Director of Public Prosecutions v Norris (a pseudonym)

[2017] VCC 1964

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ESMOND NORRIS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 December 2017
CASE MAY BE CITED AS:	DPP v Norris (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1964

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	Ms D. Manova	Office of Public Prosecutions
For the Accused	Ms S. Condon	Stary Norton Halphen

HIS HONOUR:

1Esmond Norris,[1] you have pleaded guilty to three charges of unlawful and indecent assault of a girl under 16, two charges of indecent assault, two charges of sexual penetration of a child between 10 and 16 years, and one charge of indecent act with a child under the age of 16 years.  Those crimes carry maximum penalties of five years, five years, ten years and ten years, respectively.

[1] A pseudonym.

2You are 60 years of age, you pleaded guilty at a early time and you made appropriate admissions.  You are to be sentenced on the basis that I accept that at least now there is appropriate remorse and you must also, of course, get the utilitarian benefit of the pleas of guilty.

3You have prior matters from the mid-1970s, which are of little significance here.  But as I was informed by counsel you do have one subsequent matter of a similar nature back in around 1997, where you were given a Community Corrections Orders and I am told from the Bar table and accept, undertook a sex offenders course.  I take all those matters into account.

4Because of the nature of the offending, from Charge 3 onwards you will be sentenced as a serious sexual offender.  I am aware that community protection becomes the principle sentencing purpose, I am aware that the sentences should be cumulative unless otherwise ordered and I will so otherwise order.  The Crown do not seek a disproportionate sentence and would not have given one in any event.

5Pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide some police may use reasonable force to take it from you.

6Further, because of the nature of the offending you will be placed on the Sex Offenders Register and I advise you that the reporting period will be for life, go with my associate to the dock, please, with this.  You can go with my associate, please.  Go with my associate.

7MS CONDON:  Sorry, Your Honour.

8HIS HONOUR:  A summary of the offending - and I will annex the Crown opening to these, my sentencing remarks - is as follows.  The principle victim in this matter was adopted when she was ten days old.  The parents then separated and their mother went to live with a man, who is your father.  Accordingly, sometime after that your parents had a daughter, she becomes the second of the two victims and is in fact your half-sister.  During that time of the offending, the family also befriended some people know as Cross who had son, and he became your third victim in 1981.

9The charges here are laid as appropriate at the time.  There was some discussion during the course of the plea about incest and various charges, such as that, as I expressed some concern at the maximum penalties that were involved.  I have to be careful in a situation such as this to make myself mindful of what were maximum penalties at the time and not what they would be now.

10In any event, so far as Charge 1 is concerned it is representative and based on three separate occasions.  Victim 1, recalls that she would watch television with you in the bedroom in the family home and saw this as you being a big brother looking after her.  You would lie with her in a spoon position and on a number of occasions, but these are the specified ones, you would reach your arm around her, put your hand on her vagina and hold it there.

11On another occasion while watching TV you placed your hand between her legs and onto her vagina and she tried to move away but you kept your hand on her vagina.  This is between May 1977 and May 1980.  And the third occasions, which is the one that you fall to be sentenced for, you and her were again spooning on the bed, you placed your hand under her clothing and placed your hand on her vagina.  She said that that sort of offending occurred regularly but they were the only three that could be particularised.

12Charge 2 is again representative - again, we are talking May 1977 and May 1980.  It will be obvious how old your victim was during these times, very young child, indeed.  She was in your bedroom watching television, you took her hand and pulled it behind her back and put it on your penis, outside your pants.  On another occasion during that period of time you took her hand, put it on your penis, however on this occasion you pulled your pants down and put it on your naked penis and made her stroke it.  That is the charge, again, representative for which you are to be sentenced.  She says that this kind of offending occurred on a regular basis.

13Charge 3, you moved into a caravan and the offending again her continued.  Between May 1980 and February 1981 she was eight years old.  The offending occurred when you and her were watching television.  You grabbed her hand and made her masturbate your penis, pushed her head towards your penis and asked her to, "Suck it a little bit".  She tried to push her body upwards, however you continued to push her head down towards your penis.  She recalls head being close to your penis and she, in that circumstance, sucked it while you held her head in that position.  She said that that also occurred regularly.

