Director of Public Prosecutions v Mellor
[2015] VCC 1327
•15 September 2015
+
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JACOB MELLOR (A PSEUDONYM) |
---
JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 September 2015 | |
CASE MAY BE CITED AS: | DPP v Mellor (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1327 | |
REASONS FOR SENTENCE
---
Catchwords:
---
APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr N Donaghy | |
| For the Accused | Ms E Clark |
HER HONOUR:
1
Jacob Mellor[1], you have pleaded guilty to two charges of having carnal knowledge of a girl aged between 10 and 16 years. The facts underlying this offending are contained in the revised prosecution opening dated
9 September 2015 which are exhibited with my sentencing remarks.
[1] A pseudonym
2 In brief compass, your offending relates to the two children, daughters of your partner Mary[2] who is now your wife. In relation to the eldest child, Lisa[3], the offending occurred between 1 July 1969 and 16 August 1972, a three year period during which Lisa was aged 12 to 15 years. Count 1 relates to your offending against Lisa and is a representative count. It is agreed that in that three year period you regularly sexually penetrated Lisa on a monthly basis. Ultimately you impregnated her at the age of 16 and she gave birth to a child Oliver[4], born when she was 17, whom you and Mary later adopted.
[2] A pseudonym
[3] A pseudonym
[4] A pseudonym
3 Charge 2 also a representative count, relates to the second eldest daughter of Mary, that is Megan[5], and it occurred over about a year between 1 April 1972 and 11 March 1973.. She was 12 to 13 at the time of the offending against her and it is agreed that you sexually penetrated this child on about a monthly basis over that period of time. Both charges as I have said are representative charges.
[5] A pseudonym
4 The offending occurred whilst Mary with her four children resided with you at Panton Hill, the family having moved in with you after leaving the violent domestic situation caused by the biological father of Megan and Lisa. There are also two sons born to Mary and her former partner, however they appear to have lived happily with you, were nurtured by you, have taken on your surname and provided references in support of you in this matter.
5 You were arrested and interviewed on 26 May 2014 and you made admissions acknowledging the pregnancy, stating that you were happy, extraordinarily when Lisa became pregnant. You acknowledged offending relating to Megan - I will make further comment about your record of interview later in these sentencing remarks - did express remorse, said your behaviour was disgusting and that you were sorry.
6 The matter proceeded by way of an early plea of guilty via a straight hand-up brief at committal mention stage. You have no prior criminal history. The maximum penalty in relation to each of the charges is 10 years' imprisonment.
7 I now turn to your personal circumstances. You are 79 years old, you grew up in the northern suburbs of Melbourne, the only son of three children. Your father fought in the Second World War, leaving when you were about four, was made a prisoner of war in Crete where he contracted tuberculosis and returned after an absence of some years a changed and somewhat broken man who was violent to his family.
8 You left school aged 14 then undertook a wood machine apprenticeship after which you commenced a long and commendable work history in that industry. At the time of the offending against Lisa and Megan you were employed first as a production manager of a caravan factory, then as a farm labourer at a pig farm. You went on to work for several years as a firefighter with the Forestry Commission, then for three years in a hardware store in Queensland where you and Mary moved following the birth of Oliver.
9 From 1975 until 1992 you were employed at the Water Board in Mildura from which you retired in 1992. You married your first wife in 1958 when you were 24 which marriage lasted until about 1970 or 71 when she left you and your son James[6], the only child of that marriage. This devastated you. The victims' mother Mary was your neighbour as I have said who then moved in with you bringing her four children, two boys and two girls in order to escape her abusive marriage.
[6] A pseudonym
10 You eventually established a de factor relationship with her, marrying her some years later and the two of you remain married to this day. Your son James and stepson Andrew[7], brother of the two victims, live in Mildura with their families where you and your wife also moved fairly recently. You and she adopted Oliver, the son of Lisa, and he continued to live with you. Oliver developed tumours in his head at the age of three and then again at nine and although successfully operated upon, they caused considerable damage. Oliver suffers both intellectual and physical damage and is incapable of independent living and is entirely dependent upon you and your wife.
[7] A pseudonym
11 Your move to Mildura was based on the premise that eventually care of Oliver may have to be taken on by your son Andrew and/or his adult daughter Fiona[8]. Your wife Mary has suffered chronic and debilitating arthritis for many years, she is unable to raise her arms above her head, cannot lift or support weight, undertake the most basic of household chores, and has great difficulty showering and dressing. You carry out most of the physical domes\tic activities required in your household including physical duties in relation to Oliver.
