Director of Public Prosecutions v McIntosh (a pseudonym)
[2018] VCC 940
•21 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| HUGH WILLIAM MCINTOSH (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 May 2018 |
| DATE OF SENTENCE: | 21 June 2018 |
| CASE MAY BE CITED AS: | DPP v McIntosh (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 940 |
REASONS FOR SENTENCE
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PSEUDONYMS HAVE BEEN USED TO PROTECT THE IDENTITY OF THE COMPLAINANT
Subject: Criminal law - sentence
Catchwords: Pleas of guilty to one charge of incest and two charges of intentionally causing injury – victim was natural daughter aged between 16 and 19 – intermittent but frequent sexual relationship over more than three years – acts of violence – effect upon victim – depression and anxiety, interrupted schooling – offender sentenced in Queensland for offending that occurred in that state – delay in relation to Victorian offences – remorse – insight – moderate to low risk of re-offending.
Sentence: 6 years 6 months, non parole period 4 years
s.6AAA 9 years, non parole period 6 years. ---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms M Mahady At sentence Mr A Grant | OPP |
| For the Accused | Ms N. Karapanagiotidis | VLA |
Pages 1 - 11
HER HONOUR:
1Mr McIntosh I have got quite long sentencing remarks to read out and in the circumstances, there is no need for you to stand.
2ACCUSED: Thank you, Your Honour.
3HER HONOUR: Hugh William McIntosh[1], you have pleaded guilty to two charges of intentionally causing injury and one charge of incest, a representative charge. Charge 2 is of the representative charge of incest and it relates to 12 separate incidents of sexual penetration of your biological daughter, the complainant, between 16 November 2003 and 4 May 2007 in Victoria. Similar offending against your daughter which occurred in Queensland during the same period of time was the subject of criminal proceedings in that State and you pleaded guilty to a number of charges relating to that sexual relationship.
[1] Hugh William McIntosh pseudonym
4On 25 August 2010, in the District Court at Brisbane, you were sentenced to eight years' imprisonment with a non-parole period of three years and six months. The sentences dealt with the offending against your daughter and your niece who was also a child.
5You were released on parole in Queensland on 19 June 2014. You were charged with the Victorian matters on 29 April 2016 and at a committal mention on 2 September 2016, you indicated you would plead guilty. Your parole was therefore cancelled and you returned to custody in Queensland. You were not transferred to Victoria until 13 September 2017 with a further committal mention having been postponed until then, which proceeded on 12 October 2017 with a plea of guilty.
6The context of all the offending was as follows. You were aged between 42 and 46 at the time of the offending. Your daughter, the complainant, was aged between 16 and 19 at the time. When she was born, her mother was in a casual relationship with you and she did not nominate you as the child's natural father but you maintained contact with her mother and the complainant knew you as her uncle.
7When she became curious as to who her father was at the age of eight or nine, she was told you were her father and she began to refer to you as "Dad". She had sporadic contact with you but regarded you as her father and in December 1999, aged about 12, she visited you at your home in Queensland. At that time, you had recently lost a leg in a motor vehicle accident and had received a large compensation payment. The complainant was living in Victoria at the time and attending school there.
8In February 2001, you married Grace Turner[2] and the complainant attended the wedding. In March 2001, she was hospitalised following an overdose of medication and you flew to Melbourne to visit her. You suggested that she could live with you and your wife in Queensland. She moved there and enrolled in a local school but at the end of the year, she returned to Melbourne to live with her grandmother.
[2] Grace Turner is a pseudonym.
9In January 2002, she returned to Queensland for a visit and you then began your sexual abuse of her. After a brief return to school in Victoria, she again lived with you in Queensland and you continued to have sex with her, forcing her to do so and subjecting her to physical assault as well.
10In late 2002, you and your wife separated and you and the complainant began living in your truck, travelling between Queensland and Victoria. Your relationship now became one of boyfriend and girlfriend, as the complainant has described it, with regular sexual activity.
11The complainant returned to Victoria several times over the next year or so with sex continuing to take place in Queensland. In 2003, the complainant was enrolled in school in Victoria and by November 2003, she had a boyfriend. You drove to Melbourne in your truck and her mother drove her to meet you. She was reluctant to be left alone with you. After her mother had left, you struck her in the face and ear a number of times, causing her ear to bleed and with bruising and swelling to her face. That is Charge 1 - intentionally causing injury. You telephoned her boyfriend and told him to stay away from the complainant.
