Director of Public Prosecutions v Parker (a pseudonym)
[2019] VCC 918
•31 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TREVOR PARKER (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 April 2019; 17 May 2019 | |
DATE OF SENTENCE: | 31 May 2019 | |
CASE MAY BE CITED AS: | DPP v Parker (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 918 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act2004.
Cases Cited:DPP v Hopson [2016] VSCA 303; Matheas v The Queen [2017] VSCA 330; Gordon v The Queen [2013] VSCA 343; DPP v Bates [2015] VSCA 261; Zhao v The Queen [2018] VSCA 267; R v Verdins & Ors (2007) 169 A Crim R 581; DPP v Toomey [2006] VSCA 90; DPP v DJK 2003] VSCA 109; DPP v Dalgliesh [2017] HCA 41; Burnett v R (1993) 70 A Crim R 469; Clarkson v The Queen [2011] VSCA 157; DPP v G [2002] VSCA 6; DPP v Dalgliesh [2016] VSCA 148; R v Kilic (2016) 339 ALR 229; Hamid v The Queen [2019] VSCA 5; Stalio v The Queen [2012] VSCA 120; Hili v The Queen (2010) 242 CLR 520; Wong v R (2001) 27 CLR 584; Harlow v The Queen [2018] VSCA 234; Harris Crawford (a pseudonym) v The Queen [2018] VSCA 113; McCray (a pseudonym) v The Queen [2017] VSCA 340; Harmon (a pseudonym) v The Queen [2017] VSCA 169; DPP v Pell [2019] VCC 260; Bromley v The Queen [2018] VSCA.
Sentence: 11 years’ and 7 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms A Hassan with Ms B Goding | Office of Public Prosecutions |
| For the Accused | Mr G Chisholm | Victoria Legal Aid |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the accused, victims and family or witnesses.
HER HONOUR:
1 Trevor Parker[1], you have been found guilty by jury verdict on Indictment No. G10720752.2A of one charge of indecent act with a child under 16, two charges of incest, and two charges of false imprisonment.
[1]‘Trevor Parker’ is a pseudonym.
2 The charge of indecent act (Charge 1) and one charge of incest (Charge 2) are ‘course of conduct’ charges.
3 The maximum penalties applicable are: indecent act with a child under 16, 10 years' imprisonment; incest (course of conduct Charge 2), 25 years' imprisonment; incest (Charge 5) 20 years' imprisonment, and false imprisonment, 10 years' imprisonment.
4 Your defence, throughout the trial was that you did not commit any of the alleged offending. The jury, by their verdicts, were satisfied the prosecution had proven, beyond reasonable doubt, Charges 1, 2, 3, 4 and 5. You were acquitted of Charge 6.
5 Aggravating features of your offending are that it involved your children, relevant to Charges 1, 3 and 4. Of course, such is implicit within the charges of incest (Charges 2 and 5) thus not an aggravating feature of those charges. There are also two complainants of your offending and your offending involved a breach of trust of both your children Kathleen Parker[2] and Nicholas Parker[3] and the trust of their mother.
[2]‘Kathleen Parker’ is a pseudonym.
[3]‘Nicholas Parker’ is a pseudonym.
6 I turn then to a brief summary of the evidence that related to each of the five charges of which you were found guilty.
7 Regarding Charge 1, indecent act with a child under 16 (course of conduct). That offending occurred when Kathleen Parker was 7-8 years of age, over 18 months on every visit to Melbourne on access. The evidence of Kathleen Parker was that you would come into her room at night, push her legs up, put your hands under the bed sheets and 'fiddle with her vagina'. At Melbourne that touching would take place in her bedroom. It also happened on occasions in the lounge room when she was sitting on the couch with you.
8 I turn to Charge 2, incest (course of conduct). Kathleen Parker gave evidence you began to sexually abuse her from when she was about 7-8 years of age by putting your fingers into her vagina. This occurred in her bedroom and it was ‘the same sort of thing’, she would be in bed asleep and you would come into the bedroom, sit on her bed, put your hands under the blankets, push her legs up and expose her 'bum'. She would only wear a nightie to bed and no underwear. You would 'fiddle' with her, then insert your fingers into her. You would insert your fingers into her vagina from when she was 8 until she was about 14, weekly when she was in your care on access visits.
9 Kathleen Parker recalled a particular occasion when she was about 13 or 14 when you tied her to a metal chair and inserted your fingers into her vagina. She was naked and you put her hands up her thighs, 'fiddled with her vagina' then inserted your fingers into her vagina. The next memory she had was of waking in bed in the early hours the following morning, in pain, scared, shaking and crying.
10 Charge 3 relates to a charge of false imprisonment referable to Kathleen Parker. Kathleen Parker gave evidence that on this occasion she was tied to a chair by you when she was about 11. She was wearing a pair of shorts and a flowery top. She woke to find herself tied up. She had stomach pain and was taken to a doctor.
11 The offending in Charge 3 was alleged to have occurred against a background of other misconduct evidence from Kathleen Parker referable to three to four other occasions in total (i.e. including Charge 3), where you tied her to a chair.
12 There was also evidence of other sexual misconduct involving Kathleen Parker in Canada and Tasmania. Those events provided context for the charged offending and relevant to the impact of your offending on Kathleen Parker.
13 Regarding Charge 4, the jury accepted the evidence of Nicholas Parker. That incident occurred in an upstairs bedroom, where Nicholas Parker was tied up by you i.e. his hands tied together (Charge 4) and penetrated by you (Charge 5).