14So far as Charge 4 is concerned, again, a representative charge between 81 and 82. She was between nine and ten.  You were living in the caravan and there was another situation while you were lying on the bed facing each other, you grabbed her hand, placed it on your penis and used her hand to masturbate you, and you would do that and continue to masturbate yourself.

15On another occasion in the same period of time you took her hand and made her masturbate your penis and on this occasion you were giving her instructions such as, "Faster and harder", you were telling her what to do.  On this occasion she recalls you actually ejaculated.

16On a different occasion, again, you pushed her head down towards your penis and told her to, "Suck it a little bit".  She would not.  You continued to push her head down and continued to make her masturbate you and that is the occasion for which you are to be sentenced.

17Another particular occasion she recalls, you again made her masturbate you and pushed her head towards your penis as you continued to masturbate yourself.  Again, that occurred over a period of time and ultimately you went to Western Australia.

18Between May 1983 and May 1985, when she was between 11 and 12, you had returned from Western Australia and were living in the caravan.  From around about that point in time she again was happy to have you back, regarded you as her, "Cool big brother".  On an occasion during that period of time you forced her to perform oral sex on you.  She attempted to resist and push her head back, however you had your hand on her head.

19Charge 6 is representative of three occasions between May 83 and May 86, living in the caravan.  Eleven to 12 years old, she was lying on the bed with you, you penetrated her vagina with your penis from behind.  She said that you were trying to push it in, it was hurting her and you were pushing your penis between the lips of her vagina.

20On another occasion during that period of time, virtually the same type of conduct, you stopped when she told you it was hurting her.  And it was sometime after that occasion that she discovered that she was adopted.  From that point in time onwards she was a very confused young girl.

21In any event, when she was around about 13 years of age she went into your caravan drunk and lonely, as she describes it.  She got into your bed and you hugged each other.  She climbed on top of you and you asked, "If she was sure", you then penetrated her vagina with your penis.  When you finished she got up, dressed an left.  That is the third occasion relied upon for Charge 6 and the occasion on which you are to be sentenced.  That is the last occasion, as I understand it, that you sexually abused her.

22The offending obviously took place over a period approaching a decade when you were roughly early 20s or roughly late 20s overall.  She disclosed the offending to her mother when she was around 19 and disclosed the offending in September 2016.

23Charge 7 relates to your next victim, Victim 2.  Between June 83 and June 84 when she was eight years old she was living in the family home with her parents and one night during that period of time you asked her and a nephew to get into bed with you.  You were nude.  She fell asleep and woke to discover that you had your hand down her pants and you were touching her vagina area under her clothing.  She froze and tried hitting your hand away, you continued to touch her.  That continued for approximately five minutes.  On one occasion when she hit your hand you grabbed it, put it on your bare penis and held it there.  That is what has been described to me as a composite charge.  After that she stayed away from the caravan and effectively would not go near you.

24It seems from the material there is no victim impact statement from her, as I understand, and that self-harm occurred after this.  As to what level it is related to this I am unable to say.

25The last of your victims was Victim 3, he was 11 years old at the time and you were baby sitting and were house sitting on the lounge chair.  You asked him repeatedly to sit on your lap and eventually he agreed.  It was at that point in time you put your hand down his pants and fondled his penis.  His parents arrived him and you stopped.  You continued to attend the house but apparently there were no further incidents of it again.  You were clearly aware that what you were doing was wrong and little else can be said about it.

26I read the victim impact statement from the primary victim in this matter and it eloquently describes the dreadful consequences that offending such as this have.  That there is ongoing and indefinitely ongoing psychological treatment.  That victim impact statement describes the emotional, physical and financial damage that you have wreacked upon, firstly, a young girl and later a, in the sense of it carrying on, a more mature woman.

27It is a massive breach of trust and it is a breach of trust in relation to all three victims.  This is not a situation of 15 year old boy and a 12 year old sister, this is an adult and a small child for the bulk of it, and has to be regarded as very serious.  It calls for, the application of general and in your case potentially, at least, specific deterrence, denunciation and appropriate punishment.

