Director of Public Prosecutions v Maitland (a pseudonym)
[2018] VCC 558
•26 April 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL MAITLAND (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 19 April 2018 |
| DATE OF SENTENCE: | 26 April 2018 |
| CASE MAY BE CITED AS: | DPP v Maitland (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 558 |
REASONS FOR SENTENCE
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Subject:Trial - sentencing
Catchwords: Indecent act with child under 16 - indecent act with 16 or 17-year-old child – incest
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:
Sentence:7 years’ imprisonment, 5 years non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Fallar | Office of Public Prosecutions |
| For the Accused | Mr J. Shaw | James Dowsley & Associates |
HIS HONOUR:
1Samuel Maitland[1], you have been found guilty by jury verdict of three charges of indecent act with a child under 16, one charge of incest and one charge of indecent act with a 16 or 17-year-old child.
- Indecent act with a child under 16 carries a maximum penalty of 10 years' imprisonment.
- Incest carries a maximum penalty of 25 years' imprisonment.
- Indecent act with a 16 or 17-year old child carries a maximum penalty of 5 years' imprisonment.
[1] Samuel Maitland is a pseudonym
2You are currently 51 years of age. At the time the offending came to light you were aged 50 and residing with your wife, daughter and step-daughter in a country town near Melbourne.
3You do not have any prior criminal history.
4The victim in this matter was born in 1999. When the offending began she was aged seven. Your offending continued until she was aged 17.
5You are the step-father of the victim. You have sexually assaulted her on a repeated basis in two residential properties over a ten-year period.
6By way of background to this matter, the victim's biological father died in 2002. In January 2005 the victim and her mother visited you in your country of origin. By that time the victim's mother and you had conducted a long-distance relationship for some two years. During that visit her mother married you. Approximately four years later your family moved to Australia from that country. At this time the victim would have been aged six or nearly seven years old.
7On arriving in Australia your family first moved to a suburb of Melbourne. This is where the sexual assaults, the subject of this proceeding, began.
8The victim would often sleep in her parent's bed as she was afraid of the dark.
9She describes the first incident when she was aged seven, after moving to Australia. She was in her parent's bed and fully clothed. You got on top of her and were rubbing your penis on the tip of her vagina. This conduct constitutes Charge 1, indecent act with a child under 16.
10The second incident the victim described occurred in the Melbourne suburb in 2008, after the birth of her sister. You and the victim were in the main bedroom, the victim on her parent's bed. You put your newborn child into a crib to sleep. You then lay on top of the victim whilst humping her with your penis, which went from soft to hard. This lasted for approximately 15 minutes. Both you and the victim were clothed. This conduct constitutes Charge 2, indecent act with a child under 16.
11On another occasion you used a vibrator on the victim. You placed a vibrator where her vagina is, near her thigh. She was not wearing any clothing and remembers a vibrating/tickling sensation. This conduct constitutes Charge 3, indecent act with a child under 16.
12After moving to the family home in the country in July 2013, you put your penis on her face and then, as described by you, “humped her face” with your penis inside her mouth. This took place in her parent's bedroom. The victim says that you “just wouldn't stop" and that she had to "suck [you] off". This conduct constitutes Charge 4, incest by a step-parent.
13Whilst living in the Melbourne suburb you offended against the victim approximately three times a month, whenever the victim was left alone with you. The victim has stated that when the family was residing in the country, she was sexually assaulted approximately three times a month and usually this occurred on a Friday when she had ‘free’ days at school, which meant finishing early. You would collect the victim from school on Fridays and her mother was always at work. The victim would sometimes resist your offending. You do not fall to be sentenced for offences with which you have not been charged; however the context illustrates that the charged offending were not isolated incidents.
14The last offence occurred at the country home on 21 May 2016, being approximately two weeks prior to the victim providing a statement.