14 Nicholas Parker described the layout of the house and his bedroom in Melbourne where this occurred. He was unsure of his age although in the indictment, the indictment dates reflected 12-13 years of age. His hands were tied in front by the wrists as demonstrated in his evidence before the jury and that you 'stuck your fingers inside his bum [anus]' (Charge 5).
15 The evidence was also of other violent misconduct of Nicholas Parker by you to him in Canada.
16 The entirety of the evidence, Ms Hassan submitted at your initial plea hearing, was that you exerted a high level of emotional coercion over Kathleen Parker and Nicholas Parker as stated in their victim impact statements. They were, she submitted, highly damaged individuals as a result of your offending.
17 You pleaded not guilty to the charges and continued to deny your offending. I therefore do not find you remorseful for it.
18 You do not have any prior criminal history and that is relevant in your favour when sentencing.
19 As at and including 16 May 2019 you had spent 157 days in custody by way of pre-sentence detention following jury verdict.
20 Your victims have suffered considerably as a result of your offending and I shall return to those statements later in these sentencing remarks.
21 Following a term of imprisonment being imposed on Charge 1 you fall to be sentenced as a serious sex offender on Charges 2 and 5. Such agreed by Mr Chisholm.
22 A number of authorities have referred to the tension between s.6D/s.6E of the Sentencing Act 1991 and the principle of totality. See DPP v Hopson[4] and Matheas v The Queen[5].
[4] [2016] VSCA 303 [48]-[52] (‘Hopson’).
[5] [2017] VSCA 330 [46]-[50] (‘Matheas’).
23 In Matheas, Acting Court of Appeal Justice Tate, referring to Gordon v The Queen[6] and DPP v Bates[7] stated:
'… (when s.6E is enlivened), there is a need to ensure that the totality principle is not applied in a manner inconsistent with the legislative purpose of s.6E, that is, full effect is not to be given to the totality principle as though s.6E ‘was not on the statute book’. The weight to be given to the totality principle is to be moderated to ensure consistency with legislative purposes …'
[6] [2013] VSCA 343.
[7] [2015] VSCA 261 [50].
24 See also most recently Zhao v The Queen[8].
[8] [2018] VSCA 267 (‘Zhao’).
25 The prosecution submitted that as you had been found guilty of two Class 1 offences you were required to be registered pursuant to the Sex Offenders Registration Act 2004, such an Order being mandatory and for life. Your counsel Mr Chisholm agreed such classification and duration applied to you.
26 Mr Chisholm prepared a written outline of submissions and addressed them during the course of your initial plea hearing. He also provided written submissions for the further plea hearing on 17 May 2019 although those submissions appeared to arise from a misunderstanding of matters discussed at the initial plea hearing, and were not further relied upon by him on 17 May 2019.
27 Mr Chisholm relied in part upon a report from Simon Candlish, psychologist, dated 23 January 2019 who also gave evidence at your initial plea hearing. At interview with him, you categorically denied the sexual offending i.e. the jury verdict.
28 Mr Candlish addressed your background and history. You are the eldest child in a sibship of four. You described your father as working very long hours, and the 'founder' of chiropractic services in Australia. You also referred to his considerable involvement in the church.
29 Your mother had been involved in domestic and parental duties and was highly respected in the church. You reported your parents as 'very intuitive, very fair, kind and patient'. You did, however, describe your father as 'emotionally unavailable'.
30 Mr Candlish opined that it was difficult to get a clear impression of your childhood experiences, in part, due to some impression management by you, as well as possible idolisation of your parents, in particular your father.
31 You denied experiencing or witnessing any physical abuse within your family, denying any emotional or sexual abuse. This was discussed in Mr Candlish’s evidence before me to which I shall shortly refer. You denied experiencing any traumatic events as a child.
32 You completed Year 12, attending two primary schools and two high schools, Seventh Day Adventist schools. You then completed two-thirds of a Bachelor of Accounting degree and commenced a theology degree.
33 You describe that despite walking away from the church twenty years ago, you had started to read the Bible again and your faith was 'stronger than it’s ever been'.
34 Details were provided about your employment history, including work as an accountant. You then chose to study in Canada, wanting a 'fresh start', to be your own person, as you felt there was a 'stigma' associated with your parents (I note not further defined).
35 You said you did not complete your theology degree, as you were offered some work and took over a Dean’s position for 6 months, then as summer camp director, then as a pastor for 6 months.
36 Upon return to Australia, you ran a counselling practice for several years until it got 'too hard'.
37 You started a computer support and work design company in 2000 and a new company in 2018, apparently not currently operational.
38 You described past injury to your shoulder and back. You said you had memory loss from the time you were taking OxyContin for that pain and you attributed same to that use between 2005 and 2013. However, you said you, 'never used it [OxyContin] to get rid of pain' until recently. You had been diagnosed with diabetes approximately 10 years ago, although had not commenced Insulin treatment. Mr Chisholm provided an update on your current medication regime in prison to which I shall shortly refer.
39 You reported never using illicit drugs and not having an alcohol-abuse issue.
40 You denied being anxious and could not identify any personal weaknesses or flaws. You said you did not have issues with anger and denied issues with empathy or of being selfish.
41 You reported never having been admitted to a psychiatric hospital and denied any past suicide attempts.
42 You said you were not prepared to participate in offence-specific sex offender treatment programs as you had not engaged in any sexual offending. You denied any sexual interest in children. This was discussed with Mr Candlish, and such was still your attitude to treatment programs. I note whilst your denials of sexual offending would not preclude you from participation in such programs, you cannot be forced to undertake such programs if you choose not to. It may be that in time you will attend such programs. At the moment you are not willing to do so and your future attendance is speculative.
