Director of Public Prosecutions v Martin (a pseudonym)

[2018] VCC 1228

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

VICTOR MARTIN (a pseudonym)

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:	1 August 2018
DATE OF SENTENCE:	8 August 2018
CASE MAY BE CITED AS:	DPP v Martin (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1228

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr S. Gillespie-Jones	Lawyers R Us

HER HONOUR:

1Victor Martin[1], you have been found guilty by a jury of one charge of maintaining a sexual relationship with a child under 16.  The maximum penalty for that offence is 25 years' imprisonment.  You have further been found guilty of one charge of intentionally causing injury, the maximum penalty for that offence is ten years' imprisonment.  Finally, you have been found guilty of seven charges of common assault, the maximum penalty for each offence is five years' imprisonment. 

[1] Victor Martin is a pseudonym.

2Charge 1 spans the period from 1 January 2005 to 31 July 2011.  The jury found that you engaged in relevant sexual offending on nine occasions, being occasions 5, 6, 6, 8, 14, 15, 16, 17 and 18, as per the trial indictment. 

3The victim in this matter is your natural daughter, who was born in June 2000.  During the period of your offending, she was residing with you, your wife, and her brother at Phillip Island.  The occasions found proven are not in any chronological order, nor date specific.  The charge contemplates this circumstance and the lack of specificity is no barrier to the charge being proven.  The occasions found proven by the jury were as follows.

4On an occasion between the alleged dates, you asked the victim to go and get some milk and offered her 50 cents for the task.  She complied and returned with the milk before requesting the 50 cents.  You started screaming at her and asking her why she thought she deserved 50 cents.  You then grabbed her by the hair and put your exposed penis in her mouth.  You demanded that she recite the alphabet. She did as you demanded but described your penis as going down her throat as you were pushing it in.  As a result, she bit your penis.  This made you angry and you pulled her skirt over her arm and pulled her arm back and down.  She describes feeling and hearing a popping sound or a crack.  She felt immediate pain and started screaming.  You put your hand over her mouth before pulling her shoulder back into positon.  She was seven or eight at the relevant time.  The injury is the basis of Charge 2.

5On another occasion, you forced your daughter and the family dog, M, to lay next to each other on the floor.  You forced your daughter to watch as you put your tongue into the dog's vagina.  She describes you as sucking and licking gently.  Following that, you penetrated your daughter's vagina with your tongue.  The victim says that you went hard and bit on her vagina.  She described her distress in relation to the abuse of her dog; her affection for her dog was well known to you.  You daughter recalled that while you were abusing her, M was licking her face as she was crying. 

6Another occasion occurred in the kitchen of your home.  You were with your daughter and you asked her if she would like a piece of fruit.  She replied that she would.  You grabbed and pulled her to the ground before taking her pants off.  You were holding your daughter down and you reached for a banana, which you peeled.  You then penetrated her vagina with the banana before taking it out and eating it.  This episode ended with you throwing your daughter's pants in her face before leaving the room.  The victim got dressed and made toast.  She believed was about eight year old when this occurred.

7A further occasion took place in the walk-in closet in your bedroom.  On this occasion, you were taking your daughter's pants off when you heard your son, Jack[2], coming up the stairs.  You closed the door and said to your daughter, "If you do anything, I'll kill you."  You then went and spoke to Jack before returning to the closet. 

[2] Jack is a pseudonym.

8You pushed your daughter down and pinned her with your elbow.  After placing your wife's shoe in her mouth, causing her pain - which founds Charge 3, common assault - you tried to place the shoe heel in her belly button before coming back up to her mouth, at which time she bit your finger.  This made you angry and you took the heel of the shoe and pushed it into her vagina before leaving it to hang.  You were laughing.  She describes you as doing that for about a minute. 

9You took the shoe out and then got a banana from the pocket of your flannelette shirt.  You peeled it and inserted it into her vagina.  You took the banana out of her vagina and tried to force it into her mouth.  She described it as being, "Like how clowns throw pies". The pushing of the banana into your daughter's mouth and face found Charge 5, common assault.  During this incident, you also punched your daughter to the vagina, which founds Charge 4, common assault. 

