Director of Public Prosecutions v Matthews
[2012] VCC 1933
•4 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
CR-12-01617
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAPHNEY LOUISE MATTHEWS |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 November 2012 | |
DATE OF SENTENCE: | 4 December 2012 | |
CASE MAY BE CITED AS: | DPP v Matthews | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1933 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sexual offences against a child aged 15 and 16 – Plea of guilty – No criminal history – Good prospects of rehabilitation – Current sentencing practices
Legislation Cited: Sex Offenders Registration Act- Sentencing Act
Cases Cited: DPP v Ellis [2005] VSCA 105 – R v D’Addario [2006] VCC 1850 – Dennis v R [2011] VSCA 65
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. McWilliams | OPP |
| For the Accused | Mr P. Dunn QC Ms S. Hinchey | Galbally & O’Bryan |
HER HONOUR:
1 Daphney Matthews, you have pleaded guilty to one charge of committing an indecent act with a child under 16 (Charge 1), two charges of sexual penetration of a 16 or 17 year old child (Charges 4 and 5), each of which offences has a maximum penalty of ten years’ imprisonment, one charge of committing an indecent act with a 16 or 17 year old child (Charge 3), which has a maximum penalty of five years' imprisonment, and one charge of sexual penetration of a child under 16 (Charge 2), which has a maximum penalty of 15 years’ imprisonment. All the offences involved the same victim.
The offences
2 In these remarks, I will refer to the victim of your offences as "M". I do so to preserve her anonymity as required by law, but I do not mean her any distress or disrespect.
3 I sentence you on the basis of the agreed summary of facts which was read in court by the prosecutor (Exhibit A). Put briefly, you originally met M some years ago at your Church, in your capacity as a Sunday School teacher and youth leader. M came to live with you and your family in 2009. Between June and December of that year, you committed the offences.
4 You began with kissing her and this progressed to you touching her over her clothes. This activity is the subject of Charge 1, which is representative of such acts occurring several times a week at your home in her bed over a five month period, and one occasion when you took M alone to Daylesford overnight.
5 Charge 2 occurred at Daylesford on the same night and shows an escalation in your offending. It is accepted that it involved more serious sexual activity by you during the course of the evening.
6 The rest of the offending occurred after M turned 16. She was still living in your home and under your care. Charge 3 is representative of regular acts of similar nature to that in Charge 1, but was more serious as it involved you undressing M.
7 Charges 4 and 5 are representative of different types of more serious sexual activity occurring on two occasions in December 2009, when you again committed the offences after getting into bed with M.
The impact on M
8 M provided two Victim Impact Statements. I have read them very carefully, but I will not give any detail here, to protect M’s privacy. M should be reassured that nothing that happened was her fault. A person under 18 is a child. M was under 18. Where an adult commits sexual offences against a child, it is never the child’s fault. M has suffered considerably as a result of your actions, and continues to do so. I know that life will continue to be hard for M, but I say to her life is worth the battle. Keep at it, and know that there are people who genuinely care about you. I do wish M well, and I hope for a happy future for her.
The basis for sentencing
9 I sentence you on the following bases.
10 First, your crimes are made more serious by these features:
· Your actions grossly breached the trust that M and her family had in you when you received M into your home;
· Not only were you known to M previously as a teacher and Church youth leader, but when you took her into your home, you became like a parent to M or, at the least, a mentor;
· Further, you were aware that M was extremely vulnerable;
· Next, the offending occurred on a number of occasions over the period of six months as shown by the representative charges; and
· Finally, the offending escalated in seriousness.
11 However, there are a number of factors in mitigation of your offending, which must be taken into account.
Factors in mitigation and personal circumstances
12 The first of these is the fact that you have pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. I also take into account that you indicated early your intention to plead guilty. By your plea, the community has been spared the time and cost of a trial. Most importantly, M has been spared the ordeal of giving evidence. I can tell you that the sentence I intend to impose is far less than would have been imposed had you been found guilty after a trial.
13 I also accept that your plea of guilty reflects your remorse for your offending. You have also expressed your remorse for the effect of your crimes on M to numerous family members and friends, who have detailed this in their references and in evidence to the court. Apparently, you also wrote a letter of apology to M in February 2010. You realise that what you did has caused further harm to a vulnerable young woman.
14 Next, as you have no criminal history, you will be sentenced today as a person of previous good character. I accept that your previous good character goes far beyond a lack of criminal history. The references of your family and friends, together with the evidence I heard during the plea hearing, make it clear that you have been respected in your community all your adult life, as a church member with various responsible positions, as a daughter, wife and mother, as a teacher and a friend, and that you have made significant contributions in all facets of your life. Of course, that makes your fall from grace so much harder for all concerned, and harder to understand. Your family and friends stand by you, and their love and support is vital for you, during and after the time you will spend in custody, to allow you to return to a productive life.