43 You described having been married three times, the first in 1985, separating in 1994, divorcing in 1995.
44 You met your second wife through an introduction website and sponsored her to come to Australia. You married in Australia. That relationship ceased, it would appear, within 12 months of her arriving in Australia and you withdrew your sponsorship of her.
45 You met your third wife five years ago. She is of foreign background. You met online and married during a visit to Australia. You were together for less than two years.
46 You have not spoken to your three children (including Kathleen Parker and Nicholas Parker) since the police charged you with this offending. You detailed to Mr Candlish the basis upon which you maintained the allegations by the complainants were 'made up' (paragraphs 82-83). You described your relationship with your children when they were growing up as 'a very loving relationship'.
47 In the opinion of Mr Candlish, your description of your past intimate partners tended to be negative. You were generally disparaging of them. Your account of your children appeared to indicate some egocentricity and emotional underdevelopment on your part.
48 Mr Candlish utilised various assessment tools. A Personality Assessment Inventory test (paragraph 98), trauma symptom inventory (paragraph 101), and HARE Psychopathy Checklist – Revised Assessment Tool (paragraph 104).
49 Based on your self-report in the opinion of Mr Candlish, you did not meet the criteria for a mental health or personality disorder. You did, however, reveal issues related to egocentricity and poor empathy (paragraph 106).
50 In assessing your risk of future sexual offending Mr Candlish utilised the Static-99R and Risk for Sexual Violence Protocol Assessment Tools.
51 Addressing any potential risk involving sexual offending, should you re-offend in a sexual manner, you might he opined, engage in genital touching and digital penetrative acts against a male or female child, most likely in a situation where you had unsupervised access to a child over a sustained period of time, and perhaps where trust had been established. Should you re-offend in a sexual manner, it would likely result in psychological harm to your victim.
52 Overall, he concluded you fell into the moderate to low risk category for sexual recidivism of the type to which I have just referred relevant to those risk scenarios in the absence of any interventions designed to increase your risk manageability. You would be unlikely to offend against a stranger child. His assessment of 'moderate to low' risk was discussed during your plea hearing and I shall refer to that in a moment. Mr Candlish said it was difficult to provide a comprehensive case formulation for you, given your denials of your offending.
53 He suggested you would benefit from seeking medical advice regarding pain management and diabetes. Psychological intervention could occur despite your denial of your offending, your denials would not prevent you from obtaining offence-specific treatment. A number of other interventions were suggested within his report (page 23).
54 Mr Chisholm was not relying upon Mr Candlish’s report or any other evidence as enlivening the principles in R v Verdins & Ors[9] and such was an appropriate concession on the material/evidence before me.
[9](2007) 169 A Crim R 581.
55 Mr Candlish gave evidence before me at your plea hearing. He referred to his testing of you, specifically the Personality Assessment Inventory, the Paulhus Deception Assessment Tool and the Trauma Symptom Inventory. In his opinion, you tended to avoid disclosure, with a tendency to positive impression management. The results indicated self-enhancement and of trying to present in a socially favourable manner. He agreed in lay terms that could be described as you 'accentuating the positives and downplaying the negatives'.
56 Regarding the validity of the other test results (i.e. relevant to risk), Mr Candlish stated those features influenced those assessments as they indicated an individual who was not giving a truthful account of his psychosocial history, which highlighted the need to not rely on self-reporting and to view some of your self-disclosures cautiously when undertaking assessment.
57 Mr Candlish had taken the results of the personality tests into account when arriving at his risk assessment using the Static-99R and RSVP Assessment Tools. Those 'personality' tests, he said, were useful in detecting any personality and/or mental health issues.
58 Mr Candlish gave evidence that, it was relatively common for impression management to occur when a person was being interviewed. Those findings however did not undermine his assessment of your risk.
59 Turning to your risk of sexual recidivism, Mr Candlish gave evidence he was able to arrive at a valid assessment, when administering the risk assessment tools, taking into account your psychosomatic factors and your management.
60 Using those 'risk' assessment tools, Mr Candlish concluded you fell into the moderate-low risk for sexual offending. Mr Candlish also gave evidence that, in addition to those assessment tools, his assessment also involved empirically guided (professional judgement) when assessing you as moderate-low.
61 In response to questioning from Ms Hassan, Mr Candlish stated he would normally take details of an offender’s background into account when preparing his report. The purpose of exploring background was to provide useful information as to predisposing and precipitating factors relevant to sexual offending and provide an opportunity for the individual to show insight and awareness as to how they came to offend in the way they did.
62 Mr Candlish was taken by Ms Hassan to his report in which you reported a 'normal childhood' speaking positively of your father and mother. It was put to Mr Candlish, by Ms Hassan, that what you had said about that was incorrect and Ms Hassan referred to the brief of evidence which referred to Albert Parker[10], your father. Specifically, Ms Hassan referred to material in which you referred to Albert Parker having sexually abused you including penetrative sex. Also, that Albert Parker had sexually abused Jean Browning[11], your sister – and that Albert Parker had also sexually abused Kathleen Parker and Nicholas Parker. Ms Hassan queried that material as reflecting that you did not have a normal childhood, rather that there was entrenched and intergenerational sexual abuse. I understand that you instructed there was no such abuse of you by your father.
[10] ‘Albert Parker’ is a pseudonym.
[11] ‘Jean Browning’ is a pseudonym.
