Director of Public Prosecutions v Matthams (a pseudonym)

[2023] VCC 2126

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

AARON MATTHAMS (a pseudonym)

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JUDGE:	HER HONOUR JUDGE SYME
WHERE HELD:	Melbourne
DATE OF HEARING:	30 October 2023, 8 November 2023
DATE OF SENTENCE:	17 November 2023
CASE MAY BE CITED AS:	DPP v Matthams (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2126

REASONS FOR SENTENCE

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Subject:             CRIMINAL LAW

Catchwords:     Sexual penetration with a child under the age of 12 – Sexual assault of a child under the age of 16 – Verdins – Ongoing support of family – Low risk of reoffending

Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Sex Offender Registration Act 2004 (Vic).

Cases Cited: R v Verdins [2007] VSCA 62.

Sentence: 7 years and 3 months imprisonment. 4 years and 8 months non-parole.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Accused	Mr J. Connolly	Stephen Peterson Lawyers

HER HONOUR: 

1Mr Aaron Matthams,[1] on 14 July 2023, you were found guilty by a jury of two offences of sexual assault of a child under 16 years and one offence of sexual penetration of a child under 12.  The children are the grandchildren of your then de-facto partner and were holidaying in your and her home at the time of the offending.  As I said, I will be using pseudonyms for those children and your de-facto partner when referring to them throughout my judgment.

[1]A pseudonym. The Court has anonymised the name of the offender in order to protect the identities of the complainants and their families.

2The offending occurred at Warragul on the 17th or the early hours of 18 January 2021.

3The charges on the indictment of which you were convicted of were particularised as follows.

a.Charge 1.  Sexual assault of a child under the age of 16 years, relating to the touching of the child who I will call Lillian Holt,[2] her buttocks, while she was in bed.  The maximum penalty for this offence is 10 years' imprisonment, with a standard sentence consideration of four years.

b.Charge 2. Sexual penetration with a child under the age of 12 also relating to the child who I referred to as Lillian when you penetrated her vagina with your  fingers in the same circumstances as Charge 1.  The maximum penalty for this offence is 25 years, with a standard sentence consideration of 10 years.

c.Charge 4.  Sexual assault of a child under the age of 16 years, relating to touching the child who I will refer to as Patrick Holt,[3] his penis, while he was in bed.  The maximum penalty for this offence is 10 years, again, with a standard sentence consideration of four years.

[2]A pseudonym.

[3]A pseudonym.

4You were found not guilty of another charged offence.

5It is not in dispute that an imprisonment sentence must be imposed.

STANDARD SENTENCE

6The court is required to take into account the standard sentences referred to above and the maximum penalties and the considerations outlined in s 5B of the Sentencing Act1991 (Vic). The Court of Appeal has said that the key requirement is that a court must take the standard sentence into account as a relevant sentencing factor when sentencing for a serious sex offence. But as with the maximum penalty, it is a legislative guidepost. It does not affect the instinctive synthesis or permit a 'two-stage' sentencing process, or otherwise affect matters a court may or must consider when sentencing.

OTHER CONSEQUENCES OF OFFENDING - EXTRA CURIAL PUNISHMENT

7In addition to the sentence imposed today, you will be subject to lifetime reporting obligations under the Sex Offender Registration Act 2004 (Vic).

PRIOR CRIMINAL HISTORY

8You have no prior criminal history for this or any other type of offending.  The jury were aware of this when they considered their verdict.  It is generally acknowledged that when considering this serious type of offending, leniency is not appropriate.  The fact of your good character, in effect, enabled you to be allowed into the family’s trust and therefore commit these offences.

9However, the court does note that the offending appears to be out of character and will take that into account when considering any explanation for the offending, if it exists, and consider it when assessing your prospects of rehabilitation.  You do not admit the offending.  No explanation is forthcoming.

SERIOUS OFFENDER

10For Count 4 you must be sentenced as a serious offender.  The court must regard the protection of the community as the principal sentencing purpose (while not excluding other purposes).  The prosecution do not seek a disproportionate sentence and that is the appropriate position in my view.  The court will record the fact that you were sentenced as a 'serious offender'.

FACTS

11I now turn to the facts of these matters and my findings of the facts which are consistent with the jury’s verdict.

12As at 18 January 2021, you were 66 years of age. You were in a relationship with the children’s grandmother, who I will refer to as Lucy Blackburn,[4] and had been so for about five years. You and she resided between her home at Warragul and your own home at Loch Sport.

