Director of Public Prosecutions v Nelson (a pseudonym)
[2023] VCC 1471
•22 August 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00491
Indictment No. J12649130.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROGER NELSON (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May to 19 June (Trial) and 31 July 2023 (Plea) | |
DATE OF SENTENCE: | 22 August 2023 | |
CASE MAY BE CITED AS: | DPP v Nelson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1471 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – Guilty by way of jury verdict – Sexual penetration child under the age of 16 (2) – Sexual assault of child under the age of 16 (3) – Sexual activity in presence of child under the age of 16 (1) – Relevant criminal history – Elderly suffering from several serious medical conditions – Standard sentences
Legislation Cited: Section 5A(1)(b) Sentencing Act 1991
Cases Cited:Brown v The Queen [2019] VSCA 286; The Queen and Roger Nelson (a pseudonym), 30 September 1997, Court of Appeal, Supreme Court of Victoria
Sentence: Convicted and sentenced to Total Effective Sentence of 7 years’ imprisonment with a non-parole period of 4 years and 2 months’ imprisonment - 126 days pre-sentence detention declared as having already been served as part of the sentence imposed - Sex offender registration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | Office of Public Prosecutions |
| For the Offender | Mr J. Miller | Balmer & Associates |
HER HONOUR:
1Roger Nelson[1], on 19 June this year (2023), a jury found you guilty of two charges of sexual penetration of a child under the age of 16, three charges of sexual assault of a child under the age of 16, and one charge of sexual activity in the presence of a child under the age of 16.
[1] A pseudonym.
2Sexual penetration of a child under the age of 16 has a maximum penalty of fifteen years' imprisonment and a standard sentence of six years' imprisonment. The remaining offences have a maximum penalty of 10 years' imprisonment and a standard sentence of four years' imprisonment.
3In sentencing you, I must have regard to the maximum penalties and standard sentences. The maximum penalties reflect the seriousness with which Parliament regards the offences you have committed.
4I have had regard to the maximum penalties and standard sentences. The maximum penalties reflect the seriousness with which Parliament regards the offences you have committed.
5The complainant in relation to all of the offences of which you have been found guilty is Jasmine Lewis[2], and the offending occurred on three separate occasions between 1 August 2018 and 9 October 2018.
[2] A pseudonym.
6At the time of the offending the complainant was 14 years old and you were 71 or 72.
7You were acquitted of six charges where the complainant was Jasmine Lewis in respect of two alleged offences, and Aubrey Cooper[3] was the alleged victim in respect of four offences. I make it clear that you are not being sentenced in relation to any allegations giving rise to the charges of which you were acquitted.
[3] A pseudonym.
8The factual basis in relation to Charges 7, 8 and 9, referred to as the second episode in the trial, are that on an occasion when Jasmine Lewis and your daughter, Roxanne Nelson[4], who was 10 years old, were in bed with you, Jasmine lay in the middle between you and your daughter. Whilst Roxanne was playing on her phone, you pulled down Jasmine’s underpants and touched her on the vagina, then inserted your finger into her vagina, moving your finger up and down and shaking it. This gives rise to Charge 7.
[4] A pseudonym.
9Jasmine pushed your hand away and you asked her what was wrong. Jasmine said she did not want you to do this and you removed your finger. Roxanne Nelson asked Jasmine if you were touching her, and Jasmine said that you were. Jasmine told you that she and Roxanne wished to go to Roxanne's room. However, you told both of them to stay and lie down. Subsequently, you whispered to Jasmine to touch you, guiding her hand to your penis. You then directed Jasmine to stroke your penis, and she did so. This gives rise to Charge 8, sexual assault of a child under the age of 16.
10You then told Jasmine that you wished to 'put it in her' and/or for Jasmine to 'suck your dick'. Jasmine did not know what to say but told you she would do this when Roxanne was asleep. When Roxanne appeared to be asleep, you kissed Jasmine on the mouth and tried to put your tongue in her mouth. However, Jasmine kept her lips shut. You pulled down her pants and your pants, then positioned yourself on top of her. You inserted your erect penis into Jasmine's vagina. Jasmine felt pain, and expressed this, telling you to stop. You stopped and got off her. Jasmine did not think that you ejaculated because you had told her that you would never come in her. This gives rise to Charge 9, sexual penetration of a child under the age of 16.
11The factual basis for Charge 10 ('third episode') is that on or about 9 September 2018, Jasmine and Roxanne Nelson were in your bedroom. Roxanne left the room to go to the toilet and Jasmine sat on your bed. You came into the bedroom and lifted the complainant's top and bra, exposing her breasts. You then licked her breasts. The complainant asked you why you were doing this and you did not reply. She heard Roxanne finishing in the toilet and pushed your head away, pulling her top and bra down. When Roxanne came back into the room, you walked out. This gives rise to Charge 10, sexual assault of a child under the age of 16.