63 Mr Candlish replied such information would not affect your risk assessment outcome. Had he had that information, it could be useful to understand how you came to offend and might assist those who seek to work with you in the future by providing information regarding deviancy and information in terms of potential risk factors. If you had disclosed that information, it could possibly provide some self-awareness of why you had offended against your own children given your own history. Mr Candlish stated the way that information might affect the overall outcome was 'complex'.
64 I asked Mr Candlish about his risk assessment, in particular utilisation of the RSVP Assessment Tool. He agreed his assessment did not take into account alleged abuse of you by Albert Parker. I queried whether this information would impact on at least the deviance domain of that Tool, if that background had been provided. In response Mr Candlish stated:
'It could. The outcome may remain the same. It is difficult given that new information to say whether I would change my risk assessment now. I don’t know that I can answer that. That factor has to be coded if definite and past and present needs to be scored as how relevant it is to the current situation.'
65 Mr Candlish agreed he had not discussed the alleged offending by Albert Parker with you as you denied any sexual abuse of you by Albert Parker.
66 I queried that without speaking to you about that, he could not know if that would impact on the RSVP Assessment tool. Mr Candlish replied, 'Yes, that’s correct'. 'That it was difficult with that information 'here' to be able to be sure if that risk was the same or different'.
67 I queried 'How can I be satisfied moderate to low is correct, because he did not talk to you about those issues?' Mr Candlish replied:
'My response, if new information was presented that may or may not affect the overall material, it is a configuration the factors of the RSVP are sitting here – he’d score ‘definite’ re child abuse [own]. It may not change risk assessment of moderate to low but it may affect the treatment given to you with an opportunity to be interviewed and have time to process that.' (Emphasis added)
68 Regarding your risk given your denials, your assessment could remain the same he said. It may however, be different with this information in relation to Albert Parker.
69 In response to resistance by you to counselling for sexual offending, and your denials, Mr Candlish said CCS would conduct their own risk assessments. Denials of offending would not preclude your participation in treatment, as there were other areas that could address risk beyond an admission to the offending.
70 Mr Candlish agreed the material, to date, from you, did not indicate a willingness to participate in sex offender treatment. He said, your risk 'may' decrease should you undergo treatment in the future, although, 'my response is that simply participating in a program doesn’t mean his risk would decrease. It may be the risk remains the same even after six months of treatment'.
71 Mr Candlish said that 'risk' was dynamic. Should you engage, in the future, in appropriate sex offender treatment, that may decrease your risk, or it may remain the same. He agreed it was speculative that you would participate, on the material available to him.
72 Regarding his risk assessment of moderate to low, I asked whether I could be confident about that assessment. In response, Mr Candlish said 'my response is, even taking into account the information it may be the same, it may be different'. (Underlining added)
73 Mr Candlish agreed with Mr Chisholm that it was his experience that a 'reasonable' number of offenders may start out saying they do not wish to participate in programs but then become willing to do so.
74 Mr Chisholm submitted I should accept the evidence of Mr Candlish that you were a moderate to low risk of sexual re-offending and urged there was nothing to contradict that assessment. Ms Hassan submitted that assessment was now not entirely clear given the concession by Mr Candlish that with the further information provided to him during cross-examination, it may, or may not, have impacted upon that risk. I agree that was the evidence. That however, does not mean I can arrive at my own conclusion as to your risk of sexually reoffending. Mr Candlish’s evidence is of moderate to low, and any information regarding alleged offending by Albert Parker of you, he said, may or may not change that assessment. Given that response by Mr Candlish, I proceed on the basis your risk is as assessed by him, moderate to low (i.e. adopting the more ‘favourable’ assessment of you).
75 Mr Chisholm tendered medical material relevant to your shoulder injury in particular. A report from Dr Peter Blombery dated 9 February 2019. He first saw you on 7 April 08, when referred by your local doctor with a severe pain syndrome around your left shoulder.
76 You had been involved in a motorbike collision approximately 14 years ago and sustained fractured vertebrae and a severe fracture of the proximal humerus in the arm, lacerations and fractured ribs. Surgery was undertaken for the fracture, and further surgery required in 2007. You also had a partial shoulder replacement. You were referred to Dr Blombery for ongoing and severe pain in your shoulder area, for which you had had multiple treatments, including medications and intravenous ketamine infusions in 2009, 2011 and 2013.
77 Your pain has continued since that time, and when he saw you in July 2018, your medications included OxyContin, and also for diabetes.
78 Dr Blombery opined that there was a plan for further surgery to your left shoulder, although you had been advised to wait until the pain was too severe for you to tolerate any more before you went ahead with the procedure, as it would require three months without the use of the arm. Your pain, he estimated, was at a seven to eight out of ten. In custody, in his opinion, you would be suffering very severe pain absent OxyContin. You were also diabetic and would require medication for that condition.
79 Dr Blombery said there was no simple solution for your pain apart from the use of medication at this stage. You may end up, later, with some form of shoulder replacement, although it was questionable whether that would even result in long-term reduction in pain. At your plea hearing on 17 May 2019 Mr Chisholm confirmed no operations were planned at this stage.
80 There was a further report from Dr Blombery dated 18 March 2019. You were taking OxyContin, 30 milligrams twice per day, to make your pain tolerable. He understood however the strongest pain management available in custody was Panadeine Forte. While the maximum dose of Panadeine Forte could be given, he had concerns about its effect upon your liver. Further, such dosages commonly resulted in development of severe constipation, a lesser side effect with OxyContin. Absent taking OxyContin, it was likely your pain would remain extremely severe. Medication, such as OxyContin, was available for people with severe pain, when medications such as Panadeine Forte were limited in terms of their efficacy, and also by their marked side effects. In his opinion, you would remain in very severe pain in the absence of OxyContin.