[8] A pseudonym
12 You yourself suffer a number of illnesses. You are on medication for Type 2 diabetes, suffer colonic polyps requiring regular colonoscopies, as well as iron deficiency, Vitamin B12 deficiency, chronic gastritis, and diverticular disease. You take daily medication for stroke prevention, hypertension, gastritis and three monthly medication for Vitamin B12 deficiency.
13 Your stepson Luke Mellor[9] gave evidence on the plea of your very significant role in caring for both Oliver and Mary. He also gave evidence that he has had discussions with you going back more than a decade about your offending against his sisters, and that you have always expressed remorse for and disgust at your actions. He says you could give no reason for your offending at the time.
[9] A pseudonym
14 In your record of interview whilst to some extent you minimised your offending against Lisa in particular, suggesting that sex occurred when she wanted it, see Questions 194 and 95, and describing her at Question 205 as being, "Very, very interested in sex" about the time she became pregnant. You also told police that Megan was essentially a reliable historian who could provide details of your offending against her which you could not recall.
15 You said at Question 352, on that a sexual relationship had developed between you and Mary a few weeks prior to her moving in , and which then continued although at the start the relationship was not one where plans were made for it to be permanent. You said your family including your stepsons was close, Question 491, but that family did not include your stepdaughters, you not having spoken to Megan for example for about 21 years.
16 You said you would describe your behaviour to Lisa as disgusting and that you were very sorry about your behaviour towards Megan. You appeared to attribute your actions to anger, presumably arising from your first wife deserting you.
17 The two victim impact statements were distressing and disturbing. Lisa aged 59 having reported multiple suicide attempts, the first after she was ejected from your home aged 17 after giving birth to Oliver, the last about four to five years ago. She has been hospitalised in psychiatric wards, she is on medication for depression and anxiety as well as antipsychotic medication. She stated the only thing that now stopped her from trying to commit suicide was because she was "terrified I will go to hell."
18 She described years of alcohol and drug abuse, three unsuccessful marriages and the birth of two children, a son and a daughter. She found parenting a son particularly difficult because she believed he would grow up to be violent and abusive stating,
proper mother and will forever feel guilty about this as he now too has so "I ruined his life by the way I treated him and by not showing him the love of a many emotional problems because of the way I treated him."
19 By contrast she spoilt her daughter and was unable to let her out of her sight for fear she would be abused herself. She wrote,
"I should never have had any children because I ruined both their lives because of what happened to me."
20
She describes anxiety and panic attacks, great difficulty in leaving the house, fear of crowds, fear of speaking to others, continual nightmares, flashbacks and depression. Her psychiatrist Dr Fiona Hawkins in a report dated
2 August 2015, she having treated Lisa since 2006, diagnosed her as suffering complex posttraumatic stress disorder arising from her childhood sexual abuse that occurred for an extended period of time. She described the impact of the abuse as profound, long lasting, stating,
"She has always felt inadequate, often crippled by anxiety and self doubt."
21 She also noted Lisa's severely compromised ability to parent, her damaged relationships with her children and those own children's subsequent mental health problems.
22 In her victim impact statement, Megan said as a result of the abuse she became an unhappy depressed person who kept to herself, reported constantly suffering memory triggers giving rise to flashbacks of the abuse which she said ruined her marriage and family life. She sleeps poorly, cries often from depression, has suffered hyperventilation, and still suffers bowel and vomiting problems which despite extensive investigation appear to have no medical basis. She suffers nightmares, feelings of worthlessness and shame, had an alcohol problem in her teens and 20s, doubted her skills as a mother, has fractured relationships with her children and grandchildren. As I have said suffered flashbacks which affected intimate relationships and she now no longer engages in such relationships. She feels constantly on edge and is clearly estranged from her brothers. She concluded,
"I feel sick writing this, it bring back all the feelings of fear, the clenching of my teeth and body, stiffening like a board, feelings of guilt, hate, loathing, sadness, embarrassment, betrayal, regret, loss and emptiness."
