Director of Public Prosecutions v Nelson (a pseudonym)
[2024] VCC 628
•8 May 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS NELSON (a pseudonym) |
JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 April 2024 | |
DATE OF SENTENCE: | 8 May 2024 | |
CASE MAY BE CITED AS: | DPP v Nelson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 628 | |
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REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence after trial - one charge of sexual penetration of a child under 16, three charges of incest and 12 charges of committing an indecent act with a child under 16 – three victims; – younger sister and two daughters of your wife – offending between 2003 and 2015; Significant breach of trust and impact on victims; Whether personal circumstances of offender justify significant disparity between head sentence and non-parole period; Whether sentence should be moderated by reference to sentencing practices at the time of offending.
Legislation Cited: Sentencing Act 1991 (Vic).; Sex Offenders Registration Act2004 (Vic).
Cases Cited:Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170; DPP v Tewksbury (a pseudonym) (2018) 271 A Crim R 205; Thrussell (a pseudonym) v The Queen [2017] VSCA 386; Grantley (a pseudonym) v The Queen (2018) 272 A Crim R 340; DPP v Tarkan Polat (a pseudonym) [2020] VSCA 174; Gordon v the Queen [2013] VSCA 343; DPP v Charlie Dalgleish (A pseudonym) [2016] VSCA 168.
Sentence: Total effective sentence of 12 years imprisonment, non-parole period of eight years and six months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A McKenry | Office of Public Prosecutions |
| For the Accused | Ms T Skvortsova | Brooks Law |
HIS HONOUR:
Introduction
1Douglas Nelson,[1] on 9 February 2024, a jury found you guilty of:
(a) one charge of sexual penetration of a child under 16;
(b) three charges of incest; and
(c) 12 charges of committing an indecent act with a child under 16.
[1] A pseudonym.
2The maximum penalty for the offence of committing an indecent act with a child under 16 is 10 years imprisonment.
3The maximum penalty for the offence of sexual penetration of a child under 16 is 15 years imprisonment.
4The maximum penalty for the offence of incest is 25 years imprisonment.
5Your offending occurred between 2001 and 2015.
6There are three victims of your crimes; Julia Thomas, [2] Laura Kelly, [3] and Emily Turner. [4]
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
7You offended against them in 12 separate episodes.
Background
8In 2000, you met Rebecca Kelly.[5] You married her in 2002.
[5] A pseudonym.
9Laura and Emily are Rebecca’s daughters. They became your stepchildren. The four of you lived together as a family until 2018 when you separated from Rebecca.
10Julia is Rebecca’s younger stepsister.
Julia Thomas
11Julia was born in 1990.
12You sexually abused her on one occasion when she was staying at your family home, when she was aged between 10 and 12 years old.
13After she had gone to bed, she woke to find your hand inside her underwear touching the outside of her vagina (charge one – indecent act). She then felt your fingers inside the lips of her vagina (charge two – sexual penetration of a child under 16).
Laura Kelly
14Laura was born in 1999.
15You sexually abused her on three occasions, twice in the family home and once at a local hotel.
16When she was nearly 13 years old, you came into her bedroom where you had her straddle your lap while you rocked her back and forth and rubbed your penis against her, over her, and your clothing (charge five – indecent act).
17When she was between 14 and 16 years old, you went into the bathroom while she was having a shower, you grabbed her towel when she reached for it and told her you would dry her. With the towel, you dried her from top to toe, including her breasts and rubbed between her legs on her vagina (charge six – indecent act).
18You also sexually assaulted her at a hotel, where the family was having dinner. While you are seated at a table with her, when she asked you to move so she could get out, and you refused, as she climbed under the table you reached under and touched her bum and vagina with your hand (charge six 7 – indecent act).
19Laura said there was another time, when you were tickling her on the couch, you touched her on the bottom and vagina (uncharged act).
Emily Turner
20Emily was born in 1998.
21You sexually abused her on eight occasions in the family home.
First episode
22When Emily was in year three, you got into the shower, naked, with her and her younger sister. You washed Emily with soap, touching her vagina (charge eight – indecent act).
