Director of Public Prosecutions v Ordell (a pseudonym)
[2018] VCC 1077
•13 July 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NATHAN ORDELL (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 July 2018 | |
DATE OF SENTENCE: | 13 July 2018 | |
CASE MAY BE CITED AS: | DPP v Ordell (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1077 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Trial - Incest upon biological daughter – vulnerable 21 year old victim
Legislation Cited:
Cases Cited:
Sentence: Imprisonment for 11 years and 10 months with non-parole term of 8 years and 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J Piggott | Office of Public Prosecutions |
| For the Accused | Mr R Backwell | Victoria Legal Aid |
HIS HONOUR:
1 Nathan Ordell,[1] a jury has found you guilty of two charges of sexual assault and four charges of incest involving digital, oral and penile penetration. The victim of your offending was your biological daughter, Savannah Blaydon.[2]
[1] Nathan Ordell is a pseudonym.
[2] Savannah Blaydon is a pseudonym.
2 The circumstances of your offending can be summarised. A comprehensive statement of the facts has been tendered as Exhibit A.
3 As at December 2015, Savannah was 21 years of age. For a number of years, she had suffered from anorexia and had been diagnosed with a borderline personality disorder and anxiety. She was living in supported care accommodation in a neighbouring suburb. However, from time to time, she would visit and stay in the house you occupied with your partner. On most weekends, Savannah stayed over at your house in order to visit her siblings.
4 In the middle of the night of 12/13 December 2015 you entered Savannah’s bedroom, sat on her bed and started talking about what Savannah described as “useless things”. She thought that you were drunk. You moved closer onto the bed and put your hand on her bottom. Savannah thought that you did not know what you were doing and just let it slip. Then you hopped under the blankets and Savannah moved away because she felt uncomfortable. You slipped your hands under her top and felt her breasts. She tried to push your hands away, but you felt her thighs and the outside of her vagina. Savannah heard her mother calling out to you, and you slipped out of the bedroom. That conducts founds Charges 1 and 2 on the indictment, being sexual assault.
5 Savannah kept a diary in which she recorded what happened contemporaneously. On 13 December 2015, the diary commenced, “Filth. Words cannot ever come close to convey how disgusted and filthy I feel”. The diary entry concluded, “Does he even remember any of this? Do I say anything to anyone? Will he do it again?”
6 On 14 December, Savannah wrote:
“It won’t leave my mind. I was finally feeling that little bit happier with Christmas cheer edging its way closer. He took it away. I don’t deserve happiness anyway. Does he even remember though? 20 standard drinks. If I just left. If I’d said ‘No’ rather than freezing, it would’ve been fine. It’s my fault so I should stop sulking. … What if he does it again? It’s nothing, so why do I feel like I’m drowning? Starve the issues away, not to mention nobody wants to go near a skeleton so I’d be all good.
7 You did not stop. In the afternoon of 19 December 2015 you went to a Christmas party before returning home. Savannah was at a separate Christmas function at the supported accommodation facility where she lived.
8 In the afternoon you and Savannah exchanged text messages. Some of yours were sexually suggestive. You referred to having, “a burger for dinner, actually desert!?” [sic] Somewhat later, you referred to yourself as being home alone in your birthday suit. After Savannah went to bed, in her bedroom at your house, you texted her around 11.00pm saying, “Do u feel like a cuddle?” You then texted, “Can I come in for a chat and you tell me what happened last weekend please??” At 2.23am in the morning, you again texted Savannah, “Would u like a chat?” Several members of Savannah’s family told this Court that she did not like physical contact with any other person, let alone a male. Savannah did not reply to your text messages.