12The factual bases for Charges 11 and 12 ('fourth episode') are that on 9 October 2018- that is the day after the school contacted police in relation to a complaint by Aubrey Cooper regarding you sexually offending against Jasmine Lewis, Jasmine Lewis went to your room after realising that Roxanne had wet the bed. You returned from the shower and whilst drying yourself in your ensuite, you exposed your penis to Jasmine each time she looked in your direction. This gives rise to Charge 11, sexual activity in the presence of a child.
13You then put on your underpants and approached the complainant. You rubbed her vagina over her clothing. You rubbed her vagina so hard that it hurt her and she told you to stop. However, you did not. This gives rise to Charge 12. The complainant put a pillow over her head, resigning herself to you continuing, as you would not listen. After you finished this, you sat next to Jasmine and asked her when her mother was coming to collect her. Jasmine then called her mother, who collected her. Before doing so, the complainant's mother was at home when police and DHHS child protection officers attended. Police told Ms Young that they wished to speak to Jasmine but did not say why. Ms Young then left and went to your home to bring Jasmine back.
14Subsequently, Jasmine Lewis made a VARE disclosing the offences of which you have now been found guilty. She made a second VARE on 30 November 2020 in relation to Charges 1 to 6, all of which you were acquitted.
15Mr Nelson, your offending is serious and deserving of a punishment which is just in all of the relevant circumstances. Your conduct must be firmly denounced. You were 57 years older than the complainant, who you knew was in a vulnerable position, taking advantage of the fact that Miss Lewis regularly attended your house due to difficulties she was having at home and school and also due to her friendship with your children and Aubrey Cooper. You were the adult of the household and in a position of authority at the house, although it seems to me that you were more like a 'king of the kids' at times than a parent figure as such. Notwithstanding this, you presented yourself as a caring, paternalistic figure when dealing with Ms Young, conveying that her daughter was in safe hands. You breached the trust that Ms Young and the complainant placed in you. Rather than behaving as a responsible adult in the household, you defiled the complainant.
16Your offending occurred in circumstances where other children in the house were in a position to observe it and you chose to offend against the complainant on three separate occasions. When police interviewed you, not only did you deny the offending, you sought to undermine Jasmine Lewis's credibility by telling police she had previously made false allegations. Whilst Jasmine Lewis had previously made allegations against her stepfather, in the unedited version of her mother's evidence, it is apparent that she had made the allegations in a bid to protect siblings from being sexually offended against. I make it clear that I am aware that this evidence was not before the jury, but it was evidence that was given before me, and, in my view, is a relevant matter to mention when sentencing you. I have not loaded your sentence in any way because of this, but in my view, this ought be mentioned in fairness to the complainant. In any event, in your case, a jury has accepted the credibility and reliability of the complainant's evidence beyond reasonable doubt in relation to Charges 7 to 12.
17It is an aggravating feature of the penile/vaginal penetration that you did not wear a condom, exposing the complainant to the risk of sexually transmitted diseases and pregnancy, although I factored in that the penetration was apparently not of an enduring nature.
18I have not received a victim impact statement, but I am entitled to presume that Jasmine Lewis has been harmed by your offending, and I do so.
19You have a relevant criminal history: In 1996 you were convicted at trial in this court of five charges of indecent act with a child under the age of 16, and six charges of false imprisonment. You were sentenced on 10 February 1996 to a total effective sentence of three years' imprisonment with a non-parole period of 18 months. You appealed against conviction however, the appeal was dismissed. I was referred to the Court of Appeal judgment dated from 1997 where Vincent AJA summarised the circumstances of that offending as follows:
'... they arose from a party which was conducted at the applicant's home in December 1994, and which was attended by a number of young people of about 13 or 14 years of age. The alleged offences took place at the party, and it would appear on the evidence, within a timeframe of approximately one hour. They consisted, for the most part, of seizing of various complainants and the placing of pieces of ice on parts of their body and inside their underclothing in the genital and breast areas.' See The Queen and Roger Nelson (a pseudonym), 30 September 1997, Court of Appeal, Supreme Court of Victoria
20The learned prosecutor noted that the premises where the earlier offending occurred was the same as where the current offending took place.
21In view of the previous offences, you are to be sentenced as a serious sexual offender in relation to the offences now before me. However, it is agreed that a disproportionate sentence is unnecessary in order to achieve the principal purpose under the serious sexual offender regime of protection of the community.
22However, it is of concern that, notwithstanding these serious prior convictions, you embarked on offending of an even more serious nature on the occasion for which I now sentence you.