10Your daughter describes you as eating some of the banana and then leaving.  After a short time, she got up and attempted to escape to the toilet, which was in the hallway.  You intercepted her and pushed her onto the bed, causing a mark on her back; this founds Charge 6, common assault.

11Another occasion involved your daughter's stick insect, S.  S lived in a habitat made of twigs in your daughter's bedroom.  On this occasion, you obtained a branch from S habitat, with which you penetrated your daughter's vagina.  You then placed the stick insect on the twig.  Your daughter's face was covered so she could not see what was occurring, but you told her you were going to light the insect to make it crawl up.  She could hear you flicking a lighter.  Your daughter thought she was about eight or nine when this occurred.  At some stage during this incident, you took a stick and hit your daughter with it.  This founds Charge 9, common assault. 

12A further occasion took place in your daughter's bedroom.  On this occasion, you told her that there was something inside her and that you needed to get it out.  You place a condom on your penis and penetrated your daughter's vagina with your penis.  You ejaculated during the course of that penetration and the condom tore.  Upon you removing your penis, your daughter saw the broken condom.  You were, it seems, concerned as to possible consequences.  You squeezed your daughter's vagina, forcing ejaculate to come out.  You then drank the ejaculate, mixed with liquid, which your daughter believed to be some kind of alcohol.  Your daughter says this occasion was punishment in circumstances where she was often punished for, as she described it, “any little thing” she did wrong.  She describes this occasion as really hurting, as you kept trying to push your penis in further while pulling her bottom towards you. 

13Another occasion occurred in your bedroom. You were there with your daughter, with your erect penis exposed.  You forced your daughter to sit on your penis, which caused bleeding.  She describes you as pulling her down onto your penis and the penetration causing her pain. 

14On this occasion, as I have said, it caused bleeding.  You told your daughter, in relation to the bleeding, that she had her period.  You pushed a tampon into her vagina and required her to leave it there for two days.  She was too scared to remove it.  The victim says she was about nine when this occurred.

15Another occasion involved you offering your daughter $1000 if she let you put your "doodle" on her cheek.  This occurred in your bedroom, with the victim kneeling and you on your bed.  The victim agreed to your request, thinking she would give the money to her mother.  You put your penis on her cheek before inserting it into her mouth.  She described herself as "like choking on it".  She said it really hurt.  She tried to move back but you held her head with your hand while penetrating her mouth. 

16The final occasion proven, although not necessarily the last in time, occurred in your son's room.  The victim was on her hands and knees on the floor and you attempted to insert a green dildo made by you into her anus.  You were, at the same time, attempting to insert your penis into her vagina.  The victim said it did not work at all because, as she described it, "the holes were too small". On this occasion, you had tied your wife's Bendigo Bank belt around your daughter's waist and were treating her like a horse.  She describes herself as crying.  You responded by slapping and punching her.  You kicked her before you left the room.  The physical assault on this occasion founds Charge 10, common assault. 

17Charge 13 is a charge of common assault which involved you requesting or goading your daughter into punching your stomach.  When she did so, you responded by punching her, making her fall to the ground, winded.  She said she could not properly see and thought she may have blacked out for a short time. 

18It is not possible to date the offending in relation to which you are to be sentenced.  It is only possible to say, as regards Charge 1, that the occasions found proven by the jury occurred at different times within the charge period.  Even when the victim was able to give some evidence as to her age, it is fair to say that these were approximations and she acknowledged that her memory as to ages and dates was not good.

19What was clear, however, is that the victim's pervading memory of the indicted years was ongoing abuse by you.  I make clear that I am sentencing you on the basis of the events found proven by the jury relevant to Charge 1. 

20The charge of maintaining a sexual relationship with a child under 16 is a serious offence, as is demonstrated by the maximum penalty imposed by Parliament.  In my view, this is a serious example of such offending.  What is disclosed in this case are multiple acts of offending involving penile penetration, penetration with objects, indecent and bizarre acts, including drinking ejaculate and abuse of the victim's pets.  Your conduct included threats against the victim and her pets.  Sexual offending was, on a number of occasions, accompanied by physical assaults. 