[4]A pseudonym.

13The complainant, who I referred to as Lillian Holt, was born in May 2010 and was 10 years old.  The other complainant, Patrick Holt, was born in July 2008 and was 12 years old.

14On Sunday 17 of January 2021, both complainants spent the day with your de-facto partner and yourself as it was school holidays.

15In the afternoon and evening, you and she had some alcoholic drinks, and you and the children had dinner together, and watched TV.  At about 9.30pm, the children began watching a movie on TV with you and Blackburn went to bed.

16At around 11.30pm, the children got into their beds in separate rooms.  The child, Patrick, was looking at his iPad while in bed.  You went into his room and enquired what he was doing.  You put one hand on the side of the bed and the other hand on the bed on top of the bedclothes in the area of Patrick's penis. You looked at the iPad.  You left your hand on the child’s bed in the area of his penis for some time.  He felt uncomfortable.  You then gave the child a hug and  said, 'Good night.'

17This was charged as sexual assault of a child under the age of 16.

18In assessing the objective seriousness of the offence, the court notes that the touching was relatively brief and not direct, skin-on-skin touching.

19At the same time, Lillian also got into her bed.  She was scared after seeing the trailer for a horror movie.  You went into her room and got into her bed, under the covers,  and lay with your face towards the back of her head.  You  touched her bottom with your hand which made her feel awkward.  This was also charged as sexual assault of a child under the age of 16.

20In assessing the objective seriousness of this event, the court notes that the touching was, again, relatively brief, but occurred in a more intimate setting as you were in the child’s bed.

21You then put your arm around Lillian and pulled her pants and underpants down below her thighs and put your finger inside her vagina. Your finger remained there she estimated for about three seconds, before you put that finger into your mouth and licked it.  You asked if she was 'comfortable'.  The child replied that she was not.  You got out of bed and left the room.  She pulled up her underpants.  She was scared.  You left the room shortly thereafter.  This was charged as sexual penetration of a child under 12.

22In assessing the objective seriousness of this event, it is noted that the touching was relatively brief for offences such as this, but the circumstances were obviously confronting.

23A short time later, you went back into Lillian's room and said that you were sorry. She alleged that you kissed her on the cheek at this time and asked her not to tell anyone.  The jury found you not guilty of that charge of sexual assault of a child under 16 relating to this part of the evening.

24The jury either found that the event did not occur as relayed by Lillian, or that what did happen was not contrary to acceptable standards of conduct at that part of the event, that is, they may have found that there was no sexual connotation in the kissing at the time and was consistent with your apology.  In any event, I disregard this event, but if it occurred, it would have showed at least a small amount of immediate remorse for your behaviour.  It is irrelevant.

25The following morning, Lillian told her grandmother, in part, what had occurred.  The grandmother telephoned Triple 0, and while she was doing other things placed Lillian into Patrick's room while she changed from her nightclothes. While in Patrick’s room, Lillian disclosed in more detail to Patrick what had occurred.  When Blackburn returned to the children’s room, Patrick told her what had occurred to him.

26Police investigated immediately and video recordings were made of the children’s complaint.  They were played in the prosecution case.  I observe that there was immediate action by police and the recording of the children's interview in the circumstances was an important part of the prosecution case.

27You were arrested on 18 January, that is, the same morning, and you were granted bail.  Bail was revoked when the jury returned its verdict.  

28There was little delay in the trial preparation and presentation.  A special hearing was conducted in March 2022.  There were some preliminary trial issues which were dealt with in April 2023 and the five-day trial took place in July this year.

VICTIM IMPACT

29I have read and listened to the victim impact statements from the two children, their parents and their grandmother, your former partner.  It is observed that the consequences of your offending are far reaching for the entire family and continue to cause disquiet for each of them in different ways.  

30The law recognises these serious consequences for immediate and wider family victims by prescribing significant potential maximum penalties attached to the charged offences. 

31The court acknowledges and accepts that the contents of the victim impact statements are consequences of your offending.  They are the sort of consequences that are sadly consistent with almost all of this type of offending.

OBJECTIVE GRAVITY OF OFFENDING

32I have noted above the physical events which resulted in the jury’s finding of guilt.  Each event was of relatively brief occurrence.  However, the matters which make the offending more serious are significant.