9 You entered Savannah’s room. She pretended to be asleep. You hopped into her bed and felt her body and said, “I don’t know how you can think you’re fat, there’s nothing of you.” Savannah tried to push you away but then froze. You played with the outside of her vagina and then inserted your fingers inside her vagina and fingered her. You slid her pants down and licked the inside of her vagina and told Savannah that you were doing it because you wanted to make her feel good for once. You then changed position and pushed your penis into her vagina. Savannah was tense and scared and it hurt. You stopped because of the difficulty in penetrating Savannah and asked why she did not tell you to stop. She said that she had never learned to say “No”. You then returned to fingering inside her vagina. Footsteps were heard and you snuck out. The four charges of incest arise from your conduct on this night.
10 Savannah drove home in the morning and told police that she had:
“10 million showers but I still felt dirty. And then I was drinking vodka every night for the next several nights just to get myself through. […] But I didn’t tell my family cos I didn’t want to ruin Christmas. I didn’t tell anyone in my family until the last day of December.”
11 In a diary entry of 20 December 2015, Savannah recorded what had happened and concluded:
“Now I have to work out what to do. I feel sick, so, so, sick. …
Does he have a(n) STI?
Will it happen again (duh)
Who should I tell, and when?
It’s my own fault.
How would mum manage/cope? Income/depression/stress.
What if I'm being stupid? What if it’s no big deal?”
12 On 19 December Savannah was asked by a friend and confidant, “Has something happened again since last time?” To which Savannah responded, “I feel like it’s my own fault though. I didn’t even say ‘No’”. On 20 December 2015, Savannah told a psychiatric nurse, “It’s not fair, it’s happened again, why did it have to happen so close to Christmas?” On 28 December 2015, Savannah disclosed the allegations to other family members but a complaint was not made to police until 27 November 2016. A tape recorded statement was taken from Savannah who sat holding her teddy bear, Elliott. It was confronting viewing. Savannah appeared to be at war with her own body, she constantly pulled and rubbed at her skin while rocking from side to side. Although aged 21, Savannah presented as a much younger and afflicted person.
13 You were interviewed by police on 29 November 2016. You told them that you could not recall engaging in the sexual acts with Savannah and said, “I couldn’t see myself doing that at all, no, nuh, that’s – I wouldn’t do that.” You said that you were not aware of sending text messages to Savannah in the middle of the night and suggested that you may have been drinking.
14 Savannah has provided a Victim Impact Statement. She says that because of the things you have done to her “I’ve had to walk through hell and back and continue to do so to this day”. She states:
“I starved myself, could barely sleep from fear and nightmares, and couldn’t function whilst my mind was taken over by flashbacks, questionings (Why? Why? Why?), pain and hurt. I didn’t want to live anymore feeling broken beyond repair.”
15 Savannah indicates that she found the court process slow and gruelling and, because of the stress and uncertainties, she became unwell at several times, requiring inpatient hospital treatment. She was made to feel like she was ruining the family and all of her studies, work and ambitions had to take a back seat while she learnt to function in society once again. Savannah has been rejected by her mother and has been unable to maintain contact with her younger siblings.
16 I turn to your personal circumstances.
17 You are 40 years old and present as a man of previous good character. You left school midway through Year 11, and were only 16 when Savannah was born. Her mother, Amelia Blaydon,[3] was also 16. You had developed a relationship with Amelia that arose from a friendship during your school years. Your relationship with Amelia Blaydon did not last and she had four children to another partner before recommencing a relationship with you in 2010. You have four children with Amelia, three of whom were born after your relationship rekindled.
[3] Amelia Blaydon is a pseudonym.
18 You have a good work history. After leaving school, you first obtained a job assisting an electrician. You completed a Certificate III in Mechanical Engineering and have effectively worked as a fitter and turner for many years.
19 Since the jury verdict, you have been remanded in custody. You were initially taken to the Melbourne Assessment Prison and then to the Metropolitan Remand Centre. You were placed in an observation cell due to suicidal ideation and your dosage of antidepressant medication has been doubled. You are on a restricted visit regime which limits the number of prison visits that you can receive. This Court was informed that although you are in protection, you have been threatened by other prisoners.
20 You continue to have the support of your partner, Amelia Blaydon, and your immediate family including your parents. They have been present during the trial.
