Director of Public Prosecutions v Nelson (a pseudonym)
[2023] VCC 113
•7 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARK NELSON (A pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 24 January 2023 |
| DATE OF SENTENCE: | 7 February 2023 |
| CASE MAY BE CITED AS: | DPP v Nelson (A pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 113 |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Persistent sexual abuse of child under 16 years of age – offending against granddaughter – lingual-vaginal penetration – digital-vaginal penetration – touching of vagina – no criminal history – grievous breach of trust – early plea of guilty – delay – Verdins – demonstrable discount because of admissions – age and health of offender – Class 1 offence – mandatory reporting for period of life
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act2004 (Vic)
Cases Cited:Worboyes v R [2021] VSCA 169; Verdins v R (2007) 16 VR 209; R v Doran [2005] VSCA 271; R v RLP [2009] VSCA 271; R v Hunter (1984) 36 SASR 101; R v Yates [1985] VR 41; Crowley & Garner v R (1991) 55 A Crim R 201; R v Saw [2004] VSC 117
Sentence: Total effective sentence of 6 years and 6 months imprisonment, non-parole period of 4 years and 6 months imprisonment
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Martin | Office of Public Prosecutions |
| For the Accused | Ms J. Kretzenbacher | Greg Thomas Barristers & Solicitors |
HIS HONOUR:
Introduction
1Mark Nelson[1], at the outset, I propose to sentence you to six and a half years' imprisonment. I will fix a non-parole period of four and a half years' imprisonment. I will declare your 14 days of pre‑sentence detention as time served under my sentence.
[1] A pseudonym.
2You pleaded guilty to a single charge of persistent sexual abuse of child under 16 years of age. The child is your granddaughter. The offence requires at least three occasions of sexual abuse. Through your guilty plea, you have admitted in relation to the complainant:
(a) at least six occasions of lingual-vaginal penetration;
(b) at least one occasion of digital-vaginal penetration;
(c) at least three occasions of touching of the vagina at Albion[2] and/or Sunshine[3];
(d) touching the vagina on one occasion at Deer Park[4]; and
(e) touching the vagina on one occasion at Bellfield[5].
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
3That is at least 12 occasions of sexual abuse of the complainant between 5 September 2008 and 8 October 2012.
4The maximum penalty for the offence of persistent sexual abuse of a child under 16 is 25 years' imprisonment.
5The circumstances of this offence are set out in the document entitled 'Summary of prosecution opening for plea', which is exhibit A. Your counsel agreed with its contents.
Circumstances
6The victim of your offending is Hannah Nelson[6], your granddaughter, who I refer to as the complainant. Your abuse of her occurred between 5 September 2008 and 8 October 2012. In that period, she was six to 10 years old and you were 59 to 63 years old. Exhibit A divides your offending in terms of what happened and where it occurred.
[6] A pseudonym.
Oral sex at Albion and Sunshine
7Between 31 January 2008 and 23 June 2009, the complainant undertook swimming lessons at a swimming centre in Albion and between 5 and 26 October 2009, she undertook swimming lessons at a swimming centre in Sunshine.
8You took the complainant to her swimming lessons at both places. On occasions, after her lesson, you would take her to the family change room. You and she would shower together. Occasionally, if she urinated in the shower, you would drink her urine. You told the police you pretended to do so but did not. I cannot find you drank her urine.
9After the shower, you would lay her on her back on a change table and after positioning her, lick her vagina and put your tongue into her vagina. This would occur every time you took her into the family change room although the complainant cannot recall the number of times it occurred. When interviewed by the police, you said this behaviour occurred on at least six occasions but could not say how often it occurred except to say it occurred every time you and she went into the family change room. She estimated these incidents took a few minutes while you estimated about 30 seconds.
10For this type of offending, the complainant was between six and seven years old. Before doing these things, you would tell her she could say 'no'. She did not because she was nervous and did not understand why she needed to say 'no'. Afterwards, you would reward her with chocolate, usually a KitKat.
Digital penetration after swimming lessons
11Once, while she attended one or other of the swimming centres, you inserted a finger into her vagina, announcing afterwards, in effect, her hymen was intact. On that occasion, she said ‘that hurts.’
Touching after swimming lessons
12At the swimming centres, you dried the complainant using talcum powder. You rubbed her vagina with your finger. Initially, this was unintended but later it was intended. Again, it is unknown how many times this occurred except that it occurred on at least three occasions.