12That night, you hired a room at a hotel and took the complainant there. You verbally abused her, calling her a slut and you had sex with her that night and then made her sleep on the floor. That is Charge 2, part of the representative charge of incest.
13Two weeks later, you returned to Victoria and took the complainant with you to Queensland, stopping in New South Wales on the way, and you continued to have sex with her and to assault her physically. You accused her of sleeping with other family members which she denied.
14Throughout 2004, the complainant moved between Victoria, New South Wales and Queensland with you and the sexual relationship continued.
15In May 2004, you drove her and your sister, Fiona Day[3], to Swan Hill in Victoria. While Ms Day was out of the car at one point, you became abusive towards the complainant and accused her of "putting on a show" for one of her cousins the previous night in the shower. She denied it and you struck her on the left leg with a piece of cable wire. That is Charge 3 - intentionally causing injury.
[3] Fiona Day is a pseudonym.
16Ms Day returned to the car and intervened briefly but you then punched the complainant who got out of the car and took refuge in a nearby shop, where she waited for a time before returning to the car.
17Once back in New South Wales when you had driven your sister back to her home, you assaulted the complainant badly, punching and kicking her while she lay on the ground. She had black eyes, sore ribs and a possible broken nose as a result.
18In August 2004, you and the complainant drove to Victoria and stayed with another of your sisters, Edith McIntosh[4], in Narre Warren. Over the next few months until December 2004, you continued to have sex with the complainant in Narre Warren and other parts of the State. That is the continuation of Charge 2.
[4] Edith McIntosh is a pseudonym.
19Throughout 2005 and 2006, the complainant stayed with you in Queensland and you continued the sexual relationship with her during which time she turned 18. You used a tattoo gun to tattoo the word "Dad's" above her pubic region.
20In October 2006, during an argument, you threw a mobile phone at her face, causing a split lower lip requiring sutures. At this time, the complainant had the contraceptive device removed that you had insisted she have inserted when in Victoria in 2004.
21In early 2007, the complainant returned to Victoria, intending to stay with her mother. You remained in Queensland but continued to contact the complainant, outlining your plan to marry her and have children. The complainant agreed to this and you flew to Brisbane where in a hotel room, you proposed to her. She accepted and was given an engagement ring. You had sex with her and shortly afterwards, following an argument, you assaulted her, causing her to flee. She drove to the town of Warwick where she ran out of petrol. Her stepfather flew to Queensland and brought her back to Victoria.
22You continued to contact her and travelled to Melbourne a few weeks later, meeting her at a motel and having sex with her. This is a further part of
Charge 2.23Following a period in hospital because of being unwell, you returned to Queensland with the complainant where your sexual relationship continued. You both returned to Victoria to attend the funeral of the complainant's grandfather and sexual intercourse took place in motels in Nagambie and Fawkner and in your truck at various locations in the Melbourne suburbs. Again, these instances comprise a continuation of Charge 2.
24In about June 2007, you admitted to your mother that you had been having sex with your daughter for a few years, and you made similar admissions to your sister.
25On 9 July 2007, the complainant told the police and made a detailed statement. The police searched your motor home and discovered images of the complainant in a naked state and also engaging in sexual activities with you. You made some admissions to the police and you also said that the complainant had started it and was possessive, but that you were wrong.
26Three years later, you were sentenced by a judge in the Brisbane District Court as already mentioned.
27The complainant provided a victim impact statement read to the court by the prosecutor at the plea hearing. She describes having been manipulated and lied to and in her isolation, you led her to believe that there was no one to whom she could turn. She said she bears the scars of your treatment physically and psychologically and she needs continuing and probably lifelong treatment for depression and anxiety.
28She said everyday occurrences can trigger flashbacks and nightmares and she cannot understand how any father could do to their child what you did to her. Her schooling was brought to an end by your abuse of her and she lost job after job for the same reasons. She said, "When I left, I lost everything" and then she listed numerous items of property including personal things such as jewellery and photographs.