23In sentencing you, I take into account that you are now 76 years old and suffer from serious illness, with your health having significantly deteriorated since the time of the offending. You suffer from a number of health complaints, with the most pronounced being chronic pulmonary obstructive disease. You also suffer from heart disease and you have had strokes in the past, as well as brain tumours. At one stage during the course of these most protracted proceedings, Dr Jonathan Burdon gave evidence that after examining you, you had between 12−18 months to two years to live. He said that after he examined you, which occurred at your home, your airways disease was significantly worse than he had understood from paperwork provided to him originally. Mr Miller said in his written submissions:
'The trouble that Mr [Nelson] has had in sitting through the trial process can be explained by the connection between the stress and anxiety of court proceedings and the exacerbation of the symptoms of his chronic lung disease',
referring to Dr Burdon's evidence in this regard.
24Certainly, there were a number of occasions where your expression of symptoms led to court proceedings having to be adjourned, and on occasion it appeared that there was a question mark over the source of your professed ailments. Having said this, I accept that time for you in gaol has been, and will be, a good deal more difficult than for someone who is in better health, and I also accept that time will be harder because of your concern for your children without you being a presence in their lives in the community.
25I have also factored in that there has been substantial delay in these proceedings, and that, for whatever reason, you have had to take part in a number of empanelment processes, which has added to your anxiety. Although I am of the view that on some occasions you, either wittingly or unwittingly, contributed to the delay in these proceedings, and I wondered at times whether you were trying to avoid the trial, I must say, I accept that you have had the anxiety of these matters hanging over your head for a substantial period and I understand that you have not committed further offences during that period.
26I take into account your background:
27You were born and raised in Collingwood. I was told that your father was a violent and abusive alcoholic and that things became so bad within the household that your mother sent you to live with your uncle around the corner. I was told that you were sexually abused by your uncle during the six months that you lived with him, and so you escaped his clutches. Your grandmother took a great deal of responsibility for your upbringing, but sadly, she died when you were in your mid‑teens. It appears that you experienced a good deal of instability in your younger years but you continued to work in a variety of manual jobs.
28You have married three times, with your first marriage breaking up shortly thereafter upon you discovering your then wife was having an affair with another man. After this you had a rough patch in your life where you did not think you would ever meet anyone else to spend your life with.
29However, you met your second wife, and had two boys with her. In written submissions, Mr Miller said that your wife was murdered in 1990. On instruction from you and one of your former partners who was in court, I was told that it was not clear as to whether she died as a result of murder or manslaughter, that this had occurred in 1984, and the perpetrator was known to you. I was told that part of the sentence involved imprisonment for a period of seven years. After her death, you moved and raised your boys in Melton.
30Your next wife was Maria[5], with whom you had two daughters. After you were released from custody in the late 1990s, you and Maria separated.
[5] A pseudonym.
31After this, you had another partner with whom you had your children Will[6] and Roxanne. You separated from this partner and went through Family Court proceedings to have full custody of your children. I was told that Roxanne Nelson now lives with her mother and another carer, whilst Will has been placed in DHHS care in Melton.
[6] A pseudonym.
32I was told that you have not worked for some time, but when you did last work, you had been building fences.
33Whilst in custody you have spent a good deal of time in the hospital unit at Port Phillip Prison. Your counsel agreed that you are being closely monitored in terms of your physical and mental health. You have had access to oxygen 24 hours a day and are receiving a number of medications for your various ailments. You have received morphine five or six times to deal with your pain, as well as some other strong painkillers. The medication has been prescribed to treat chest pain and help with sleep.
34It appears from the hospital records that you are able to wheel yourself around in a non-motorised wheelchair, although you become tired after a time. It appears to me that your health is being appropriately managed and at a level which exceeds that whilst you were at home. Having said this, I accept that your strong preference would be to be at home, engaging with members of your family. I was told that you cannot watch TV because of your hearing not being up to it. This is at variance with hospital records which indicate that you do watch TV, although you find it difficult to hear due to some hearing impairment in one of your ears.
35You fall to be sentenced for offences which all entail the standard sentence regime.
36The standard sentence is but one matter to take into account and is to be treated as a legislative guidepost, having the same function as the maximum penalty. It does not affect the established instinctive synthesis approach to sentencing and does not require or permit two-stage sentencing. It does not otherwise affect the matters which the court may, or must, take into account in sentencing. See Brown v The Queen [2019] VSCA 286, at [4].
37Section 5A(1)(b) Sentencing Act 1991 provides that the period specified as the standard sentence for an offence is the sentence for an offence that is in the middle range of seriousness, taking into account only the objective factors affecting the relative seriousness of that offence.