Touching at Deer Park
13Between what the complainant and you told the police, you played a game when camping and at your home in Deer Park. It involved counting down her vertebrae until you reached her vagina and touching it. Neither she nor you said how many times this occurred.
Touching at Bellfield
14During 2012, the families were camping at Bellfield. On one occasion, you were in a caravan with her. You put your hand inside her pants and touched her vagina by stroking.
15These five categories constitute the charge of persistent sexual abuse of a child under 16.
16On 25 November 2020, the complainant told her sister, Claire[7], of some of the events. The next day, Claire told her mother, who reported it to the police a day later.
[7] A pseudonym.
17On 26 February 2021, two police members interviewed you where you made detailed admissions.
Criminal history
18You have no previous findings of guilt or convictions.
Victim impact statements
19There are five impact statements.
The complainant
20On 12 December 2022, the complainant made an impact statement. Your offending has profoundly affected her psychologically so much so that she has repeatedly injured herself, culminating in an attempted suicide in December last year. In a series of dot points, she set out the other effects your offending has had on her. Despite the distressing nature of those matters, she ends her statement with a degree of hope[8]:
'The crime has affected me a lot in the past, and will affect me in the future too but hopefully soon I will have some kind of closure.'
[8] Victim Impact Statement of Hannah Nelson, dated 12 December 2022.
Casey Nelson
21Casey Nelson[9] made her impact statement recently. She is the complainant's mother and your daughter-in-law. A dominant theme in her statement is the breach of the trust placed in you as the complainant's grandfather. Far from protecting the complainant, you abused her repeatedly. As Ms Nelson said[10]:
'To learn that the trust I had placed in my father-in-law, [Mark], was so grievously betrayed ripped my world apart. All day and night my mind replays what [Hannah] described him doing to her and it's so disgusting, so distressing, that he should touch my child like that.'
[9] A pseudonym.
[10] Victim Impact Statement of Casey Nelson, dated 15 December 2022.
22The effect upon her and her family has been profound and wide-ranging, encompassing her parents and siblings as well as your family. The opening paragraph of her statement sums up the effect[11]:
'The emotional impacts on myself of the sexual abuse of my daughter by her grandfather, my father-in-law, [Mark Nelson] are, and continue to be, extreme and relentless.'
[11] Ibid.
Joseph Nelson
23Joseph Nelson[12] is your son and father of the complainant. His statement echoes the enormous emotional impact upon him of your offending experienced by your wife. Given the long and close relationship he enjoyed with you, the breach of trust is profoundly felt:
'The utter betrayal I feel, where I put my trust in [Mark] to support me during my adult life, to look after my children as if they were his own, and to be a caring Grandfather and guardian, has forever destroyed any relationship I can have with him and severely impacted relationships with my mother and sister, and direct family.'
[12] A pseudonym.
24Your son feels he is not supporting his family by feeling the loss of companionship with you. He had a very close relationship with you over many years:
'My son to Father relationship with [Mark] impacts my relationships with my children no matter how hard I try not to let it, or distance myself from him. After all, I'm still his son, with a lot of history between us.'
25It is unsurprising he is seeking counselling.
Michael Nelson
26Michael Nelson[13] is the complainant's brother. His reaction to the news of your abuse of his sister was rage, helplessness, confusion and the belief in his inability to protect his sister. It caused him to smoke marijuana heavily for a year. It affected his ability to work. By opening up to his family, he has stopped smoking marijuana. He is still troubled by the thought of what occurred.
[13] A pseudonym.
Claire Nelson
27To Claire Nelson, another granddaughter, she was your favourite until the birth of the complainant. Your change of affections caused her to feel rejected, abandoned and jealous of her sister. These feelings have disappeared when she realised the true nature of your behaviour towards her sister.
28The protracted court proceedings have left her with significant anxiety for which she receives counselling.
Personal
29You are now 73. You are the youngest of three children. Your early years were spent on a dairy farm. When you were eight, your father died during surgery. Your mother could not run the farm on her own and the family moved to Altona North[14]. Your mother remarried. You enjoyed a good relationship with your stepfather. Unfortunately, there were further tragedies. When you were 17, your brother died in a motor vehicle accident and when you were still a young man, your stepfather died.
[14] A pseudonym.
