Director of Public Prosecutions v Marcus (a pseudonym)
[2021] VCC 125
•12 February 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| STEVEN MARCUS (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE WILMOTH |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 February 2021 |
DATE OF SENTENCE: | 12 February 2021 |
CASE MAY BE CITED AS: | DPP v Marcus (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 125 |
REASONS FOR SENTENCE
---
Subject: Criminal law - sentence
Catchwords: pleas of guilty to one charge of sexual penetration of a half-sibling, two charges of attempted sexual assault of a child under 16 and one charge of sexual assault of a child under 16 – serious offending – breach of trust – persuasive force and injury as aggravating factors – one year and nine month duration – value in pleas of guilty – mild intellectual disability – illiterate – early drug use – sexual abuse as teenager – youthful offender – no prior convictions – vulnerable in custody and subject to multiple assaults – held in protection – Bugmy principle.
Cases Cited:Bugmy v R [2013] HCA 37; DPP v Green [2020] VSCA 23
Sentence: 12 months’ imprisonment with 2year CCO and Justice Plan.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr L. Cameron | OPP |
For the Accused | Mr M. Habib | James Dowsley & Associates |
HER HONOUR:
1Steven Marcus[1], you have pleaded guilty to four charges of sexual abuse involving children all of whom are your siblings or half-siblings. The charges are one charge of sexual penetration of a half-sibling, two charges of attempted sexual assault of a child under 16 years of age, and one charge of sexual assault of a child under 16.
[1] A pseudonym.
2The background to the offending is that you are the eldest of 11 children. You are a young man with learning difficulties and ADHD. You have four younger siblings, five younger half-siblings and one younger step-sibling. You were living with your mother and three of your siblings in a small country town. Your other sibling Rodney Marcus[2] and your five half-siblings, Ewan[3], Grace[4], Isla[5], Summer[6] and Audrey Marcus[7], live with your father Graham Marcus[8] and your stepmother in another country town.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
[6] A pseudonym.
[7] A pseudonym.
[8] A pseudonym.
3At the time of the offending, you had regular contact with all your siblings, splitting your time between both families.
4Charge 1 is a charge of sexual penetration of your half-brother Ewan. It occurred one night between 11 May 2018 and 10 May 2019 when Ewan was aged 13 and you were 18 or 19. Ewan awoke to find you masturbating his penis. After about a minute, you rolled him over and pulled his pants down. You inserted your penis, moving it back and forward for about 10 seconds. Ewan felt too scared to tell you to stop. You said to Ewan that you thought you had ripped his anus whereupon Ewan went to the toilet. His anus was stinging and bleeding.
5Charge 1, the first charge of attempted sexual assault was committed between 1 January and 31 December 2019 when your half-sister Grace was 11 or 12 and you were 19 or 20. Grace was cleaning the toilet in the house when you told her that your brother's bedroom needed to be swept. She stood at the open door of the room sweeping and you told her to go into the room but she refused. You then pushed her into the room and shut the door. Grace sat on the edge of the bed and you told her to get on the floor but she refused. You grabbed her by the wrists, causing her to fall to the floor. She lay on her back and you pulled her pants and underwear down to her feet as well as your own. You then heard the door of your parents' bedroom opening so you stopped and pulled your pants up and told Grace to get out of the room and act as though nothing had happened.
6Charge 3 is a rolled up charge of sexual assault of Grace between 18 and 28 January 2020 when she was 13 and you were 20. Grace’s parents were out and your mother was babysitting her and five of the other children. Grace was lying on the couch watching television. You offered her $5 if she would let you touch her and she said no. You touched her vagina with your hand over her clothes and rubbed it for a couple of seconds. You told her to uncross her legs but she refused. You pinched her leg and pushed her legs apart and lay on top of her fully clothed and she felt your penis moving over her clothed vagina. You did this for about a minute before Grace squealed and you got up and left the room.
7Charge 4 is the attempted sexual assault of your half-sister Summer between 1 January and 11 February 2020. She was eight years old and you were 20. When the household was asleep, you went into Summer’s bedroom, woke her up and took her to another bedroom. In the bed there, you removed her clothing despite her telling you not to and that she did not want to do it. You then removed your own clothing and tried to lie on top of her but she resisted and you let her go.
8Grace disclosed the offending after telling a school friend whose mother alerted the school chaplain. Police were contacted and Grace made a VARE statement later that day, followed by Ewan two days later. You were arrested and interviewed and said you could not remember the offending against those two children. You said it was possible that the offending happened. Soon after that, Summer also made a VARE statement and you declined to be interviewed.
