Director of Public Prosecutions v McGregor (a pseudonym)
[2018] VCC 971
•26 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FREDERICK MCGREGOR (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE GRANT |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 June 2018 |
| DATE OF SENTENCE: | 26 June 2018 |
| CASE MAY BE CITED AS: | DPP v McGregor (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 971 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr A. Moore | OPP |
| For the Accused | Ms Lubicic | Cahills |
HIS HONOUR:
1 Frederick McGregor,[1] you have pleaded guilty to two charges of incest, one charge of rape and one charge of sexual assault upon a child aged 16 or 17 years who was then under your care, supervision or authority. The maximum penalties for these offences are as follows:
[1] Frederick McGregor is a pseudonym.
· Incest – 25 years’ imprisonment;
· Rape – 25 years’ imprisonment; and
· Sexual Assault – 5 years’ imprisonment.
2
Over the night of 3 November 2017 and the morning of 4 November 2017, a Halloween sleepover party was held at your residence. Your stepdaughter, Ms Rahel Singh,[2] and her school friend
Ms Cailtlin Mealey,[3] who were 17 and 16 years old, attended the party.
[2] Rahel Singh is a pseudonym.
[3] Caitlin Mealey is a pseudonym.
3
At some stage during the evening Ms Mealey became upset and went outside. You brought her a jumper and sat beside her. You were her friend’s stepfather. She had no reason to believe that you would harm her but harm her you did. You picked her up and put her on your lap. You began touching her thighs and put your fingers in her vagina, making comments like “I want to eat you out”.
Ms Mealey was terrified. She froze. You subsequently kissed her and said, “I’m sorry I damaged you”. She then left the party.
4 Later on, after your stepdaughter and the remaining guests had gone to bed, Ms Singh woke to find you kissing and touching her vagina. She froze and turned away. You then left the room.
5 After the sleepover, Ms Singh made disclosures to the police regarding sexual acts committed by you between 17 March 2017 and 30 June 2017. She told the police that you had entered her bedroom on occasions and touched her vagina, although she did not allege actual penetration. However, when the police interviewed you, you disclosed that you had penetrated Ms Singh, both orally and digitally. Ms Singh later agreed that this might have occurred but she wasn’t sure. Charges one and two are representative charges of oral penetration and digital penetration. They represent two separate occasions when you offended against the victim by committing both forms of penetration. A representative charge provides a context for the offending and enables me to understand that the offending was not an isolated event. However, the fact that the charge is representative may not be used to increase what would otherwise be a proper sentence.
6 You were arrested and interviewed on 24 November 2017. You made extensive admissions to the offending during the police interview. You blamed it on your ingestion of drugs and alcohol and you expressed remorse. You have been in custody since the date of your arrest.
7 This is very serious offending. In the period between March and June 2017, there were two occasions when you entered the bedroom of your stepdaughter and orally and digitally penetrated her. You were her stepfather. You should have offered her your love and protection. Instead, you offered her the opposite. You betrayed, in the most shocking way, the trust that attaches to the role of a parent.
8 Mr McGregor, superior courts have frequently emphasised the gravity of this offending; offending that involves the exploitation of the young victim by a trusted adult; that results in a long term and severe impact on the victim; and undermines the familial roots of society.
9 In early November 2017, you committed further offences. First under the pretence of offering support to a young 16-year-old woman who was present at a party at your house, you raped her by placing your fingers into her vagina. Not content with that egregious behaviour, you later entered the bedroom of your stepdaughter and sexually assaulted her.
10 With offending this serious, general deterrence is a paramount sentencing consideration. Just punishment and denunciation are also relevant.
11 I have heard, as you have, the effect of your offending upon both victims. It has profoundly altered their lives.
12 Your stepdaughter loved and trusted you. You betrayed that love and trust. In so doing, you undermined her belief in the inherent goodness of people. In one part of her statement she says this – “the most burning feeling lingering inside of me is betrayal. I recollect positive moments from my past that he was part of and feel a burning anger within me, as I feel disconnected to my childhood memories. The fact that he did this to me, that he hurt me, makes his fatherly love for me feel fake – and I feel horrified by it.”
