Director of Public Prosecutions v Matthews (a pseudonym)

[2023] VCC 2401

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

 CLARK MATTHEWS

---

JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2023
DATE OF SENTENCE:	15 December 2023
CASE MAY BE CITED AS:	DPP v Matthews (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2401

REASONS FOR SENTENCE

---

Subject:Criminal Law

Catchwords:  Guilty plea - one charge of indecent act with a child under 16 – incest - very serious offence - severe and long-lasting harm - prospects of rehabilitation are uncertain.

Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:Worboyes v R [2021] VSCA 169; Bugmy v The Queen [2013] HCA 27; DPP v G [2002] VSCA 6; DPP v Walsh (a pseudonym) [2018] VSCA 172 [3].

Sentence:Total effective sentence of 10 years imprisonment and a non-parole period of six years and 10 months. Length of reporting is life pursuant to S.34 of the Sex Offenders Registration Act.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Office of Public Prosecution
For the Accused	Mr J. McGarvie	Stary Norton Halphen

HIS HONOUR:

1Clark Matthews[1], you have pleaded guilty to one charge of indecent act with a child under 16 for which a maximum penalty is 10 years imprisonment and one charge of incest for which the maximum penalty is 25 years imprisonment.

[1] A pseudonym.

2You were born in July 1978.  At the time of the offending, you were 38 and 39 years old and you were in a relationship with Ms Alysha Dalton.[2]  The victim in this matter is her daughter.  Ms Dalton had three children, a son who was the oldest, the victim who was nine years old at the time of the offending born in January 2008, and another daughter who was younger.

[2] A pseudonym.

3You moved into Ms Dalton’s rental property in September 2016, staying most nights.  You contributed to the rent and groceries.  You cooked dinners for the family, read to the children at night and watched the victim and her brother play sport.  In March 2017 Ms Dalton fell pregnant to you and she gave birth to your son in November 2017.  By that time your relationship with her had ended, which had happened in September 2017.

4Turning then to the offending.  The offending started some two to three weeks after Ms Dalton told the victim she was pregnant. 

5The first incident occurred in the garage.  You put the complainant on the floor and pulled her pants down around her ankles.  You covered her mouth and said to her that if she told anyone she would lose everyone she loved.  You also said to her it is normal and that her future boyfriend and husband would thank her.

6What you were talking about was that you put your tongue on her vagina, which the complainant said hurt.  It lasted for a minute or less.  Afterwards the complainant pulled her pants up and you sent her back to the house and followed five minutes later.  The complainant then went to bed.  That incident is part of Charge 1, indecent act with a child under the age of 16 which is a course of conduct charge.

7The next incident occurred approximately five days later, again in the garage.  On this occasion you put your hand over the complainant's mouth and told her to shut her eyes.  You touched her vagina with your fingers and your tongue. This is the second incident captured by Charge 1. 

8About three weeks after the first incident, you came into the complainant's bedroom in the early morning when everyone was asleep.  You removed the doona and took off the complainant's pants.  You moved her into a sideways position so that her legs were hanging off the bed and then you knelt next to the bed.  She pretended to be asleep, but you did the same things as on the first and second occasions.  This is the third incident captured by Charge 1.

9After those incidents you continued to touch the complainant sexually either in the garage or her bedroom and on a couple of occasions in your bedroom.  This conduct was relied on as context to the charged acts.

10About a month after the first incident, you forced the complainant to perform oral sex on you in the garage.  She spat something out which was yellowy.  Afterwards you said to her, 'Thank you', and you said, 'Your husband will thank me.'   This is the first incident captured by Charge 2, incest.  You were Ms Dalton's de facto spouse at that time.

11The last occasion the complainant can recall was in the bedroom you shared with Ms Dalton.  The victim said to you, 'I don't want to do it anymore.'  You got angry and pushed her on the bed.  You said, 'Fine, this will be the last time.'  You placed her on the floor behind the bed.  You held your penis and told the complainant to lick it.  You grabbed her head by the neck, opened her mouth and put your penis into your mouth.  She choked and spat out a salty substance she knew was not saliva.  This incident lasted between two and three minutes and is the final incident captured by Charge 2.

12The prosecution opening indicates the offending continued until the end of your relationship with Ms Dalton. 

13On 27 October 2021 the victim told the wellbeing officer at her school about your offending.  Police were contacted that day and she made a VARE on 28 October 2021 detailing your offending.  Victim impact statements were tendered from the victim and from Ms Dalton.  Both were read in court by Ms Dalton.  