21I have, of course, been mindful in sentencing you, that these assaults are the subject of separate charges and thus, not to be regarded as aggravating in relation to sexual assaults.  I have been conscious of the need to ensure that there is no double punishment. 

22The victim was vulnerable due to her circumstances; she is your natural daughter, she was of tender years.  She resided in your home and thus had nowhere to go to escape you.  You persisted, despite her protests and resistance.  It was clear to the victim that she would be punished.  You, at times, laughed at her distress and humiliation. You had a duty to her and you grossly and repeatedly breached what is the most fundamental duty of any parent; to protect a child.  Your daughter was robbed of the childhood to which she was entitled.  You showed absolutely no regard for her welfare.  This type of offending is abhorrent to anyone with even a shred of decency or any moral compass.

23The victim read her compelling victim impact statement upon your plea.  I have had regard to the contents to the extent that they are relevant and admissible for my purposes in sentencing you, and noting both aspects upon which the prosecution did not seek to rely and other aspects which exceeded the jury's findings. 

24The victim is a brave intelligent young woman.  Despite all that has occurred, she has the will to succeed in life.  She is determined not to let your vile offending define her.  The damage you have done her is clear and pervasive and it will likely have long-term adverse effects as she makes her way into adulthood.  Her trauma was resurrected as she told her story and it is to be hoped that your sentencing will provide some closure and allow her to look forward.

25I also received a victim impact statement from the victim's mother, which confirmed the effects of your offending upon the victim and also detailed her own ongoing trauma.  Again, I have had regard that statement to the extent that it is relevant and admissible for my purposes in sentencing you, having regard to the jury's verdict and findings.

26You have one prior matter of no relevance in relation to a firearm in 1994 in New South Wales.  I am, of course, aware that there was another offence proven in relation to the current victim being present when you committed an indecent act in relation to her mother.  The sentencing remarks in relation to that matter make clear the offending was regarded as being lower end offending and you were sentenced on the basis that the conduct was misguided horseplay.  This matter is not a prior conviction for sentencing purposes and I have acted on that basis.  I have been made aware of two recent appearances as detailed in the LEAP history.  These matters are not prior convictions and I have acted on that basis in sentencing you. 

27You are now aged 46, having been born in December 1971.  Prior to your incarceration, you were residing with your parents, who are both now in their 70s.  You have two older brothers, one of whom resides in Queensland, operating a charter cruise fishing business, and the other who lives in Ballarat, in receipt of a disability support pension as a result of an ABI from a motor vehicle accident. 

28You report a positive childhood.  Your parents operated a bus and an importing wholesaling business for most of your life.  You were never the victim of physical or sexual assault.  You attended Dingley Primary School before transferring to Haileybury, where you remained until Year 10.  You report being bullied and you transferred to St Michael's, where you completed three terms before leaving school.

29Between 1990 and 1994, you close-to-qualified as an electrician.  You worked in that industry until about 1996.  Following that, you worked as a machine operator in a plastics company for 12 months and then as a labourer for a flooring company for a further 12 months.  Following that, you worked in your parent's business for two years as a sales representative, but you report that by 2000, you were experiencing panic attacks.

30You subsequently commenced your own fencing business, which operated for five years.  You worked intermittently as a labourer for a plasterer on Phillip Island.  Between 2000 and 2008, you worked as a deck hand before buying your own boat and establishing a cray fishing business which traded until 2013. You have been in receipt of a disability support pension since that time.  More recently, in 2017, you were assisting with a building renovation when some concrete fell on your leg, which resulted in you having to have three plates inserted.  There are residual issues as regards that injury.

31As regards your personal history, you had a relationship with a woman named Bernadette for about 12 months; aged 20.  You then commenced a relationship with the mother of the victim.  You married in 1998.  You describe the relationship as turbulent, mainly, it seems, due to financial problems.  You describe there being several separations, the final being in 2010.  At that time, you resumed a relationship with Bernadette for some years.  Since September 2016, you have been seeing a woman named Geraldine, who you were hoping would visit you custody. 

