Director of Public Prosecutions v Owen [a pseudonym]

[2014] VCC 1873

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

UGO NEIL OWEN

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 November 2014
CASE MAY BE CITED AS:	DPP v OWEN [a pseudonym]
MEDIUM NEUTRAL CITATION:	[2014] VCC 1873

REASONS FOR SENTENCE
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Subject:  Sentence-Incest- Indecent Assaults- Two complainants  both daughters – old offences- offending committed over some years- gross breach of Trust- offender 73 years old- impact on victims- Totality-
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: 9 years7 months NNP 6y6m.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Beazby	Office of Public Prosecutions
For the Accused	Ms M. Smith	Taylor Preston Lawyers

HIS HONOUR:

1Ugo Neil Owen,[1] you have pleaded guilty to five charges of indecent assault, one charge of attempted incest, two charges of gross indecency with a girl under 16 and one charge of incest. 

[1] Ugo Neil Owen is a pseudonym.

2The five charges of indecent assault were Charges 1, 2, 3, 5 and 6. 

3Charge 1 took place between 1 January 1975 and 1 February 1981 and is  a representative charge, representative that is of the same conduct occurring on six other occasions at which times you took the complainant's hand and placed it on your penis to masturbate you.  At that time the complainant, to whom I shall refer to as "A" for reasons of anonymity and to protect her privacy, was under the age of 16. 

4The summary of prosecution, tendered as an exhibit on your plea as Exhibit A, outlines the seven occasions when this happened and where such instances are described in the evidence.  These offences took place when A was aged 8 to 11 years old at Belgrave Heights and 12 to 14 years old at Avoca.  A is your daughter. 

5Charge 2 relates to an occasion between 2 February 1975 and 1 February 1977 when you indecently assaulted A at Belgrave Heights.  After being made to masturbate you, you licked her vagina.  She was aged 9 or 10. 

6Charge 3 is a representative charge of indecent assault on A encompassing two occasions, one when you rubbed her vagina with your fingers and you inserted your fingers in her vagina, the second when you got her to masturbate you and then inserted your finger into her vagina. 

7Charge 5 of indecent assault encompasses nine occasions between 1 January 1977 and 31 December 1979 when you indecently assaulted another complainant who was under the age of 16.  I shall refer to her as M for reasons of anonymity and privacy.  M is your daughter and was aged 7 to 8 years of age when the abuse began.  You made her masturbate you, once to ejaculation whilst you were in your bed.

8Charge 6 is a representative count of indecent assault which encompasses four occasions when you rubbed M's vagina.  On one of these occasions this touching followed you being masturbated by her, once to ejaculation, on another whilst you masturbated yourself. 

9Charge 7 is a representative count of gross indecency with a girl under 16 between 1 January 1979 and 31 December 1979 on M on two occasions, during one in which you masturbated in her presence to ejaculation and another where you rubbed her vagina while masturbating yourself until you ejaculated.  Those times M was 9 to 10 years old and you had taken her to a bush area near Avoca.

10Charge 8 is a representative count of gross indecency with or in the presence of a girl under the age of 16.  These acts occurred on seven occasions between 1 January 1979 and 31 December 1980.  The complainant who is M  was between the ages of 9 to 10 years on the first occasion and between the ages of 10 to 11 years on the other six.  On the first occasion after masturbating in her presence you told her to masturbate you until you ejaculated.  On two occasions she masturbated you to ejaculation in your bedroom.  On one occasion she got into your bed and masturbated your penis.  On another occasion she masturbated your penis in your bedroom.  On two occasions in your bedroom you made her masturbate your penis until you ejaculated while you rubbed her vagina. 

11Charge 4 is a representative charge of attempted incest which encompassed two occasions between 2 February 1979 and 1 February 1981 where the victim was your daughter, A, who at the time was aged between 13 and 14 years.  On the first occasion after making A masturbate you on your bed you put lubricant on your penis and attempted to penetrate A's vagina.  She was crying and told you to stop.  On the second occasion you called her into your bedroom, pulled off her pants, got on top of her and rubbed your erect penis on her vagina and tried to push it inside her. 