14The victim says your offending has impacted her emotionally and mentally.  She has been diagnosed with depression, anxiety and post-traumatic stress disorder.  Due to her PTSD, she is unable to catch public transport or Ubers.  She is scared around strange males, and this restricts her from going to social events.  She is triggered by any reminders of the sexual abuse.  This causes her to lose concentration and motivation to do her schoolwork and she has fallen behind.  She has been self-harming for the last four years.  This started when she realised what had happened to her.  She finds public places with a lot of people scary.  She feels like she has missed out on her childhood and finds it takes her a long time to gain trust in people.  She believes this will affect her future relationships.

15Ms Dalton describes the day she found out about your offending against her daughter as the worst day of her life.  She carries a heavy burden of guilt for letting you into her home and will never stop blaming herself.  Your offending has affected her health, wellbeing, and enjoyment of life in many ways.  Since finding out about the offending she has difficulty sleeping, eating and suffers from depression and anxiety.  Your offending has affected her financially as she has taken a vast amount of time off work to attend specialist appointments either for herself or her daughter.

16When the victim is unable to attend school, it is not safe for her to be home by herself due to the risk of self-harm.  This has resulted in Ms Dalton using up all her leave entitlements and having to take unpaid leave.  She says she used to be outgoing and social, however she has now become withdrawn and isolated.  Given the nature of the offending it has been difficult for her to speak about your offending with family and friends and therefore she avoids social situations to avoid any questions about it.  It is clear and it is to be expected that the impact of your offending on the victim has been substantial and enduring and similarly in relation to Ms Dalton. 

17Turning to your personal circumstances. You were born in New South Wales, in Queanbeyan.  Your father was violent towards your mother.  Your parents separated when you were three to four years old.  When you were around the age of five when your mother who had her own mental health issues, decided you should live with your father.  However, instead of living with your father you ended up with your paternal grandparents, Evan and Majorie Anderson[3] in Bentleigh.

[3] A pseudonym.

18You had little contact with your mother or your father after that.  You went to primary school in Moorabbin.  You then went to Mentone Grammar.  You had behavioural issues at school and in Year 9 you were sent to board at Monivae College in Hamilton.  You lasted for a year there and left after an altercation, returning to Mentone Grammar for Year 10.

19You left school and home at the age of 17 and led a transient life for some time after that.  You abused alcohol and cannabis.  Eventually you settled into work as a cook or chef in hospitality at different venues for 13 years or so.  You also worked as a security guard at places such as the Rod Laver Arena.  Your first significant partner was a woman named Rachel Morton[4].  You met her when you were in your late 20s.  You had two children with her, two daughters.  The oldest who is now 17 years old and a younger daughter now 15 years old.

[4] A pseudonym.

20The relationship with Ms Morton ended in 2010 and you continued to see your daughters for a while, but you have had no contact with them now for many years.  I was told your mental health declined because you did not see your children.  For a time, you moved to Queensland then returned to Victoria.  Soon after returning to Victoria, you met Ms Dalton.  Over recent years you have worked in a warehouse for a company called AUSREO which manufactures reinforced steel. 

21You had some contact with your son for a time after the relationship with Ms Dalton; however, there was an intervention order in place and contact with your son ceased some time ago.  In 2019 and 2020 you lived with your father in Shepparton but that was not a good experience and in more recent times you have been living in a share house in Wangaratta.  You maintain a relationship with your grandmother, but you are otherwise an isolated person in the community.

22You pleaded guilty to this matter in August of this year.  You had pleaded not guilty at the committal proceeding but the matter proceeded as a hand-up brief, so no witnesses have been cross-examined in this case.  I regard your guilty plea therefore as an early plea but not at the earliest opportunity.  The utilitarian value of your plea is substantial.  You have saved the police, the prosecution and the court the use of the resources required to run a trial.  You have spared the witnesses, particularly the victim and her mother, the experience of re-living these events and being re-traumatised by having to give evidence.  This is a significant matter in mitigation in a case of this nature.

23I accept your plea of guilty indicates a willingness to facilitate the course of justice and that the utilitarian value of your guilty plea is heightened because you have contributed to the reduction of the backlog of trials in this court caused by the COVID-19 pandemic and I apply the principles from the case of Worboyes, you must receive a significant sentencing discount for your guilty plea.[5]

[5] Worboyes v R [2021] VSCA 169.