23After the shower, while you dried her, you wiped her vagina with a towel (charge nine – indecent act). After you dried her, you squatted behind her, put your penis between her legs, and rubbed it on her vagina (charge 10 – indecent act).
24Emily said you often showered her and, many times, after a shower you dried her, touching her vagina, and rubbed your penis against her vagina (uncharged acts). She said when she tried to walk away you would call her back.
Second episode
25Around the same time, or few months after the shower episode, while you were watching TV with Emily, you put strawberry topping on your penis and told her to lick it off. You put your penis in her mouth, and she did (charge 11 – incest).
Third episode
26Another time when Emily was watching TV with you, while the two of you were lying on the couch, you pulled down her pyjama bottoms, put your tongue inside her vagina and licked back and forth (charge 12 – incest).
Fourth episode
27Another time, you called her into the shed where you had her stand on an upended bucket. You stood behind her, pulled her pants down and thrust your penis, back and forth, between her legs and over her vagina, before ejaculating on the shed floor (charge 13 – indecent act).
28Emily said it happened many other times between year three and year six of primary school (uncharged acts).
Fifth episode
29At the end of 2009, when Emily was 11 years old, and you, with her, were staying overnight your parents’ home, after she had gone to bed, you went into the bedroom where you got into the bed beside her.
30You touched her breasts (charge 14 – indecent act) and sucked on her nipple (uncharged act) under her pyjamas.
31You then inserted a finger into her vagina and moved it in and out (charge 15 – incest).
32Emily said you tried to insert a second finger, which hurt.
Sixth episode
33On an occasion, after visiting your parents, when Emily was in the car with you, you stopped the car on a country road. While two of you were in the car, you pulled down her top and sucked her nipple (charge 16 – indecent act). She had told you she didn’t want to do it, but you told her that you wouldn’t drive her to her friends’ property if she didn’t.
34Emily said it happened possibly 20 – 30 other times (uncharged acts).
Seventh episode
35Another time when Emily was with you in your bedroom, while you were lying on your bed, you pulled down your underwear, put her hand on your penis and got her to masturbate you (charge 17 – indecent act).
36According to Emily, you were very persuasive; you would say ‘if you don’t do this then, …you won’t get to do this’, she said ‘if I didn’t cooperate it was like a punishment’.
Eighth episode
37Another time, you went into Emily’s bedroom, pulled back her bed covers and touched her leg. She pretended to be asleep. You masturbated and ejaculated on her leg (charge 18 – indecent act).
Complaint and Proceedings
38On 27 September 2018, during the acrimonious separation from Rebecca, Emily, in a text message, confronted you about your abuse of her, with a threat she would report you to police.
39In September 2019, she did report your abuse to police. She made a statement of complaint on 3 March 2020.
40Laura provided a statement of complaint to police on 29 April 2020.
41Julia provided a statement of complaint to police on 22 September 2020.
42On 29 July 2020, you agreed to police questioning you. You denied your stepchildren’s allegations.
43You suggested they had lied because they were disgruntled over your separation from their mother.
44It was a position you maintained at trial, in respect of Laura and Emily and also Julia. You argued each of them had given false evidence. And their motive was to punish you for what they perceived to be your poor treatment of their mother and sister.
45In my view, they were impressive witnesses. In a clear and dispassionate way, they told the court about the appalling things you had done to them.
46The jury plainly accepted they were truthful.
Victim Impact
47Emily and Laura and their mother, Rebecca, made victim impact statements. [6]
[6] Victim Impact Statement of [Emily Turner] (Exhibit A); Victim Impact Statement of [Laura Kelly] (Exhibit B); Victim impact statement of [Rebecca Kelly], with Psychologist report attached (Exhibit C).
48Emily and Laura looked up to you. They wanted a happy family, especially for their mother, who has a history of mental health problems. You grossly betrayed their trust. You sexualised them, particularly Emily, at a young age. You deprived them of a normal childhood.
49Each of them, Laura in particular, lived with the stress of knowing you were abusing the other.
50Both anxiously hid your abuse from their mother, who was invariably out of the home, at work or elsewhere, when you abused them. They felt she would not believe them.