13 Ms Singh is undergoing regular counselling to deal with the emotional and psychological harm that you have caused. This is occurring at a crucial stage of her life, when she is studying for year 12. Understandably, she is finding it hard to focus on her studies. She is also trying to come to terms with the great distress and harm that your offending has caused to her mother, her brother and other family members. She ends her statement by reflecting on how you have broken her heart.
14 In her statement, Ms Mealey speaks of the emotional and psychological impact of your offending. She feels you have stolen her innocence. She has had trouble regulating her emotions. She has had to engage with the Child Adolescent Mental Health Service because of emerging thoughts of self-harm. Her parents live in Indonesia and she feels unable to share the burden of her suffering with them. This is occurring at a time when she is also trying to do year 12. She concludes her statement by saying – “A year ago today I just finished my year 11 exams, and I was happy. Today, I wonder if I’ll ever be able to have that joy again.”
15 Mr McGregor, because of the serious nature of this offending you will be sentenced to a term of imprisonment on Charges 1 and 2. The making of such an order means that you are to be sentenced as a serious sexual offender in respect of Charges 3 and 4. I order this fact be entered into the records of the court.
16 In relation to Charges 3 and 4, I am required by s6D of the Sentencing Act 1991 (the Act) to consider protection of the community as the primary sentencing purpose. As far as the second part of s6D of the Sentencing Act is concerned, the prosecution has indicated that it would not be seeking a disproportionate sentence and I am satisfied that this case does not warrant the imposition of such a sentence.
17 Section 6E of the Sentencing Act is relevant. This section requires the imprisonment terms on Charges 3 and 4 to be served cumulatively unless otherwise directed. There is a tension between this section and the principle of totality that is not easy to resolve. In considering this issue I have determined that an order for full cumulation would be inappropriate because it would result in a disproportionate sentence.
18 I now move to matters concerning your background.
19 A report has been provided by Mr Jeffrey Cummins, a Clinical and Forensic Psychologist, that sets out your background in great detail. Much of what he says is corroborated by references from your brother Damon.
20 You came from a disadvantaged background. Your father was an alcoholic. He was violent and abusive. He sexually abused you when you were 10 years old. He died when you were 12. Clearly, you and your siblings endured great hardship at the hands of your father. You left school when you were 16 and you were fending for yourself from the age of 18. No doubt this background provides some explanation for your problematic use, throughout your life, of drugs and alcohol.
21 Notwithstanding these difficulties, you managed to build a life for yourself as a law-abiding citizen. You were, it seems, a skilled ceramicist and you worked in that area from the late 1990s until 2013. You then undertook some studies in drafting and upon completing those studies, commenced work as a draftsman.
22 You met Ms Cameron[4] in August 2005 and started to live with her on Boxing Day of the same year. Ms Cameron’s daughter was 5 years old at the time. In 2009, your son Eddie[5] was born and in December 2009, you and Ms Cameron were married.
[4] Ms Cameron is a pseudonym.
[5] Eddie is a pseudonym.
23 In January 2017, the family moved to Bendigo. Your son suffers from autism and the family moved to the area so you could receive the additional support that would come from your wife’s parents.
24 You told Mr Cummins that at the time of the offending you were having difficulty setting appropriate boundaries with your stepdaughter. You said that you had had problems with her growing up and blossoming into a woman. You said that you had boundary issues and that you knew that your thoughts weren’t normal and that you needed help “back then.”
25 A little later in his report, Mr Cummins states that you acknowledged that you had offended against both victims under circumstances where you were experiencing sexual impulse control issues and that you agreed that your offending was “situationally motivated and opportunistic and that alcohol and illicit drugs played some role” in terms of the offending. In relation to that latter point, it is important for you to understand that your abuse of drugs and alcohol offers no excuse or mitigation for this offending.
26 There are matters in mitigation.
27 First, and most significantly, you co-operated fully with the police in their investigation. The prosecutor quite properly conceded that the admissions made by you significantly facilitated a resolution of the charges in a way that appropriately reflected your criminality. This is particularly important in relation to Charges 1 and 2 because when the victim spoke to the police about what had occurred, she was unsure about the full extent of your offending against her. You frankly admitted that on two occasions you had penetrated the victim orally and digitally. The charges are put on the basis of your admissions. This is a matter to your credit. It has resulted in an appropriate moderation of the sentences imposed on Charges 1 and 2.