21 Your counsel, Mr Backwell, submitted that you should be assessed as having good prospects for rehabilitation. In my view, on the material before this Court, there is a sound basis for that submission. You have no criminal history or subsequent charges. You have a good work history, and you enjoy family support.
22 As a result of your being charged, you were obliged to leave the family home and you cannot have any contact with your other children.
23 Two character references were tendered.
24 Amelia Blaydon details the significant difficulties she confronts raising young children, several of whom have serious health problems. Amelia Blaydon states that you have been a good father to both your biological children and to your four step-children, and you have always been respectful towards her.
25 Eva Randall[4] is a regular babysitter for your children and speaks well of your role as a parent.
[4] Eva Randall is a pseudonym.
26 The crimes you have committed are most serious and their effect upon Savannah has been very great. You have offended against a 21 year old daughter who was extremely vulnerable and whose vulnerability was well-known to you. You offended on two separate occasions and, although your conduct may be regarded as opportunistic, your sexual penetration of Savannah was far from spontaneous. You sent her sexually suggestive texts prior to the second incident, pushed yourself upon her, and ultimately had unprotected sex with your own daughter. The offences you committed are morally repugnant and corrode all that is normal and decent in family life. As is your right you ran your trial but as a consequence you cannot benefit from any considerations of remorse or insight.
27 For the purposes of Charge 3, you are a serious sexual offender. But in the circumstances of this case, the prosecution does not seek the imposition of a disproportionate sentence in order to protect the community. Further, I do not consider it appropriate to direct complete cumulation in respect of those charges for which you fall to be sentenced as a serious sexual offender.
28 On Charge 1, being the sexual touching of Savannah’s breast, you are sentenced to a term of imprisonment of 18 months.
29 On Charge 2, being the sexual touching of Savannah’s vagina, you are sentenced to a term of imprisonment of two years.
30 On Charge 3, being the first occasion in which you digitally penetrated Savannah, you are sentenced to a term of imprisonment of six years.
31 On Charge 4, being an oral penetration of Savannah’s vagina, you are sentenced to a term of imprisonment of six years and three months.
32 On Charge 5, being a charge of penile penetration of Savannah’s vagina, you are sentenced to a term of imprisonment of six years and six months. I regard the unprotected sex you had with Savannah as the most serious charge on the indictment.
33 On Charge 6, being the second occasion in which you digitally penetrated Savannah, you are sentenced to a term of imprisonment of six years and three months. That sentence reflects your continuing conduct.
34 Charge 5 is the base sentence and I order 18 months' cumulation on each of Charges 3, 4 and 6 upon the sentence imposed on Charge 5 and upon each other. In making those orders for cumulation, I have taken into account that those offences all occurred on the one occasion and within a confined timeframe.
35 I order that four months of the sentence imposed on Charge 1 be cumulative upon previous orders and that six months of the sentence imposed on Charge 2 be cumulative upon previous orders.
36 The total effective sentence is a term of imprisonment of 11 years and ten months, and I direct that you serve eight years and nine months of that sentence before being eligible to be considered for parole.
37 I make an order for the taking of a forensic sample by way of a buccal swab and I must inform you that the police may use reasonable force to carry out that procedure.
38 I direct that the records of the court reflect the fact that you have been sentenced as a serious offender in respect of Charges 3-6.
39 Your offending does not attract a mandatory registration under the Sex Offenders Registration Act. In determining whether to exercise my discretion, I cannot be satisfied, beyond reasonable doubt, that you pose a risk to the sexual safety of other members of the community.
40 Pursuant to s.18(4) of the Sentencing Act1991, nine days of pre-sentence detention are declared and reckoned as part of the sentence imposed by the Court today. Be seated, Mr Ordell.
41 Does anything arise from those remarks?
42 MR BACKWELL: No, Your Honour.
43 MS PIGGOTT: No, Your Honour.
44 HIS HONOUR: Mr Ordell can be returned to custody, officer.
Thank you, we will adjourn temporarily, please.
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