29She said she lost a lot of self-respect and self-esteem which she believes she has now rebuilt. She was aged between 16 and 19 when the offences occurred in Victoria but she describes the consequences as having lasted for many more years while awaiting the trial.
30These are of course very serious charges reflected by the maximum penalties, which are ten years' imprisonment for Charges 1 and 3 and 25 years for Charge 2. Because of your previous convictions, you are to be sentenced as a serious sex offender in relation to Charge 2 and so cumulation should apply unless I direct otherwise.
31I note that the prosecution does not seek a disproportionate sentence for the purposes of protecting the community.
32Given that Charge 2 is a representative charge with offending having occurred on many occasions, the charge is very serious and attracts a more severe sentence than would have applied if there had only been one isolated instance of the offence.
33That observation is also related to the harm caused to the complainant and the adverse effects she has spoken of and has suffered from for many years.
34There are some mitigating circumstances to which I shall refer shortly.
35You are now 56 years old and are in a relationship with Ms Erin Martin.[5] You are still serving the eight-year sentence imposed in Brisbane owing to the fact that your parole was cancelled when you indicated that you would plead guilty to these charges, as I explained earlier in these remarks.
[5] Erin Martin is a pseudonym.
36After leaving school aged 15, you began driving trucks. You formed a relationship with Ms Martin at about the same time but this did not last and you went to Queensland for several months where you began a new relationship. You and your partner came to live in Melbourne and you had four children, two of whom tragically died as infants.
37When you were about 21, you began using speed and cocaine and you continued to do so until about 2005.
38You and your partner separated and you commenced a new relationship which continued on and off for many years. As a result of this relationship, the complainant was born. But by then, you had formed a relationship with
Ms Turner whom you later married.39From about 1987, you and she were based in Melbourne with your truck driving often taking you interstate. Two more children were born of that relationship. In 1994, on an interstate trip you were badly injured in an accident resulting in the loss of your left leg below the knee and part of your right ankle. You spent two years in hospital and later, with compensation funds, you started a trucking business.
40In about 2001, you received a telephone call from the complainant's mother telling you that the complainant had taken an overdose and was in hospital. You went to Melbourne and shortly afterwards, the complainant returned to Queensland to live with you. It was later that year that you became involved with Ms Turner's niece and you and Ms Turner separated. For a period, you lived in your truck with the complainant, then in a rented house until the complaints were made in 2007. After that you lived in your camper van until you were sentenced to prison.
41Before this, Ms Martin contacted you and moved to Queensland and the two of you lived together when you were on parole. She has now moved to Melbourne to be able to visit you.
42Your early plea of guilty is a mitigating factor as is the remorse you have expressed to Mr Cummins, the psychologist, who assessed you in February this year. The plea has avoided a trial and spared the complainant and others from having to give evidence and that is a considerable benefit to them and for the criminal justice system generally. You are entitled to a discount on your sentence for that plea and I take that into account.
43Another mitigating factor is the delay that has occurred since the complaint was made in 2007. You were not charged until April 2016 with a committal mention in September of that year, resulting in your parole being revoked as I said earlier. You returned to prison and so ultimately, you will have served some two years in custody beyond the non-parole period despite having been otherwise eligible, as your counsel put it in his plea on your behalf.
44Even after the Victorian matters were resolved in September 2016, your transfer to Victoria was delayed by a year. Whilst in custody in Queensland, you completed a Sex Offender course through which you gained some insight into your offending, specifically acknowledging the moral wrongness of your offending. That insight together with your remorse and other factors led
Mr Cummins to conclude that your risk of reoffending in the same or similar way was low to moderate. Mr Cummins reported that you had told him you had gained some insight into your moral culpability through that Sex Offender program that you engaged in and you were remorseful regarding your offending.45You told Mr Cummins that you had begun offending against your daughter when she was 14 and continued until she was 21. He concluded that you do not suffer from any mental health disorder but the history of your offending indicates a diagnosis of hebephilia. As opposed to what you told the police when arrested, you told Mr Cummins that you do not blame your daughter for what you did but you take full responsibility for it. You also said that during your relationship, your guilt and confusion sometimes led you to be frustrated and angry with yourself and you took out your anger upon your daughter.
