Director of Public Prosecutions v North (a pseudonym)

[2022] VCC 609

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARCY NORTH(A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 May 2022
CASE MAY BE CITED AS:	DPP v North (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 609

REASONS FOR SENTENCE

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Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. D’Arcy	Office of Public Prosecutions
For the Accused	Mr R. Batchajarya	Warren Graham & Murphy Lawyers

HIS HONOUR: 

1Darcy North[1], on 21 February of this year you were convicted by a jury after a relatively short trial of three charges of indecent act with a child under the age of 16 years, six charges of incest and one charge of common assault.  Those crimes carry maximum penalties of 10 years, 25 years and 5 years respectively.  You were acquitted by the jury of one course of conduct charge of indecent act, which I do not think involved the jury disbelieving the complainant, it is just that the charge could not quite be made out on the evidence that was presented.

[1] A pseudonym.

2You are now 46 years of age.  The offending occurred when you were between the ages of 34 and approximately 41.  There is no evidence before me of any remorse whatsoever.  Materials have been provided which includes a report from Dr Ball, who of course, is well known to me, where you maintain your innocence of this offending.

3The trial was essentially run on the basis that the complainant was a liar and the jury clearly rejected that proposition, as do I.

4The fact that there is no remorse does not aggravate the situation.  It simply means that what would have been a very important piece of mitigation on your behalf is absent.  It has been my view for years now that a simple acknowledgment and a plea of guilty and apology is of massive assistance to the victims in such matters.  There is no such assistance given here.  Obviously, of course, you then do not get the utilitarian benefit of any plea of guilty and it was conducted on the basis that the complainant and her family were put through the ordeal of a trial. 

5You do have one prior conviction which is of real concern in this particular situation, even though I am fully aware that you do not get sentenced twice for the one piece of offending.  That prior conviction was sustained in the Sale Magistrates’ Court in April of 2007 and you were fined $3000 for an indecent act with a child.  It is my understanding that you were some three or four years into the relationship with the mother of this complainant when that offending took place.  Whether anybody was aware of it or not, I do not know.  When you were spoken to by Dr Ball, you in fact said you had no prior convictions.  In terms of materials being provided saying that this is out of character for you, I think in this situation, it has not been disputed but I should give a brief outline of what that offending was about.

6The victim was a 12 year old female who lived with her family in Maffra.  Between 1 January 2006 and 30 January 2006, you visited the home.  On one occasion she was left alone at home with her 11 year old sister and you.  She was wearing a white bikini.  You approached her, untied the neck strap of her bikini which caused the bikini to drop, exposing her breasts.  She had tried to cover her breasts and felt scared by your actions.  She then left the kitchen and went to her bedroom to get a T-shirt.  You followed her into the room and while she was trying to cover up her breasts with her bikini top, you pulled her bather top down and you then touched her left breast.  You then asked her to kiss you.  She said no.  And the matter went from there.

7In that scenario, you made a no comment record of interview.  That offending took place prior to, as I understand it, the commencement of the offending against your natural daughter.  That is of real concern when one looks at the nature of this offending and the fact that you had been put before a court previously for similar type of offending.

8A summary of the offending is, and I make it clear that this will be anonymised later on.

9You were born in 1975 and at the present time as I understand it, you are 46.  You are the biological father of the complainant, Tegan[2].  And as I have said, the offending occurred when you were between 34 and 41 years of age.  She was born in February 2004.  And was aged between 6 to 12 years during the offending.  So when your prior conviction took place, she would have been about 2.

[2] A pseudonym.

10In any event, you were married to her mother and as I understand it, you lived together in Sale and had two biological children.  In the trial, the evidence was given that you had effectively groomed her by kissing her.  That was the subject of a charge which, I think, was by agreement, you were acquitted of, because it was almost impossible to work out when that kissing became indecent and when it was not.  But in any event, I accept beyond reasonable doubt that it was, an element of grooming with you progressing from kissing her to tongue-kissing her.  And I am very conscious of not sentencing you for it.

11The overall kissing happened on a number of occasions.  At one stage, this is what could be described as the second incident, after kissing occurred between the two of you had progressed to the use of your tongue, you told her you could teach her how to kiss, ‘another way’.  And asked if she wanted to try kissing, ‘down under’.  She said no, but you continued to ask, telling her it will be good, it will be great.