32In relation to your physical health, Exhibit B is a report from Sandringham Radiology, confirming your emphysema.  A CT scan is recommended to exclude cancer.  I accept that medical assessment and treatment is likely to be slower in a custodial setting.  There is, however, no clear prognosis and no material to suggest that you will not receive appropriate treatment in custody, nor that custody will exacerbate your condition.  I note, of course, that there are also ongoing issues in relation to your leg injury but, again, there is no material to suggest this cannot be dealt with in custody. 

33In relation to alcohol, you report being a reasonably regular drinker throughout your 20s and say that when you moved to Phillip Island in 2003, aged around 32, that frequency increased.  You described drinking eight to ten stubbies a day some days and, on occasion, up to 2 L of wine.  It was not until your incarceration that you accepted that you had a difficulty as regards alcohol. I note that Mr Cummins diagnosed you as having an alcohol use disorder of at least moderate severity. 

34You were first referred to a psychiatrist in 1998, at which time you were diagnosed with symptoms of depression and panic attacks.  By 2003, you were prescribed antidepressants for what was thought to be an anxiety disorder.  In 2004, you were diagnosed with reactive depression. A letter from the Latrobe Regional Hospital, dated 2009, confirms that you were, at that time, prescribed the antidepressant Cipramil.  The notes at that time indicated that you had a history of presenting in crisis and then failing to follow through with recommendations or suggested treatment. 

35In 2010, you were referred to another psychiatrist who, at that time, diagnosed an adjustment disorder with depressive and anxious symptoms, and recommended treatment by a psychologist.  You told Mr Cummins that you had never been hospitalised in a psychiatric hospital or ward and you conceded that you had never, prior to being incarcerated, committed to receiving any ongoing mental health treatment.  You told Mr Cummins that since being remanded, you have gained acceptance of the fact that you do need such treatment. 

36Since being remanded, you have been at Hopkins Correctional Centre.  Your parents and one of your brothers visit you.  You are medicated with antidepressants and you have requested assessment and you are to be referred to the prison psychiatrist, although that had not occurred at the date of Mr Cummins's assessment. 

37Mr Cummins assessed you in custody for the purposes of his report.  He says that at the time of his assessment, you were at least moderately depressed.  He assessed you as being of average intelligence.  He says that available anecdotal evidence and history confirm that you have been suffering from a major depressive disorder, which has been recurrent in type and of moderate severity, probably dating back to your mid-20s.

38He says your alcohol abuse typically exacerbates symptoms of depression and can exacerbate anxiety.  Mr Cummins recommends your participation in offence specific treatment, such as the Sex Offender Program.  Mr Cummins opines that there is a significant risk that your mental health will deteriorate upon sentence and advises prison authorities be informed that this is likely the case. 

39Mr Cummins opines that at the time of your offending, you were suffering from a sexual deviance disorder in the form of paedophilic disorder and also from a sexual sadism disorder.  In addition, he opines that over the period of your offending, you were suffering from symptoms of anxiety, depression, a panic disorder and possibly an adjustment disorder as well as an alcohol use disorder. 

40Mr Cummins used the Static-99 to assess risk.  He initially found you in the moderate-high risk category.  However, noting the findings of his Honour Judge Maidment in 2012, that the offending the subject of that matter was not sexually motivated, it was Mr Cummins's view that the Static-99R score should be reduced to a score of one, which places you in the low-moderate risk category. 

41I accept, for the purposes of sentencing, Mr Cummins's reassessment of risk after he received the further material.  I see no difficulty as regards his approach to reassessment, which was explained by him in his oral evidence and I am sentencing you on that basis. 

42In any case, given the duration of the sentence I will impose this day and the fact that you have indicated a willingness to participate in offence specific treatment, risk will need to be reassessed at a time well into the future.

43You were first interviewed in relation to these matters in December 2012.  You were not charged until February 2015.  There is no satisfactory explanation for that delay and I accept that the matters were hanging over your head since the date of interview.  The progress of the matter through the courts was not unusual.  I have taken delay into account as a mitigating factor in the sentence I impose this day, having regard to both the weight hanging over your head for an extended period and the lack of relevant offending in the intervening period. 