9These are very serious offences, not only because they are sexual offences against children but also because you are the older brother to the children, the offences occurred in their own homes and they should have been able to trust you, therefore, it was a gross breach of that trust. You exploited these children when they were particularly vulnerable such as at night when they were asleep or when adults were unlikely to be aware of it. You deceived Grace into going into her brother's bedroom where you could abuse her. In abusing the children, you used some persuasive force such as rolling Ewan over and pinching Grace’s leg, offering her money and carrying Summer out of her bed against her will.
10In particular, Charge 1 involved sexual penetration without the use of a condom as well as the fact that the child was injured. These are to be regarded as aggravating factors. Additionally, there are three victims of your offending and it took place over one year and nine months, a considerable period of time.
11A number of different sentencing principles are relevant to the sentence I must impose in this case. You are to be sentenced as a serious sexual offender in relation to Charge 4 because of the number of offences. That requires me to consider sentencing you more severely although the prosecution does not ask for a disproportionate sentence in order to protect the community from you, nor do they seek a wholly cumulative sentence and I will be applying some concurrency.
12The maximum sentence for Charge 3 - sexual assault of a child under 16 is 10 years' imprisonment. For the other charges, the maximum penalty is five years. The standard sentencing provisions of the Sentencing Act apply to Charge 3 and the relevant standard sentence is four years. I must have regard to the nature and gravity of the offence and use this and the standard sentence of four years as a guide to the appropriate sentence, taking into account your moral culpability as well. These factors remain only part of and do not dominate the overall sentencing considerations.
13Current sentencing practice is also a factor to be taken into account subject to matters particular to this case. I was referred to some sentencing statistics and to cases bearing some similarities to this case although most appear to differ so substantially as to not be helpful. For example, as far as I could ascertain, none of those cases dealt with an offender who was both young and intellectually disabled and who had already experienced being assaulted in prison not once but three times.
14After your arrest, negotiations towards a possible resolution were held and the matter resolved on 24 June 2020. An application for summary jurisdiction was made on your behalf which was refused and you were committed to trial by way of straight hand-up brief. Accordingly, the case has proceeded quickly following your early plea of guilty and you are entitled to a discount on your sentence for having avoided the trial and, importantly, for having spared the young witnesses and others from having to give evidence and be cross-examined.
15More generally, the plea has facilitated the administration of criminal justice at a time, noting the plea date was 4 September 2020, when the impact of the pandemic crisis upon the court was very severe, and still is severe, and jury trials were then suspended but are now slowly resuming. It can be accepted as an indication of remorse which I have considered together with the comments you made to Mr Cummins, the psychologist who assessed you, and who provided two reports dated 14 July and 20 October 2020.
16You are a young man of Aboriginal heritage, possibly on both sides of your family. You were born in New South Wales where you spent your early years but your parents separated when you were nine years old and you moved with your father to regional Victoria. Your mother and three younger siblings followed soon afterwards.
17You attended the a special school until Year 9 when you were expelled. You were medicated with Ritalin. You had learning difficulties and your ability to read and write is extremely limited. Since leaving school, you have had limited employment and education opportunities.
18Throughout your late teenage years, you have used drugs and alcohol extensively. At the time of the offending, you were using a concoction known as “blue smurf”, apparently a combination of methamphetamine and heroin. At age 17 to 18, you were sexually abused by a much older man for a period of two years.
19You are the father of a child from a previous relationship with whom you have had no contact and your current partner is not aware of your offending. Your father is supportive of you and you are able to live with him when you are released from custody. There is an intervention order in place prohibiting your contact with your siblings.
20You have no prior convictions.
21You have been in custody for 362 days of pre‑sentence detention. Much of that time has been spent under the restrictions imposed as a result of the pandemic crisis, meaning that you have not been able to have any personal visits nor to obtain work and you have not been able to do any courses despite having applied to do an anger management course.
22You have also been the subject of several assaults whilst in prison, resulting in being held in protection, as I mentioned earlier. Your time in prison has been more onerous than might otherwise have been the case, particularly as a first offender and as a young offender.
23The current restrictions initially prevented your legal representatives from having you assessed by a neuropsychologist as it was not regarded by Corrections Victoria as being essential urgent medical treatment. Mr Cummins, the psychologist who assessed you recently, had recommended this. However, following the adjournment of the plea hearing, you were assessed by Dr Linda Borg, a neuropsychologist, who has diagnosed a mild intellectual disability.
24In her report, Dr Borg noted that even with the risk of being assaulted moderated by protective custody, the risk of exposure to further assaults in custody cannot be entirely eliminated[9].
[9] Report of Dr Borg dated 6/10/20 p10 para 30 v
25As to Dr Borg's findings more generally, she found your IQ to be measured at 69[10], with reading ability at Grade 1 level, which is effectively illiterate. She found your executive functionings impaired by impulsivity and an inability to work through problems in a systematic fashion. She noted severe verbal reasoning deficits which severely compromise your capacity to make everyday decisions in a self-directed and efficient manner. This is further compounded by ADHD which impairs your attention, learning and memory ability. Added to that is mood instability and at times acute substance intoxication.
