Director of Public Prosecutions v Parker
[2020] VCC 506
•28 April 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHRISTOPHER PARKER (A PSEUDONYM) |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2020 | |
DATE OF SENTENCE: | 28 April 2020 | |
CASE MAY BE CITED AS: | DPP v Parker | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 506 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Sexual Assault of a child under 16 – Sexual penetration of a step-grandchild Legislation Cited: Sentencing Act
Cases Cited: R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – Parker v R (1998) 151 LR 16 – Black v R [2019] VSCA 286 – R v Renzella [1997] 2 VR 88
Sentence: TES – 9 years with a minimum of 6 years 8 months to be served before becoming eligible for parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | OPP |
| For the Accused | Mr D. Grace QC | The Office of David Grace QC |
HER HONOUR:
1 At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament[1]. In my published remarks, a pseudonym will be used for the names of the complainant and her family, and the accused, because of the family relationship.
[1] Section 4 Judicial Proceedings Reports Act
2 Christopher Parker[2], you have pleaded guilty to two charges. Charge 1 is a charge of sexual assault of a child under 16, which has a maximum sentence of 10 years’ imprisonment. This offence is a standard sentence offence[3]. That means that I must consider the standard sentence of 4 years’ imprisonment amongst the other factors to take into account when deciding what the appropriate sentence is for this charge[4].
[2] A pseudonym
[3] Sections 3, 5A & 5B Sentencing Act
[4] Section 5(2)(ab) Sentencing Act
3 Charge 2 is a charge of sexual penetration of a step-grandchild which has a maximum sentence of 25 years’ imprisonment. This is an offence for which a term of imprisonment must be imposed[5]. It is also a standard sentence offence[6]. That means that I must consider the standard sentence of 10 years’ imprisonment amongst the other factors to take into account when deciding what the appropriate sentence is for this charge[7].
[5] Category 1 offence – s3(1) Sentencing Act
[6] Sections 3, 5A & 5B Sentencing Act
[7] Section 5(2)(ab) Sentencing Act
4 Each charge is representative of a number of occasions of that type of offending; in other words, for each charge, on a number of occasions, you sexually assaulted your step-grandchild by touching her breasts over and under her clothing (charge 1), and on a number of occasions you sexually penetrated her vagina with your fingers (charge 2). Although you are only to be sentenced for one charge of each type of offence, the representative nature is to be taken into account as demonstrating that each type of offending was not isolated to one occasion.
5 I sentence you on the basis of the prosecution opening[8], an agreed summary which was read out in court. I will briefly summarise your offences.
[8] Exhibit A
6 You were the step-grandfather of Kelly Black[9]. She came regularly to your house on Sunday nights to visit her grandmother and have dinner with the two of you.
[9] A pseudonym
7 On a Sunday night in early September 2018, when Kelly was aged 13, she was at your house. You had her sit on your lap at the computer and proceeded to touch her stomach and waist, and then groped and touched her breasts over her clothing for 15-30 minutes. The touching of her breasts is part of charge 1.
8 Kelly was fearful and froze. She did not know what you were doing. This is well recognised as a common response by a child to sexual touching, especially by a loved and trusted figure. She had known you since at least the age of three, when you married her grandmother.
9 On the Sunday night a week later, she was alone at the computer at your house when you approached from behind and put your hands inside her clothes. You then asked her to stand up and sit down again on your lap. She did so, because she was scared and did not know what to do. You touched her breasts under her clothing, including pinching her nipples, which caused her pain. This is part of charge 1.
10 You then put your hand inside her pants and rubbed her vagina before inserting your fingers. This is part of charge 2. You continued to touch her breasts and her vagina for about 10 minutes.
11 Another week later, Kelly’s grandmother, your wife, drove Kelly to your house for the Sunday night visit. Again, you approached Kelly in the computer room and told her to stand up and then sit down on your lap. You touched her on the breasts under her shirt but this time over her bra. This is part of charge 1. You then put your finger into her vagina and continued that for 2-3 minutes. That is part of charge 2. For the next 25 minutes or so, you touched her intermittently on her breasts, thighs and vagina.
12 On a Sunday in October 2018, after Kelly had been driven again by her grandmother to your house, you and Kelly went for a bike ride. You stopped for a drink, and you told her not to tell anyone about what you had done to her, or you would go to gaol.
13 Later, on your return home, you again approached Kelly in the computer room and, as she had become accustomed to, she sat on your lap. You touched her breasts over her clothing, which is part of charge 1. You continued to touch her body, including her vagina over her clothes, for 20-35 minutes. The touching just referred to is not conduct for which you will be sentenced, but is relevant as it forms part of the context to your offending.
14 During this episode Kelly felt frozen. Given your manipulative threat to her earlier that day not to tell anyone, it is completely understandable that she would have that reaction.