51Your crimes have caused them profound and long-term harm. They have difficulties with intimate relationships, socialising with friends, their own parenting and pursuing careers. They say, with the assistance of counselling, they are determined to heal.
52You betrayed their mother as well. She saw you only as a good husband and stepfather. She wrongly believed her daughters were safe with you when she was not home. She feels enormous guilt because, as she sees it, she failed to protect her daughters. Nevertheless, she tries to look forward to “new beginnings” with family. She said, “I’m so proud of my two girls and my sister for having the courage to come forward and speak up with what they had gone through”.
Criminal record
53You have no criminal record.
Personal History
54You were born in 1978. You were approximately 23 years old when you first offended against your wife’s much younger stepsister. You were approximately 36 when you committed the last crime alleged against you.
55You are the youngest of three children.
56You grew up in the north-western suburbs of Melbourne. After you left school, you completed a cabinetmaking apprenticeship.
57You were 22 years old when you met Rebecca. You married her, and with her, her two daughters became your family.
58Rebecca and you had a son together in 2002.
59In 2018, you left Rebecca and soon re-partnered. Rebecca took the separation badly. There was much bitterness and relationships and friendships were ruptured.
60Your son took your side.
61In 2020, you had another son with your new partner, you married her in 2022. She has three daughters from a previous marriage.
62With your older son, and one of your sisters, she supported you throughout the trial.
63They provided references [7] for your sentencing hearing.
[7] Letter of your eldest son (Exhibit 3); Letter of your wife (Exhibit 7); Letter of your sister (Exhibit 11).
64Your son and wife strongly feel the loss of your emotional and financial care for them. [8] Two of your wife’s children are struggling with your separation from their mother. [9]
[8] Letter from your mother-in-law (Exhibit 8)
[9] Letter of the Wellbeing Officer at your children’s school (Exhibit 14)
65Your parents are elderly. They have relied on you for their property maintenance and repairs. [10] Your father, who has a heart condition, also relied on you to attend medical appointments. [11]
[10] Letter from your parents (Exhibit 16); Letter of your parents’ neighbour (Exhibit 10).
[11] Letter from your father’s treating Cardiologist (Exhibit 12); Extract of your father’s health records (Exhibit 15).
66Your enforced absence will make life harder for all of them. [12]
[12] Letter from your family General Practitioner (Exhibit 13).
67I will take their hardship into account in the sentence I will impose. However, I must say, for that, you have only yourself to blame.
68Many in your local community regard you highly. You are a good tradesman[13] and employee. [14] You also have been an active member of local sports,[15] and car [16] clubs.
[13] Letter from your client (Exhibit 6).
[14] Letter from your employer (Exhibit 9).
[15] Letter from former committee member of your local football club (Exhibit 4).
[16] Letter from member of car club (Exhibit 5).
69You have no history of mental illness. However, in 2023, your doctor prescribed you medication for anxiety and stress reactive to the prosecution against you. [17]
[17] Letter of General Practitioner (Exhibit 13).
70Carla Ferrari, a forensic psychologist, assessed you on 8 March 2024.
71You vehemently denied any wrongdoing.
72You described an unremarkable upbringing.
73You said relationship conflicts and financial pressures were stressors during your marriage to Rebecca.
74You told Ms Ferrari about your depression after you were charged.
75You are not clinically depressed. However, in her opinion, your symptoms of depression and anxiety, which do meet the criteria for an adjustment disorder, will make prison harder for you, particularly as a first-time inmate, and there is a significant risk your symptoms will worsen in custody. She recommended psychological treatment to control them.
76Notwithstanding your denial of your offending, which increases several risk factors, she assessed you, using a recognised psychometric tool, as a low to moderate risk of further sexual reoffending.
Defence submissions
77Your counsel, Ms Skvortsova, in comprehensive written[18] and oral submissions acknowledged the seriousness of the offences for which you are to be sentenced demands a significant prison term.
[18] Defence Submissions (Exhibit 1).