81 In custody I was told you continue to suffer from chronic pain to your left shoulder. Mr Chisholm advised in custody you had access to Endone medication. There were, however, restrictions on your access to it, for example, you were not always able to obtain the medication when you needed it. You had also recently received a cortisone injection to assist with the pain. Mr Chisholm submitted despite the treatment you were able to receive in prison your time in custody would be more burdensome for you than for a prisoner without your physical limitations (Exhibit 6).
82 Ms Hassan agreed such was a relevant factor when sentencing you, as do I.
83 A number of other documents were tendered on your plea.
84 A report from Dr Claire St John dated 30 January 2019 confirming your mother has been a regular patient of her practice since 2016. She has severe osteoporosis and was at risk of fractures with minimal trauma. You had lived with your mother for 24 years as her primary carer since August 08, which involved you supporting her by driving her to medical appointments, taking her on shopping trips, paying bills and so on.
85 Since your incarceration, your mother had suffered mild depression and was struggling to cope having to care for herself without support at home.
86 There were also a number of references before me at your plea hearing. One from Dion Henderson dated 27 August 2015. That correspondence thanked you for your donation of a computer program to assist the SES with managing their register of equipment. It would appear from the correspondence you were responsible for developing the software program for the SES, and on a voluntary basis.
87 There was also a reference from Denise Burgoyne[12] dated 10 January 2019. She had known you for your entire life and had always found you to be a gentleman and a very caring family man. She described your care of your elderly mother also and that you had a 'very strong faith'. In the time she had known you, you had been decent, hardworking and trustworthy.
[12] ‘Denise Burgoyne’ is a pseudonym.
88 There was a reference from Sean Parker[13] dated 9 January 2019, your younger brother. You maintained you were not guilty of these offences. He described you as kind, respectful and generous with your time to he and his family. He had always been comfortable with you spending time with his children. Over the years you had contributed to the community by holding office and helping websites at the local basketball club, also volunteering your time and expertise to SES.
[13] ‘Sean Parker’ is a pseudonym.
89 There was a further reference from Sean Parker dated 22 January 2019, addressing the impact upon you in custody being away from your mother. He described your involvement in her care. He said, the family would find it difficult filling the gap in your absence and I was told Sean Parker visits you in custody as does your mother and I understand your mother has been in court throughout the plea hearings.
90 Mr Chisholm submitted whilst in custody you would be concerned about how your mother was coping without your assistance and I accept that is so. Your counsel was, however, not relying upon 'family hardship' and such was an appropriate concession. Ms Hassan submitted your concern in custody had some application however urged it would be very 'mild'. I agree with that assessment. I know that there are family supports available to her.
91 There was a reference from Richard Lane[14] dated 25 January 19, a volunteer at the SES. He had known you and your family for over 15 years. He had been with you and your children on only a couple of occasions and on those occasions the children seemed comfortable in your presence.
[14] ‘Richard Lane’ is a pseudonym.
92 In Mr Lane’s role as a member of the SES, he spoke of the SES problems in relation to storing and maintaining equipment and that you assisted to write a computer program for the unit. The program assisted the unit locating items on the rescue vehicles and in storage, maintaining rescue equipment and ensuring equipment did not go past its use by date. The program you developed had a beneficial aspect to the unit’s performance. Mr Lane estimated you spent a minimum of 3,000 hours on the project at no cost to the unit.
93 There were a number of Victim Impact Statements before me. They are eloquent and it is difficult to do justice to them in these brief sentencing remarks, however I have read them. The victims of your offending have suffered considerably in the manner described in their Victim Impact Statements. Elizabeth Waters[15], your ex-wife, and mother of Nicholas Parker and Kathleen Parker described that your offending had a profound and damaging psychological effect on her life. She felt pain as the children were in your care under Family Law Court Orders when they were sexually abused and mistreated by you. It had caused a feeling of helplessness and unworthiness in her. She noted the children’s bad behaviour following access visits with you, which caused her anxiety.
[15] ‘Elizabeth Waters’ is a pseudonym.
94 She described anger from Kathleen Parker and Nicholas Parker towards her for not protecting them. It had been crushing and soul destroying for her. The anger from her children had affected her relationship with them since 1994 to current. In particular, her relationship with Kathleen Parker had been lost for many years in her late teens. Kathleen Parker’s emotions had played out in anger, self-loathing and sulking. She became withdrawn. Kathleen Parker shied away from any physical touch from Elizabeth Waters, isolating herself and becoming secretive during Years 7 to 10.
95 Elizabeth Waters described becoming the outlet for her son, Nicholas Parker’s, blame, due to the things you did to him. Her son had to estrange himself from his own mother. He became angry and resentful to Elizabeth Waters and they lost contact for six months, which broke her heart.
96 Elizabeth Waters described that the two children directed their blame towards her, believing she should have done more to protect them.
97 She felt frustration she was not heard for a long time, which caused her severe stress. She had recently been diagnosed with severe Post-Traumatic Stress Disorder.
98 The effects of your offending had impacted upon her work. She had been unable to perform her normal duties, which impacted upon the possibility of promotion.
99 She felt she had been a burden to her two siblings and did not have any relationship with her brother and his family due to the ongoing emotional impact your abuse had caused.
100 Since investigations into your offending began, she described a harrowing and emotional rollercoaster as a victim of your offending. She carried huge emotional baggage as a result of your offending.
