Director of Public Prosecutions v Oster
[2014] VCC 228
•28 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 12-01710
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MATTHEW OSTER |
---
| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF PLEA HEARING: | 18 February 2014 |
| DATE OF SENTENCE: | 28 February 2014 |
| CASE MAY BE CITED AS: | DPP v Oster |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 228 |
REASONS FOR SENTENCE
Subject: Criminal Law – sentence.
Catchwords: 8 charges of Incest, 2 charges indecent assault – conviction after trial - stepdaughter aged between 13 and 14 years – humiliating and degrading acts – gross breach of trust - profound effects on victim including serious mental illness with multiple suicide attempts – her prognosis unclear - offending continued after she was clearly unwell and hospitalised. Uncharged offending overseas from age 9; aggravating features.
Sentence: Total effective sentence 13 years, non parole period 10 years
Pseudonym “ Shannon McBride” used for complainant.
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Hassan | OPP |
| For the Accused | Mr D. Gibson Ms Lisa Mendicino | VLA |
HER HONOUR:
1Mr Oster, you may remain seated for now. I will ask you to stand later.
2Matthew Jacek Oster, you have been found guilty by a jury of eight charges of incest and two charges of committing an indecent act on a child under 16. The maximum penalty for that charge is ten years' imprisonment and for incest 25 years. Shannon McBride[1] was your stepdaughter, whose mother you had met in Ireland. In 2006 you began living with the family there, and in 2008 a boy was born. The prosecution led evidence at the trial that you began offending in Ireland when Shannon was aged nine in 2006 and continued after the family came to live in Victoria in 2010. It then continued until 2011, when she was 14.
[1] Pseudonym
3The complainant gave evidence of your offending in Ireland, which of course was not the subject of any charge and you are not to be punished for it. I refer to it now in the same manner as it was, in part, led by the prosecution: to provide the background to the consequent offending and to show that the abuse began when Shannon was only nine years old. When the girl's mother was out, you removed her clothes, you felt her breasts, buttocks and vagina, and kissed her in those places and penetrated her vagina with your fingers. You held her down by her wrists to force her cooperation. You told her this was a secret, it was a game and that her mother would be hurt if she knew. You told her it was normal and she thought it was.
4This uncharged offending forms the background to what occurred in Australia and also informs as to the duration of the abuse insofar as the incidents in Australia were a continuation of an already established perverse relationship. In Australia you perpetrated eight acts of sexual penetration upon the complainant, including penile and digital penetration of her vagina, penile penetration of her anus and penetration of her vagina using a vibrator. On some occasions you used some degree of force upon her in effecting the penetration and, in the course of one incident, you caused a bruise to her back, which was noticed by staff in hospital, leading to her disclosure.
5Shannon’s mother gave evidence that her daughter was a happy child in Ireland, successful at school and socially. She had some counselling to help her deal with the fact that her mother did not know who her father was; however, her mother observed that her daughter became distant from you during this period. She was also unhappy at the prospect of leaving Ireland and emigrating to Australia and was extremely upset at the time of departure. In Australia her mother noticed she seemed unhappy or depressed early in 2011 in excess of what might have been expected due to adjusting to her new home, and indeed her mental health gradually deteriorated.
6She refused to go to school and began to neglect herself. She became reclusive and stopped communicating, staying in her room with the blinds drawn. She would not eat. Her condition was noted by the general practitioner she consulted for other matters during 2011 and she was medicated for depression from about June. In August of that year she was admitted to the Box Hill Adolescent Psychiatric Unit and she remained there for approximately three weeks and, during that time, went home on weekend leave. It was on one of those weekends that you had sex with her, which was in fact the final time.
7On 6 September Shannon disclosed the sexual abuse to staff at the hospital and also to her mother, who put the allegations to you. You denied them, but a few days later you left the family home. The trial was due to commence early in 2013, but the complainant found it too difficult to face the proceedings. It was not until November that she had improved sufficiently to be able to watch the VARE and participate in the special hearing. The trial then proceeded.
8At the plea hearing, the complainant's mother read her victim impact statement, describing the effect of the abuse on her daughter, who was now aged 17, and on herself and indeed the family. She said her daughter struggles to exist on a daily basis. She is completely dependent on her mother and must know her whereabouts at all times. She cannot leave the house alone. She is extensively medicated and struggles to get out of bed each morning. She has made 20 attempts at suicide and has harmed herself extensively by cutting herself and pulling out her hair. All this speaks of profound psychological damage. Her mother does not know if her daughter will ever recover.
9She, herself, has had to give up work and live on Centrelink payments and she sees a counsellor herself and is on medication. She said:
The effects of what Matthew Oster has done is so widespread, it is like a cancer that eats into every single branch of our lives. How my children and I will live with this I have no idea.
