Director of Public Prosecutions v Marston
[2012] VCC 956
•12 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-11-01860
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER ALAN MARSTON |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 July 2012 | |
CASE MAY BE CITED AS: | DPP v Marston | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 956 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms C. Deane | |
| For the Accused | Mr D.T. Cash |
HER HONOUR:
1 Christopher Alan Marston, you have been found guilty by unanimous jury verdict on 10 charges of indecent act with a child under 16 (Charges 1, 3, 4, 5, 6, 8, 11, 12, 15 and 16). You have also been found guilty by unanimous jury verdict on five charges of sexual penetration with a child under 16 (Charges 7, 9, 10, 13 and 14).
2 In relation to each of the charges of sexual penetration an aggravating circumstance was alleged which the jury found was proven. The aggravating circumstance in relation to Charge 7 was that the complainant was a child under the age of ten. In relation to Charges 9, 10, 13 and 14, the aggravating circumstance found proven was that the complainant was a child under the age of 12. Accordingly, the maximum penalty in relation to each of the sexual penetration charges is 25 years’ imprisonment.
3 The maximum penalty in relation to each of the indecent act charges is ten years’ imprisonment. If imprisonment is imposed on Charges 1 and 3, then you will be sentenced on Charge 4 and the following charges as a serious offender pursuant to the relevant provisions of the Sentencing Act 1991.
4 The Sex Offenders Registration Act 2004 will apply to you. Pursuant to the provisions of that Act the offences you have committed are classified as five Class 2 offences and five Class 1 offences. You will be subject to mandatory reporting conditions for life.
5 You have been in custody since 5 March 2012 and have spent 129 days in pre-sentence detention up to, and including, 11 July 2012.
6 The prosecutor applied for the taking of a forensic sample from you, pursuant to s.464ZF of the Crimes Act 1958. The making of that order is consented to.
7 The circumstances of your offending are as follows.
8
Your offending was in relation to two complainants who are sisters. For the purposes of this sentence I will call them “Z” and “M”. Z was born on
7 February 2000and M was born on 14 March 2001. M and Z are the younger sisters of your partner. During the period of your offending you were aged between 23 and 25. Z was aged between nine and eleven and M was aged between nine and ten years.
9 Apart from a short period, you and your partner lived with the complainants and their mother before moving into your own home around February 2010. At various times during the period of the offending the complainants’ mother was unable to take care of them due to hospitalisation for her condition of anorexia. Z and M would at times be cared for by you and your partner at their home or at your home. My conclusions as to the circumstances of your offending are based on the evidence of the complainants, which was accepted by the jury in respect to the charges on which you were found guilty.
10 At a time between 1 January 2008 and 31 December 2009 you called Z into your bedroom. You made Z kneel down in front of you with her mouth open. You unzipped your pants and masturbated in front of her. You continued to masturbate until you ejaculated into Z’s mouth. Z then ran from the room and spat into the bathroom sink. (Charge 1, indecent act with a child under 16 years.)
11 Between 1 January 2010 and 31 December 2010 you again called Z into your bedroom. Z was sitting on the bed and you masturbated yourself and ejaculated into a towel in front of her. (Charge 3, indecent act with a child under 16 years.)
12 Between 1 January 2009 and 31 December 2010 you and Z were in your bedroom. You repeatedly asked to touch Z’s breasts and vagina. Z let you on this occasion. You touched Z’s breasts under her top. (Charge 4, indecent act with a child under 16 years.) You then touched Z’s vagina on the inside of her underwear, using your fingers. (Charge 5, indecent act with a child under 16 years.) Z’s evidence was that when you asked to see or touch her in the area of her vagina she would say no, except for this occasion. Whilst touching her you pulled Z’s pubic hair. She began to cry and you stopped.
13 Between 1 January 2010 and 4 July 2010 you called M into your bedroom. M sat on your bed and you stood in front of her. You repeatedly asked M to put her mouth over your penis. You then unzipped your pants and stood with your penis exposed in front of M and repeatedly asked her to put her mouth over your penis. You used the word “thing” rather than the word “penis”. M refused. (Charge 6, indecent act with a child under 16 years.) When M refused you had told her she would not get fish and chips and that you would take away her teddy.
14 Between 14 March 2010 and 14 March 2011 M was in the bathroom, getting reading for a shower, when you walked in. You grabbed her hair by her plait and forced your penis into her mouth. (Charge 7, sexual penetration of a child under 16 years.) You pushed M’s head up and down over your penis and then withdrew your penis from her mouth and ejaculated onto her bare stomach. (Charge 8, indecent act with a child under 16 years.) You told M to get in the shower and “wash it off” then left the bathroom.