12Charge 9 is a representative charge of incest occurring between 9 August 1981 and 7 August 1983 where the complainant was your daughter, M, who at the time was aged between 12 and 13 or was 13.  This charge encompasses five occasions on which you inserted your penis into M's vagina. 

13As can be seen from these facts, the offences spanned the years from 1 January 1975 to 7 August 1983 during which your daughters were, in the case of A, aged between 7 and 13 years, and in the case of M, 8 and 14 years.  You were aged between 33 and 41 years. 

14You are now 73 years of age.  Both of them lived with you and their mother, your wife, during this period.  Both A and M suffered emotional and physical abuse from you and your wife who is now dead.  This included you punching them both with fists to the face.  They also recall mental and physical abuse of their mother at your hand. 

15In 1971 your wife was diagnosed with a brain tumour and underwent brain surgery.  She survived until her death in 1996.  On many of the occasions when either A or M, unknown to each other, were abused by you sexually in your bedroom, they were sent into that room by your wife to "say goodnight" or "make him happy."  It may be inferred from this that your wife, for reasons too complex and unpleasant to describe, may have been complicit in this abominable course of conduct.  However, this is not a matter about which I need to make any determination.  Her possible complicity in my view does not change the criminal nature of your behaviour.  I have no doubt this complicity, if true, has added to the damage brought upon your daughters and makes their plight even more harrowing because of the participation of their mother.  But in the absence of any determination by me I do not consider that I should aggravate your criminality if indeed she had been a participant in this criminal conduct.  

16It is clear that your offending progressed as your transgressions against your daughters escalated, became frequent and went from masturbating in their presence to having them masturbating you, to touching and penetrating their vaginas with fingers to attempting to penetrate their vaginas with your penis, to penetration.  Your offending apparently ceased in 1981 in relation to A and in 1983 in relation to M.  This offending was acknowledged as between A and M in 1992 or 1993 but was confronted only in 1996 shortly before your wife's death when her sister was told of the abuse. 

17It was not until October 2013 that both A and M made statements to the police.  In October 2013,  M recorded a phone call to you and in that call you said you were sorry for the offending and you did not know why it happened.  You asserted some sort of "weakness" and that you had been molested when you were 10 years old.  You mentioned your sense of guilt and remorse but asserted that "there are skeletons in most family's cupboards somewhere" and appeared surprised that your daughters' lives were in upheaval.

18In March 2014 police interviewed you and you made some admissions whilst asserting little memory of the offending.  Importantly, you proffered no memory of "any real interference with A."  You answered that your sexual relationship with your wife was virtually non-existent because of her health.  As to M, you asserted that the conduct was caused in part by what you considered to be her willingly “coming to you” in your “weakness”. 

19The applicable maximum penalties for these offences are five years for indecent assault, 10 years for attempted incest, two years for gross indecency and 20 years for incest.  These are maximum penalties applicable for the offences at the time at which they were committed by you. 

20Both A and M made victim impact statements which they read out to the court.  This evidence by your daughters attests to the profound effect your behaviour has had on their lives at various stages of life.  Your conduct impacted upon their teenage years and each subsequent period and circumstance of life.  Their statements were characterised by their sadness, anger, sense of deep betrayal from the person who had the most sacrosanct obligation to protect, love and cherish them.  This egregious breach of trust is traumatic in the extreme and its consequences are lifelong and pervasive, affecting every aspect of their lives, their confidence, their affections, their family life, their friendships, their ambitions and vocations.

21Often as in your case and  as expressed by you, an offender deals with this conduct and is able to move on, even in the face of punishment.  But the struggle of victims to rehabilitate and reclaim their lives is a lifelong challenge marked by disappointment and depression, nightmares and the inherent inability of the legal and sentencing process in truth to provide real comfort or consolation.  I take their statements into account. 

22As I reiterated to them at the end of the plea, this process is one designed to address each of the many relevant sentencing considerations acknowledged by the law; a process within which those parameters endeavour to do justice to each person concerned in a complex formulation.  True consolation will come to them from the support of family and friends and only in part from the legitimate retribution which is part of this sentence. 