15On this occasion, once home you entered her bedroom and touched her on the leg. She could see your penis sticking out of your pyjamas. At this point the victim was in contact via text with her boyfriend, who was at a party. She texted him staying that something was going to happen, that your pants were unzipped and that she could see your penis. At this time the victim had already told her boyfriend that you had been sexually assaulting her. Her boyfriend made a note of the date in his phone, being 21 May. The note read, "it happens".
16You got onto the victim's bed and then removed her shirt. At the time the victim was not wearing a bra. You kissed the victim's breast and stomach and then slowly moved down her body. You touched her vagina with your hand over her clothing. As you moved down her body you removed her pants before using your tongue to lick and kiss her on the vagina. The victim kept her eyes closed most of the time because she did not want to see what was happening. Following this assault, the victim called her boyfriend and told him that you had played with her breasts, sucked them and started licking her vagina. This conduct constitutes Charge 5, indecent act with a 16 or 17-year old child.
17During the VARE statement the victim said that initially she did not realise what was happening was wrong. She said she enjoyed it because she did not really know that it was wrong. The victim says she was introduced to "the Christian way of living" and then realised it was wrong.
18The first person the victim told about the offending was her boyfriend. She initially had told him that she had sex with a friend. He kept asking her about this friend and ultimately she told him it was her “Dad”. The victim told him that her “Dad” would make her suck him off, suck her boobs and lick her vagina and that this had been happening for ten years, since she was seven years old.
19In an interview conducted by the Department of Health and Human Services on 19 July 2016, you stated that you performed oral sex on the victim and kissed her breasts and lips. You further stated that this had occurred over a period of ten years, beginning when she was aged seven and occurring between one and two times a month when you were both home alone.
20In light of what were accepted by DHHS as admissions and your expressed desire to be reunited with your family, in particular, your biological daughter, you agreed to seek counselling with a psychologist who specialised in child sex offending. As a result you engaged in counselling with Mr Adam Garrick and participated in ten sessions over a period of approximately five months.
21During the course of those sessions you admitted to Mr Garrick that you were attending counselling because you had been sexually offending against your step-daughter for ten years.
22You acknowledged to him that what you had done was wrong but said that the victim had encouraged you and some of her claims were exaggerated or wrong. You told him also that when the sexual offending took place you felt excited and attracted, your heart beat faster and you had a desire to touch her. You said that the offending happened at intervals ranging from once a year to maybe once every two months.
23At trial you gave sworn evidence and maintained that the information you gave to DHHS and Mr Garrick were not true admissions, but fabrications made by you for the purpose of satisfying DHHS that you were co-operating and suitable to be reunited with your family.
24I now turn to your personal circumstances.
25You migrated to Australia in 2006 and your biological daughter was born in late 2008. You became an Australian citizen in 2012. You have no past history of criminal offending.
26You have been employed since arriving in Australia, working in various factory jobs. At the time of the jury verdict you had been working as a forklift driver at a clothing factory. During the period of offending you worked flexible hours, which meant that you were often at home, and you were largely responsible for domestic duties as your wife worked shifts. You had a close relationship with your biological daughter. You have been separated from her since May 2016 and you each have found it distressing.
27Your offending is plainly very serious. You initially exploited a young and vulnerable little girl who was too immature to understand the full nature of your acts. That exploitation, for your own degenerate sexual gratification, continued over a lengthy period even after she began to develop a greater understanding of what was happening and its wrongness as she entered adolescence. The offending developed from basic rubbing over the victim's clothing to use of a vibrator, subsequent oral sexual contact with her and penetration by you of her mouth.
28The offending was aggravated by the length of the period of abuse, its repetition, the young age of the victim at the time the offending commenced, its context in that the charged offences were not isolated events and by the gross breach of trust. By the very nature of the offence of incest you were exploiting a breach of trust in that you were the step-father of the victim. The victim was entitled to your protection, not exploitation.
29The victim impact statement tendered on the plea reveals the type of damage to the victim that is frequently observed in these types of cases - that is, emotional trauma affecting many aspects of life including personal relationships, daily functioning, difficulties at school, withdrawal, greater vigilance in social situations and constant reminder of hurtful events by having to remain living in the same home where the offending behaviour occurred.