12She told you that she was not okay dealing with it and wanted to stop the kissing because you had taught her enough.  There was discussion there about a boyfriend, but you continued to persist.  You told her to take off her pants, close her eyes and spread her legs on the couch.  And you then kissed her vagina, licked it, and inserted your tongue into her vagina.  That is Charge 2 of incest.

13She said that that was the first time that something, ‘really physical’ had happened.  Afterwards, you told her not to tell her mother, as you would go to gaol.  You bought her an ice-cream and from that point on started regularly buying her gifts.  I accept on the evidence as, that on a number of occasions with this offending, you told her she could not tell anyone or you would go to gaol.  The guilt that that places on a small child of being offended against in that way, not knowing if there is anything they can do about it, the fear of being disbelieved, the thought of someone going to gaol over what they have said, is just a massive and ongoing trauma for them.

14In any event, on another occasion, whilst your wife was having a nap in another room, you took her hand and said, ‘Feel me, I’m so hard’, and put her hand on your genital area.  That is Charge 3 of indecent act with a child under the age of 16.

15Despite your protestations of memory, you do claim to have a memory of such an event, and in your record of interview, you effectively blamed the child, said that the child had done it and you told her not to do so.  Seems the explanation given by you is utter nonsense.  In any event, your wife entered the room and saw that occurring and there was then a dispute.  I am not going to make any findings about what happened after that.  About two months after that, you told the victim you would teach her something else, but with a different part and you then put your penis into her mouth.  That is Charge 4 of incest.

16On another occasion, in 2013, she was staying with you at your house. At around midday, she was in her bedroom when you came in.  She said that you seemed ‘wobbly’ when you came in.  Whether it is because you were intoxicated or because of your physical condition, I am not too sure.  In any event, you got her to lay on the bed and started taking her clothes off, she tried to hit and kick you off, but she was not strong enough.  You told her to be quiet and took all of her clothes off.  You then inserted your fingers into her vagina and at the time used your free hand to cover the complainant’s mouth, obviously because her mother was having a snooze in the next room.  That gives rise to Charge 5 of incest. 

17After inserting your fingers into her vagina, you touched her breasts and rubbed them, which is Charge 6 of indecent act with a child and again, as I have already indicated, you said, ‘Don’t tell anyone or I’ll go to gaol’. 

18On another occasion, some weeks later, she was in her bedroom at that same address and you came in, pushed her onto the bed.  She bumped her head and she started to cry.  You took off her jeans and boxer shorts, grabbed her hair and pulled her towards you.  You made her open her mouth and inserted your penis into her mouth.  That is Charge 7 of incest.  Two or three minutes later, you ejaculated in her mouth.  She recalled the ejaculate was ‘white stuff’ and tasted really bitter.  You slapped her across the face and told her to swallow it.  That is Charge 8 of common assault.  For an natural father to do that to his daughter is just beyond my comprehension.  But I have no doubt whatsoever, as did the jury, that that is what you did. 

19She swallowed the ejaculate, then washed her mouth out with water.  Again, you told her ‘do not tell anyone’ because you would go to gaol.  About a month later, she was again staying at your house and she was ready to leave.  She bent down to retrieve a phone charger from under her bed.  You entered the room, and came up behind her, pulled her skirt and underwear down and pushed her onto the bed so that her tummy was on the bed but her feet remained on the ground.

20You began licking her vagina, and inserted your tongue into her vagina and also licked around the outside.  That is Charge 9 of incest.  You pulled her pants and skirt back up and left the room.  She was crying as she left and she appears to have cried on a number of occasions when this offending was taking place.

21On another occasion, some time later, you offered to buy her a computer game in exchange for sucking your penis.  At that stage she had been so groomed and subjected to this that she agreed, and you inserted your penis into her mouth.  That is Charge 10, of incest, and her evidence was that after that you bought her the game, MovieStarPlanet.  She played that but stopped doing it after a while because it reminded her of the offending. 