15 On an occasion between 17 September 2010 and 31 November 2010 you called both girls into the bathroom. You made both girls kneel in front of you. You unzipped your pants and exposed your penis. You told both girls to take their turns to put their mouth on “it”, referring to your penis. Both girls refused. You then grabbed Z by the hair and pushed your penis on to her mouth. You forced her head up and down whilst her mouth was over your penis. (Charge 9, sexual penetration of a child under 16 years.) M saw this happen. You then grabbed M by the hair and pushed your penis into her mouth. You forced her head up and down whilst her mouth was over your penis. (Charge 10, sexual penetration of a child under 16 years.) This was done in front of Z, who saw this happening. You continued to push M’s head up and down so that M began to choke. Z burst into tears. On the same occasion you asked both M and Z to masturbate your exposed penis and made both girls take it in turns to masturbate your penis. (Charges 11 and 12, indecent act with a child under 16 years.) You then stopped and left the bathroom.
16 Between 17 September and 31 December 2010 you got M to enter the bathroom. You repeatedly asked M to put her mouth over your “thing”, referring to your penis. You told her that if she did, she would be allowed to use the computer and watch whatever she wanted on the television. You exposed your penis in front of M, grabbed her hair and forced her mouth over your exposed penis. (Charge 13, sexual penetration of a child under 16 years.) You pulled M’s hair in such a way so as to make her mouth go up and down on your penis. You zipped up your pants and told M to get out of the room.
17 Between 17 September 2010 and 31 December 2010 you came into the bedroom when M was getting ready for bed. You repeatedly asked M to put her mouth over your “doodle”. M said no. You then grabbed her hair by her plait and pulled her down, forcing her to kneel in front of you. You forced your penis into her mouth and moved your penis in and out of her mouth. (Charge 14, sexual penetration of a child under 16 years.) Again, this caused M to choke. You continued for a period before allowing M to leave.
18 On a weekend between 1 April 2011 and 2 May 2011 you offered to mind Z and M. You said this would allow your partner to spend time with her mother at her mother’s house. You collected M and Z and took them to your home. The girls watched television. At lunchtime you sent Z to get fish and chips. After she had left, you called M into your bedroom. You stood in front of M, who was sitting on the bed, and repeatedly asked to touch her breasts and vagina. You said you wanted to see if M’s boobs were real and wanted to see if she had any hair on her vagina. You touched M’s breasts and she told you to stop. (Charge 15, indecent act with a child under 16.) You then touched her vagina under her clothing. (Charge 16, indecent act with a child under 16.) Whilst touching M’s vagina, you told her she was starting to get hairs. You then repeatedly asked her to put her mouth on “it”, gesturing towards your penis. M refused.
19 Your offending was detected in May 2011 when Z said something to her mother, as did M.
20 You were arrested on 19 May 2011. You were interviewed and denied any allegations of sexual conduct with M and Z.
21 The prosecution tendered Victim Impact Statements from M (Exhibit A), Z (Exhibit B) and their mother (Exhibit C). M describes her confusion, fear and sadness at your offending. Z says she felt confused, angry, scared, terrible, sad and disgusted. She is also particularly sad that as a result of your offending she no longer sees her older sister or her older sister’s children.
22 The girls’ mother, who was psychiatrically vulnerable in any event, describes the impact on her of your behaviour. She is clearly struggling with her existing anorexia problem but says since your offending was detected she has developed a drinking problem to help with her depression and other feelings of anger, guilt, frustration and sadness, together with a deep sense of loss. She, too, is clearly deeply affected by the loss of her relationship with her eldest daughter and her grandchildren. She is particularly grieved by M and Z’s loss of innocence.
23 Tendered on your behalf was the report of Mr Bernard Healey, clinical psychologist, dated 1 April 2012 (Exhibit 1). Mr Healey says “Specific testing revealed above average intellectual capacity, powers for delayed recall were sound, and personality testing was not indicative of major psychological or emotional disturbance, consistent with the history he gave, and in view of the relationship he has had with [his partner] since the age of 19.”
24 A bundle of references was also tendered on your behalf (Exhibit 2).
25 I have taken into account your personal circumstances in sentencing you. I have derived those circumstances from the materials tendered and from what was said on your behalf by your counsel.
26 You are now 26 years old. You grew up in the Melbourne metropolitan area with your parents and three younger siblings. You appear to have had a happy home life and an unremarkable upbringing. You continue to have a good relationship with your parents and siblings.