30Principles of general and specific deterrence and denunciation by the court are prominent sentencing considerations.
31You denied all the allegations and gave sworn evidence at trial that the admissions you had made to DHHS and Mr Garrick were simply lies told by you in order that your apparent co-operation would enable you to be reunited with your family. Accordingly, there is no evidence of remorse.
32In mitigation I take into account the matters urged on your behalf by your counsel including:
· the absence of any prior or subsequent offending;
· the offending was not accompanied by threats or violence;
· your consistent employment record;
· that otherwise you have been a helpful provider and supporter for your family and also for your relatives both here and in your original country; and
· the community work in which you have engaged through your association with your church.
33I am guarded about your prospects of rehabilitation. You maintained a fanciful defence in the face of what was, in my view, an overwhelming case against you. Your prospects of rehabilitation will be enhanced if you conscientiously apply yourself to the concepts gained in your discussions with Mr Garrick and the further opportunity you will have for counselling within your time in custody.
34Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on two sexual offence charges I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
35This means that the sentencing task in respect of Charges 3, 4 and 5 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose sentences may be imposed longer than that which are proportionate to the gravity of the offences considered in the light of their objective circumstances. However because of the particular circumstances and mitigating factors in your case, I do not propose to do so.
36Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charges 3, 4 and 5 the sentences I impose are to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that ordered.
37I note here that the Crown did not call for a disproportionate sentence or for the cumulation contemplated by s.6D and s.6E of the Sentencing Act.
38Mr Maitland, would you please now stand.
39On Charge 1 of indecent act with a child under 16, you are convicted and sentenced to six months' imprisonment.
40On Charge 2 of indecent act with a child under 16, you are convicted and sentenced to six months' imprisonment.
41On Charge 3 of indecent act with a child under 16, you are convicted and sentenced to six months' imprisonment.
42On Charge 4 of incest, you are convicted and sentenced to six years and six months' imprisonment.
43On Charge 5 of indecent act with a 16 or 17 year old child, you are convicted and sentenced to one year’s imprisonment.
44Charge 4 is the base sentence.
45I direct that one month of each of the sentences imposed on Charges 1, 2 and 3 and three months of the sentence imposed on Charge 5 be served cumulatively on the sentence imposed on Charge 4 and upon each other.
46The total effective sentence is seven years' imprisonment.
47I direct that you serve a minimum period of five years' imprisonment before being eligible for parole.
48I also direct, pursuant to s.6F of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of Charges 3, 4 and 5 as a serious sexual offender within the meaning of that Act.
49Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 13 days, not including today, be reckoned as time already served under the sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
50Now there is a further matter to which I need attend. You may take a seat for the moment.
51The offences of which you were found guilty are registerable offences pursuant to the provision of the Sex Offenders Registration Act 2004, and by reason of your being sentenced for these offences you are a registerable offender obliged to comply with the reporting obligations imposed by that Act.
52Pursuant to s.50 of that Act I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case is for life.
53My associate will shortly hand to you the Notification Of Reporting Obligations form which I have already signed. Your representative in court today, Mr Shaw, will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notification form and to return the Acknowledgement to my associate. The sex offender registration materials can now be passed to Mr Maitland, thanks Mr Shaw.
54MR SHAW: If I can approach the dock to assist him in that process.
55HIS HONOUR: Thank you.
56At the plea hearing, the Crown sought an order for the taking of a forensic sample. I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, the order is not opposed and the granting of the order is in the public interest.
57I must inform you, Mr Maitland, that if at the time of the request for the taking of a forensic sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that procedure to be conducted. Do you understand that, Mr Maitland?
58It may be necessary for you to approach the dock to explain that aspect too, Mr Shaw.
59MR SHAW: Yes, Your Honour.
60HIS HONOUR: Thank you. Is there anything else from either counsel?
61MR SHAW: No, Your Honour.
62HIS HONOUR: Very well. I will now leave the bench whilst the other matter is prepared. Thank you.
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