30Your formal education ended in Year 10. Following that, you completed a five-year apprenticeship with the Post Master General's department. In all, you spent 25 years with the PMG and its successor, Telecom. You worked as a technician in telecommunications, specialising in data management. Later, you were involved in management. In about 1990, you took voluntary redundancy. You bought a coffee shop business but it was unsuccessful. You then worked in casual and semi-casual jobs and between 2000 and 2010 at a maintenance business. You retired in about 2012.
31In that year, you and your wife moved into a retirement village and continue to live there. You and she have a long-term lease. You are involved in the village's workshop committee and assist with the amenities at the village. You also undertake repairs to your home. Due to ill-health, your wife is unable to do so herself. You and she receive a joint aged pension.
32You have been in a relationship with your wife, Anna[15], since 1970. Anna is a year younger than you. You have two children, Joseph, aged 52 and Phoebe[16], aged 48. Joseph, as I have said, is the father of the complainant.
[15] A pseudonym.
[16] A pseudonym.
Physical condition
33Owing to the nature of some of your previous jobs, you have required surgery to a shoulder and a fusion of vertebrae in your neck. I assume it is a single level fusion. I also assume the fusion has been effective leaving you without significant pain or loss of function.
34The reports of several medical practitioners were tendered. Gideon Shaw specialises in gastroenterology and hepatology. He has treated you since 2009 and sees you every six to 12 months. He diagnosed you as suffering from Crohn's disease, sigmoid diverticular disease, haemorrhoids and polycythaemia vera.
35In his report dated 15 December 2022, Dr Shaw describes your Crohn's disease as minimally active with the expectation it will remain asymptomatic. That it remains so is due to the fortnightly injections of adalimumab and the daily dosage of Questran Life. Continuing this regime of treatment should be easily done in prison. Based on his experience, he saw no problem with imprisonment in regard to the condition. His report does not comment on the other conditions.
36Gaurav Srlvastava is a clinical haematologist. He treats your condition of polycythaemia vera. This is a condition of your blood. Reading his report dated 11 August 2022, it appears the condition is well controlled.
37Joseph Thomas is a urologist. He has treated you since September 2016. He now teats you for lower urinary tract symptoms, kidney stones and your prostate.
38Judging from his report dated 28 September 2022, the urinary tract issue has not been a problem for six or seven years but requires 12-monthly reviews. You have a history of kidney stones. In September 2022, you had a small one which required monitoring. Your prostate readings are borderline and your blood test results are reviewed annually.
39You take various medicines for your physical and psychological problems.
40There is nothing in that material which suggests an adverse impact on your life expectancy if you are in custody while serving my sentence. I will return to this issue later.
Psychologist
41Patrick Newton is a clinical and forensic psychologist. He interviewed you on 8 November and 22 December 2022 at the request of your solicitors. Mr Newton diagnosed you as suffering from an adjustment disorder with mixed anxiety and depressed mood. He made this diagnosis on the basis of the intensity of your symptoms of depression and anxiety.
42Significantly, Mr Newton diagnosed you as suffering from a paedophilic disorder, which he described as 'non‑exclusive type, sexually attracted to females, limited to incest'. This is a recognised psychological disorder. At paragraph 51 of his report, he said:
'Mr [Nelson] presents with serious and persisting problems in regard to his psychosocial adjustment: encompassing significant disorder, deviant arousal patterns, and prominent offence-supporting cognitive distortions about young children and the effects of sexual contact between them and adults. These problems underpinned his offending and should be the focus of comprehensive offence-specific treatment.'
43Consistent with these views and following the application of two psychometric tests, Mr Newton concluded you are a moderate risk of sexual re-offending. Mr Newton examined the issue of future offending. At paragraph 60, he said:
'The most likely scenario for further offending on Mr [Nelson’s] part would be of opportunistic offending against a female within his family constellation. Accordingly, the most important factors in bringing about a reduction in the level of risk in his case would be continued interdiction of unsupervised contact with any potential victim and successful completion of offence-specific treatment to address the issues associated with sexual deviance and insight. With successful participation in treatment, and assuming diligent compliance with supervision arrangements, there would be a good prospect that Mr [Nelson’s] risk of recidivism could be reduced over the medium term to fall in the 'low risk' range suggested by the STATIC-99R.'
Discussion
44Section 5(1) of the Sentencing Act 1991 sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
45Charges involving the offence of persistent sexual abuse of a child under 16 are a relatively common occurrence in this court. The sentencing purposes of general deterrence, specific deterrence, denunciation, and the protection of the community are important.