78She told me you have struggled in prison, especially with worry for your wife and sons. She said you have contemplated suicide and lost a substantial amount of weight in a short time after the verdicts.
79She submitted your sentence should be moderated because prison will be harder for you than a person without your adjustment disorder; and there is a significant risk your mental health will deteriorate in the prison environment.
80She also submitted, considering:
(a) You have not offended in any way before, or since, this offending;
(b) You have family members to reunite with, for mutual care and support;
(c) You have a job to return to, with your most recent employer;
(d) You were assessed as a low to medium risk of reoffending from a psychological point of view; and
(e) Imprisonment has had a strong deterrent effect upon you,
you are unlikely to reoffend.
81She submitted, in all the circumstances, I should impose a custodial sentence of less than 10 years, and fix a lower than usual non-parole period to allow for a highly supervised and supported transition from custody into the community.
Prosecution submissions
82The trial Prosecutor, Mr McKenry, in helpful written[19] and oral submissions, submitted considering:
(a) the seriousness of your offending;
(b) the lengthy period over which it occurred;
(c) the number of your victims and their ages;
(d) the lasting harm upon them and their family; and
(e) your profound breach of their familial trust,
a significant term of imprisonment, with a non-parole period fixed, is warranted.
[19] Prosecution Submissions (Exhibit D).
83Mr McKenry referred me to WC v The Queen [2012] VSCA 30, BSJ v the Queen [2012] VSCA 93, DPP v Charlie Dalgliesh (a pseudonym) [2016] VSCA 148 and DPP v Tarkan Polat (a pseudonym) [2020] VSCA 174. I have considered them, together with the High Court decision in Dalgliesh (2017) 262 CLR 428 and other Victorian Court of Appeal decisions,[20] to guide me in the relevant sentencing principles and to show current sentencing practices.
[20] Carter (a pseudonym) v The Queen (2018) 272 A Crim R 170; DPP vTewksbury (a pseudonym) (2018) 271 A Crim R 205, Thrussell (a pseudonym) v The Queen [2017] VSCA 386; Grantley (a pseudonym) v The Queen (2018) 272 A Crim R 340.
Consideration
84Yours was extremely serious offending.
85You sexually abused your wife’s stepsister, on one occasion, when she was between 10 and 12 years old.
86You abused your stepchild, Laura, on three occasions, when she was aged between 12 and 15 years old.
87You abused your stepchild, Emily, on 8 occasions, when she was aged between 8 and 15 years old.
88Your offending against Laura and Emily did not occur in isolation.
89To quote the Court of Appeal in Polat (a pseudonym),[21] “it exemplifies with shocking clarity those features of parent – child sexual offending which make it so serious: abuse of parental authority; breach of the trust placed in the parent by the child and by the other parent; and cynical exploitation of the proximity afforded by the status of the parent”.
[21] DPP v Tarkan Polat (a pseudonym) [2020] VSCA 174, [42].
90General and specific deterrence and denunciation must be given their proper emphasis.
91In the time since you committed these offences, the community has come to better understand the harm done to the victims of sexual abuse, in general, and of incest, which is a grave crime of violence, in particular.
92The three children were entitled to feel safe in your home. More, their mother, was entitled to feel the children were safe with you.
93You betrayed their trust, while their mother was not around, for your own revolting sexual gratification.
94Your moral culpability is very high.
95Only a significant prison sentence can reflect the seriousness of your breach of parental responsibility and the high degree of your criminality.
96There are factors I take into account to moderate your sentence.
97I have mentioned the hardship to your family.
98I am also satisfied you will find imprisonment more burdensome than a person without your psychological disorder. I also accept there is a significant risk that it will deteriorate in prison. Accordingly, principles five and six of Verdins will mitigate the sentence that would otherwise be imposed.
99Because you continue to deny any wrongdoing, I am unable to say you have good prospects of successful rehabilitation.
100However, there are strong protective factors, namely:
(a) your lack of any convictions;
(b) your previous and subsequent good character;
(c) your good work history; and
(d) your strong network of family and community support.