28 Secondly, you have entered an early plea of guilty. The plea is significant because it has saved the victims from the stress and trauma associated with giving evidence at a trial. In addition, your plea has avoided the cost and expense associated with a criminal trial. You will be given credit for all these matters.
29 Thirdly, I am satisfied that there is evidence of some remorse for the offending. It is difficult to assess with any precision the level of that remorse. Your co-operation with the police, the admissions you made to the police and your plea of guilty assists you in this regard. In addition, those who have written character references on your behalf speak of your strong expressions of remorse. On the other hand, Mr Cummins notes that whilst you expressed remorse for your offending, your level of insight regarding the issue of victim empathy was limited. I take this to mean that you still have to come to an understanding of the full extent of the harm that you have caused the victims.
30 Fourthly, I do you give you some credit for your previous good character. You do have two appearances in the Magistrates’ court in 1995 for low-level summary offences. I attach no weight to those matters given their nature and their date. Those who have provided written references on your behalf, speak of the good man that they thought you were. I am sure your referees have great trouble reconciling the person they knew with the person who has now admitted these offences.
31 I have some reservations about your prospects for rehabilitation. Your cooperation with the police and your full and frank admissions are factors that would support a positive assessment of your prospects. However, the nature and the manner of the offending together with the risk assessment by Mr Cummins, explains why I am unable to be more positive. In his report Mr Cummins says – “On the basis of all of the information currently available concerning Mr McGregor, it is my opinion that his current risk of committing a further sexual offence is Moderate-High, but I anticipate this risk rating will reduce as a result of him participating in offence specific treatment and as a result of him participating in alcohol and drug courses and associated treatment.”
32 Mr McGregor, in relation to Charges 1 and 2, I initially intended to impose an aggregate sentence of imprisonment. I am now of the view that your status as a serious sexual offender does not permit such a course. However, this fact makes no difference to the length of your sentence. In other words, the total effective sentence would have been the same as the sentence I announce today. There is an interconnection between Charges 1 and 2 that I have recognised by the relatively modest order for cumulation made on Charge 2. With Charges 3 and 4 there must be appropriate orders for cumulation. S6E of the Sentencing Act is relevant and so is totality. I have already indicated that the sentences on Charges 3 and 4 will not be fully cumulative. However, I must in my sentence recognise the serious nature of Charge 3 and the fact that it involves a separate victim. I must also recognise that Charge 4 involves a separate and discreet assault upon your stepdaughter.
33 Would you stand please? On Charge 1, sentenced to 4 and ½ years’ imprisonment; Charge 2, 4 and ½ years’ imprisonment; Charge 3, 4 years’ imprisonment; and Charge 4, 15 months’ imprisonment. I order 12 months of the sentence on Charge 2, 21 months of the sentence on Charge 3 and 3 months of the sentence on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 1. This makes a total effective sentence of 7 years and 6 months. I fix a minimum term of 5 years before you will be eligible for release on parole. I declare 214 days pre-sentence detention.
34 If you had pleaded not guilty and been found guilty after a trial, I would have sentenced you to a total effective term of 10 years' imprisonment with a minimum term of 7 and ½ years.
35 You will be required to comply with the reporting conditions of the Sex Offenders Registration Act for life.
36 I order that you undergo the taking of a forensic sample pursuant to s464ZF of the Crimes Act. I make this order because of the serious nature of the offending, the order is not opposed and that the order is in the public interest. If you do not cooperate with the authorities in the taking of the forensic sample, reasonable force can be used to obtain it. If you just take a seat there for a moment, my associate will provide you with a document in relation to your obligations under the Sex Offenders Registration Act. Is there anything more Mr Moore or Mr Smith?
37 MR MOORE: No. No Your Honour.
38 HIS HONOUR: No? Mr McGregor can be removed, thank you. Yes, 10.30 thanks, Mr Rochford.
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