22In November 2013 her and her mother and her mother’s new partner, Mr James[3], went to New South Wales.  At some point in around 2016 you went there to attend her Grade 6 graduation.  After the graduation you were left alone with her and tried to get her to take a photograph of herself for you.  She said no, eventually went to the bathroom with your mobile phone and took a photograph of her chest with her breasts exposed, and you later told her that you had saved that.  Uncharged act, in this given situation. 

[3] A pseudonym.

23Soon after that visit she visited you in Victoria, and we have heard mention of that visit from the victim impact statements today. You were residing in a house in Maffra.  She deleted the photo at that point in time, but after that you and her were sitting on the couch together.  She apparently asked you for a back massage because she has been laying on her back and was in pain.  You agreed and started massing her spine to begin with, before moving to her neck.  You then started massaging her breasts.  She said, ‘No’, and went to her room.  That is Charge 11, of indecent act with a child under the age of 16. 

24Eventually she told her friends and eventually she told her mother, in very, very distressing circumstances.  As I understand it, and I accept her evidence on this and also the evidence of her mother, which was given during the course of the trial, that she became extremely upset, was found hiding in a cupboard in the bedroom, and her mother spoke to her and eventually at least part of the truth began to come out.  It is clear that on that occasion your victim was at least contemplating ending her life.     In any event, the matter was ultimately reported to police and you were ultimately interviewed.

25As I indicated during the course of the plea, you seem to be able to remember everything in great detail except the actual offending itself.  For example, you said that you had never taught her how to kiss, and as I repeat again, I know you have been acquitted of Charge 1.  You said that you had never taught her how to kiss, but you did have a conversation with her about kissing in which she told you she wanted to kiss a boy, and somehow or other you managed to remember that 10 years later, and you told her that she was too young to kiss.

26Regarding incident three, you blamed her, said that she had grabbed your crotch and you had knocked her hand away and immediately told her not to do that, because it was wrong and inappropriate.  As I have already indicated, I think that explanation is rubbish, and insofar as the incident involving the iPod charger under the bed, you seem to have a great memory about where everything was in the house at that time as well.  You have maintained that you did not do it.  You are still running the ‘I don’t remember if I did’ type of approach insofar as Mr Ball is concerned. 

27I have already mentioned the circumstances regarding the absence of remorse, and I do not have to repeat that again.  The offending is gross, to use a modern expression.  Back nearly 30 years ago, Justice Hedigan, as he then was, in the Court of Appeal at this stage, in the case of R v MJ, referred back to a case of R v Esposito in which His Honour Mr Justice Marks has said, ‘A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate’. 

28His Honour then went on to say,

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

29Can I add to that the irreparable and fundamental damage to the mother and stepfather of your victim daughter and also, obviously, other members of the extended family.  I listened today to three very eloquent and very courageously read victim impact statements.  The complaint herself points out the damage is done too, but she is determined to try and lead a, from her point of view, proper existence.  Her mother described - and this is just textbook - the sense of guilt, the sense of failure, the fact that she felt that she had never protected her daughter, and just watching her daughter go to pieces over all this.

30The stepfather, expressed the same sort of sentiments.  Those consequences are almost inevitable in offending such as this and give rise to the real need for denunciation and general deterrents.  In this particular situation I do not propose to read from the victim impact statements.  They are tendered and they are on file.  The reason I do not propose to read from them is they are extremely eloquent and I think any attempt by me to summarise them would simply not do them justice.

31Each of them brought home very, very clearly to anybody who is interested the evilness of this sort of offending, and obviously hear the evilness of what you did, and just simply will not express - will not take any responsibility for. In my view, you have a total lack of insight into what you have done to this young person, and your former wife and the extended family.  Because of the nature of the offending you will be placed on the sex offenders register, and I advise you that the reporting conditions will be for life.  That will be sent to you at the gaol.  Because of the sentences I impose from Charge 4 on, you will be sentenced as a serious sex offender, and I direct that that be entered in the records of the court. 