46In sentencing, one does not normally discuss the concept of just punishment. It underlies sentencing. In your case, the notion of punishment encompasses the breach of trust involved in your offending. The complainant's mother called it 'grievous' and so it was. Punishing that breach is important in the various matters relevant to my sentence. But the breach of trust infuses the other purposes of sentencing. I must take care not to over emphasise it, important though it is.
47General deterrence is obviously important as is the denunciation of the offence. You were entrusted with the care of the complainant when taking her to the swimming centres. Her parents trusted you to look after her. Your behaviour was a gross breach of that trust. This breach of trust adds to the need for my sentence to reflect the community's denunciation of the offence.
48For you, specific deterrence and protecting the community from you are of significance. On the one hand, you have not reoffended in any way since the last of your offending with the complainant more than 10 years ago. You have assisted in the prosecution of the case through your admissions to the police. I will refer further to this aspect shortly.
On the other hand, despite the period since your last offending, Mr Newton assesses you as a moderate risk of re-offending even though I doubt you will ever again the opportunity to offend in this way.
49Rehabilitation is always an important consideration. It is in the interests of the community that offenders are rehabilitated. If rehabilitated, they should not reoffend. There may be more than one path to rehabilitation. The effect of deterrence may be important in causing an offender not to reoffend. For someone who has never experienced custody, my sentence should have a very significant deterrent effect upon you. Mr Newton noted your lack of empathy for the complainant and your lack of insight into the cause of your offending.
50I do accept you are remorseful for your offending. Whether you are remorseful because of the impact of your offending on the relationship with your son and his family or the crime against the complainant, your remorse should translate into a desire not to reoffend. Now that your paedophilic disorder has been identified, I would expect you will receive appropriate treatment while in custody but that will take time.
51It was submitted you have not said you would undergo such treatment. That may be so but I consider it unlikely you would not do so given the importance attached to such treatment in the prison environment.
52Overall, I consider your prospects of rehabilitation are good. I would not describe them as excellent.
Gravity of the offence
53Your offending occurred over a four-year period. Being a grandfather and granddaughter, there was an enormous difference in your age and that of the complainant. Although raised on behalf of the Director, I could not find you groomed the complainant. In truth, there was no need. You did not have to win her through grooming. She trusted you as her granddaughter. Nevertheless, you told her not to tell anyone what you had done. The seven occasions of penetration occurred when the complainant was no older than seven. Apart from those matters, there are no other aggravating features.
54The gravity of the offence lies in the grievous breach of trust over four years and the expected, and actual, psychological harm caused to the complainant. The gravity of the offence is high.
Guilty plea
55You were charged on 30 December 2021. On 14 January 2022, a filing hearing occurred. At the second committal mention hearing on 17 June 2022, after an additional charge was initiated, you either indicated an intention to plead guilty to that charge or pleaded guilty to it. In terms of timing, this represents an indication or plea of guilty at the earliest reasonable opportunity.
56By pleading guilty to the charge, you have accepted responsibility for the offence. You have avoided a trial by jury, saving the time and expense of such a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial, especially the complainant and her family. Owing to the nature of your offending, giving evidence would have proven very difficult for them. From the outset, you have strived to avoid a trial, telling the police interviewers you did not want the complainant to go through the stress of a trial. These considerations have what is described as a utilitarian or practical benefit to the criminal justice system. Even in the later stages of the effects of virus, it is still creating significant difficulties in conducting jury trials.
57Presently, pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v The Queen[17], where the court said:
'As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of the sentence.'
[17] [2021] VSCA 169 at [35].
58Since your plea of guilty is evidence of your remorse given its timing in terms of the court process and in terms of its assistance to the criminal justice system, it requires a very significant discount on the sentence.
Delay
59The offence occurred between 2008 and 2012. It was not disclosed until November 2020. You were interviewed on 28 February 2021 but not charged until 30 December 2021. It has taken another 14 months to reach your sentence. The long period between 2012 and 2020 is immaterial in terms of delay. You did not confess your offending until interviewed by the police. There was nothing stopping you from doing so earlier. The delay after the interview is unexplained except while the charge has been in this Court. This delay deserves some minor mitigation of penalty.
Good character
60Until the commission of this offence, you enjoyed good character. Since its commission, you have remained so. The latter is also tempered by the fact you were on bail and that required good character in the sense of not reoffending.