101 She no longer felt able to trust people beyond a casual acquaintance. She felt vulnerable most of the time because of how people she trusted had hurt her and her children so deeply. She distanced herself from old friends and was alone.
102 There was a Victim Impact Statement from Kathleen Parker. She had tried not to let your abuse of her follow her into adulthood. Since the verdict, she now had a 'beautiful life' she was proud of. Following the verdict, a weight heavier than she ever knew had been lifted from her shoulders. She finally felt listened to. She felt safe for the first time. Physically, she watched her back, was guarded in her conversations and watched for behaviours of others that might suggest she was in harm’s way. She was constantly on alert and hyper-alert. She had only felt safe since you were in custody. She remained anxious. Her nightmare childhood was now in her adult life, meddling with it, and she was angry for allowing it in.
103 She described, in one moment, pretending to be okay, the next, being a victim.
104 A combination of her hyper-vigilance and trust issues had resulted in a lonely and isolated life for her. She struggled to let people into her world, and when she did, often felt not believed, lonely and isolated, which diminished her self- worth and confidence.
105 She often found herself disassociating from her surroundings, behaviour she learnt for her survival during your abuse of her.
106 She described her innocence having been taken from her, being brainwashed to think it was 'normal' that she was treated as she was. She suffered with insomnia for her whole life, nights being the hardest for her, alone in the dark, listening, to know if she was safe.
107 The flashbacks of your offending, brought with them, panic attacks, which affected her ability to work.
108 She did not trust her child in the care of others and had taken on the role as a full-time mother for the foreseeable future. She was a hyper-vigilant and super- protective mum.
109 Her relationship with her brother had been severely impacted.
110 She distrusted her stepfather, pushing him away, for fear he would abuse her. And now, he was gone (deceased).
111 She struggled to have friendships with other males, particularly dominant ones.
112 She struggled with trust. She still did not feel safe, lacked trust in the justice system or any institutional system, such as police, family courts, DHHS, et cetera.
113 Your offending against her had resulted in adverse childhood experiences and the trauma of your offending had reduced her ability to learn. Her hyper-vigilance was so bad she could not concentrate. When at school, or when panic attacks occurred, it was crippling. She could not function. She feared you would come after her and feared for her family.
114 There was a Victim Impact Statement from Nicholas Parker. He described his early school years at primary school as a blur of multiple schools and general dishevelment. He was diagnosed with ADHD in Grade 3. He was unable to participate in sporting activities due to access visits in another state every three weeks from the ages of 7 to 10. In order to protect himself, he estranged himself from his mother and father. Around 21, he began to piece together what was right and wrong. His past began to haunt him all day, every day. He had difficulty holding down a job and participating in life. The only thing that relieved his pain was drugs, and he turned to them, and following that, crime. His life was driven by the need and his addiction.
115 Nicholas Parker was estranged from immediate family for years, pushing everyone away that meant anything to him. He was unable to open up to anyone in the family or to close friends. He could not put into words the horror he experienced at your hands during most of his childhood. Your offending had impacted adversely upon his ability to work.
116 Nicholas Parker’s friends had disappeared over the years. He felt isolated trying to escape his past. He tried to re-invent himself and build a new life over and over however had been unable to properly maintain solid relationships. He struggled to trust people and did not have faith in government institutions. The emotional stigma caused by his abusive childhood had socially 'paralysed' him.
117 Also relevant to victim impact statements is the notion of social rehabilitation. A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[16], in which Vincent JA referred to social rehabilitation, citing DPP v DJK[17] (allowing of course for the differences in the factual circumstances to yours). His Honour stated:
'In my view they [that is Victim Impact Statements] play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.'
[16] [2006] VSCA 90.
[17] [2003] VSCA 109 (‘DJK’).
118 The effects upon a victim are a relevant sentencing consideration. See s.5 Sentencing Act1991. I am conscious however, that I must not allow the effect upon victims to swamp the sentencing process.
119 Regarding the seriousness of your offending, Mr Chisholm referred to DPP v Dalgliesh[18]. It is not the first occasion where statements have been made by the courts over the years, including our Court of Appeal, regarding the serious nature of sexual offending generally and sexual offending specifically by a parent of their child. Such statements are not new. If any authorities are required see Burnett v R[19], DJK, Clarkson v The Queen[20], and of course Dalgliesh in which reference was made to the offence of incest. In DPP v G[21] Winneke, P stated:
'This court has, in recent times, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes … The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge. Parents — and those in loco parentis — who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.'
[18] [2017] HCA 41 (‘Dalgliesh’).
[19] (1993) 70 A Crim R 469.
[20] [2011] VSCA 157.
[21] [2002] VSCA 6 [9].
120 In DPP v Dalgliesh[22] the Court of Appeal stated:
'Society, the legislature and the courts are at one regarding the objective seriousness of sexual offending against children, and of incest in particular.'
[22] [2016] VSCA 148 [43].
121 I am also aware in Dalgliesh and R v Kilic[23], the latter involving different offences to yours, but containing discussion of current sentencing practices generally. Kilic recently referred to in the decision of Hamid v The Queen[24]. Current sentencing practice cannot justify a sentence which is manifestly inadequate. Current sentencing practice is only one factor to which a sentencing Judge must have regard when fixing a sentence in accordance with s. 5(2) Sentencing Act 1991. Current sentencing practice is not a controlling factor in the sentencing exercise and is not to be treated as determinative.
[23] (2016) 339 ALR 229 (‘Kilic’).