24I am not satisfied though and nor was it submitted by your counsel, Mr McGarvie that your guilty plea indicates remorse.  You denied the offending in your record of interview.  In the psychological report written by Dr Dion Gee you indicated that you had pleaded guilty because you believed you had no option.  Further, in that report you did not display any insight into the wrongfulness of your conduct which is a matter to which I will return in discussing your prospects of rehabilitation.

25Turning then to sentencing principles and the gravity of this offending.  Sexual penetration of a child in the case, charges of incest, is a very serious offence as reflected by the maximum penalty of 25 years imprisonment.  The community rightly considers such offending as abhorrent.  Abhorrent is indeed an apt description for your offending.  It is well established, and the law presumes that the harm caused by sexual abuse of children is severe and long-lasting.  The impact statement of the victim establishes the significant harm your offending has already caused.  Moreover, the damage to Ms Dalton and her feelings of guilt, trusting you to live with her children in a parental role has been substantial. 

26In the case of Walsh (a pseudonym) Maxwell P and McLeish JA said of incest offences:

'Incest involving a child is an appalling crime.  It involves a breach of trust of the most fundamental kind and an inexplicable abdication of parental responsibility.  Justice seriously involves a cynical exploitation by the parent of the opportunity for sexual contact which being in that position of trust presents.'[6]

[6] DPP v Walsh (a pseudonym) [2018] VSCA 172 [3].

27In the DPP v G Winneke P said:

'The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge.  Parents and those in loco parentis who fail to exercise the restraint which the community expects of them and in giving to their own sexual gratification must expect to be severely and appropriately punished.'[7]

[7] DPP v G [2002] VSCA 6 [10].

28In this case the younger age of the victim is an aggravating feature.  She was just nine years old.  Charges 1 covers three incidents, all of which were serious examples of an indecent offence involving a substantial breach of trust of both the victim and her mother.  The acts on which Charge 1 is based involved touching. the complainant's vagina with your tongue and your fingers.  Prior to the first incident you told her that if she told anyone she would lose everyone that she loved. This comment was designed to ensure her silence.  Furthermore, you said to the victim that what you were doing was normal and that her boyfriend would thank you.  Presumably you did this so that she would comply thereafter with your ongoing demands for sexual activity.

29Charge 2 covers two incidents.  In each incident you ejaculated inside the mouth of the victim, a nine-year-old.  The comment you made to the victim before the first incident covered by Charge 2 that your husband will thank me illustrates your distorted view about what you were doing to the victim.  The last incident involved some coercion.  You became angry.  You pushed her on the bed and grabbed her head so that you could penetrate her mouth with your penis.  Again, you ejaculated into her mouth causing her to choke.  The incident lasted for two or three minutes.

30These are course of conduct charges.  A course of conduct charge is a single charge that incorporates multiple incidents of the same offence over a specified period.  I must sentence within the maximum penalty for the charged offence, but my sentence must reflect the totality of your conduct.  A course of conduct charge is plainly more serious than a single incident charge and the sentence I impose must reflect this.

31There is also undisputed evidence of other sexual conduct within the period in which the charged acts took place.  You are not to be punished for this, but it cannot be said that the incidents captured by the charges were isolated. 

32For this offending general deterrence, that is, the need to send a message that conduct such as yours will be punished severely is a very important principle.  Additionally, I must denounce on behalf of the community this appalling offending through the sentence I impose.  Just punishment and community protection and are also significant and must be emphasised.  The need to deter you from further offending of this nature is also important.

33A psychological report from Dr Dion Gee was tendered.  Dr Gee makes findings you have a personality disorder and that you are suffering from depression.  He also observed that you have addictions to alcohol and cannabis.  These issues are not said to have contributed to the offending other than in a background way.  He describes your mental state and personality issues as maladaptive processes arising from your unsettled and emotionally disadvantaged childhood.

34Your counsel, Mr McGarvie submitted that your background and upbringing was explanatory of your circumstances, and I accept that.  It's a relevant matter personal to you for me to take into account, but no submission was made that the principles in the High Court case of Bugmy apply in your case.[8]  Mr McGarvie submitted that I should take the view that your prospects of rehabilitation are reasonable.  He relied on the psychological report of Dr Gee.  In that report Dr Gee says that you do not fulfil the diagnostic criteria for a paedophilic disorder.  He did say though that it was exceptionally difficult to: 'allocate Mr Matthews to a sexual offence pathway given his reduced capacity to discuss the index offending’.