15 Two weeks after that, Kelly was again at your house, and after watching television with her grandmother, went to use the computer, only to find you there. A little later she sat on your lap, and you touched her breasts inside her bra, grabbing, rubbing and pinching her nipples. That is part of charge 1.
16 You then inserted your fingers into her vagina and moved them for about 15 minutes. That is part of charge 2.
17 On a final occasion in November 2018 you touched Kelly on her thighs, which does not form part of any charge, but is relevant as it forms part of the context to your offending.
18 That is the last time you touched her. Between then and March 2019 you did not enter the computer room while she was there, visiting your home. In March 2019 Kelly was able to tell someone what you had done to her, and it was reported to police.
19 There has been a considerable impact on Kelly, and on her mother[10]. In her impact statement, in her own words Kelly sets out very clearly the impact on her. Your criminal actions made her confused, scared and sad. She felt completely numb and alone, as she was not able to tell people at the time what had happened. She describes her eating getting out of control, her sleep pattern being ruined, that she harmed herself during and after the abuse, and that she has panic attacks. She is emotionally and mentally hurt because you were her step-grandfather and she trusted you. There is, however, a strong sense of Kelly’s resilience as she speaks of how supported she is by her mother, her social worker, her doctor and police, and how she has coped at school. She is clearly a brave girl, who found the courage to tell someone, despite your manipulation of her by saying that you would go to gaol if she told anyone, as indeed you have.
[10] Exhibit B
20 Kelly’s mother has been devastated by what she calls the ‘evil’ you have done and she is unable to trust anyone with her daughter. She describes her relationship with her mother, your wife, as ruined, and she has high anxiety, stress and suffers from nightmares; all affecting her eating and her sleep.
21 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[11], and include future harm[12]. Because it is less than 18 months since the events, with Kelly still only aged 14, it is impossible to know the possible future harm you may have caused to her. It is to be hoped that she is the resilient person she appears to be.
[11]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[12]Adamson v R [2015] VSCA 194, [56]
22 I take into account the harm caused to her as far as it is known at this time in deciding the appropriate sentence. I do wish Kelly and her mother well for the future.
23 Returning to the offending, the commission of sexual offences against a child is always serious, but there are a number of factors that make your offending particularly serious. These are:
24 First, the gross breach of trust in abusing a child, who trusted you, and whose mother and grandmother trusted you as a family member;
25 Next, Kelly was vulnerable because of her age and relationship to you, and the fact that the offending occurred at a place where she should have felt safe;
26 Next, the offending was brazen in that your wife was present in the home, oblivious to your offending in another room, which has had a dreadful impact not only on Kelly, but also her grandmother, once she learned of your betrayal of trust;
27 Next, there is a 46 year age difference, with you aged 58 and Kelly aged 13 at the time of the offending;
28 Next, you exploited Kelly’s vulnerability by acting on numerous opportunities to offend over a two month period;
29 Next, the offending involved repeated instances of sexual penetration, with persistence in the offending over considerable periods of time on each occasion;
30 Next, by your manipulation of Kelly, you intended to, and did, prevent her from telling anyone at the time the abuse was occurring; and
31 Lastly, there is, and remains, a considerable impact on Kelly and her mother.
32 On an assessment of all the relevant factors, I find your offending consisted of quite serious examples of each type of offending. While not objectively the most serious, the offending is not at the lowest level either. I find your moral culpability was high.
33 As was pointed out by your counsel, there are some matters that I must take into account in deciding the appropriate sentence, which mitigate the serious nature of your offending.
34 The first of these is that you pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea of guilty, the community was saved the time and cost of a trial, and Kelly was saved the trauma of giving evidence at a trial. That is all the more important when it involves a child being abused by a family member.
35 Further, I take into account that you indicated at a very early stage your intention to plead guilty, at the second committal mention in August 2019, after the first mention was adjourned for resolution discussions to take place. You have, from that time, shown a willingness to facilitate the course of justice, which is not diminished by your interview with police in March 2019, in which you admitted that you had Kelly sitting on your lap as described by her, but at that stage denied the offending.
36 I treat your early plea of guilty as a sign of remorse for what you did to Kelly, and to her family. I accept that remorse has also been demonstrated by your remarks to friends[13], and by remarks to and voluntary attendance on the psychologist Dr Grech. I will return to his report and evidence later. I also note the apology in court through your counsel to Kelly and her family.
