6F of the Sentencing Act, I direct that this be entered into the records of the Court.

70Pursuant to the provisions of the Sex Offenders Registration Act, you are mandated to register.  The registration period is life.

71Ms Carroll, are there custody management issues?  I will note that this will be his first time in custody.  I note the potential cultural isolation and the differences.

72MS CARROLL:  Yes, and I just ask that he receive some medical attention today, if that could be noted, to be seen by a doctor.

73HIS HONOUR:  Ms Carroll, in terms of the precepts of his faith, does he need particular access to facilities for prayer?

74MS CARROLL:  There's nothing that's been raised that hasn't been addressed during his remand.

75HIS HONOUR:  All right, thank you, Ms Carroll.  Now, there is also a forensic order that is sought.

76MR MAGUIRE:  Yes, Your Honour. 

77HIS HONOUR:  Mr Lewers, I am making an order today which enables the authorities to take your DNA sample.  That is done by taking a buccal swab, which is putting a Q-tip into your mouth and taking a swab of your saliva.  I am making the order because the seriousness of the circumstances of the offending, in my view, warrants the taking of a DNA sample which is then placed on a database and which is used in future as an investigative technique.  If, when the authorities turn up to take the sample, you refuse to provide them with the sample, then they can use such force as is reasonably necessary to take the sample.

78Ms Murphy is going to come to you with a document which explains your reporting requirements under the Sex Offenders Registration Act 2004. I am sure Ms Carroll will explain them to you. Upon your release, you have to present at a police station and provide personal details. Failure to provide that information is a criminal offence which is almost always prosecuted and which courts view very seriously. All you are doing today is signing to acknowledge that you have received notice of your reporting obligations.

79Thank you, counsel, for your assistance.

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