[10] These findings are set on p9 of Dr Borg’s report
26Dr Borg concluded that you are more likely to be led by emotion or drive as opposed to rational thought. She added that your neurodevelopmental conditions are not considered to be causal to your offending but it is considered likely that they contributed to it. That leads me to the consideration of the principles in the case of Bugmy[11] which have been followed in a number of subsequent cases including the recent of Court of Appeal case of DPP v Green[12].
[11] Bugmy v R [2013] HCA
[12] DPP v Green [2020] VSCA 23
27It is now accepted that childhood abuse and other forms of deprivation do not necessarily diminish with time and may leave their mark on a person, compromising their capacity to mature or learn from experience. Mr Habib, who appeared on your behalf, pointed to a number of features of a disadvantaged background in your case including learning difficulties and the resultant limited literacy and general education, extensive drug use, limited prosocial opportunities and sexual abuse during your teenage years. In Green, the court held that the offender's deprived background was an important mitigating factor in the determination of the sentence.
28In that case the deprivation experienced by the offender was “…significant abuse and degradation during the important formative years of his life”. The Court of Appeal held that this experience was a point of difference between the offender and theoretically another offender “… who had the advantage of a normal, stable and regular home environment and who had not been subjected to sexual and physical abuse …” [13]
[13] Ibid par 83
29Certainly, the abuse suffered by the offender in Green was very severe, resulting in post-traumatic stress disorder, but I am not aware of any limitations on the application of the principle in Bugmy which result in its utility being entirely eliminated. Logically, there is likely to be a scaling down of its use in reducing culpability according to the degree of deprivation experienced.
30Mr Cameron, for the prosecution, took issue with the extent of deprivation in your case, submitting that your particular circumstances did not amount to deprivation in the way it has been accepted in Bugmy and similar cases. As Mr Habib submitted, you did suffer clear elements of deprivation in being intellectually disabled, exposed to drugs at an early age, as I said earlier, with limited prosocial opportunities and sexual abuse during your teenage years. I take into account those experiences from your earlier years in the sense that they represent deprivation of the type identified in Bugmy and Green.
31As you are a youthful offender, I must regard your chances of rehabilitation as being of significant importance, although the more serious the offending, the less mitigation should apply in that regard, and the need for deterrence both general and specific remains an important sentencing principle.
32On the face of it, the serious circumstances of the offending places this case outside the range of imprisonment with a Community Correction Order, which was the submission made by Mr Habib on your behalf. However, there are persuasive mitigating factors and matters concerning community protection which call into question whether a more punitive disposition is appropriate or desirable.
33Mr Cameron referred to paragraph 39(ix) of Dr Borg's report, calling into question whether you could benefit from the sex offender training program because of your intellectual disability, with the risk that you would revert to maladaptive behaviours. Accordingly, Dr Borg agreed with Mr Cummins' view that your risk of reoffending remains moderate to high.
34Taking into account these matters and with emphasis on the serious nature of the offending, the prosecution submission on sentence was for a prison term with a non‑parole period. The submission by Mr Habib was for a combined prison term and CCO either with time served or for a further sentence which can be achieved by not declaring time already served.
35There is no doubt that your offending was very serious. I have set that out in some detail at the beginning of these remarks and I need not repeat it. it calls for a serious sentence because of that and also to deter other people who might behave in this way. The sentence should also deter you yourself from offending again.
36But in determining an appropriate sentence, I must consider not only the benefit that you could derive from a CCO and justice plan, but also other factors that carry considerable weight. These include the factors I noted earlier that you are a young person, aged 21, and that this has been your first time in prison. Your particular developmental issues mean that you need very specific treatment, probably one-on-one, of a type that can be provided through a CCO and justice plan, but probably not through a parole order.
37It is very clear that the community does need to be protected from you, given the risk of reoffending. That is best achieved from your rehabilitation. If you were to be imprisoned with a non-parole period, community protection would be achieved for that period of time. But without the type of treatment you require, the effective imprisonment would equate to little more than warehousing.
38I have concluded that the sentencing goals in this case are best achieved by sentencing you to the following prison terms with a CCO and justice plan and without declaring any time as already served.
39For Charge 1, 12 months.
40For each of Charges 2 and 4, 10 months.
41For Charge 3, 12 months.
42The sentences are to be served concurrently, resulting in a total effective sentence of 12 months. I will note on the court record that you are sentenced as a serious sex offender in respect to Charges 3 and 4.
43Because I will not declare the time you have been in custody as time already served, the punitive element of your combined imprisonment and the CCO is considerable, commensurate with the seriousness of the offending.