[13] Exhibit 2
37 Next, I take into account that you voluntarily stopped the offending.
38 I pause to note that your behaviour towards Kelly after you stopped abusing her was very poor. You verbally abused her on a number of occasions when, as I understand it, she was portraying by her behaviour her natural upset reaction to your sexual abuse of her, and at the situation your manipulative threat placed her in, such that she could not complain without ruining her grandmother’s marriage. As now conceded by you, in those circumstances her reaction was completely understandable; trapped in silence while she continued to visit your home weekly, with no way of her knowing that the abuse might not happen again. While your verbal abuse is reprehensible and does you no credit, and in my view was clearly designed to have her keep your abuse secret, or if she did not, designed to discredit her so that if she did tell, she would not be believed, ultimately it does not take away from the fact that you did voluntarily stop offending against her.
39 Next, I take into account your personal circumstances. You are now aged 60. You were born and grew up in New Zealand, the much younger child in a sibship of three. You have no contact with your sister, the eldest child, and very little contact with your brother. All of you left New Zealand as adults and you are the only child who continued contact with your parents, and particularly your mother, your father having passed away 10 years ago. Your mother is aged in her 90’s and you recognise that as a result of the prison sentence you will receive today, you are highly unlikely to see her again. I take into account that impact on you.
40 You married quite young and the marriage only lasted 10 months. You were married a second time for 20 years and have two sons. I am told that this family still provides support to you. During a temporary separation from your wife in the 1990s, you met a woman who had a 14 year old daughter. You were later charged with sexual offending in respect of this child. You were convicted after a trial, which conviction was upheld on appeal to the Court of Appeal, and you were subsequently acquitted on appeal to the High Court. You were released after 19 months in custody and apparently returned to live with your wife and sons.
41 After that relationship terminated, in 2006 you met Kelly’s grandmother, and you were married in 2008. That relationship ended with the discovery of your offending, and your wife has moved out of the home.
42 You have had a solid work history in a number of occupations over your entire adult life, but you were retrenched after you were charged with this offending and have been unemployed while awaiting your inevitable prison sentence.
43 Next, I take into account that you have no criminal convictions and are therefore, in accordance with the law, to be sentenced as a person of good character. I received a number of references[14] from people who see your offending as out of character for the person they know. Their support is important during your time in prison, and for your rehabilitation on your release.
[14] Exhibit 2
44 I take into account that you are in prison during a time of uncertainty, given the COVID-19 pandemic, and that the risk of contracting the disease in prison is a source of anxiety for you, which makes prison more burdensome. However, I do note that you entered custody on 14 February after the plea, and so you will not have to undergo the quarantine period that Corrections Victoria has in place for those entering custody now; and I also note that there has not yet been a confirmed case of Coronavirus in the Victorian prison system.
45 Next, I have considered your prospects for rehabilitation, and apart from the matters I have already mentioned, in this regard I take into account the report[15] and evidence of Dr Grech, heard on the plea.
[15] Exhibit 3
46 You voluntarily began attending Dr Grech in early 2019, at a time before you had been charged, but after your interview on 19 March. Dr Grech said that you presented on referral from your GP to deal with anxiety and stress, and in disclosing the reasons for your distress, made it clear that you had engaged in the criminal behaviour alleged by police, and wanted to know what to do to prevent yourself from engaging in such behaviours in future. Dr Grech said this attitude is in marked contrast to many of the alleged sex offenders he sees in his practice and your attitude of acceptance of your wrongdoing, with a wish to seek treatment to prevent a reoccurrence, and your conveying to him of what he described as a high level of remorse and guilt, were factors in his ultimate clinical judgment that you present as a low risk of sexual re-offending against a child.
47 That risk assessment is however, qualified by him. You are a low risk only if you remain in treatment for the medium to long term.
48 In the 16 sessions that you attended Dr Grech before you were remanded in custody, Dr Grech was dealing with your initial presenting issues of anxiety and stress. He assessed you as in a mildly elevated risk category for anxiety, and within a mild range for depression, and diagnosed you with an adjustment disorder with anxiety. I take that to mean that your anxiety and depression are in reaction to your realisation that your criminal conduct will mean a long term of imprisonment. Dr Grech has only worked through that initial phase of treatment, in the course of which you disclosed what you had done, and expressed disbelief that you had committed the abuse. Dr Grech had not commenced any treatment designed to prevent you from re-offending.
49 Dr Grech has a heading in his report 'Absence of Identified Paraphilia / Sexual Offence Risk'[16]. In his evidence, he confirmed there was an absence of paraphilia. However, there is no other information as to how he came to this conclusion, particularly in light of your admission to him that you engaged in the sexual behaviours in order to arouse your 13 year old victim, and in light of his conclusion that your low risk of sexual re-offending depended on medium to long term treatment. One might ask treatment for what, in the absence of identified paraphilia. However, as there was no challenge on the plea (and no questions from me) about his opinion as to the absence of paraphilia, I am left with his conclusion as to that, and his assessment of your risk.
[16] Ibid p.12
50 One other aspect that Dr Grech did not mention in his report, but about which he was asked questions and did give evidence; he did receive the information from you that you had been previously convicted of sexual offending and spent time in prison before you were acquitted on appeal.