23 She said her animals were the saviour of her sanity.
24 Defence counsel submitted that for the following reasons a wholly suspended sentence would be an appropriate disposition in this case. They are:
25 (1) your early plea of guilty;
26 (2) your remorse for offending as evidenced by your early plea, your comments to that effect in the record of interview and to your stepson;
27 (3) your previous and subsequent unblemished offending record;
28 (4) your age and ill health;
29 (5) your excellent work history;
30 (6) the fact that you had clearly rehabilitated yourself and had excellent prospect of rehabilitation;
31 (7) that you presented as no threat to the community;
32 (8) the effect of incarceration upon your wife and son Oliver, which he submitted fell into the exceptional hardships category;
33 And finally (9) the 40 year delay in these matters being dealt with.
34 I also received character references from your two stepsons Charles and Andrew Mellor[10], describing the impact incarceration would have upon your wife and Oliver, and describing you as a supportive and loving father figure. It should be noted that your wife Mary has been charged in relation to this offending on the basis that she facilitated it because she was unable to satisfy your sexual demands on her and essentially used her daughters to achieve this end. She denies those allegations and a contested committal is yet to be concluded.
[10] A pseudonym
35 The plea agreement reached between prosecution and defence in this case specifically does not refer to these allegations or is based upon it and do not form any part of the factual basis upon which this sentencing task is based. In sentencing you I do accept that you have expressed remorse for your offending and that you do in fact feel remorse for it.
36 Further your record of interview was for the most part cooperative and of assistance in prosecution of these matters. You entered an early plea of guilty. The complainants I noted have been spared the ordeal of giving testimony at committal and trial and the community spared the time and expense of such proceedings.
37 I accept that your advanced age and ill health are significant mitigatory factors. I accept that you would find the experience of gaol more onerous than most other prisoners because of these factors, and I also take into account that you have never previously been in prison. I accept that specific deterrence has no part in the sentencing exercise before me, nor given your exemplary life since this offending and prior to it, that you present any danger to the community.
38 Whilst delay is generally held to be of less account as a mitigatory feature in cases of this kind, the authorities make it clear that it is nevertheless to be regarded and this is a factor I take into account in sentencing you. I accept that you have rehabilitated yourself and that you have excellent prospects of rehabilitation, that is, you are most unlikely to offend in the future.
39 I take into account that apart from this offending you have never been charged with criminal offending and that because of your age, any sentence of imprisonment may impact upon the length of your life and that you possibly face the prospect of dying in gaol. I regard these as significant mitigatory features.
40 I do not accept that your family situation should you be incarcerated, amounts to exceptional circumstances of hardship. Whilst I accept that you play a pivotal role in providing the care required by your wife and your son due to their debilitating conditions, there are a wealth of adult family members available to assist in their care, at the very least your sons Charles and James and granddaughter Fiona in one way or another in your absence. I am by no means suggesting this would be anything other than a difficult task but they would not be left bereft of assistance and the very high bar to the establishment of this mitigatory factor has not in my view been reached in this case.
41 I do accept however, that their difficult circumstances would weigh heavily upon you as an additional factor of difficulty were you to serve a sentence of imprisonment. As I have said, I note that the maximum term for each charge is 10 years' imprisonment.
42 The prosecution has submitted that I should impose a sentence of imprisonment to be immediately served. The prosecutor submitted that your offending meant that you are not of good character, that in fact the opposite was true, that you sexually abused young children who were vulnerable to you in your own home, that you breached a duty of care for your own sexual gratification and that the offending was of extended duration and involved multiple victims.
43 She submitted that your age and ill health should not swamp the sentencing process. She submitted I should deal with your case as one akin to incest with the sentencing principles that attach to that form of offending being applicable in your case. In summary she submitted that only a significant immediate custodial term adequately reflected the general deterrence, just punishment, acknowledgement of the harm and community expectations present in this case.
44 In relation to those submissions I do not see the need to classify you as a good man or otherwise. It was specifically conceded by the defence that despite the mitigatory factors in this matter, the offending was very serious, constituted a significant breach of trust, was worthy of denunciation and stern punishment and that community attitudes towards such offending were relevant to the sentencing exercise. It was not conceded that the facts' scenario equated to a modern day incest.
45 Both counsel tendered authority in support of their submissions which I have read and had regard to.. Despite my acceptance of the significant mitigatory factors in your case, it is my view that only an immediate term of imprisonment appropriately responds to your offending. Those factors however have had a substantial moderating effect upon the term I will impose.