44In relation to your prospects of rehabilitation, I must have regard to a number of matters, the lapse of time, the fact there has been no subsequent relevant offending, but I must also weigh the ongoing nature of the offending during the charge period.  You have never shown any remorse, nor accepted any responsibility as regards your offending.  In my view, your prospects of rehabilitation are guarded and contingent upon your full acceptance of responsibility and full participation in education and intervention programs. 

45As well as matters personal to you, including your prospects of rehabilitation, I must also take into account other relevant sentencing considerations.  General deterrence is of considerable importance in matters such as this.  I must seek to deter not only you, but others who would engage in like conduct.  The court and the community cannot and will not tolerate offending which so seriously damages the lives of our children.

46Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must seek to deter you from future offending which must, in my view, be given weight, given the duration and nature of your offending.  Your counsel quite properly concedes that the only disposition open is an immediately servable term of imprisonment. 

47These are, without doubt, serious offences.  In the circumstances, I have no option but to impose immediately servable terms of imprisonment.  I have considered how the sentences should relate to each other and have regard to and apply principles of totality and proportionality in coming to a view as to the appropriate orders in relation to concurrency and cumulation.  I have determined that there should be some moderation and some cumulation, so the total effective sentence reflects the totality of your criminality. 

48I have considered the question of the appropriate minimum term, that is the period the court determines justice requires before becoming eligible for parole.  I must have regard to all the circumstances and, for this reason, it cannot be fixed automatically.  The court must consider carefully when you should be eligible for parole and rehabilitation under conditional supervision and I have done so. 

49You are convicted and sentenced as follows.  Charge 1, maintaining a sexual relationship with a child under 16, ten years and four months.  Charge 2, intentionally causing injury, ten months.  Charge 3, common assault, three months.  Charge 4, common assault, six months.  Charge 5, common assault, three months.  Charge 6, common assault, three months.  Charge 9, common assault, six months.  Charge 10, common assault, eight months.  Charge 13, common assault, eight months. 

50I direct that six months of the sentence upon Charge 2, three months of the sentence upon Charge 4, three months of the sentence upon Charge 9, four months of the sentence upon Charge 10, and four months of the sentence upon Charge 13 be served cumulatively with the sentence upon Charge 1 and upon each other.  That makes a total effective sentence of 12 years.  I direct that you serve eight years and six months before becoming eligible for parole.  I direct that 98 days be reckoned as served. 

51You have now been found guilty of class 1 offence; registration is mandatory.  It is common ground that the reporting period is life.  In a moment, my associate will ask you to sign an acknowledgement that you have received the notice and relevant paperwork. 

52Finally, the Crown make application pursuant to s.464ZF of the Crimes Act for an intimate forensic sample to be taken from you.  I am satisfied it is in the interest of justice, having regard to the seriousness of your offending, to make the order.  I note you do not oppose the making of the order.  I order that an intimate forensic sample be taken from you.  I must inform you that police may use reasonable force to enable that procedure to be conducted. 

53The sex offender registration material, the acknowledgement needs to be signed.  Either you or your instructor may approach with my associate.  Thank you.  Madam Prosecutor, have had an opportunity to check the cumulations?

54MS HAMILL:  Yes, Your Honour, I think that that is correct.

55HER HONOUR:  Thank you.  Nothing further, counsel?

56MR GILLESPIE-JONES:  I have not checked the cumulations, Your Honour.

57HER HONOUR:  Do you want to check the cumulations?  I will wait a moment.

58MR GILLESPIE-JONES:  You were a little quick, your Honour, I am afraid.

59HER HONOUR:  Thank you.  Do you want me to announce them again?

60MR GILLESPIE-JONES:  If you would be so kind, your Honour.

61HER HONOUR:  Yes, certainly.  We start with Charge 1, which is the base sentence, and then in terms of the cumulations, six months on Charge 2, three months on four, three months on nine, four months on ten, and four months on 13.  The base is ten years and four months. 

62MR GILLESPIE-JONES:  Yes, yes.

63HER HONOUR:  Yes.  Thank you very much, I thank counsel or your assistance.  Remove Mr Martin please. 

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