33You were in a position of trust next to the children.  Your then partner,
Ms Blackburn, trusted you to care for the children on your own after she went to bed.  The children looked up to you as a grandfather and accepted you as such. The children’s parents allowed the children to go to their grandmother's place during the holidays knowing you were there.  Your breach of trust is therefore egregious.  You breached the trust of each child and, by extension, the adults whose responsibility it is to care for them.  

34The offending against each child was in their bedrooms, a place where they were entitled to their privacy and safety.  Your request to Lillian to keep it a secret was no doubt confusing and confronting for her, requiring her to consider her loyalty to you and to her grandmother.  It obviously caused her anguish. The events at night caused sleep disturbance for that night, and I am told well beyond that.

35The victim impact statements, as I have observed, set out the consequences for each child and their parents.  Those statements remind the court of the serious consequences of offending such as this on all affected.  Frequently, those affected will be so traumatised for long periods of time.  It is not suggested, as I have noted, that the serious consequences for these children are unusual or separately aggravating circumstances.

36However, it is also noted that each event was of short duration.  It is noted that there were no threats or coercion.  These matters are not mitigatory, rather, they reflect a lack of aggravating circumstances.

37The offending against the child, Patrick, in terms of physical events, was at the lower end of the scale of seriousness for the offence charged.

38The offending against the child, Lillian, was also, as I have noted, of relatively short duration.  You got into bed and cuddled her, which undoubtedly made her uncomfortable as you touched and penetrated her.  The physical acts were, however, again, of relatively short duration.  As noted, it was not accompanied by any aggravating features as is often the case.  The offence is of below mid-range objective seriousness for the offence charged.  

PERSONAL CIRCUMSTANCES AND BACKGROUND

39Details of your personal circumstances and history are contained in the report prepared by psychologist Ms Carla Lechner dated 9 October 2023 and from information relayed by family members during the trial.

40You are now 69 years old.  You report a good and supportive childhood.

41You enjoyed a fruitful and productive work life.  Your physical health has been marred by two separate motor vehicle accidents, one in 2005 and the next, in 2021.  

42The 2021 collision was a single car collision when you ran your car into a tree.  This occurred shortly after you were charged with the current offences. I will refer to these issues below.  

43The consequences, however, of the injuries sustained in these accidents have impacted on your physical and mental health.  

44You nevertheless have a good relationship with your siblings.  They remain supportive of you and they are concerned for your welfare.

45Your self-report to Ms Lechner is uncontroversial.  You maintain your innocence with respect to these charges and do not suggest any level of intoxication on the evening being relevant to your sexual misbehaviour.

46You report that your relationship with the grandmother of the children the subject of these proceedings was, perhaps coming to an end, but do not suggest that this is a relevant consideration for your offending.  You report a life of contribution to the community and your self-image is of a practical, honest and trustworthy person.

47For various reasons, Ms Lechner, the psychologist, suggests that you present a low risk of reoffending, both because this is your first offence, and because of other observations she makes as to your sexual presentation prior to this event.

48Her conclusion is not disputed by the prosecution.  In any event, I note that as a result of these convictions, you will be required to enter into the sexual offenders register and therefore, will not be permitted unsupervised contact with children - even on your release from custody.

49As a result of your current placement in custody, you report symptoms of a severe level of psychological distress, extreme depression and ongoing unresolved symptoms of PTSD, some of which I understand are related to the motor vehicle accidents in the past. There is no suggestion that these presentations have anything to do with the sexual offending, however, your level of psychological distress is a matter that can be taken into account when considering the sentence to be imposed.

50It is also submitted and not in dispute that you have some medical problems and physical injuries which limit your mobility thus making the custodial environment perhaps more difficult than for persons who do not have these mobility limitations.

51It is not suggested that your moral culpability for the offending is reduced by any of the issues raised in Ms Lechner's report.  Her report more properly deals with psychological distress as a result of prior accidents which have resulted independently in your presentation of depression and mobility limitations.

52You have, I am told, suffered from some degree of depression for an extended period of time.  Your level of distress unsurprisingly increased on being charged with these offences.  There is a suggestion that the 2021 motor vehicle accident was, perhaps, associated with a suicide attempt but this is unconfirmed.

53Your mental health is compromised, apparently, by an observed adjustment disorder which is apparently related to your difficulty in adjusting to a custodial setting. This is unremarkable.  However, you have not enjoyed robust mental health for many years, and it is observed and not challenged, as above, that this involves an associated depressive disorder and complex PTSD.  

