Director of Public Prosecutions v Morris (a pseudonym)

[2018] VCC 613

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

CR-16-02094

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANGUS MORRIS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	3 May 2018
DATE OF SENTENCE:	3 May 2018
CASE MAY BE CITED AS:	DPP v Morris (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 613

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr C. Wareham	Victoria Legal Aid

Pages 1 - 9

 

 

HIS HONOUR:

1Angus Morris[1], you have pleaded guilty to two charges of indecent act with a child under the age of 16 and four charges of incest; those crimes carry maximum penalties of ten years and 25 years respectively. 

[1] Name is a pseudonym.

2You are not 38 years of age.  I accept that you pleaded guilty at the earliest reasonable opportunity and expressed remorse and you must also, of course, get the utilitarian benefit of that plea of guilty.

3You made admissions in regard to Charges 5 and 6, whereby charges could be laid, which could not otherwise have been laid, and I take that very much into account in respect to each of those two individual charges. 

4You have a significant criminal history but going through it, it appears to be 90 per cent drug related.  It is not disputed in this situation that you have been substance abusing since you were very young and, indeed, you were sexually abused as a young child yourself.

5Accepting all those matters, and I take them all into account, you will be sentenced as a serious sexual offender from Charge 3 onwards.  I am aware that community protection becomes the principle sentencing purpose, that they are to be cumulative unless otherwise ordered and the Crown do not seek a disproportionate sentence. 

6In this situation, for reasons of totality, because of the sentence you are undergoing, I will be obviously giving considerable concurrency so far as these matters are concerned and that I am well aware of the provisions. 

7Because of the nature of the offending, you will be placed on the Sex Offenders Register and I must advised you the reporting conditions will be for life.  Can you sign this for me?  Mr Wareham, if you would not mind going down with the associate, thanks.

8All right.  The summary of the offending is that you, at the time of the offending, were 32 years of age.  As I indicated, you are now 38.  Your victim was your natural daughter, she was one of five children, the Crown opening tells me, you had with her mother.  You had separated shortly after the birth of your fifth child.  The victim here was the eldest. 

9In 2012, the mother moved to South Australia with the five children and in late 2011, you moved into premises in Moe.  Arrangements were made for you to have the victim stay with you at that time.  She was around about the age of nine, going on to ten.  In any event, she came and stayed at the house in Moe with you. 

10In those premises, you had your own bedroom and there were two mattresses in it and there was also a small bed made up for your daughter with two couch cushions pushed together.  They were directly beside your mattress.  This has all occurred between roughly 1 April 2012 and 30 June 2012. 

11On the second night that she was there you cooked dinner and watched a movie and she essentially went to bed.  She was lying on her side of the cushions with her back to you and she felt you rubbing your hand on your bottom and she did not say anything as she did not know what to say.  You then moved your hand from her bottom and commenced rubbing her vagina over her clothing.  She pushed your hand away without saying anything.  Shortly after that, you recommenced rubbing her vagina in that way and she has told you to stop it.  She then left the bed, went to the toilet, where she stayed for about an hour before returning to the bedroom to find you asleep.

12The following day you apologised to her, saying you would never do it again and that you were really messed up.  You told her that if anyone else knew, you would get really hurt and asked if she forgave you.  It is clear from that point that you knew the wrongness of what had done and what you were about to do over a period of a few months.

13Possibly two days later, she again went to sleep on a cushion mattress next to your bed.  You started touching her vagina before inserting your fingers inside her vagina and moving them around.  You digitally penetrated her a number of times during the time she stayed with you and they are uncharged acts, which simply mean that this charge of incest is not to be viewed in isolation.

14Charge 3, again incest, this one is representative of two occasions.  About a month after she shifted in with you, she fell asleep on the cushions and you entered the room.  You removed her pyjama bottoms and underwear, got under the blanket which was over her and then used your tongue to lick the outside of her vagina.  You also inserted it into her vagina.  She woke up feeling you doing that.  You held her hips and pushed her down to prevent her from moving.  You continued to have your tongue inside her vagina.  You were startled by a noise and you stop and you got into your bed and fell asleep.  You also performed the same act upon her on another occasion, which gives rise to the representative nature of this particular charge. 

15Charge 4 of incest:  the victim had not said anything to anybody but on this particular occasion you went into her bedroom, causing her to wake up.  You were naked and your penis was erect.  You then separated her legs, inserted your penis into her vagina and effectively had intercourse with her for a few minutes.  You continued to hold her hands and pulled her back when she tried to move away.  She says that you heard a dog bark and at that point withdrew your penis.  When you were interviewed by police at a subsequent time, you denied that there was any penile/vaginal penetration. 

16On another night - and this is based on your admissions only - you were cuddling in bed when you slid her pyjama pants down and inserted your penis into her anus for approximately a minute before stopping at her request. 

17Charge 6, again on your own admissions, is circumstances of you holding her down and rubbing her vagina with your hand and then rubbing your penis up and down on her vagina.  The hand aspects of it are uncharged, it is rubbing the penis on the vagina that gives rise to the actual charge; that is representative of three occasions. 

18After this offending, the child went back to South Australia to be with her mother.  You visited later in the year of 2012 and penetrated her again.  You were ultimately - and I will come to that in a moment - sentenced to imprisonment for a period of two years, one month and one week in Mount Gambier for that act of incest.  I note that the maximum penalty for incest in South Australia is ten years, where as in this State it is 25.  You were given a 15 month non-parole period as far as that offending was concerned.