23I say to them again that this is not an attempt to quantify your trauma in terms of a period of imprisonment.  Such a crude reckoning could never do justice to you or indeed to you, Mr Owen.  I will state specifically all the matters which I have taken into account in the sentence and I thank both of you, A and M,  for the civilised and dignified manner in which you expressed and conducted yourself in court.  Your restraint is a clear sign that you have achieved much already on a difficult road to healing. 

24Incest is often a crime where vulnerable children, who are eminently worthy of protection, are exploited by those entrusted with their care.  It is a crime which erodes human familial relations by physical and psychological subordination of the child for the gratification and perverted indulgence of the adult, accompanied by gross breach of trust and often irreparable and fundamental damage to the victim.  The present case is a very bad case.  Sadly, it is far from being the worst case these courts have encountered.  So it is important to set out the matters which are relevant to this sentence, each of which I have taken into account.

25Representative counts as charged here except on one charge, Charge 2, are single instances of criminal conduct which does not allow for the imposition of a sentence in respect of other crimes.  But it represents the absence of a mitigating factor, since it cannot be claimed that your offending was an isolated event.  Indeed, the representative nature of the crime allows the court to look to the conduct represented in order to judge the offending in its full context.  This context highlights the young age of both of your victims when you abused them, the fact that there was pain caused including bleeding, that you had been asked to stop, to desist from your conduct by your crying daughter, that there had been unprotected sexual activity, that the activity had continued over a long period, that there had been more than one victim and that the offending was often in the family home committed as a gross breach of trust.  Each of these offences are rendered in my view more serious by this context which leads to a higher sentence that would otherwise have been imposed in the absence of its representative nature. 

26I have taken into account the many authorities which were sighted in argument or handed up to me as part of the plea , in the context of current sentencing practices, as well the relevant sentencing Snapshots of the Judicial College and the overview published of sentences in the Court of Appeal, each of which are useful, even if very limited in their information to allow for a comprehensive comparative study, including the important judgement in [Reid ] of 2014.

27I take into account your plea of guilty.  It was made at the earliest opportunity, in effect, which obviated the need for a committal hearing and therefore did not require A or M to be cross-examined or go through the trauma of a trial as well.  This plea will be accorded a discount as is required by law in recognition of its worth and utilitarian value in having saved the cost of a trial to the community and additional trauma to the victims. 

28Assessing remorse is more difficult in these cases.  The passage of time may have dulled recollections, however, I accept you regret your conduct and have expressed guilt.  It is true to say that in the interview you tended to minimise your offending and that your insight remains relatively unsophisticated and probably based on your deviant arousal and sexual attraction as well as your dysfunctional understanding of filial affection.  This was attested to by an experienced forensic and clinical psychologist, Patrick Newton, who provided a helpful report to the court which I have taken into account in its entirety.  Remorse, it appears to be me, in such a context must be qualified by your limited and distorted understanding.  More relevant is his assessment that you pose a low risk of sexual recidivism, upon factors which he outlines in his report and which I accept, not least the long period during which it appears you have not committed further similar offences.  Your sexual dysfunctioning is balanced by protective factors outlined in Mr Newton's report at p.6 which I accept. 

29You are 73 years of age and you have no prior criminal history or any subsequent criminal or antisocial behaviour.  I take your advanced age into account when I look to the likely effect of extended reclusion upon you because of your age and the state of your health.  I take into account your health as described in the material which was tendered to the court regarding industrial deafness, diabetes, sleep apnoea and ischemic heart disease, each of which, and in combination, will no doubt render incarceration more difficult. 

30I have read each of the reports from treating doctors and take them into account.  I accept that there is, in mitigation of the offences, no evidence of threat or intimidation or violence, however, these are matters which go really to lack of aggravation in my view and must be seen in the context of offending which occurred in a familial setting where behavioural norms are often communicated in subtle and manipulative ways, some of which amount as in this case to oppression and psychological impairment.  These were not offences characterised by immaturity, youthful exploration or experimentation but were examples of rationalised sexual gratification at the expense of your young daughters, enabled by your position of pre-eminence and powerful position in the family environment. 