10Not only are the charges very serious, but the effects of your behaviour have been disastrous, even tragic. Seldom does one hear of such serious consequences as have been caused to the victim in this case.
11I turn now to your background. You are now aged 39. You come from a stable and conventional family and have the support of your parents and siblings and their families. You were married to Rachel Oster, with whom you have three school-aged children and, until your incarceration, you maintained a close relationship with them and their mother. You also have a seven-year-old child, with whom you have no contact, and your five-year-old son born in Ireland of the relationship with the complainant's mother. You have prison visits from your family, although not from the children, with whom you maintain telephone contact.
12You have had a good employment history and were working in a computer business in Ireland when you met the complainant's mother. You had no history of substance abuse, nor any behavioural issues. Both your father and your former wife gave evidence of your good qualities and the character of the man they describe as son and father of the children is indeed hard to reconcile with the offender who stands to be sentenced today. The same observations are contained in the written references provided to the court from your family and friends. I accept that your family, particularly your children, are devastated by your imprisonment and the charges that brought it about. I have no doubt that you will find it hard to endure the burden of isolation from your family that your incarceration will cause.
13As for your prospects for rehabilitation, it is a matter of conjecture because of your denial of the charges and the consequent absence of any remorse. The fact that you have otherwise been a law-abiding citizen, with the strong support of your family and your closeness to them, as well as your good employment history, are perhaps the best indicators of hope in this regard, but no more than that can be said with any certainty.
14The sentence I impose must reflect not only appropriate punishment but also the court's denunciation of your behaviour in very strong terms. Sexual acts forced upon a young girl who, in this case was left in your care by her mother while she went to work, are regarded in clearly abhorrent terms by the community and a substantial sentence is warranted. The need to deter others from such criminality is one of the foremost principles in sentencing in cases such as this.
15The length of the sentence will also be affected by several aggravating features of the offending. First is the use of a vibrator, which in the case of a young girl can only be described as a degrading and humiliating circumstance; second, the gross breach of trust in the sexual abuse of your stepdaughter; third, the assurance of the girl's silence for so long by means of the suggestion that her mother would be hurt to know about it; fourth, the fact that penile penetration was unprotected, notwithstanding that you had had a vasectomy in 2009 in Ireland. While pregnancy was not a risk, sexually transmitted disease was a theoretical possibility; fifth, the considerable age difference between you and the complainant; sixth, the grooming and coercive strategies you used to persuade her to cooperate with you, as well as the force to which I have already referred. Finally, the act of penetration which occurred when the complainant was on weekend leave from the Adolescent Psychiatric Unit. It seems your sexual gratification took precedence over her need for care and protection in blatant disregard of the fact that she was receiving treatment for a psychiatric illness serious enough for her extended admission to hospital.
16For each of the charges after charge 2, you will be sentenced as a serious sexual offender and that will be noted on the court record; however, the prosecution does not seek a disproportionate sentence in order to protect the community; that can be addressed by a sentence within the appropriate range and with due regard to totality and the need to avoid a crushing sentence. Would you stand now, please, Mr Oster.
17I sentence you to the following terms of imprisonment. For each of charges 2 and 4, the charges of committing an indecent act on a child under 16, one year. For each of charges 1 and 3, and 5 to 9 inclusive, which are the charges of incest, six years. For charge 10, also a charge of incest, seven years. The sentence for charge 10 is the base sentence for purposes of cumulation. I order that ten months of each of the sentences for charges 1, 3, 5, 6, 7, 8 and 9, and one month for each of charges 2 and 4 be served in cumulation upon the base sentence. That results in a total effective sentence of 13 years. I order that you serve a minimum period of ten years before being eligible for parole.
18You have already served 91 days of presentence detention not including today; that time is to be reckoned as already served and will be noted on the court records.
19The prosecution seeks an order for a forensic sample to be obtained from you under s.464ZF of the Crimes Act. That application has been opposed by you. I have taken into account that there has been no prior offending by you, which reduces the seriousness of this offending for these purposes, but other aspects, such as the long duration and the lack of material with which to assess risk of re-offending once you are released, persuades me that the order should be made. Accordingly I make the order. It will require you to supply a sample of saliva and I must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.
20It is mandatory that I make an order that you be placed on the Sexual Offender Register, requiring you to provide your details to the police every year for the rest of your life once you are released. My associate will hand you a form to sign in that regard shortly. Be seated for the moment, thank you, Mr Oster.
21Are there any other matters, first, Ms Hassan?
22MS HASSAN: No, Your Honour.
23HER HONOUR: Mr Gibson?
24MR GIBSON: No, Your Honour.
25HER HONOUR: Thank you. Do you want to see this form first, Mr Gibson?
26MR GIBSON: Thank you, Your Honour.
27HER HONOUR: Mr Oster can be taken now, thank you, officer.
- - -
0
0
0