44When you are released, the CCO will commence and will last for two years. You must report by telephone then to the Corrections office within two working days of your release. You will be under supervision and you must undergo treatment for drug and alcohol abuse, a sex offender program and an anger management program. There will be a justice plan and finally, you must have judicial monitoring. That means that every so often, you will have to appear in court via video link so I can consider your progress. To help me with this, your Corrections officer will provide a report on your progress. The first date for this will be sometime in May 2022 and I will just consult my diary for that. So that will be 2 May 2022.
45Mr Marcus, do you consent to the court making this order and do you agree to be bound by its conditions?
46OFFENDER: (No audible response.)
47HER HONOUR: Now, I could not hear that but I could see you were saying yes.
48MR HABIB: He is on mute.
49OFFENDER: Yes.
50HER HONOUR: Thank you, Mr Marcus. The Community Correction Order will be sent to the prison for your signature.
51OFFENDER: Yep.
52HER HONOUR: If you had pleaded not guilty to these charges, I would have sentenced you to four years' imprisonment with a non-parole period of three years.
53The provisions of the Sex Offenders Registration Act require you to provide your details to the police every year for the rest of your life after your release. You will be given a form to sign in relation to that and that will be sent to the prison as well.
54OFFENDER: Yep.
55HER HONOUR: Now, Mr Cameron, did I make an error in relation to the serious sex offender provisions or have I not covered that?
56MR CAMERON: Your Honour, only Charge 1 is not a qualifying offence in terms of serious sexual offender provisions. So Charges 2 and 3 are the qualifying charges which means that Mr Marcus is only to be sentenced as a serious sexual offender for Charge 4.
57HER HONOUR: Mr Marcus is to be sentenced as a serious sex offender in respect of Charge 4.
58MR CAMERON: Yes, Your Honour. And then in terms of pre‑sentence detention, I think Your Honour said 358 days. That was as of Monday. So as of today's date, my friend and I are agreed that it is 362 days not including today.
59HER HONOUR: Thank you. I will correct that reference that I made in the sentencing remarks but of course, they are not being declared.
60MR CAMERON: Your Honour, just on that point, and I do not in any way mean to call into question Your Honour's sentence, I just wanted to make clear which I do not know that I have, I am just looking at my submissions. I may not have addressed this point given the prosecution's sentencing submission, but Your Honour does have the power to declare pre-sentence detention and still impose a combination sentence provided the period of imprisonment to be served from today's date is no more than 12 months. That is pursuant to s.44(1) of the Sentencing Act. I just wanted to make sure that that had been made clear.
61HER HONOUR: Well, I have sentenced him to 12 months which complies with the other sections relating to a combined sentence. And I had understood that implementing s.44, I should not declare that time. But you are saying that I can declare that time.
62MR CAMERON: Your Honour, I am not seeking to interfere with the sentence but just in terms of Your Honour's powers, Your Honour does have the power to declare, for example, all of the PSD that has been served and then impose a further period of imprisonment of up to 12 months to be served from today.
63HER HONOUR: I follow you. All right. Do you agree with that, Mr Habib?
64MR HABIB: I will bow to my learned friend's comment. I have always known that Your Honour just cannot add 12 months from today. That is the way I look at it. It simply depends on how Your Honour wishes to reflect the offending, I suppose. it changes the maths if Your Honour wishes to but ‑ ‑ ‑
65HER HONOUR: Thank you for alerting me, Mr Cameron. I will look at the section and check it with Central Records as to how they interpret it and make sure that it ticks all those boxes.
66MR HABIB: Yes, Your Honour.
67HER HONOUR: And I will notify both of you know by email what the order will reflect.
68MR HABIB: Yes, Your Honour. I would be content with Your Honour making any changes to that order or sentence in chambers. What I might just do is in very simple terms explain to Mr Marcus that he will now serve one year from today, and upon the conclusion of that one year, will have a two-year Corrections order that he will have to comply with.
69HER HONOUR: Yes, good. Thank you. What I will do is as soon as I leave the Bench in a moment, I will leave the link open so that you can reinforce that advice to him if you would like to, Mr Habib.
70MR HABIB: I will take that advantage. Thank you, Your Honour.
71HER HONOUR: Anything further, Mr Cameron?
72MR CAMERON: No, Your Honour.
73HER HONOUR: Thank you. Could I just add that I did notice that on the way through my sentencing remarks, I referred to as “some concurrency” which was an error which I will correct later when in fact, I had intended total concurrency.
74MR HABIB: As the court pleases.
75HER HONOUR: Thank you.
- - -
NOTE: Her Honour directed that 361 days of detention be noted on the court record as NOT to be declared as pre sentence detention.
- - -
- - -
‑ ‑ ‑
0