15 Next, I take into account that the offending occurred three years ago, and I cannot ignore what has happened in your life in that time, which I will detail in a moment. I note here, however, that M continued to live with you until March 2011, and there was no further offending after the end of 2009, when M "found her voice" and told you to stop. It is significant that you were able to resist the opportunity to commit further offences from then, even when M slept on a mattress in your bedroom, due to her sleeping difficulties.
16 Your personal circumstances are outlined in the chronology (Exhibit 2) and the report of Mr Jeffrey Cummins, psychologist (Exhibit 3). In summary, you are now aged 39. You and your twin brother are the youngest of seven children. Your parents brought the family up in the Church of Jesus Christ of Latter Day Saints. Service to the community and compassion for others were demonstrated in your family’s way of life. However, it was perhaps a sheltered way of life that did not necessarily prepare you for what life might bring, as you were wholly involved in school, church and family. One friend you have made subsequently in teaching said in evidence that she had never met a less worldly person. You had no experience outside these areas of school, church and family until you went to university.
17 Even then, you were married at 19, and so did not have the broad social experience that university or travel might otherwise bring. You and your husband even lived for a time on the premises of your former secondary school as caretakers while you both studied. You were a successful student, and gained an arts/law degree.
18 You have three sons, now aged in their teens. After time at home caring for your sons, you worked as a lawyer for a short time before you later returned to study to become a teacher, eventually gaining a position at the school you had attended, following time at your first school as a teacher. You found teaching was your true vocation, and you are considered to be a natural and talented educator. I take into account that you have lost that occupation as a result of your offending. I do note that you have already begun further study in an attempt to utilise your strengths as an educator in a different way, which is a positive sign for your future.
19 On your behalf, senior counsel outlined the combination of circumstances in your life in 2009 that, as he put it, "shifted your moral compass". In short, your marriage began to significantly deteriorate; your family finances were precarious and twice the mortgage was in substantial arrears; the house was in disrepair and there was no money to fix it; your husband had been unwell for a number of years and by 2009 was unable to work due to several illnesses including epilepsy, diabetes and depression; and your eldest child had a medical problem which had been undiagnosed and untreated for many years.
20 You bore the brunt of all this, managing the home and children, working fulltime as a senior VCE teacher and contributing to the Church community. It was in this context that you offered to have M stay in your home when she confided in you that she felt she could no longer live at home. In references provided to the court, your friends and family have stated that while you were always considered highly capable, some had their concerns, and they recognise now all this was too much even for you to cope with. One friend described it as your needs being annihilated by dealing with the needs of others.
21 I accept this background to the offending, although of course it does not in any way excuse it. You clearly did not cope with all the difficulties in your life which reached a head in 2009 and this affected your judgment, as I will describe when I discuss the opinion of Mr Cummins. You turned to M for "psychological comfort" when you were meant to be providing comfort to her. Your offences, of course, provided anything but comfort to M. I accept that this offending was truly out of character for you. It follows that I consider that you are unlikely to reoffend, and certainly not against M, because you will never again have the opportunity to do so, and because you did not offend against her in the period after the end of 2009, when you still had the opportunity.
22 In early 2010, you and your husband separated and you moved into a house with your three sons and M. As your counsel put it, you were back on track, and things then stabilised for you. At the beginning of 2010, you wrote your letter of apology to M. You also arranged for M to have counselling in respect of issues which continued to affect her. You drove M to her appointments and to visit her parents, even though you must have recognised the possibility that M could report, in either place, what you had done to her.
23 You were made head of history at your school at the commencement of 2010, and resumed teaching at Sunday School, which you had temporarily ceased while you felt under stress. By the end of that year, your son’s medical problem had been diagnosed and treated. By early 2011, you were also editor of the school magazine, and you received an award for your teaching. The prize was a study tour, after which you created teaching resources which are highly regarded.
24 It was in March 2011 that M told someone what you had done. When you learned of this, you immediately informed your principal at school, your bishop at Church, and your family of what you had done. I have noted that you will never be able to teach again, but you have also been estranged from the Church congregation which has always been part of your life. Since you reached adulthood, you have taken positions of responsibility in the Church. After you told your bishop, measures were taken to keep you away from potential contact with M, by moving you to a different congregation, as well as moving you from positions in the Church involving children. Further, you are no longer permitted to take communion.
25 In addition to these long lasting consequences, you were unable to have unsupervised contact with your own children through to December 2011. Your sons continued to live with you until you went into custody on the day of your plea.