27 You repeated Year 9 in secondary school. After leaving school you obtained a fork lift licence and certification to remove asbestos. When you were 18 you obtained work in asbestos removal and then in loading and unloading shipping containers. You had difficulty obtaining secure and stable employment until you secured a position at a private hospital where your mother works. You initially worked as an orderly but then worked in the central sterilising room for about four years, up to the time when you were remanded in custody.
28 You met your partner when you were 18 and she was 17. You moved in with her at her mother’s home. Your partner’s half-sisters, Z and M, were also living there. In 2005 the family group all moved to one house in Sunbury and then into the next house in Sunbury where your partner’s mother and Z and M continued to live. For a few weeks in 2009 you lived at a friend’s house and then moved back with your partner’s mother until April 2010, when you moved into your own home. At the time of the offending you and your partner had two very young sons. You now have three young sons aged under four and your partner is pregnant with your fourth child.
29 You have admitted a minor prior criminal history. You were dealt with in the Magistrates’ Court in 2003 on charges which I am satisfied are not relevant for the purposes of this sentence.
30 Among the references tendered are references from your partner, your parents and your uncle, who I understand to be a solicitor. It is clear that you have their support. Your partner speaks of the difficulties she faces in caring for the children and financially with your incarceration. She also clearly retains her affection for you and misses you. It is clear from your partner’s reference that she would consider that this offending would be completely uncharacteristic of you and does not accept that you have committed these offences.
31 Your parents speak very positively, particularly of your efforts in employment. They also speak positively about changes that you have made in your demeanour in the last few years. Your parents describe your loving relationship with your children and consider that the charges for which you are found guilty are totally uncharacteristic of your nature.
32 Your uncle describes you as being a very generous person who showed respect and kindness to others. He also considered this offending to be most out of character.
33 References from senior people at your work speak very positively of your work capacities, your knowledge and experience and your diligence and reliability.
34 Other references also speak very positively of your kind and caring nature, your integrity and honesty and loyalty to your family. The writers of those references also clearly believe this offending to be out of character.
35 I should not fail to mention the very positive references from both of your grandmothers. They speak of your loving and caring nature, your trustworthiness and reliability. They also speak of your care for your children.
36 In sentencing submissions your counsel conceded that your offending had constituted a gross breach of trust which had taken place over three and a half years. Your counsel conceded that the full impact on the girls would not become apparent until they are much older. He conceded that you would be required to be punished, your offending denounced and a sentence imposed which would serve as a deterrent to others. He submitted that it was also important to facilitate your rehabilitation. He submitted that there were significant factors in relation to your rehabilitation, being your supportive family, your prior good character in relation to sexual offending and your good work record.
37 Your counsel submitted that I should take into account that you have never been sentenced to a term of imprisonment before, and imprisonment would be more difficult for you because it was the first time you had been in prison. He said you had been unable to spend time with your children since being remanded in custody and that the separation from your children was a crushing blow and a harsh penalty.
38 In relation to your risk of re-offending your counsel said that you had no drug or alcohol or mental health problems which would contribute to you re-offending. He suggested you had some good prospects for rehabilitation in that you were relatively young with no relevant priors and that you would receive some treatment in custody and would be supervised if you were released on parole. He submitted that you also ultimately would return to your partner and family, which was a supportive environment. He also referred to potential involvement by the Department of Human Services, which I understood to be a reference to potential involvement in relation to your own children because of this offending.
39 In relation to current sentencing practices, your counsel referred to the relevant Sentencing Snapshots which provide a statistical summary of sentences which have been imposed. Your counsel referred to the decision in FHA [2011] VSCA 137 in support of the proposition that there should be a merciful approach to cumulation in the circumstances. He submitted that some concurrency between sentences would be appropriate. He argued that there was scope for full or partial concurrency to arrive at a just sentence. He referred to some of the sexual penetration charges and indecent act charges arising from the same incident.
40 Counsel also referred to the decisions in Husar [2011] VSCA 70 and Davey v R [2011] VSCA 98. He suggested that I should consider the sentences imposed and non-parole periods set in DPP v WRJ [2009] VSCA 174, LQ v R [2011] VSCA 135 and R v Bo [2006] VSCA 247. Your counsel submitted that on the basis of these cases, current sentencing practice and the circumstances of your offending, together with other matters, including your age, your lack of relevant priors and your supportive family environment and prospects for rehabilitation, the total effective sentence to be imposed should not get into double figures.
41 The prosecutor, in sentencing submissions, submitted that this was very serious offending which constituted a gross breach of trust with two complainants over a period of time and with aggravating circumstances. The prosecutor drew distinctions between your situation and the situation in some of the cases referred to. He agreed that the principle of totality would require some concurrence in sentences. The prosecutor submitted that it should also be taken into account that there were two complainants and that sometimes they were together when the offending occurred.