[8]  Bugmy v The Queen [2013] HCA 27.

35He said you had difficulty unpacking the offence process and that you reported, 'enduring substance intoxication.'  He said that based solely on the information available at the time of the assessment your offending pathway was characterised by under regulation.  In his report he said that your lack of insight was consistent with the majority of sexual offenders labouring under a level of impaired mental functioning yet to undergo tailored intervention services.

36He conducted a risk assessment, and the overall result was that you are a moderate risk of re-offending sexually in the future.  He said this means that you are as likely as the typical convicted sexual offender to re-offend.  He said that in his opinion you have a guardedly fair to good prognosis for rehabilitation if you are afforded an opportunity to access suitably tailored intervention in a timely manner.

37The prosecutor, Ms Piggott, focused on paragraphs 38 and 39 of Dr Gee's report.  Firstly, she submitted that your plea was not consistent with remorse given your comment that you only pleaded guilty because you felt you had no option.  You were not prepared to discuss the offending in any detail with
Dr Gee.  Ms Piggott referred to paragraph 39 of the report where Dr Gee says that you told him that offending such as yours had not always been deemed inappropriate or criminal across time and culture.

38In the same paragraph Dr Gee said this: 'When asked Mr Matthews chose not to enter into any conversations about his potential to relapse into sexually abhorrent behaviour against children'.

39Ms Piggott submitted these passages show a lack of insight and remorse for your behaviour.  She submitted that your prospects of rehabilitation are little more than crystal ball gazing. 

40Whether you fulfil the criteria to be described as a paedophile or not, you were prepared to seek sexual gratification with a nine-year-old girl repeatedly and you seem to believe you had some sort of entitlement to act in that way.  It must be that you were sexually attracted to her.  The nature and gravity of the offending indicates an ongoing risk of re-offending.

41It may well be that if you are prepared to participate meaningfully in a sex offenders’ program at the prison you may develop insight into what caused you to seek sexual gratification with a nine-year-old child.  However, given the gravity of the offences and your current lack of insight and remorse and your unwillingness to discuss the offending, I am of the view that your prospects of rehabilitation are uncertain, and I therefore have a guarded view of those prospects.

42The totality principle requires that the total sentence I impose must be just and proportionate to the total criminality of the offending.  The two charges are connected in time and purpose and form part of a course of conduct of sexual offending against the victim, so totality is significant in this case.  To comply with totality, I have ordered substantial currency between the charges. 

43The non-parole period is the minimum period justice requires you to serve before you become eligible for release.  The non-parole period mitigates punishment in favour of rehabilitation.  It must be consistent with the objective gravity of the offending.

44You have not served imprisonment in the past.  I must keep in mind the need to facilitate your rehabilitation and ultimately your re-integration into the community.  I have decided to allow for a reasonably extended period of supervision should the Parole Board release you when you become eligible for parole.

45Turning then to my sentences in this matter.  In relation to Charge 1 of committing an indecent act with a child under the age of 16, you are convicted and sentenced to four years imprisonment.  In relation to Charge 2 of incest, you are convicted and sentenced to eight years and nine months imprisonment.  I order that 15 months of the sentence on Charge 1 is to be cumulative on the base sentence for Charge 2 which makes a total effective sentence of 10 years.  I fix a non-parole period in this matter of six years and 10 months.

46Pursuant to s.6AAA of the Sentencing Act I indicate that but for your plea of guilty the sentence I would have imposed is 14 years and four months with a minimum non-parole of 10 years and two months.  There is one Class 1 and one Class 2 offence here under the Sex Offenders Registration Act and therefore the reporting period for these charges is life. You will be provided with information in relation to that which I will sign. It will be sent to the prison and you will be required to sign those documents. Four days pre-sentence detention is to be deducted from the sentence I have imposed pursuant to s18 of the Sentencing Act.

47No other orders required?

48MS PIGGOTT:  No, thank you, Your Honour.

49HIS HONOUR:  All right.  Did you want the link left on just to speak to him briefly?

50MR McGARVIE:  No, look, I'll arrange a separate conference just so that
Mr Matthews understands that.

51HIS HONOUR:  All right.  Thanks to both counsel and your instructors.  I'll adjourn.  I'll stand down until 10.30.

- - -