26 In reaching my conclusion that you are unlikely to re-offend, I am assisted by the report and evidence of Mr Cummins. He formed the opinion that you were specifically attracted to M and not attracted to teenaged girls in general. Your behaviour was reflective of offending arising out of the opportunity and situation. I am satisfied that it was not predatory. Over the course of five hours’ consultation with Mr Cummins during four appointments, you came to acknowledge the attraction that M had held for you, although you found it psychologically difficult to accept this.
27 Despite the serious features of your offending, to which I have already referred, Mr Cummins found that there was no current evidence of you having attitudes condoning sexual violence, and you have no sexual interest in females. From your initial consultation with him, when you were still relying heavily on what he described as defence mechanisms of rationalisation, minimisation and denial, you have developed more insight and now unequivocally accept that, as you were the adult in the situation, you are wholly responsible for what occurred. You are willing to undergo a Sex Offender Program in order to fully confront your behaviour.
28 Mr Cummins also reported that, in his opinion, you have been suffering from depression from at least 2006/2007 when your marriage first began to break down, and certainly during the offending period when all the other problems combined to cause you great stress. He described your current diagnosis as chronic adjustment disorder with mixed anxiety and depressed mood, in combination with a dysthymic disorder. Your tendency to believe that you are a person who should cope with any situation, and your reliance on your religious faith, and not medication, to get you through, may have led you to repress some of your depressive symptomatology. Mr Cummins is of the view that there is a mismatch between your undoubted intellect and your emotional intelligence, and that imprisonment may lead to a further deterioration in your mental health. He confirmed that you should receive ongoing treatment from a mental health practitioner and should try anti-depressants, but recognised that you will probably resist this. Mr Cummins has also indicated his view that you will be slow to inform the prison authorities if your mental health deteriorates.
29 Finally, Mr Cummins gave evidence of the effect on you of being separated from your sons due to your imprisonment, made even more difficult for you because, at least initially, you will be unable to have them visit you and other visitors will be received by you away from the general visitors’ area in what is known as a "box visit", to avoid you having contact with children. This may eventually change at the discretion of the particular prison at which you will be located.
30 Your counsel submitted that I should find that your depression is a mental health condition which was in existence at the time of the offending, and that it reduces your moral culpability. They also submitted that as it is a current condition, it will make service of your sentence more onerous.
31 I accept that you are a person who would not have acted in this way without some cause. I find that your depression was probably due to the combination of factors that was operating on you at the relevant time, and I accept that condition impaired your mental functioning to the extent that it permitted you to commit sexual offences against a child, which is behaviour that would normally be totally abhorrent to you. The effect of that impairment is that your level of moral culpability is reduced somewhat, and denunciation of your crimes is of less importance than if you had not been suffering from that condition at the time of the offending. I also accept that your current depression will make a sentence of imprisonment weigh on you more heavily than on a person who does not suffer from that condition.
32 I acknowledge that you are extremely concerned for your sons, regarding how they will be affected by your offending and imprisonment, and who they will live with while you are in prison, given that their father wishes to resume some responsibility for their care despite his illnesses. Unfortunately, it is all too often, and therefore not exceptional, that the direct victim of an offence is not the only innocent party affected by a crime. A stone thrown into a dam creates many ripples. I take into account the impact on you of worrying about them during your term of imprisonment, even though, in the absence of exceptional circumstances, I cannot take into account the impact on them.
Ancillary orders
33 Application has been made for an intimate forensic sample to be taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offences, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have not objected, if you change your mind, I must inform you that the police may use reasonable force to enable such a procedure to take place.
34 As a result of my sentence of you today, you become a registrable sex offender. Charges 2, 4 and 5 are class 1 offences. You will be required, within seven days of your release from custody, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life.
35 Ms Matthews, I will now have my associate hand to you a form which notifies you of your reporting obligations under the Act. Would you please sign where indicated to acknowledge that you have received this form?
Submissions
36 The prosecutor originally put forward a range for your sentence of three to four years' imprisonment with a minimum of one and a half to two and a half years. After hearing the evidence of Mr Cummins that you no longer seek to rationalise or minimise your offending, the prosecutor very fairly conceded that the range should be moderated, based as it was on the view that your lack of insight was continuing.
37 Your counsel referred me to the principles upon which they relied, and to a number of cases in which a female teacher had been sentenced for sexual offending against a child. They submitted that the original range put forward by the prosecution was too high when one considers the sentences given in those cases, as well as your personal circumstances, and the fact that, unlike the situation in the other cases, you did not continue to offend, including during the period that the opportunity was there for you to do so. Ultimately, it was submitted that while it is conceded that there should be partial cumulation amongst the charges, the overall sentence should be lower than that originally proposed by the prosecution.