38Section 5A(3) provides that the objective factors affecting the relative seriousness of the offence are to be determined:
'(a)without reference to matters personal to a particular offender or class of offenders; and
(b) wholly by reference to the nature of the offending.'
39The 'relevant term' for a non-parole period for a total effective sentence, incorporating at least one or more standard sentencing offences, is the total effective sentence. The court must, unless it considers it is in the interests of justice not to do so, fix a non-parole period which is at least 60 per cent of the relevant term, if the term is less than 20 years, and 70 per cent of the relevant term if the term is 20 years or more.
40I am required to explain how the sentence imposed by me relates to the standard sentence.
41Mr Albert tentatively submitted that your offending was mid-range. Mr Miller accepted this assessment.
42I accept that this is the case.
43In view of your serious health issues, rather than anything else, I doubt that you are physically capable of committing offences in the future. If your health had been better, in view of your lack of remorse, prior convictions, and other relevant matters, I would have assessed your prospects of rehabilitation as being rather guarded.
44In sentencing you, I have also taken into account the character references to the extent that your counsel placed reliance on them, but also factoring in that a number of your character referees do not accept your guilt, which is not a protective factor. However, I do accept that you have support from people in your life, albeit that it must be said that during the course of these proceedings, it was very difficult to see anything in the nature of support provided to you to enable you to take part in these proceedings, especially when I allowed this to occur from your home. In any event, I note that your ex‑partner, Maria, has now moved into your home with her current husband, who she cares for, and said that she would be able to care for you upon your release.
45In all the circumstances, I place strong weight on general deterrence in a bid to deter others from behaving as you have. I place less than moderate weight on specific deterrence and protection of the community, given your advanced years and poor health.
46Your prospects of rehabilitation, as I have said, largely because of your illness and the impact on your ability physically to perpetrate offences- I assess as rather good. But as I say, if this had not been the case, I would have assessed it as being guarded.
47It is accepted, quite properly, that the only appropriate sentence to impose is a sentence of imprisonment which involves a non-parole period. I am aware that any sentence imposed upon you which does justice to all relevant sentencing considerations may well have the effect of seeing you die in prison. I have borne this in mind, and it is a weighty consideration. However, it is also necessary for me to give appropriate weight to other sentencing considerations in respect of this serious offending.
48Your counsel submitted that in all the circumstances I ought impose the shortest possible sentence which can address relevant considerations in the Sentencing Act, taking into account the offending and your circumstances. I have done what I can to achieve this, as I must, however, I must also factor in the relevant provisions and weight attaching to relevant sentencing considerations.
49I am about to impose periods of imprisonment in relation to each of the offences of which you have been found guilty, noting that you are a serious sexual offender from Charge 7, which will be noted in the records of the court, and there is a presumption of cumulation in relation to sentences imposed in respect of the charges thereafter. However, as I have said, there is no need to impose a disproportionate sentence- I have applied the principle of totality in your case.
50I have had regard to the relevant standard sentences in respect of each of the offences but make it clear that this is but one sentencing consideration.
51You are convicted of each of the offences.
By reason of your convictions for these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must report these details within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you in custody and you will be requested by Correctional authorities to attend to the acknowledgement of the receipt of such reporting conditions by signing the acknowledgement notice.
52You are sentenced as follows:
53Charge 7, five years' imprisonment;
54Charge 8, two years' imprisonment;
55Charge 9, five years, six months' imprisonment;
56Charge 10, two years' imprisonment;
57Charge 11, 18 months' imprisonment;
58Charge 12, two years' imprisonment.
59The sentence on Charge 9 will be the base sentence. I direct that seven months from the sentence on Charge 7, three months from the sentences on Charges 8, 10 and 12, and two months from the sentence on Charge 11, be served cumulatively with each other and with the base sentence, producing a total effective sentence of seven years' imprisonment, and I direct that you serve four years two months before becoming eligible for parole.
60I declare you have already served 126 days pre-sentence detention.
61I have already indicated what the standard sentences in respect of the relevant offences are, including Charge 11. So, the way in which the sentences imposed relate to these is self- evident, namely the sentence on Charge 7 is 12 months less than the applicable standard sentence, and the sentence on Charge 9 is 6 months less than the applicable standard sentence. The sentences on Charges 8, 10 and 12 are each two years less than the applicable standard sentence and the sentence on Charge 11 is 30 months less than the standard sentence. I have arrived at the individual sentences imposed, the total effective sentence and the non-parole period due to the relevant sentencing considerations, to which I have previously referred, and in my instinctive synthesis.
62In respect of the non-parole period, I have applied the requirement of 60 per cent of the head sentence, as I am not of the view that it is not in the interests of justice to do otherwise.
63I declare that you have already served 126 days, as I have already indicated.
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