Director of Public Prosecutions v Little
[2012] VCC 259
•8 March 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| JAMES DAVID LITTLE (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2012 | |
DATE OF SENTENCE: | 8 March 2012 | |
CASE MAY BE CITED AS: | DPP v Little | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 259 | |
REASONS FOR SENTENCE
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Catchwords: multiple charges of incest and committing indecent acts with two stepdaughters under 16; early plea of guilty, clear indications of remorse; accused undertook psychological treatment voluntarily and achieved improved insight into offending; delay of ten years because of family decision not to report to police; no prior convictions or further offending; good prospects for rehabilitation; importance of general deterrence; gross breach of trust; aggravating features.
Note: A pseudonym has been used to avoid identification of the complainants.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P O’Halloran | |
| For the Accused | Mr N Nicolosi |
HER HONOUR:
1 James David Little[1], you have pleaded guilty to four charges of incest and four charges of committing an indecent act with a child under the age of 16. The children concerned were your two step-daughters. You committed these offences over an undetermined period of time between January 1999 and December 2001.
[1] pseudonym
2 Even if the shortest possible duration within that time is considered as the offending period, it remains the fact that you committed the offences over a relatively long period, long enough to have taken stock of such serious wrongdoing and ending it.
3 The older girl was aged between 12 and 15 years at the relevant time and the younger girl was aged between 10 and 13. They are the daughters of your wife at the time, by whom you had two sons. The older girl believes that the offending ceased when she first got a boy friend.
4 When she was about 13, the family was staying in a holiday house, when your wife became unwell and you drove her home. You returned to the holiday house and encouraged both girls to drink alcohol. The older girl became drunk and vomited and while she was in this state, you attempted to put your hands down the front of her pants. She went to have a shower but you remained in the bathroom and she was not prepared to undress with you there. You only left when she said she would shower fully clothed if you remained. After her shower, she changed into pyjamas and went to bed in the top bunk, in the same room as the other children. You entered the room, grabbed her by the arm and took her to another room and directed her to get into the bed in that room. She did so. You then placed your hands down the front of her pants, placed your finger between the lips of her vagina and rubbed her clitoris. She tried to roll away but you told her to get back into the bed, where you held her, while you continued to touch her. This is Charge 1.
5 Some time later at the family home, the girl awoke to find you doing the same thing. She pushed you away and you twice attempted to move back towards her but were again pushed away. This is Charge 2.
6 On another occasion, you placed your hand on her vagina, while she lay in bed, which is Charge 3.
7 On the same occasion, you did the same thing to the younger child, who awoke and pushed you away. That is Charge 5.
8 Some time after these two instances of offending, you went into the older girl's bedroom when she was sleeping, placed your hand on her bottom, then removed her underwear and penetrated her vagina with your finger. That is Charge 4.
9 On a further occasion, the younger girl awoke to find you kneeling by the side of her bed, with your hand down her pants. You had moved your finger in between the lips of her vagina and rubbed her clitoris. This is Charge 6, a representative count and it included two further occasions when you did the same thing to her, when she was about 12.
10 On one of those further occasions to which Charge 6 refers, involving the younger child, you rubbed her breasts and nipples under her pyjama top and that is Charge 7.
11 You then touched the area in between her buttocks, with your hand down her pants, for approximately three to five minutes. That is Charge 8.
12 Both the complainants reported the offending to the police in July 2011, following which you were interviewed and made a number of admissions. You volunteered the offending, which is the subject of Charge 3, about which the complainant had made no disclosure. Similarly, in respect of Charge 4, you admitted that behaviour, of which she had not complained. As to Charge 5, you also admitted to that offending, which the younger complainant had not disclosed.
13 In her victim impact statement, which was provided to the court, the younger complainant described her feelings as a child, when these offences were occurring. She wrote that she was scared and didn't know what to do and considers that you stole her childhood from her. She wrote that the abuse had had a long lasting affect upon her and that she now feels better having told the police and knowing that you are being dealt with. She stated that her mother had been unable to protect her because of her chronic illness. Clearly this made the girls vulnerable and your offending was a gross breach of the trust placed in you as their stepfather.