42 The prosecutor’s sentencing instructions were that the appropriate sentence would be a total effective sentence in the range of 12 to 15 years with a non-parole period of nine to twelve years.
43 The offending for which the jury has found you guilty is very serious indeed. The summary of the circumstances speaks for itself. You committed sexual offences against young children over a period of time. The charges for which you have been found guilty involve nine separate incidents. Your offending was repeated over a three year period. I make it clear that you are being sentenced only for the offending which is the subject of the charges on which you have been found guilty.
44 There are a number of aggravating features. You took advantage of the girls’ young age and your position in relation to them to engage in acts for your own sexual gratification. The girls were members of your family in that they were the younger sisters of your partner. The girls ought to have been able to trust you. You breached their trust repeatedly in a particularly serious and disgusting way.
45 In one of the incidents, which gives rise to Charges 9, 10, 11 and 12, both girls were present. You committed acts of gross violation on each in front of the other. You continued your offending behaviour on occasions despite the girls' protestations. On certain occasions you used physical force by grabbing their hair. On certain occasions you used other forms of manipulation and inducements in an attempt to get the girls to engage in sexual behaviour with you. The offending occurred either in the girls’ home or your home where they were living temporarily. They clearly were not able to feel safe in their own home.
46 I regard the offences where you did not have physical contact with the complainant as the least serious. Clearly, the sexual penetration charges are the most serious. They involve very similar offending with sexual penetration of each complainant in front of the other. occurring on one occasion (Charges 9 and 10). At that stage you had penetrated M once already and went on to penetrate her on another two occasions and commit an indecent act in relation to her on two further occasions.
47 It remains to be seen what harm over time your actions caused, but it is evident that considerable harm has been caused already. It was chilling to hear such young girls describing your obscene actions in a relatively matter of fact way. You have clearly stolen their innocence. Harm has also been caused to their mother and your partner. Indirectly, your children will suffer as a result of what you have done. You deny the offending and have shown no remorse.
48 Your offending must be strongly denounced and justly punished. A sentence must be imposed which will serve as a deterrent to others who seek to engage in similar behaviour.
49 I consider that your prospects for rehabilitation are no more than reasonable. I accept that you have been of good character in respect of sexual offending up until the commencement of these offences. Given the nature of these offences, the time over which they occurred and the deliberateness with which you engaged in them, I consider that there is at least a moderate risk of you re-offending in the future in a similar way. I note Mr Healey’s opinion that you have no psychological disorder or condition which would lead you towards this sort of offending. I note your good work history and the positive references from your family, friends and work colleagues. It is my view that the sentence imposed on you ought be sufficiently severe to bring home the message to you that if you re-offend in this manner you are likely to receive an even longer sentence of imprisonment than you will receive today. Specific deterrence needs to be given significant weight in your sentence.
50 I will be sentencing you to a term of imprisonment for each of the charges. Imprisonment is clearly warranted for the purposes of denunciation, just punishment, general and specific deterrence and community protection. I have had regard to the applicable maximum penalties. In relation to Charge 4 and the following charges I will be sentencing you as a serious offender. I am required to regard the protection of the community as the principle purpose for which the sentence is imposed on those charges. I have borne that in mind and what I assess as to be the risk of you re-offending. I consider that the sentence that I will impose meets the objective of protection of the community and I do not intend to impose a disproportionate sentence in order to achieve that purpose.
51 I have taken into account in mitigation of sentence that you have no previous criminal history in relation to sexual offending, your good work record and your previous good character, as attested to in the references. I have also taken into account in mitigation of sentence that you will find incarceration more burdensome because of the difficulties that will be faced by your young family. I have also borne in mind your relatively young age and that this is your first sentence of imprisonment. I consider that a sentence should be imposed which is not a crushing one. You do have prospects for rehabilitation, work prospects and family support. You have an incentive in your family to make sure that you do not engage in this type of offending in the future. I have taken those matters into account in determining both the head sentence and the non-parole period.
52 I have had regard to current sentencing practices insofar as I can ascertain them from the sentencing statistics, the cases to which I was referred, the material in the Victorian Sentencing Manual and my knowledge of similar cases. Clearly, it is difficult to make precise comparisons and each case has its own circumstances and specific matters relevant to the particular sentence.