[24] [2019] VSCA 5 [60,62,72].
122 In Stalio v The Queen[25] the Court of Appeal held that the phrase 'current sentencing practices in s. 5(2) of the Sentencing Act 1991 related to practices current at the date of sentencing. However, the question of what the sentencing practices were at the date of the offence is not irrelevant. The concept of equal justice requires regard to be had to sentencing practices at the date of the offence if those practices can be demonstrated, to have required the imposition of a materially lesser sanction for like offences than current sentencing practices would impose for the offence.
[25] [2012] VSCA 120 (‘Stalio’).
123 In Hili v The Queen[26] the High Court referred to the following passage from Wong v R[27]:
[R]ecording what sentences have been imposed in other cases is useful if, but only if, it is accompanied by an articulation of what are to be seen as the unifying principles which those disparate sentences may reveal. The production of bare statistics about sentences that have been passed, tells the judge who is about to pass sentence on an offender very little that is useful, if the sentencing judge is not also told why those sentences were fixed as they were.
[26] (2010) 242 CLR 520.
[27] (2001) 27 CLR 584.
124 Mr Chisholm referred to the relevance of sentencing practice, had you been sentenced for your offending at the time of it.
125 In this case, as in Stalio, there was no evidence as to sentencing practice for the offences in question at the time of the offences as two of them involved 'course of conduct' which was not introduced into the legislation until much later (July 2015).
126 Mr Chisholm urged there was a disparity in the seriousness of offending involving Kathleen Parker and Nicholas Parker. I am aware your offending involving Nicholas Parker involved a single incident, (comprising two separate offences) and two of Kathleen Parker’s charges involve 'course of conduct'.
127 Mr Chisholm’s submitted your offending against Kathleen Parker would not be in the high category of 'course of conduct' offending. Ms Hassan submitted your offending could be classified as 'mid-range'. I agree.
128 Regarding Kathleen Parker’s age at the time, he submitted your offending was in the less serious category than a child younger than seven to eight; i.e. it did not occur with a toddler, infant or younger child. There is however a significant age difference and also there was a young age of Kathleen Parker. I regard your offending as very serious indeed.
129 Mr Chisholm submitted your offending did not involve acts of physical violence causing injuries or the use of weapons. Whilst I accept of course, there was no injuries caused by your offending, or use of weapons by you, the Court has referred to the impact of sexual offending specifically penetration offences in themselves, as involving physical violence Dalgliesh[28].
[28]Dalgliesh [45]-[46].
130 I also accept your offending was not associated with the production of child abuse material and not associated with a pregnancy and can be therefore distinguished from other cases and higher sentences imposed when such did occur. In Harlow v The Queen[29] regarding a similar submission the court said:
'the applicant’s offending ‘did not involve [in that case] sex toys, penetration with objects, the making of videos or the taking of photographs or other forms of sexual depravity or degradation’ is not of great moment. [However, the court went on to say] The mere ability to point to the absence of different aggravating circumstances that may have been present in another case says little about the seriousness of the specific offences committed by the applicant [in that case] particularly when that offending was itself committed in the different circumstances of serious aggravation to which [the court had] already referred.
[29] [2018] VSCA 234 [88] (‘Harlow’).
131 Again, I note different factual circumstances in the cases to yours.
132 And in fact, the court also referred to 'comparable cases'[30] not being precedents. It is very difficult comparing cases factually, as facts vary enormously case to case, as do matters in mitigation and personal to an offender.
[30]Harlow [94(2)].
133 Further that 'the identification of a range of previous sentences does not have the effect of fixing some inimitable upper or lower limit of the appropriate range in an individual case'[31].
'While s.5(2) Sentence Act 1991 provides that current sentencing practices are relevant to the determination of a sentence in each case, current sentencing practices are only one of the factors required to be taken into account in any particular case'[32].
[31]Harlow [94(2)].
[32]Harlow [94(3)].
134 Addressing the need to protect the community from you, in his initial written submissions Mr Chisholm submitted your offending involved your own children and that at your current age you were not likely to have more children. In addition, your age meant that you would not be at risk in the community at large of sexual offending. He also relied upon the date of your offending being some years ago with a lack of sexual offending prior to or subsequent and I am very much aware of these matters.
135 I remain however concerned by your repeated and recent denials of your offending. This impacts upon the need to protect the community from you, even being mindful of the factors relied upon by Mr Chisholm in his written submissions (paragraph 4(b)).
136 Mr Chisholm submitted the principle of totality applied when determining the appropriate sentence. I agree and I have previously referred to that in some detail.
137 I was also referred to a number of authorities.
138 Turning specifically to the 'course of conduct charges' the explanatory memorandum to the relevant Bill (notes to clauses 17-19) address the sentencing dimension of the reform relevant to that charge:
'This provision requires the court to impose a sentence reflecting the totality of the offending. It does not change the maximum penalty for an offence that forms the basis of a course of conduct charge.
However the court will be required to sentence within the maximum penalty for the base offence, but reflecting the totality of the conduct.
This is expected to result in a separate, higher sentencing range for multiple offences charges for that particular offence. This reflects the fact that the accused has been convicted of a “course of conduct” and not a single incident. A similar approach is taken by courts in sentencing for a “rolled up” charge. As such, this reform would not involve a significant change of practice for the sentencing judge.' (Emphasis added)[33]
[33] Explanatory Memorandum, Crimes Amendment (Sexual Offences and Other Matters) Bill 2014 (Vic), 31.