14 I turn to your personal background. You are now aged 44 and were aged about 32 when you began offending. You grew up as one of two sons in an intact family and you consider that you had a happy childhood, but that your father set exacting standards, which you often could not meet. You craved his approval and often felt inadequate. When these offences were disclosed, you told police and your then wife, that your father had sexually abused you as a child. You later admitted this was not true and you regretted having tried to use this as an excuse for your behaviour. Your father died when you were a young man and this loss was followed soon afterwards by the suicide of your uncle, who had become a father figure to you.
15 You had completed secondary school, but were disappointed that an eyesight problem prevented you from entering the Air Force. You had a very good employment record, but over the years, you found your work in marketing difficult and unsatisfying and you lost the motivation. The woman you married had two daughters from her first marriage, the complainants in this matter.
16 When you experienced difficulties in your work, you and your wife suffered bleak financial times and during those years, your two sons were born. Unfortunately, your wife suffered from a chronic pain condition, which ultimately contributed to the loss of her support and the marriage deteriorated. You told your psychologist, Dr Forrester, that it was within this context, that the offending commenced and continued.
17 After the disclosure of the offending in 2002 and the decision not to report it, attempts were made to salvage the marriage but it ended in 2004, when you were asked to leave the family home. You are now re-married and in full knowledge of your offending, your wife is a significant source of support for you.
18 You pleaded guilty at the committal hearing in December last year, which proceeded by way of a straight hand-up brief, and that early plea will be taken into account by way of a considerable discount on your sentence. You are entitled to that discount because you have expedited the progress of the case and have thereby assisted the criminal justice system. Importantly, you have saved the complainants and their mother, from having to give evidence in court.
19 The fact that a decade has passed without any further offending by you and that you have no prior convictions, are matters that go to your credit. You have expressed your remorse and following your voluntary participation in psychological counselling, you appear to have developed insight into the reasons for your offending and its effects upon the complainants. Dr Forrester diagnosed you as being depressed but having improved. She thought you may have been depressed at the time of these offences and that that may have contributed to your poor decision making. She also diagnosed paedophilia as having been a feature of your psychology at the time of the offending, but that is no longer the case, after ten years, and you have no further sexual interest in young girls. Dr Forrester noted that excessive drinking may also have contributed to your offending.
20 She made an assessment of the risk of you offending in this way again. Her opinion was that currently, the absence of sexually deviant interest and excessive drinking, as well as the consideration of various other factors, place you at low risk of sexual offending. She thought this could change, if some previously identified risk factors became relevant once more, such as social isolation and unhappiness in the workforce.
21 In relation to very serious charges such as these, general deterrence is a matter of great importance. The community regards such criminality with abhorrence, because it offends against fundamental beliefs as to the need for children to be protected. The community needs to know that people who are entrusted with children, will not breach that trust, and if that breach occurs, it is an aggravating feature of the criminality and such an offender must be required to serve a substantial punishment.
22 In your case, specific deterrence is a sentencing requirement that perhaps carries less force. You have not offended again over a long period and your prospects for rehabilitation are good. You have never demonstrated any other forms of anti-social behaviour and although abuse of alcohol at the time of the offending, perhaps caused you to be disinhibited, and indeed you deliberately drank excessively for that purpose, alcohol has not continued to be a problem for you. I take these matters into account in applying some leniency.
23 According to Dr Forrester, you have been anxious to understand why you offended and you were very open to psychological assistance and the development of insight. You are keen to undertake sex offender education when in custody. Your neighbour gave evidence that you regret what you did and are sorry that the girls suffered and that your sons are suffering now with the knowledge of it. These attitudes of yours and your empathy and regret, are all matter that augur well for your rehabilitation and that is an important matter that I take into account again, in exercising some leniency.
24 The long delay which has occurred, was brought about by your own decision to comply with family wishes that the matter not be reported to the police, when the children disclosed the offending to their mother in 2002. When it was reported last year, the matter progressed very quickly. So although the delay was through your own actions, you have nonetheless had the matter on your conscience over those years and I place some slight weight on that.
