Director of Public Prosecutions v Obrien (a pseudonym)

[2014] VCC 2295

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00787

DIRECTOR OF PUBLIC PROSECUTIONS

v

Abraham Obrien (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMITH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 August 2014
CASE MAY BE CITED AS:	DPP v Obrien (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2014] VCC 2295

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
Note: pseudonym used for the Accused

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantonio	Office of Public Prosecutions
For the Accused (Plea) For the Accused (Sentence)	Mr D. Dann Ms J. Kennedy	Leanne Warren & Associates

HIS HONOUR: 

1Mr Abraham Obrien, you have pleaded guilty to one count of persistent sexual abuse of a child under the age of 16 contrary to s.47A of the Crimes Act 1958. The child concerned was your stepdaughter. The offences occurred at various times between January 2010 and September 2011 at various places in Victoria when she was aged between 10 and 12 years of age. The offence carries a maximum penalty of 25 years' imprisonment.

2The facts of the case were opened by the prosecutor and are contained in the summary of the prosecution opening, which is Exhibit A in this proceeding.  Through your counsel you admitted that the contents of that summary were correct.  In short, the prosecution identified 14 occasions upon which offences occurred; on some occasions, more than one offence occurred.  I do not consider it necessary to recite each of them to you in detail.  It is sufficient to say that the offences included multiple instances of you showing pornographic material to her, of you making her touch and masturbate your penis, touching her breasts, the penile penetration of her vagina and of her anus, digital and oral penetration of her vagina and the kissing of her neck, mouth and ears.

3The offences occurred mainly in your and her home, sometimes in your car.  She suffered pain as a consequence of your actions on numerous occasions.  On some occasions she bled as a consequence of your actions.  Over the period, you purchased her a number of expensive gifts, in contrast to your other stepchildren. 

4The offending was exposed in November 2013 when your stepdaughter, then aged 14, disclosed your conduct to a youth worker and later told her mother about it.  You were arrested, interviewed by police later in November 2013.  You made some but far from full admissions of sexual misconduct in that interview.  In particular at that time you denied penile penetration of her vagina or anus. 

5Your stepdaughter has made a victim impact statement, which is Exhibit B in this proceeding.  In it she refers to feeling helpless to do anything about your conduct, feeling scared, confused and traumatised by your conduct, having difficulty sleeping, having difficulty living in her home even after you had left it.  She talked of the assistance that she had received more recently from a psychologist and a youth leader. 

6By way of background, you are 41 years old.  You were between 36 and 38 years old at the time of these offences.  You were born and brought up in the Philippines.  You were one of seven brothers.  You had a good upbringing, you were not abused, you had a good and stable family.  You were initially married in 2004.  You have one child from that marriage, now aged eight.  That marriage ended in 2006 and your child resides with your first wife in the Philippines.  You met your second wife some time prior to 2007.  She resided in Australia and you visited her in November 2007.  You married her in 2009 and you have resided with her and your four stepchildren from that time until your arrest for this offence. 

7Since your arrival here in 2009 you further educated yourself, obtaining your VCE.  You completed a number of other short courses, including courses relating to hairdressing, food handling and home and community care, with the intention that they would help you in obtaining employment.  You obtained a job as a bus driver, mainly driving members of the Filipino community around Melbourne, three days a week.  In addition you have worked as a cleaner on a part-time basis.

8You have reported that you are a religious person attending a Bible study class every Saturday and attending church each Sunday.  Your wife is apparently actively involved with the church.  You have retained the support of your wife, who has continued to visit you in prison whilst you have been on remand; however, it is not clear that your wife is fully aware of the full extent of your offending behaviour.  An intervention order has been made in relation to each of your stepchildren.

9I have read a report from Mr Jeffrey Cummins, a psychologist, and that is Exhibit 1 in the proceeding.  I note his findings that there were no psychological factors at play in your case in his opinion.  There was no depressive condition, anxiety, adjustment disorder, post-traumatic stress disorder or any mental health condition at the time of offending.  Mr Cummins considered that you would enthusiastically participate in a sex offender treatment program or programs whilst in custody.  At present he considered there was a low to moderate risk of your re-offending but that, following an appropriate sex offender treatment program, that risk would be low.

10You were sexually frustrated in your marriage, he concludes, and were physically attracted to your stepdaughter over the period of offending.  He considers that your offending behaviour would be properly described as paedophilic or hebephilic, involving the sexual attraction to post-pubescent but under-age girls.

11Your counsel submitted a number of matters which were said to go in your favour.  Firstly you have no relevant prior convictions.  It appears that you have not been previously in trouble with the law either here in Australia or in the Philippines.  Secondly, you pleaded guilty at the committal mention stage and, as a consequence of that plea, your stepdaughter will not have to go through the trauma of a committal hearing or trial, which would no doubt have been distressing for her and other members of your family.  Your plea obviously will not require the need for an expensive and time-consuming trial.

12Thirdly, apart from these offences, you appear to have been of a good character and have a good work ethic.  