Verdins
61In Verdins v The Queen[18], the Court of Appeal set out six principles to be applied when a court deals with mental impairment in the context of sentencing. You rely upon principles 2 and 5, which provide:
'(2), the condition could have a bearing on the kind of sentence that was imposed and the conditions in which it was to be served;
'(5), the existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health.'
[18] (2007) 16 VR 209.
62You rely upon a passage from Mr Newton's report[19]:
'Mr Nelson’s symptoms are being partially contained by the prescription of anti-depressant and anxiolytic medication. There is, however, a real risk that his mental state could deteriorate following sentence. In a custodial environment, it would be particularly important that he had access to medical and mental health care.'
[19] At paragraph 61(4).
63From his interview, Mr Newton considered you an emotionally vulnerable person. Your emotional demeanour was mildly distressed with evident signs of anxiety. You were briefly tearful.
64I cannot see how those observations would engage principle 2 since no one submits I should impose a sentence other than immediate imprisonment.
65In relation to principle 5, Mr Newton's view does engage this principle. Mr Newton's use of 'real risk' satisfies the principle's use of 'could'. It has a moderating effect on the sentence I will impose.
Doran
66You were interviewed at length by police members. You co-operated in the interview process. You made admissions to particulars 3 and 4 in the indictment. The evidence forming those particulars came from you alone. It did not come from the complainant or any other source. You seek a discount on your sentence relying on the principle stated in the case of R v Doran[20]. In that case, Buchanan JA said[21]:
'Most importantly, however, the appellant quite voluntarily, without any pressure from any authorities, provided the prosecution with all the evidence necessary to convict him of the majority of the crimes. In my view, the consequences of the appellant's admissions are that they reduce the need for a sentence to personally deter the appellant, they increase the prospects of his successful rehabilitation and they demonstrate genuine remorse for his actions. I would add that I think it important that the appellant should receive a demonstrable discount in his sentence in order to encourage others to make like admissions.'
[20] [2005] VSCA 271 at [15]-[16].
[21] At [14].
67The charge sets out five particulars of sexually abusive behaviour. Particulars 3 and 4 are respectively: touching her vagina on at least three occasions at Albion and/or Sunshine; and touching her vagina on one occasion at Deer Park. Within the confines of at least 12 occasions of sexual abuse, these constitute at least four. Numerically, they represent a third. In terms of touching, there is one other occasion. The other particulars are forms of vaginal penetration. These are more serious forms of the sexual abuse.
68Apart from the other factors identified by Buchanan JA in the above passage, which are relevant here, your admissions regarding particulars 3 and 4 require a demonstrable discount on the sentence imposed 'to encourage others to make like admissions'. This is apart from their bearing on specific deterrence and rehabilitation.
Health
69Your counsel referred to the case of R v RLP, where the Court of Appeal set out seven propositions when assessing the effect of advanced age and ill health[22]:
(i)the age and health of an offender are relevant to the exercise of the sentencing discretion.
(ii)old age or ill health are not determinative of the quantum of sentence.
(iii)depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
(iv)it is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
(v)other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released[23] and that the offender's ill health will make his or her period of incarceration particularly onerous.
(vi)just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
(vii)old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.
[22] [2009] VSCA 271 at [39].
[23] R v Hunter (1984) 36 SASR 101; R v Yates [1985] VR 41 and Crowley & Garner v R (1991) 55 A Crim R 201; R v Saw [2004] VSC 117.
70You are 73. You have problems with your health. Each seems to be either well-controlled or not presenting now as significant. There is nothing to say you will be unable to complete the head sentence which I will impose. Your conditions are treatable in prison. Your age and ill health have no bearing on my sentence.
Sentence
71On the charge of persistent sexual abuse of a child under 16, I sentence you to six and a half years' imprisonment. I will set a non-parole period of four and a half years' imprisonment.
72I declare the 14 days of your pre-sentence detention (excluding today) as time served under my sentence.
Section 6AAA
73If you had not pleaded guilty to the charge but had been found guilty after a trial, I would have sentenced you to nine and a half years' imprisonment.
Sex Offenders Registration Act 2004
74For the purposes of the Sex Offenders Registration Act 2004, the offence of persistent sexual abuse of a child under 16 is a Class 1 offence. As a registrable offender, you must comply with the reporting obligations for the rest of your life.
75Although these reporting obligations are onerous, I am forbidden by law to take them into account when sentencing you[24].
[24] S 5(2BC) of the Sentencing Act 1991.
‑ ‑ ‑
0
6
0