51 This is an unusual aspect to your situation. You spent 19 months in prison after that conviction, undergoing a sentence of 6 years’ imprisonment with a minimum of 4 years. It raises for me a real question as to your risk of re-offending in that your experience of being the subject of what were found to be unsafe and unsatisfactory verdicts on charges of sexual offences did not deter you from sexual offending against your step-grandchild; not just on the first occasion, but on any of the next four occasions that you sexually molested her. You well knew what you were in for should that offending be discovered. Indeed, as I have mentioned, you told Kelly you would go to gaol. Yet, undeterred, you began, and persisted with, that offending behaviour.
52 Both counsel, and Dr Grech, agreed that this is a concern; in Dr Grech’s words, 'a massive concern' that you committed the offences for which you are to be sentenced today after you had been through that entire criminal process.
53 I find that your risk of re-offending is not low and that you do need treatment, at a minimum, by way of a sex offender program to reduce that risk. On balance, I find your prospects for rehabilitation are guarded because you were not deterred by your previous experience of the entire criminal justice system; throughout which you maintained your innocence and were ultimately acquitted, but during which you spent considerable time in gaol. I do recognise that factors in favour of a successful rehabilitation are your previous good character, level of remorse, acknowledgement of wrongdoing, and willingness to undergo appropriate treatment to prevent a reoccurrence of sexual offending against a child.
54 It was conceded on your behalf that you face a lengthy term of imprisonment. However, your counsel submitted that for each charge it should be a sentence significantly less than the standard sentences of 4 years and 10 years for charges 1 and 2 respectively. He submitted that objectively, each offence was at a lower level of seriousness than 'middle of the range'.[17]
[17]Black v R [2019] VSCA 286
55 The prosecutor submitted that your offending is not high range offending, but is not low range either.
56 Before I turn finally to the sentence, there is one further matter I must deal with. As a result of my sentence today, you become a registrable sex offender. You will be required, within 7 days of your release from custody, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act, and be otherwise subject to that Act for the rest of your life. Because you are appearing on a video link I do not require you to sign the acknowledgment of receiving the form advising you of your reporting obligations. That form will be provided to you through Corrections Victoria.
57 Turning to the sentence. The court must denounce your offending and impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual offending, against a child particularly, and one who is related to your wife, with the grave breach of trust and damaging effect on family relationships that has caused. Further, by my sentence I must seek to deter you, and other men, from sexual offending against children.
58 You are convicted and sentenced as follows:
59 On charge 1 – a representative charge of sexual assault of a child under 16 - 2 years’ imprisonment;
60 On charge 2 - a representative charge of sexual penetration of a step-grandchild - 8 years’ imprisonment.
61 They are the sentences I have decided upon, taking all relevant factors into account and based on my assessment of the objective gravity of the offences. The sentence on each charge is less than the standard sentence because of your early plea of guilty, acceptance of responsibility and the personal factors affecting you, particularly your early request for treatment to prevent you from re-offending, which puts you in a different category to most other sexual offenders. Another factor making the sentence on charge 2 less than the standard sentence is that, in the exercise of the court’s discretion, the sentence on charge 2 is moderated to reflect, in a very limited way, the period of 19 months you have previously spent in custody[18].
[18]R v Renzella [1997] 2 VR 88
62 The sentence of 8 years on charge 2 is the base sentence. I direct that 12 months of the sentence imposed on charge 1 be served cumulatively on the sentence imposed on charge 2. That makes a total effective sentence of 9 years.
63 Because these are standard sentence offences, I must fix a non-parole period of at least 60% of the head sentence of 9 years, unless it is not in the interests of justice to do so[19]. I find it is not in the interests of justice to reduce the non-parole period below 60%. However, I will set a slightly shorter non-parole period than might otherwise have been ordered to allow increased time for your supervised rehabilitation.
[19] S11A(4)(c) Sentencing Act
64 I therefore direct that you serve 6 years 8 months’ imprisonment before becoming eligible for parole, which is more than 60% of the head sentence.
65 I declare that you have served 74 days in pre-sentence detention not including today. These will be deducted administratively from your sentence.
66
Lastly, if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is difficult to estimate because you have pleaded guilty to representative charges. Doing the best I can, if you had been convicted after a trial on all incidents as single charges, the sentence would have been a total of 15 years’ imprisonment with a minimum of 13 years.
Mr McKenry, are there any other orders required?
67 HER HONOUR: Thank you, Mr Grace, anything further?
68 MR GRACE: Nothing further, Your Honour.
69 HER HONOUR: Thank you. All right. Well, once again I thank everyone for making themselves available in the way that you have, including, of course, the complainant's mother. I will now adjourn sine die.
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