31Returning briefly to Mr Newton's report, I accept and take into account his diagnosed symptoms related to your current elevated anxiety and depression outlined as adjustment disorder symptoms primarily reactive to your situation in nature.  Importantly, he found no defect in your capacity for moral reasoning, cognitive deficits or other psychological disorders.  I accept that you unequivocally take responsibility for your behaviour and in that context the Sex Offender Program and Registration will provide positive effects on your risk of re-offending.

32I take into account the reference written on your behalf by your wife, whom you married in 1998.  She was your accountant and your first wife died a month before her own first husband passed away.  These circumstances led you to a relationship.  She speaks of the time together and of you as a good person with a good reputation.  She remains supportive of you.  I accept that the passage of time since these offences, your age and circumstances and protective factors means you have good prospects for not re-offending and indeed in terms of rehabilitation, so that the purpose of special deterrence, although relevant, is probably significantly diminished.  However, I consider that general deterrence, denunciation of this conduct and the demand for just punishment can only be met by a significant term of imprisonment to properly satisfy these principles.

33In my view, the sentence must properly and carefully reflect in your circumstances the principal of totality to avoid a crushing sentence.  The factors outlined above also demonstrate that the gap between head sentence and non-parole period be slightly longer in order to reflect these factors.  I take into account the fact that it appears on your assertion that you were the victim of some inappropriate sexual behaviour as a child.  This is a relevant sentencing consideration and I have taken it into account.  I also take into account some admissions about behaviour which you made in relation to M which have not been otherwise disclosed in detail, although this appears to be by way of clarification rather than new undisclosed matters. 

34I have taken into account your background which, apart from your early sexual experiences, appears unremarkable both academically and in terms of work from which you retired in 1997.  Your family history and personal circumstances do not add specific relevant matters but I have of course taken this history into account.  Please stand. 

35On Charge 9 of incest, the base sentence, you are convicted and sentenced to seven years' imprisonment.

36On Charge 4 of attempted incest you are convicted and sentenced to three year and a half years' imprisonment.

37On indecent assault Charges 1, 2, 3, 5 and 6, on Charge 1 you are convicted and sentenced to two years' imprisonment; on Charge 2 you are convicted to one and a half years' imprisonment; on Charge 3 you are convicted and sentenced to one and a half years' imprisonment; on Charge 5 you are convicted and sentenced to one year imprisonment; on Charge 6 you are convicted and sentenced to one and a half years' imprisonment.  On the gross indecency Charges 7 and 8, on Charge 7 you are convicted and sentenced to 9 months' imprisonment but on Charge 8 one year imprisonment. 

38I order that 18 months on Charge 4 be cumulative on Charge 9.  I further order that three months on Charge 1, two months on Charge 2, two months on Charge 3, one month on Charge 5, two months on Charge 6, one month on Charge 7 and two months on Charge 8 be cumulative on Charge 9 and on each other, making a total effective sentence of nine years and seven months.  I order a non-parole period of six and a half years.

39Is there a pre-sentence detention period that is agreed upon, Madam Prosecutor?

40MS BEAZBY:  Yes, Your Honour, it's 32 days.

41HIS HONOUR:  I note in the records of the Court that there are 32 days excluding today which have been served by way of pre-sentence detention.  I note that you fall to be sentenced as a serious sexual offender for Charges 3 to 9.  The prosecution did not seek a disproportionate sentence and I have imposed an appropriate cumulation in respect of these charges.  You will be subject to mandatory registration and life reporting as a serious sexual offender upon conviction.  The obligations of the registration are quite onerous.  When you are released from custody you will be subject to significant limitations and registration imposes very many obligations upon you for the rest of your life. 

42I will sign orders pursuant to Section 464ZF for the taking of a biological sample for placement upon a DNA database.  I should inform you that when a request is made to you for a mouth scraping under the supervision of an authorised member of the police force, that is not a painful procedure, if you do not consent at that time then a sample will be taken using reasonable force to enable the forensic procedure to be conducted and a blood sample will be taken.  Do you understand what I have just said?  Do you understand, Mr Owen, that if you do not consent the police can use reasonable force to take a blood sample from you?

43PRISONER:  I do.

44HIS HONOUR:  But for your plea I would have imposed a total effective sentence of 12 years with a 9 years non-parole period.  Yes, you can remove Mr Owen.

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