101I will allow a reasonably significant disparity between your head sentence and the non-parole period, to give you the opportunity for supervised return to the community, although I am mindful the difference should not be so great as to undermine the purposes for which the sentence must be imposed.
102Under Part 2A of the Sentencing Act, with respect to charges 5 – 18, you are to be sentenced as a serious sexual offender.
103On those charges, I must regard the protection of the community as the principal sentencing purpose, and I may impose disproportionate sentences to achieve that purpose.[22]
[22] Section 6D, Sentencing Act 1991 (Vic).
104Furthermore, there is a presumption of cumulation of sentences. [23]
[23] Section 6P, Sentencing Act 1991 (Vic).
105The totality principle remains important. Without undermining the legislative policy, I will make orders for cumulation which ensure your total effective sentence reflects your overall criminality. [24]
[24] Gordon v the Queen [2013] VSCA 343, [74]; DPP v Charlie Dalgleish (A pseudonym) [2016] VSCA 168, [59] – [60].
106I also must impose a sentence that is no more severe than that which is necessary to achieve the purposes of sentencing. [25]
[25] Section 5(3), Sentencing Act 1991 (Vic).
107By the sentence I impose, I must denounce your conduct, punish you, and deter you and others, from committing crimes of the same or similar kind. I must also look to your rehabilitation.
108Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you:
(a) On Charge 1, indecent act with a child under 16, you are sentenced to 12 months imprisonment;
(b) On charge 2, sexual penetration of a child under 16, you are sentenced to four years imprisonment;
(c) On charge 5, indecent act with a child under 16, you are sentenced to 12 months imprisonment;
(d) On charge 6, indecent act with a child under 16, you are sentenced to 15 months imprisonment;
(e) On charge 7, indecent act with a child under 16, you are sentenced to 12 months imprisonment;
(f) On charge 8, indecent act with a child under 16, you are sentenced to 12 months imprisonment;
(g) On charge 9, indecent act with a child under 16, you are sentenced to 12 months imprisonment;
(h) On charge 10, indecent act with a child under 16, you are sentenced to 15 months imprisonment;
(i) On charge 11, incest with a stepchild, you are sentenced to 6 years and 6 months imprisonment. This is your base sentence.
(j) On charge 12, incest with a stepchild, you are sentenced to 6 years and 6 months imprisonment;
(k) On charge 13, indecent act with a child under 16, you are sentenced to 18 months imprisonment;
(l) On charge 14, indecent act with a child under 16, you are sentenced to 12 months imprisonment;
(m) On charge 15, incest with stepchild, you are sentenced to 6 years and 6 months imprisonment;
(n) On charge 16, indecent act with a child under 16, you are sentenced to 18 months imprisonment;
(o) On charge 17, indecent act with a child under 16 you are sentenced to 21 months imprisonment; and
(p) On charge 18, indecent act with a child under 16, you are sentenced to 21 months imprisonment.
109I direct:
(a) 15 months of the sentence on charge 2;
(b) 3 months of the sentence on charge 5;
(c) 3 months of the sentence on charge 6;
(d) 2 months of the sentence on charge 7;
(e) 2 months of the sentence on charge 8;
(f) 1 month of the sentence on charge 9;
(g) 3 months of the sentence on charge 10;
(h) 12 months of the sentence on charge 12;
(i) 3 months of the sentence on charge 13;
(j) 12 months of the sentence on charge 15;
(k) 2 months of the sentence on charge 16;
(l) 4 months of the sentence on charge 17; and
(m) 4 months of the sentence on charge 18,
be served cumulatively on your base sentence and each other.
110The sentences imposed on charge 1 and 14 are to be served concurrently with the base sentence and the sentences imposed on all other charges.
111Your total effective sentence is 12 years imprisonment.
112To mitigate punishment and promote your rehabilitation, I fix a non-parole period of eight years and six months.
113Pursuant to s 18 of the Sentencing Act 1991, I declare that you have served 89 days by way of pre-sentence detention.
114Because of the nature of the offences of which you have been convicted, you are subject to mandatory registration under the Sex Offenders Registration Act2004 (Vic). You must comply with the reporting obligations, which the Act imposes, for the rest of your life.
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