46You have also remained drug free while in custody.
47Following the traffic accident, you have had a prosthetic leg, which broke when in custody, leading to you becoming wheelchair bound. You were provided with a new prosthesis while on parole but have had trouble adapting to it and have developed cellulitis. You suffered a minor heart attack in prison in 2014 and you now take medication associated with that condition and for diabetes, as well as pain relief regarding your leg. I take into account that your time in prison will be more difficult for you than for others who do not suffer from these health problems.
48General deterrence is of great importance in sentencing an offender for crimes such as these. Incest is a crime regarded with abhorrence by people in the community and the harm that has been caused in this case has been described in some detail by the complainant. It must be seen to be sternly condemned by the court and punished accordingly.
49During most of the period of offending, the complainant was a child under the age of 18 and it is accepted that young people suffer harm and need protection from premature sexual activity with, in this case, an additional aspect of harm caused through the incestuous relationship. Implicit in this was a betrayal of trust that ordinarily exists between father and child, leading no doubt to the psychological distress from which the complainant has suffered. The accompanying physical abuse you perpetrated increases the severity of the incest charges although of course you are not to be punished twice for the same offending.
50For over three years, you treated your daughter as your mistress, even to the extent of perpetrating a cruel and perverse fantasy throughout, involving engagement and the promise of marriage. According to her victim impact statement, this relationship interfered very significantly with her life during her teenage years, indirectly bringing her schooling to an end and preventing her from committing herself to the jobs she took on. It was manipulation and exploitation of a high order, playing dangerously with your own child's life, and deserves severe punishment.
51Because your risk of reoffending has been assessed as low to moderate, and because you are now free of illicit drug use and abuse of alcohol, your own deterrence is of less significance but does not diminish the need for appropriately severe punishment. The principle of totality calls for the moderation of your sentence by means of some limited concurrency with the sentence you are still serving and with the individual charges to which you are now pleading guilty, as well as more broadly. This applies to both the head sentence I will impose and the non-parole period.
52For Charge 2, the representative charge of incest, I sentence you to six years' imprisonment. For Charge 1, intentionally causing injury, I sentence you to 18 months' imprisonment. And for Charge 3, the other charge of intentionally causing injury, nine months.
53The sentence for Charge 2 is the base sentence for purposes of cumulation and I order that four months of the sentence for Charge 1 and two months of the sentence for Charge 3 be served in cumulation upon the base sentence. This results in a total effective sentence of six years and six months.
54I order that you serve four years before being eligible for parole.
55The defence has provided a chronology which appears to establish the discharge date for the Queensland sentence as 23 August 2018, two months from now.
56You have not spent any time in custody for the Victorian offences. The sentence I have just imposed begins today of course and so will be served concurrently with the remaining two months approximately of the sentence you are already serving.
57You are sentenced as a serious sex offender in relation to these charges following your conviction in Queensland and I shall cause that to be noted on the court record.
58Under the Sex Offenders Registration Act, you will have to report your details to the police every year for the rest of your life once you are released.
59If you had pleaded not guilty to these charges, on a finding of guilt, I would have sentenced you to nine years' imprisonment with a non-parole period of six years.
60The prosecution seeks an order for a forensic sample of saliva to be obtained . I make that order and advise that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary
61I did not hear any instructions you might have had about whether that was consented to or opposed or not opposed.
62MS KARAPANAGIOTIDIS: I thought I had indicated. I had a note to my instructors that I had indicated that the forensic sample was not opposed. So I did not wish ‑ ‑ ‑
63HER HONOUR: Perhaps that is my fault. Thank you.
64MS KARAPANAGIOTIDIS: Thank you, Your Honour.
65HER HONOUR: All right. And I will note that, thank you.
66And the prosecution also seeks a disposal order. And I make that order. Are there any other matters?
67COUNSEL: No, Your Honour.
68HER HONOUR: Do you want to approach your client in the dock Ms Karapanagiotidis?
69MS KARAPANAGIOTIDIS: He knows. But I will head downstairs to see him. But I will accompany your associate while he signs the Sex Offender documentation.
70HER HONOUR: Certainly. That completes everything. Thank you.
71MR GRANT: Thank you, Your Honour.
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