19The offending apparently came to light in around October 2014 when the victim basically disclosed to her mother what had occurred and police were contacted.  You were interviewed and made a number of admissions, denied penile/vaginal, but admitted to anal as well as other forms of touching.  I treat the interview as a series of admissions and one for which, certainly, go into Counts 5 and 6.  You must get a demonstrable benefit insofar as your plea is concerned. 

20Filed and read out was a victim impact statement which was made in respect of the South Australian matter, but is obviously pertinent to this as well.  In that, your daughter describes the anxiety that she feels, that she feels distant from people, that she still suffers from traumatic nightmares that restrict her from sleeping, that she has relationship problems, that she struggles with depression, it has been affecting her health and well-being, and she has described herself as, at times, being void of all emotion.

21As is so common in these matters, she says, "I feel embarrassed that this has happened and try to avoid the subject.  I feel as I sometimes provoked this and it's all my fault his happened although many tell me that it's not  If someone were to find out that I didn't want to, I'd feel ashamed, disgusted beyond belief about myself.".  That is absolutely typical of the emotions and the legacy that children who are the victims of sexual abuse suffer.

22The offending has to be regarded as serious.  It was over a period - in the terms of what I sentence you - a period of at least weeks, probably months, and you were clearly aware of the wrongness of it all while it took place. 

23It is put on your behalf that is done in the circumstance of you having been sexually abused as a child yourself and having been sexually dysfunction, it would appear, over an extended period of time and that your life was one of drug use.  I certainly take those matters into account, in giving a - so far as looking as the milieu, if you like, in which all this occurred, but the offending remains very serious. 

24It calls for the application of general and, in your situation, to a certain extent, is specific deterrence, obviously denunciation, and what must be an appropriate punishment.  In R v Esposito, JJA Mark said:

"A society which fails to protect fails to protect its children from sexual abuse by adults, particular those entrusted with their care, is degenerate."

25He continued:

"The offence of incest is particularly erosive of human relations and cast doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent which will include the exploitation by the stronger will of the adult, the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult.  The gross breach of trust placed on the offender by the victim and the community, and the irreparable fundamental damage to the victim."

26That is what you are to be sentenced for.  In terms of ascertaining the appropriate sentence, I then look to matters personal to you.  As I have indicated, you have no prior convictions of a sexual nature.  You are 38 years of age and you have already been undergoing sentence in respect of another charge against your daughter, it is slightly in excess of 15 months.

27The report of Dr Lechner points out that you were abused as child, that you had a long-term history of drug problems, mainly heroin, it would appear, certainly in the early days, and that your sexual existence has been somewhat problematic.  I point out very clearly there is no material before me to suggest that you have offended against anyone other than your daughter.  You will be, and are, isolated in gaol.  You have no family in Victoria. 

28I do not think three is much point in me going through any of the other materials.  You have ten children by five different mothers, so the report tells me.  Though, obviously, the mother of this child is the mother of five of them.  That is the overall circumstance you left behind. 

29Again, I do not think I need to go through the report of Ms Lechner in great detail.  She basically summarises it by saying that you do have depression, you do have anxiety.  You attempted suicide on previous occasions.  You have been admitted to hospital psychiatric unit in 2016 and you do have some symptoms of post-traumatic stress disorder, and you have behaviours and symptoms consistent with a diagnosis of borderline personality disorder.  It is not suggested that Verdins plays any part in this sentencing process but that is essentially where you come from and this is how it has all ended up. 

30You have got the drug issues, where you say that drugs disinhibit you sexually, that would appear to be the case, and in the last few years prior to your incarceration, you obviously had a significant alcohol problem.  You have been assessed as a moderate risk of re-offending. 

31Using the measures that we are, subjected to these days, in my view, your position would be that not having offended sexually against other children at the age of 38, with your problems, and the offending being situation, insofar as a daughter is concerned, with your emotional instabilities, that I would regard the risk of your offending in a general sense as low, and one would assume that you would never be entrusted with your children. 

32Again, in fact, you probably cannot be because of the Sex Offenders Registration.  But anyway, they are matters which would be more simple speculation.  The prospects of your rehabilitation are up to you.  The risk of you re-offending, as I have indicated, in my view, this sort of offending would be low. 

33However, the charges are serious. They strike at the very core of the family unit.  What I have endeavoured to do, in terms of totality, is reduce the amount of cumulation I would otherwise have ordered.  It is a difficult process because the offending in South Australia obviously took place some months after this offending took place and the South Australian Judge was mindful of the fact that you were to be dealt with in Victoria. 

34I am well aware of the authorities in regard to this sort of offending and have been given a few by your counsel.  Each one really comes down to its own individual situation and it is simply a matter of - it is the one complainant over a limited period of time, albeit, weeks, and I take all those matters into account.

35Doing the best I can with the arithmetic of all this, on Charge 1, 12 months; on Charge 2, five years; on Charge 3, five years; on Charge 4, five years; on Charge 5, three and a half years; on Charge 6, six months. 

36For the reasons I have outlined, the cumulation is going to be very significantly moderated, so three months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, six months of the sentence imposed on Charge 5, and three months of the sentence imposed on Charge 6 are to be served cumulatively upon each other and upon the sentence imposed on Charge 2. 

37I have expressed that in terms of cumulation rather than concurrence because it is easier to understand.  That gives an effective head sentence on these matters before me of seven years.  I direct that you serve a minimum of four and a half years before becoming eligible for parole. 

38Pursuant to s.6AAA of the Sentencing Act, I would say that but for your pleas of guilty, you would have been sentenced to be imprisoned for a period of ten years with a minimum of seven.  Are there any other orders I need to make, gentlemen?

39MR DEVLIN:  I do not believe so. 

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