54Ms Lechner opines that these presentations are likely to impact on your ability to function in a prison environment.  She suggests that you will benefit from involvement with treatment services she outlines in her report and which I commend to Corrective Services.

55Your PTSD presentation does, I accept, make a prison environment more burdensome than for someone who does not have that condition.

56In addition, I note that you have physical limitations resulting from the motor vehicle accident and these limitations, as observed, reduce your mobility and, no doubt, cause physical pain which, again, impacts on your mental health.  

57The prosecution correctly do not oppose limbs 5 and 6 of the Verdins principles being relevant to the sentence at hand, that is that, limb 5:

'The existence of an impairment at the time of sentencing may mean that a specific sentence may weigh more heavily on the offender than it would on a person in normal health’; and limb 6:

‘If there is a serious risk that imprisonment will have a significantly adverse impact on the offender’s mental health, this will be a mitigating factor.'

58These Verdins ‘considerations' or 'principles' may moderate both the minimum term and the head sentence. However, they are exceptional and should not be invoked in routine cases.  The effect of your physical and mental health limitations will be taken into account, but the effect on the sentence will be mild.

59As noted above, your prior good character is not a consideration to mitigate the sentence to be imposed in this matter.  However, it does lead to Ms Lechner’s finding that you have low prospects of reoffending in the future and, therefore, your prospects of rehabilitation can be found to be good.  This is a sentence consideration.  Your family’s knowledge of these matters and continued support of you also supports a finding of good rehabilitation prospects.

PURPOSES OF SENTENCING

60As is usual in matters such as these, each of the purposes of sentencing pull in different directions.  Stated in another way, a just punishment must also address, for instance, deterrence, denunciation, rehabilitation and of course the protection of the community.

61It is accepted by your counsel that nothing other than a custodial sentence is appropriate for the offences for which you have been found guilty.

62The court must also consider the principle of totality.  While you have been found guilty of three distinct offences, Charges 1 and 2 were committed within minutes of each other, meaning accumulation should therefore be limited.  

63That being said, the total sentence must still reflect the objective seriousness of the offending as a whole and the offending against two separate children.  Some accumulation must result.

SENTENCE

64For Charge 2, the offence of sexual penetration of a child under the age of 12 years, I sentence you to a term of imprisonment of seven years.  This is the base sentence.

65For Charge 1, sexual assault of a child under the age of 16 years, in relation to the same child, I sentence you to a term of imprisonment of one year to be served concurrently with the base sentence.

66For Charge 4, sexual assault of a child under the age of 16 years in relation to the other complainant, I sentence you to a term of imprisonment of six months which is to accumulate three months upon the base sentence.

67The total effective sentence is therefore seven years and three months' imprisonment with a non-parole period of four years and eight months.

68Pursuant to s 6F of the Sentencing Act 1991 (Vic), it will be noted that you are sentenced as a serious sex offender. Pursuant to the Sex Offenders Registration Act  you are required to comply with reporting obligations for life.

PRE-SENTENCE DETENTION

69COUNSEL:  Yes, 126 days, Your Honour.

70HER HONOUR:  Thank you.  Do we agree with that?

71MR CONNOLLY:  Yes, Your Honour.

72HER HONOUR:  Thank you.  I note, Mr Matthams, that you have, as of today, served 126 days of pre-sentence detention and that time will be taken into account and marked as time already served to be taken into account on the head sentence and the non-parole period.

73Madam Prosecutor, Mss MacDougall, do you have any questions?

74Ms MacDOUGALL: Your Honour, just one issue. On the question of s 6F, is Mr Matthams sentenced as a serious sex offender on Charge 4 only?

75HER HONOUR:  I believe that is appropriate; is that correct?

76MR CONNOLLY:  Yes, Your Honour.

77Ms MacDOUGALL:  Yes, I agree with that, but Your Honour didn't specify it.

78HER HONOUR:  I did not specify it.

79Ms MacDOUGALL:  That's why I raised that.

80HER HONOUR:  No, quite right.  Anything, Mr Connolly?

81MR CONNOLLY:  No, thank you, Your Honour.  May it please the court.

82HER HONOUR:  Do you want some private time with your client?

83MR CONNOLLY:  No, thank you.

84HER HONOUR:  All right.  If there is nothing else then, we will adjourn.  Thank you.

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