13Fourthly, after appropriate treatment, you were assessed by Mr Cummins as, I have said, having a low risk of further offending.  He is of the view that you have good prospects of rehabilitation and I accept this is likely to be the case.  You have the continued support of your wife, although as I said she may not even now be aware of the full extent of your misconduct, and in particular that you did engage in sexual penetration of her daughter.

14Against that, I consider there are a number of aggravating features of your offending. 

15Firstly, you were the victim's stepfather.  You were in a position of authority and trust; in that context, she was a very vulnerable victim. 

16Secondly, the age difference between you and your stepdaughter was considerable.  There was plainly an imbalance of power and authority between you. 

17Thirdly, you had unprotected sex with your stepdaughter on a number of occasions, thus exposing her to a risk of sexually transmitted disease.

18Fourthly, although you do not appear to have used significant physical force in the commission of most of these offences, there was some force used on one occasion when you pushed her onto a bed.  Notwithstanding an absence of serious force, it must have been obvious that on some of those occasions you caused her pain:  firstly because she told you so; and secondly because, at least on one occasion, she bled as a consequence of your actions. 

19Fifthly, your offending was not isolated.  It did not occur in a moment of weakness, it occurred persistently over nearly two years.  The prosecution identified the 14 occasions I have referred to where you abused your stepdaughter.  On a number of occasions those abuses were multiple.  The prosecution summarised the offences as five penile-vaginal penetrations, two penile-anal penetrations; four digital-vaginal penetrations, four oral-vaginal penetrations and some 14 other indecent acts.  I accept the submission that such conduct fits within the relatively serious bracket of offending under this section.

20The offending occurred in the main at your stepdaughter's home, where she was entitled to feel safe.  Some instances of offending occurred in the presence of family members, although no doubt you assumed or at least hoped that they were unaware of what you were doing.  I consider that your motive for your behaviour was nothing more than sexual gratification. 

21The basic purposes for which this court may impose a sentence are punishment, deterrence both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you I must have regard to a range of matters set out in s.5(2) of the Sentencing Act, including the nature and gravity of the offence, your culpability for it, your personal circumstances and the circumstances of your victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into the community.

22I consider that the need for the sentence to reflect a general deterrent to the community as a whole is an important sentencing principle in this instance.  Because of the nature of the relationship between you and your victim, the breach of trust by you, the persistence of the sexual relationship over time and the nature of it, I consider there is no realistic alternative than a term of important.  I take into account the parliament has legislated for a maximum period of imprisonment for this offence of 25 years.  That period clearly demonstrates how seriously the community, through parliament, treats the offence.

23I have taken into account each of the matters referred to by your counsel as going in your favour and each of the matters which have previously been referred to as aggravating features of your behaviour. 

24Stand up, please, Mr Obrien. Abraham Obrien, on the charge of persistent sexual abuse of a child under the age of 16, you are convicted and sentenced to be imprisoned for six years.  I direct that you serve a minimum of four years before being eligible for parole. 

25Now, Madam Prosecutor, in terms of pre-sentence detention, are you able just to enlighten me or perhaps remind me - might be better - of how many days that have to be taken into account.

26MS DIPIETRANTONIO:  Yes, Your Honour.  My learned friend and I worked that out prior to Your Honour coming onto the Bench and we've agreed it's 259 days to today.

27HIS HONOUR:  Thank you.  I declare that 259 days of presentence detention be reckoned as having been served under the sentence and I direct that a declaration to that effect be recorded on the records of this court. 

28Under the Sex Offenders Registration Act 2004, by reason of this conviction, your conviction for this offence, 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 first report after your release from custody. Details in writing of these reporting conditions will be served upon you shortly by my associate.

29Under s.6AAA of the Sentencing Act I am required to state the total effective sentence and non-parole period that I would have imposed in the event that you had not pleaded guilty.  Had you pleaded not guilty and been convicted, I would have sentenced you to eight years' imprisonment with a non-parole period of five and a half years. 

30Now, insofar as there were ancillary orders sought, they haven't been made yet, have they?

31MS DIPIETRANTONIO:  No, Your Honour, the 464 orders I understand - - -

32HIS HONOUR: All right. Under s.464ZF of the Crimes Act, I order that you provide a sample of your saliva blood to police, and I do so because of the seriousness of the circumstances of your offending and because your consent to that order was indicated by your counsel at the hearing date.  I am obliged to tell you that, notwithstanding your consent to the order, if you do not ultimately cooperate in the taking of the sample, reasonable force may be used to obtain a blood sample from you.  Do you understand that?

33OFFENDER:  Yes.

34HIS HONOUR: Yes, I make those orders under s.464ZF. My associate will have you sign this document.

35MS KENNEDY:  Can I just approach him, Your Honour?

36HIS HONOUR:  Yes.  Have you spoken to him about this?

37MS KENNEDY:  I have, yes.

38HIS HONOUR:  Go on, by all means. 

39MS KENNEDY:  Thank you, Your Honour.

40HIS HONOUR:  Anything else that you think needs to be attended to, either of you?

41MS KENNEDY:  No, Your Honour.

42MS DIPIETRANTONIO:  No, Your Honour.

43HIS HONOUR:  Yes, thank you.  Yes, you may take the prisoner away.

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