28In the case of Toomey the Court of Appeal went through circumstances of such offending and whilst there are differences this is the overall position:

"Often such victims experience unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator or continue to remain so for many years.  Accordingly and very frequently as in this case, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is my opinion apparent that the principle of general deterrence must assume very considerable significance as sentencing consideration.  Further, it's encumbered upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour through the sentences imposed on perpetrators.  It must been seen to indicate the values of the society that they represent.  Fundamental to which is the protection of its children.  Justice Hedigan, quoting Mark J said, 'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care is degenerate'".

29That is the circumstance in which you are to be sentenced, as I said, bearing in mind the maximum penalties that existed at the time.  A gaol sentence of significant proportions is inevitable and no suggestion was put to the contrary.

30I then look to matters on your behalf.  You are now 60 years of age and I have been through your prior history, in terms of some subsequent offending of a similar nature.  You were educated to around about the age of 14.  Importantly, you commenced work at the age 15 and would appeared to have always been in good employment.  You often have been a heavy drinker over a long period of time.

31You were employed right up to the time you were arrested for these matters in Perth, from where you were extradited.  While you were living in Perth you were looking after your mother and were concerned about what would happen to her in respect of the result or the outcome of these proceedings.  Unfortunately, she has passed away during the time that you have been on remand, which is now some 69 days, I take that into account in this sentencing process that she has been in that situation and is no longer alive.

32At 60 you do have a range of health conditions.  You have metastatic prostate cancer, that is currently not causing significant problems.  You have crohn's disease, again, not at the current time causing significant problems.  You have gout, you have pain in your knees; thought to be related as working at the time as a plasterer and you have hypertension, for which you receive medication.

33You are on a number of medications and there is nothing in there to suggest that they are not matters that could be well looked after in a custodial environment.  There is nothing here which brings into light or brings into play any of the matters raised in the case of Verdins.  And really what it comes down to is an appropriate sentence for what you did to three children, albeit a significant time ago.

34The offending against Victim 2 was when you were approximately 26 and against  Victim 3 when you were approximately 34 years of age.  As I said and I make it very clear, sometimes in these situations where it is brother-sister or brother-relative the ages are quite close.  You were very much older and have to be sentenced on that basis.

35You have been unable to offer an real suggestions to how this all came about or why it all came about and in that sense, at least, you have to be sentenced in something of a vacuum.  I do take into account, as I have indicated, the fact that a trial was avoided in circumstances where there would have almost certainly been three separate trials and you may have had a chance of acquittal.

36The prospects of your rehabilitation are up to you and the risk of you re-offending is to.  On the face of it there would appear to have been no offending now for something in the order of 25 years or so and that gives me some confidence.

37However, the sentence, as I said, bearing in mind the maximum penalty, still has to be one of real significance.  I am ordering these matters as partial cumulation for reasons of totality, which I think is self-apparent and it is much easier for the authorities to understand what I have done.

38Accordingly, on Charge 1, 12 months.

39On Charge 2, 12 months.

40On Charge 3, 24 months.

41On Charge 4, 12 months.

42On Charge 5, 36 months.

43On Charge 6, 42 months.

44On Charge 7, 6 months.

45On Charge 8, 9 months.

46I direct that three months of the sentence imposed on Charge 1, nine months of the sentence imposed on Charge 3, three months of the sentence imposed on Charge 4, 12 months of the sentence imposed on Charge 5, two months of the sentence imposed on Charge 7 and three months of the sentence imposed on Charge 8 be served cumulatively upon each and upon the sentence imposed on Charge 6.

47That gives an effective head sentence of six years and two months.  I direct that you serve a minimum term of four years and two months before becoming eligible for parole.  I direct that 69 days be reckoned as having been served under this sentence.

48I make it very clear to you, pursuant to s.6AAA of the legalisation, that but for your plea of guilty and saving the victims the ordeal of a trial, had you conducted these as a trial and been convicted I would have sentenced you to be imprisoned for a period of nine years with a minimum term of six and half. 

49There any other orders I have to make?  No other orders anybody?

50MS CONDON:  No, Your Honour.

51MS MANOVA:  No, Your Honour.

52HIS HONOUR:  Yes, thanks.  Thank you, take him out.  Take the prisoner, thank you.

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