32I am aware that community protection becomes the principal sentencing purpose.  I am aware that the sentences should be cumulative unless otherwise ordered, and in this case the Crown do not seek a disproportionate sentence.  The sentences available to me, without doing that, are clearly adequate in these circumstances.  I am well aware of the community protection aspect of this, and the sentence that I impose will reflect that.  In your particular situation, because of physical matters I will be referring to in a moment, and the sheer - your age and the sheer length of the sentence, I think that the prospect of your reoffending again in this way is probably very remote, but general deterrents and denunciation and appropriate punishment are massive considerations. 

33I then look at matters person to you, and your counsel provided very succinct and very helpful submissions, and added to them orally.  I have taken into account those submissions, also a number of medical reports, and I will be going to one of those, or two of those in a moment, about your physical condition.  The report of Dr Ball, as I say, a psychologist, is well known to me, and the references that were tendered on your behalf. 

34It is pretty clear to me that those references as to character were - referees as to character were clearly not aware of your prior conviction for, as I indicated during the course of the plea, indecent assault or indecent acts on another pubescent, probably - girl, and I take little notice of them.  To say that this is out of character I think is an unreal proposition, but I accept that that is the view they have of you and in other ways you have been a relatively good citizen. 

35I accept that because of your illness, which I will describe in a moment, it will be harder for you in gaol than for a person who did not have that.  Your life expectancy is significantly reduced, to about 60 I am told, by the condition that you have, and I take that into account, that your time in gaol will be spent wondering whether you will ever be released.  I will be giving you a minimum term, obviously, and I take all those matters into account.  You will be undoubtedly undergoing this sentence at Hopkins. And as I have indicated during the course of the plea, again, it is a sad state of affairs, but we in fact in this state now have a jail which specialises in old men. 

36So I do accept your counsel’s submissions.  I do accept your counsel’s submissions that, at least at the outset, the sentence that I impose will be undergone in COVID circumstances, and I accept that your overall health will deteriorate as the years pass. 

37I am very aware that I must, if at all possible, not impose a crushing sentence, and in these circumstances, totality plays a big part.  In terms of the serious sex offender register, in this situation totality demands that I order concurrency.  I will do it in terms of ordering a cumulation, because it is easier to understand.  But totality demands that I do otherwise order as provided by that act.   

38The report of Mr Ball goes through a number of matters, and he spoke to you at Hopkins.  Your basic history is confirmed, as is set out in your client submissions.  Effectively, you grew up in a supportive family environment in Gippsland.  You finished school to Year 12. 

39You were clearly good at football.  You spent a year playing professional football, as I understand it, and a number of years playing elsewhere.   

40At the age of 27, some four years before this offending commenced, you were diagnosed with myotonic dystrophy, and I will be giving a simple description of that soon.  At the age of 32, you had severe influenza and spent time in intensive care – I accept that – over an extended period of time,

41Until you became unable to work because of your disorder, you had worked consistently.  You had been a delivery driver, and you also worked at a supermarket and as a cleaner.  In about 2014 you went bankrupt, and it was indicated from 2017 on, you have been on a disability pension. 

42The condition is described by Mr Ball, and you said to him that, ‘My memory is shot,’ and you provided no insight into the offending.  He regards your IQ as low-average.  In this situation, the jury were not put through it, but I have read the very extensive record of interview that you did with police, where you gave great long answers, with great detail and to say at this stage – and the record of interview was about 2018 – that there is no memory, and it is shot to pieces seems to me to be probably untrue, but that does not itself aggravate the situation I have already indicated.

43You were assessed as being of low-to-moderate risk of reoffending.  I think in the overall circumstances, that is probably correct.  If you were younger, I might take a different view.  And you indicated that the victim, ‘Needs help,’ because it ‘did not happen.’  In other words, you seem to be suggesting, even to Mr Ball in these circumstances, that there is something mentally wrong with the victim, and she is making it up.

44She has mental difficulties, all right, but they are all your fault, Mr North; nothing to do with any choice by her.  I have read the medical material that has been provided.  I have read the NDIS report which has been provided, and I take all those matters into account in determining that jail will be hard for you. 

45The prospect of rehabilitation in a situation like this is so far into the future it is impossible for me to guess.  As indicated during the course of the plea, as it stands at the moment, if you do not do a sex offender program, you probably will not get parole.  But they are matters for the administration, not for me, at some future time.  The risk of you reoffending, I do accept for these purpose, is low to moderate.  