25 You have been living with your wife and her teenage son. The Department of Human Services has investigated and assessed any risk you might pose to him and also to your sons, who live with their mother. The Department has concluded the investigations and determined that they need no longer be involved with either family.
26 You are permitted to have contact with all three boys, but your sons have decided against contact at this stage. The outcome of those investigations contributes towards the reduced risk of re-offending and your prospects for rehabilitation.
27 In sentencing you to terms of imprisonment for all of these charges, I note that for each charge following the second, you are to be sentenced as a serious sexual offender, in accordance with s.6B(2) of the Sentencing Act, 1991. I shall cause that to be noted on the court record and I also note that the prosecution does not seek a sentence for these charges, longer than that which is proportionate to the gravity of the offences.
28 As to the requirement for cumulation, I shall make appropriate orders for cumulation in due course. In doing so, I have had regard to the principles of totality and proportionality in ensuring as far as possible, that the sentence will not be crushing upon you.
29 I will ask you to stand now, please, Mr Little.
30 Perhaps I can say this to counsel. I have prepared a summary of the particular sentences and orders for cumulation. There are some typing errors there but my Associate has kindly amended them. You can have those just for your assistance.
31 MR NICOLOSI: Thank you kindly, Your Honour.
32 HER HONOUR: Mr Little, for Charge 1, incest, committed against the older girl, the term of imprisonment will be five years. As I said earlier, you got her drunk and then used manipulative behaviour to humiliate her in the bathroom before she went to bed. You then held her on the bed, while you continued to touch her, after she had tried to get away, which is an aggravating feature and deserves greater punishment.
33 For Charges 2 and 4, further charges of incest, involving the older girl, four years for each charge.
34 For Charge 3, committing and indecent act against the older girl, two years. For Charges 5, 7 and 8, charges of committing indecent acts against the younger girl, two years for each charge.
35 For Charge 6, a representative charge of incest, involving the younger girl, with reference to three different occasions, six years.
36 I make the following order for cumulation. The sentence for Charge 6 will be the base sentence. Six months of the sentence for Charge 1, five months of the sentences for Charges 2 and 4 and two months of the sentences for Charges 3, 5, 7 and 8, are to be served cumulatively upon the base sentence. That results in a total effective sentence of eight years. I order that you serve a minimum period of five years, before being eligible for parole.
37 Under s.6AAA of the Sentencing Act, I am required to state the sentence I would have imposed if you had pleaded not guilty to these charges. I would have sentenced you to ten years imprisonment, with a non-parole period of seven years. Pursuant to the Sex Offender's Registration Act, 2004, you will be required to report to the police and provide your details each year for the rest of your life.
38 The prosecution seeks an order for a forensic sample to be obtained from you. I understand there is no opposition to that but I will check that with Mr Nicolosi.
39 MR NICOLOSI: No, that's correct.
40
HER HONOUR: Thank you. I must advise you, Mr Little, that the police have the power to use reasonable force to obtain a sample of saliva, but I trust that will not be necessary. Just take a seat for a moment please,
Mr Little.
41 My Associate will take the sex offender registration form to your client now, Mr Nicolosi.
42 MR NICOLOSI: Thank you.
43 HER HONOUR: And ask him to sign that.
44 MR NICOLOSI: Your Honour, the only other matter might be the three days of pre-sentence detention.
45 HER HONOUR: Thank you very much, yes, I had not taken that into account. Mr Little, I add one thing and that is, you have been in custody now for three days. That will be taken into account and reckoned as time already served.
46 THE PRISONER: Thank you, Your Honour.
47 HER HONOUR: Are there any other matters?
48 MR NICOLOSI: No, Your Honour.
49 MS ELLUL: As Your Honour pleases.
50 HER HONOUR: I hope the typing errors that were corrected make sense to counsel.
51 MR NICOLOSI: They do. Yes, that all adds up, Your Honour.
52 HER HONOUR: Thank you very much.
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