46 This offending is a serious example of a serious crime. It involved a sustained regular sexual exploitation of two vulnerable girls living in your home where they had been brought by their mother as a result of the violent behaviour of their own biological father. I am satisfied you were in a sexual relationship with their mother at the time. You admitted in your record of interview having sexual relations with her prior to her moving in with her children to your house. The girls were aged only 12 and 13 respectively when you began sexually penetrating them. Your behaviour was utterly sexually exploitative, predatory and a gross breach of trust. Your monthly sexual abuse of Lisa continued for years and you impregnated her when she was only 16.
47 Although in your record of interview you said that when the complainants moved in there was nothing permanent in the relationship with their mother, you nevertheless went on to live with her continuously up to the present day, marrying her in the process and adopting with her the son born to your victim Lisa. You sexually abused as I said, Lisa for three years after she moved in with you and towards the end of that time began sexually abusing Megan. I am satisfied that your offending occurred when you were in a position vis-a-vis each girl was akin to that of stepparent, such that under present legal definition it would be described as incestuous.
48 I bear in mind however that different maximum penalties arise in your case but believe that what the Court of Appeal stated in MP v R [2011] VSCA 78, and specifically referring to the judgment of Buchanan JA, has entire application to this case. At paragraph 31 His Honour with whom Their Honours Neave and Mandie JJA agreed, stated,
"In the present case the appellant preyed upon his stepchildren over a period of years. The victims were entitled to depend upon the appellant to nurture them."
49 I digress here to say they were entitled to depend on you for nurture, the same nurturing that you extended towards your stepsons.
"Instead he abused them to satisfy his carnal desires."
50 His Honour continued,
"It is in my opinion important that the courts impose sentences for the crime of incest which make it clear that our society will not tolerate the sexual exploitation of children by those who stand in a position of trust in confidence to them. General deterrence is a principal purpose in the sentencing for this offence."
51 Again whilst I note that the maximum sentence in relation to these charges is entirely different to the maximum penalties applicable for incest, it is my view that factually this scenario is one which if it had occurred at a later stage would be classified as incest, that the principles outlined by the Court of Appeal in that case have application and that general deterrence is a principal purpose in the sentencing exercise before me.
52 Your victims in addition to the awful experience of being sexually abused by you have gone on to live anguished difficult lives, marked by misery, self loathing, addiction, suicide attempts, psychological trauma, fractured relationships and ultimately isolation. The damage done to them has continued on for decades and appears unlikely to resolve. These tragic consequences of your unscrupulous sexual exploitation are entirely all too familiar to these courts in cases of this kind.
53 Defence counsel submitted that I should have regard to the warnings of Priest JA in Sherritt v The Queen, 28 January 2014 VSCA 1, where the trial judge was criticised as imposing a sentence which His Honour felt to have been one overly influenced by the effect upon the victims. In that case however, the accused was an adolescent at the time of his offending and in my view the case and the statements of His Honour are readily distinguishable. I make it very clear that whilst I have regard as is quite obvious from the comments that I have made to the effect of your offending upon your victims, this is entirely appropriate in this case given the duration of your offending, the age of your victims at the time, the subsequent pregnancy suffered by Lisa, and the fact that the aftermath described by each in their victim impact statements is sadly in no way unusual in these courts' experience.
54 In my view the objective gravity of your offending is such that proper observance of the principles of general deterrence, denunciation of your conduct and community expectations can only be achieved by a sentence of imprisonment to be immediately served, which sentence has however as I have stated been significantly modified in light of the mitigatory factors outlined in this case.
55 I therefore sentence you as follows.
56 On Charge 1 you are sentenced to a term of imprisonment of three years and six months.
57 On Charge 2 you are sentenced to 18 months' imprisonment and I order that six months of that sentence be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of four years. I order that two years of this sentence be served before you become eligible for parole.
58 Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of seven years and ordered that you serve a minimum term of four years. Thank you.
- - -
MS CLARK: As Your Honour pleases.
HER HONOUR: Is there anything else that I need to attend to?
MR DONAGHY: Sex offender registration Your Honour.
HER HONOUR: Yes, it's for life is it?
MR DONAGHY: It is Your Honour.
HER HONOUR: You are to be placed on the Sex Offenders Register for life, we will prepare the documentation and your counsel will explain to you the conditions that attach to being placed on this register. Have a seat please. Thank you very much, yes thank you, we'll stand down till 11 o'clock.
- - -
2
0