46I think the symptoms of the illness from which you suffer are best described by Dr Bergin, who is known to me from the Inglis Medical Centre in Sale.  He said, ‘Muscular dystrophy, diagnosed in 2002.  This condition is a hereditary disorder, characterised by myotonia, that is, an inability to relax muscles after contraction.’ 

47Muscular wasting of a characteristic pattern, cataracts, testicular atrophy, frontal baldness, and mental retardation is a common finding in this condition.  I have already made an indication about what I made of your record of interview.  I did not see any sign of mental retardation there, but that is another matter. 

48His medical text says this, ‘There is no treatment for any of the dystrophies,’ and as he said, ‘The physician is forced to stand by helplessly and witness the spectacle of unrelenting progressive paralysis.’  I accept that you have been aware of that since you were 27, and clearly, you were aware of what the future held for you whilst all this offending was taking place, including the offending against the other young girl. 

49He said that in your situation – he has been treating you now for in excess of 36 years – you suffer from significant and untreated obstructive sleep apnoea.  It causes exhaustion, poor concentration, migraines, a tendency to fall asleep.  And the says that memory impairment is potential.  He says that the condition is worsening and over the last few years has indeed been getting worse, and you had to receive a lot of medical attention. 

50I take all those matters into account.  I take into account the fact that you are on a significant number of medications.  And for these sentencing purposes, I will accept your counsel’s submission that, as I have indicated, I think that the bottom limbs in Verdins are fulfilled, not that you need Verdins for it, and that whilst it will not be custody that increases your difficulties, the onset of time is going to put you in a very lonely circumstance of total deterioration, until, ultimately, you die, effectively. 

51They are the matters that were put on your behalf, and as I have already indicated, I thank your counsel for the succinct way in which they were put.  The medical matters are of importance, but again, as I have indicated, you were well aware of what the future held for you when you took it upon yourself to abuse your own biological daughter in this vile way.

52Taking all those matters into account, and bearing in mind recent authority insofar as incest is concerned, on Charge 2, seven years; on Charge 3, 18 months, concurrent; on Charge 4, seven years; on Charge 5, seven years; on Charge 6, 18 months, concurrent; on Charge 7, which is the oral penetration with the forced swallowing of the ejaculate, eight years; on Charge 8, six months, concurrent; on Charge 9, seven years; on Charge 10, seven years; and on Charge 11, 18 months.  

53I direct that one year of the sentence imposed on Charge 2, one year of the sentence imposed on Charge 4, one year of the sentence imposed on Charge 5, one year of the sentence imposed on Charge 9, and one year of the sentence imposed on Charge 10, and six months of the sentence imposed on Charge 11, be served cumulatively upon each other, and upon sentence imposed on Charge 7.  

54That gives a total effective head sentence of thirteen and a half years.  I direct that you serve a minimum term of 10 years before becoming eligible for parole.  I direct that 72 days be reckoned as having been served under this sentence.  Are there any other orders I need to make, Madam Prosecutor or Mr Bhattacharya?   

55UNIDENTIFIED SPEAKER:  (Indistinct) any orders, Your Honour, thank you. 

56HIS HONOUR:  Thank you for that.  Yes, thank you.  You can contact your client by phone, Mr Bhattacharya. 

57MR BHATTACHARYA:  Yes.  I’m sorry, Your Honour, I might just – just for Your Honour’s assistance, Your Honour has referred to the report of David Ball. 

58HIS HONOUR:  Yes. 

59MR BHATTACHARYA:  I think the report was in fact written by his colleague, Christine Kennedy.  So, just a matter of ‑ ‑ ‑ 

60HIS HONOUR:  I appreciate that.  I just – well, I don’t know her, but I do know him.  Thanks for that.

61MR BHATTACHARYA:  Yes. 

62HIS HONOUR:  The material is the same.  There’s no – yes, thank you for pointing that out. 

63MR BHATTACHARYA:  Yes.  Nothing further.  Thank you, Your Honour. 

64HIS HONOUR:  Thank you.  You stick with it, all right?  You’ve very brave, what you’ve done here, and your family is supporting you.  And you stick with it, girl.  You’ll make it. 

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