53 The sentences imposed are to be served cumulatively unless I otherwise direct. As submitted by both counsel, it is appropriate in this case to order some concurrency in sentences and I do so in order to comply with the principles of totality and proportionality. I have borne totality and proportionality in mind in determining the degree of concurrency between appropriate sentences. I have also taken into account that some offences occurred during the same incident. Due to the number of charges and the need for clarity, I am stating the amount of cumulation in relation to each applicable sentence, rather than the extent of concurrency. The sentences are to be served concurrently unless I state that a portion of the sentence is to be served cumulatively.
54 Mr Marston, can you stand up, please? Mr Marston, I am going to impose the following sentences, which I have set out in a table.
| Charge | Offence | Sentence | Cumulation |
| 1 | Indecent Act with a Child Under 16 | 18m | 2m |
| 3 | Indecent Act with a Child Under 16 | 12m | 1m |
| 4 | Indecent Act with a Child Under 16 | 15m | 1m |
| 5 | Indecent Act with a Child Under 16 | 18m | 2m |
| 6 | Indecent Act with a Child Under 16 | 12m | 1m |
| 7 | Sexual Penetration of a Child Under 16 | 4y 6m | 6m |
| 8 | Indecent Act with a Child Under 16 | 12m | Concurrent |
| 9 | Sexual Penetration of a Child Under 16 | 5y | 3y |
| 10 | Sexual Penetration of a Child Under 16 | 5y | Base Sentence |
| 11 | Indecent Act with a Child Under 16 | 2y | Concurrent |
| 12 | Indecent Act with a Child Under 16 | 2y | Concurrent |
| 13 | Sexual Penetration of a Child Under 16 | 4y 6m | 6m |
| 14 | Sexual Penetration of a Child Under 16 | 4y 6m | 6m |
| 15 | Indecent Act with a Child Under 16 | 15m | 1m |
| 16 | Indecent Act with a Child Under 16 | 18m | 2m |
| TES | 10y 4m | ||
| NPP | 7y |
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56 The total effective sentence is going to be ten years and four months. I am fixing seven years as the non-parole period. So that tells you, Mr Marston, what you are facing. So it is a total effective sentence of ten years and four months with a seven year non-parole period. It is complicated to express this and I think I should start again to express it, to make it perfectly clear. Can you just take your seat for a moment? The way I should express it is two months of the sentence on Charge 1, one month of the sentence on Charge 3, one month of the sentence on Charge 4, two months of the sentence on Charge 5, one month of the sentence on Charge 6, six months of the sentence on Charge 7, three years of the sentence on Charge 9, six months of the sentence on Charge 13, six months of the sentence on Charge 14, one month of the sentence on Charge 15 and two months of the sentence on Charge 16 are to be served cumulatively on each other and on the sentence on Charge 10.
57 I think that is clear. Is that clear to both counsel?
58 MR CASH: It is clear, Your Honour.
59 HER HONOUR: Yes, thank you. The sentences on charges 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 and 16 are imposed on you as a serious offender. I declare that you have served 129 days in pre-sentence detention and direct that that declaration be entered into the records of the court.
60 I have made an order for the taking of a forensic sample from you. The reasons for making that order are the seriousness of the circumstances of your offending, that the order is by consent and that I consider the granting of the order to be in the public interest.
61 Could you stand up again, please, Mr Marston?
62 Mr Marston, the way in which the sample is generally taken is by way of a saliva swab. So that is from your mouth. I am required to tell you that you must cooperate with the authorities when they come to take the sample. If you do not cooperate with them they are allowed to use reasonable force to get a sample and may take a blood sample rather than a saliva sample. I am sure you will cooperate with them.
63 As I have said to you, you will also be subject to the Sex Offenders Registration Act. In a moment I am going to ask my associate to go with your counsel up to you to ask you to sign a piece of paper. What you are signing is that you have received the documentation. So it is not that you agree with anything or anything. It is just signing that you have received the documentation. Thank you.
64 Mr Teo, could you please go with Mr Cash and have that documentation signed? All right, thank you. Just take your seat for a moment, Mr Marston. Are there any other procedural matters that I need to deal with as far as you know?
65 MS DEANE: No, Your Honour, as far as I know.
66 MR CASH: Not that I am aware of, Your Honour.
67 HER HONOUR: All right, and has counsel had an opportunity to consider the table and the additions - the adding up of the sentence?
68 MS DEANE: Your Honour, Yes, I have done a quick calculation and it appears to be accurate.
69 HER HONOUR: All right. Mr Cash?
70 MR CASH: Yes, Your Honour, appears to be accurate.
71 HER HONOUR: All right. If when you go back you have a look at it and add it up differently, I am hoping not, but just let me know, that my intention is a total effective sentence of ten years' and four months with a non-parole period of seven years. I will be leaving the Bench and the prisoner can be taken down, thank you.
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