Conclusions
38 These are serious offences. My sentence of you must seek to deter others from taking advantage of children to whom they have access and who are under their care. I accept, however, that as I am satisfied that you are unlikely to re-offend, deterring you from re-offending is not such an important purpose of my sentence.
39 Because you are to receive a term of imprisonment in respect of the first two charges, on the remaining charges, the law classes you as a serious sexual offender, and requires me to regard the protection of the community as the principal purpose for which sentence is imposed. If necessary, I can impose a sentence which is greater than proportionate to achieve that purpose. In this case, I do not propose to do that. I am of the view that the community, and M in particular, is already protected from you because I consider you have already been deterred by all that has happened, and because you are a low risk of re-offending.
40 I have carefully considered the submissions of all counsel as to the appropriate range, the current sentencing practices as informed by the cases to which I was referred and the Sentencing Snapshots provided by the Sentencing Council of Victoria, while recognising the limitations in both categories. I was assisted by further submissions this morning.
41 In the end, I am of the view that the prosecution range as originally proposed is more appropriate, even having regard to the concession made by the prosecutor.
42 My reasons for this view are first, the female offenders in the cases to which I was referred were all sentenced at a time when a suspended sentence was still available for the offence of sexual penetration of a child under 16, so long as the total effective sentence was three years or less. That is no longer the law, although the date on which Charge 2 was committed by you would permit a suspended sentence to be imposed if there were exceptional circumstances. That is not sought here. It is possible that the availability of that sentencing option may have influenced the view as to the appropriate total effective sentence, at least in the cases of Ellis and D’Addario. Ellis also had the aspect of double jeopardy. None of the charges in the three cases to which I was referred were representative.
43 Second, the median length of imprisonment for sexual penetration of a child between ten and 16 under care between 2005-6 and 2009-10 was three years, and the most common length of imprisonment imposed was between three years and less than four years.
44 Given the concession by counsel for Mrs Matthews as to partial cumulation, an appropriate sentence on Charge 2 within a range for a total effective sentence moderated downwards from three to four years makes it difficult, in my view, to provide sufficiently for appropriate sentences to be given on the other charges, which are all representative.
45 Given the current sentencing practices, I had thought that the original range may indeed be too low, even taking into account the significant mitigating features. However, I am persuaded by the submissions heard this morning, and I do not propose to sentence above the range which was originally proposed as I am satisfied that an appropriate sentence can be formed within or even slightly below that range. I will moderate the individual sentences accordingly.
46 I will direct cumulation to reflect the escalation in the offending, the number of occasions, the representative nature of some of the charges and the requirements of the serious sex offender provisions. However, the cumulation will be partial, to take account of the relatively short period of offending, the low risk of re-offending and the facts that the offending was not predatory and that it stopped even while the opportunity to offend still remained.
47 I propose to provide a much lower non-parole period than might otherwise be expected, because of factors in your favour, including prospects for rehabilitation and the impact of imprisonment on your mental health.
Sentence
48 You are convicted and sentenced as follows:
49 On Charge 1 – indecent act with a child under 16 (representative) – ten months' imprisonment.
50 On Charge 2 – sexual penetration of a child under 16 – two years' imprisonment.
51 On Charge 3 – indecent act with a 16 year old (representative) – 12 months' imprisonment.
52 On Charge 4 – sexual penetration of a 16 year old (representative) – two years, six months' imprisonment.
53 On Charge 5 – sexual penetration of a 16 year old (representative) – two years, six months' imprisonment.
54 The sentence on Charge 4 is the base sentence. I direct that one month of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 3, and two months of the sentences imposed on Charges 2 and 5 be served cumulatively on the sentence imposed on Charge 4 and on each other.
55 That makes a total effective sentence of three years, one month's imprisonment. I have detailed the cumulation in that way rather than as provided by the Sentencing Act to make it easier to understand.
56 I direct that you serve a minimum term of one year before becoming eligible for parole.
57 I note that you have been sentenced as a serious sexual offender in respect of Charges 3, 4 and 5, and direct that this be entered in the records of the court.
58 If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed would be much higher, given that some of the charges before me are representative. Doing the best I can, the sentence would have been six years, six months' imprisonment with a minimum of four years.
59 I have made the ancillary orders and they can be handed down.
60 Could I just have counsel check the cumulation?
61 MS HINCHEY: It appears to be correct, Your Honour.
62 MR McWILLIAMS: Yes.
63 HER HONOUR: Yes, thank you very much.
64 I neglected to declare the pre-sentence detention. That is from the date of the plea and is agreed at?
65 MR McWILLIAMS: Twenty-third of November and it is 11 days, Your Honour.
66 HER HONOUR: Thank you very much. I declare that Ms Matthews has served 11 days of pre-sentence detention and that this is to be deducted administratively from her sentence.
67 Yes, thank you. I will stand down.
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