139 In Harris Crawford (a pseudonym) v The Queen[34] referring to 'course of conduct charges' the court stated:
'In our opinion, far from being manifestly excessive, the sentence of 8 years for the incest charge was moderate. The key consideration is that, as a course of conduct charge, it attracted quite distinct sentencing considerations'. (Emphasis added)
[34] [2018] VSCA 113 [63].
140 The court referred to the analysis of s. 5(2F) Sentencing Act 1991 in McCray (a pseudonym) v The Queen[35]. I was also referred to Harmon (a pseudonym) v The Queen[36] by Ms Hassan.
[35] [2017] VSCA 340 [66-71].
[36] [2017] VSCA 169 [16, 20].
141 I was also referred to DPP v Pell[37] although I note, not referable to 'course of conduct' charges.
[37] [2019] VCC 260 [188-189].
142 I was also referred to Bromley v The Queen[38]– again the offending not involving a 'course of conduct'.
[38] [2018] VSCA 329.
143 Turning to your rehabilitation prospects, I have, at best, guarded optimism, given your continued denials of your offending and that, you do not intend to participate in any sex offender programs whilst in prison, as you would see such as an admission of guilt by you. You need to undergo sex offender treatment and it is speculative whether or not your attitude will change to the point where you will not only attend for sex offender treatment, but also positively participate in programs. When sentencing you, however, I must seek to maximise your chances of rehabilitation, as they may be.
144 When sentencing you, there is a need for general deterrence, which is of particular importance in a case such as this, involving offending against a child and by the biological parent of their child in a sexual manner.
145 There is the need for specific deterrence when sentencing you, given that your offending involved two complainants, and in relation to Kathleen Parker, your offending occurred over an extensive period of time relevant to the charges before me (i.e. Charges 1 and 2 – 'course of conduct'). Again, I note no prior court appearances.
146 I must also consider the need to protect the community from you. I accept there are a number of matters that reduce that need, such as your age, currently 55 and that the offending involved your own children, a situation unlikely to arise again, that is, not strangers. There is, however, a need to protect the community, as you are yet to address your denials of this offending and undertake any sex offender treatment programs.
147 There is also the need for denunciation and just punishment for your offending. Can you stand please?
148 I sentence you as follows:
149 On Charge 1, convicted and sentenced to 4 years’ imprisonment.
150 On Charge 2, convicted and sentenced to 8 years’ imprisonment.
151 On Charge 3, convicted and sentenced to 15 months’ imprisonment.
152 On Charge 4, convicted and sentenced to 18 months’ imprisonment.
153 On Charge 5, convicted and sentenced to 5 years’ imprisonment.
154 I direct that Charge 2 is the base sentence.
155 I direct the following in relation to cumulation and concurrency.
156 I direct that 1 year of Charge 1 be served cumulatively on Charge 2.
157 I direct that 6 months of Charge 3 be served cumulatively on Charge 2.
158 I direct that 7 months of Charge 4 be served cumulatively on Charge 2.
159 And listen carefully, because this is the Serious Sex Offender provision. I direct that 3 years and 6 months of Charge 5 be served concurrently and 18 months cumulatively upon Charge 2. The different wording because of the Serious Sex Offender provision on that charge.
160 For clarity, the orders for cumulation are upon each other and upon the base sentence.
161 That results in a total effective sentence of 11 years’ and 7 months’ imprisonment and I direct you serve a period of 8 years and 10 months before you are eligible for parole. Have a seat.
162 Pursuant to s.18(4) of the Sentencing Act1991, I declare that you have spent 171 days, I want that checked, up to and including yesterday, being 30 May 2019 in custody by way of pre-sentence detention and I direct that be entered into the records of the Court.
163 I have already directed it be entered into the records of the Court that you are sentenced as a serious sexual offender on Charges 2 and 5.
164 You are also subject to the Sex Offenders Registration Act2004, such being mandatory and for life, relevant to two Class 1 offences.
165 The prosecution made application for a forensic sample, relying on the Crimes Act1958. This was opposed by you. Your counsel however, did not seek to make any submissions in support of your opposition. In my opinion it is appropriate the order be made based on of the seriousness of your offending and the need to protect the community. It will be for a saliva sample and I must advise you the authorities may use reasonable force in order to obtain that sample.
166 Any other orders sought?
167 MS JANKOVIC: No, Your Honour.
168 HER HONOUR: Now what about the maths? I am not asking if you like it, I am just asking did you get the numbers?
169 MS JANKOVIC: Yes, we confirm that last part, 171 days.
170 HER HONOUR: Yes. All right, that is right.
171 MS HEFFES: That is correct.
172 HER HONOUR: But what about the adding up? The cumulation and the concurrency? Did you get that? Everyone happy with the - - -
173 MS JANKOVIC: Yes.
174 HER HONOUR: Well, do you agree that that is how they add up?
175 MS JANKOVIC: That is right, Your Honour.
176 HER HONOUR: Very well. All right. So you agree that that is how they add up?
177 MS HEFFES: I would need a moment to do the maths, Your Honour.
178 HER HONOUR: Well, I think you should.
179 MS HEFFES: Yes.
180 HER HONOUR: I want you to. Do you want me to repeat anything. I can repeat the lot.
181 MS HEFFES: If Your Honour could repeat Charge 5, the cumulation - - -
182 HER HONOUR: I will just start again.
183 MS HEFFES: Yes.
184 HER HONOUR: Charge 1, four years imprisonment.
185 MS HEFFES: Yes.
186 HER HONOUR: Charge 2, eight years’ imprisonment.
187 Charge 3, 15 months’ imprisonment.
188 Charge 4, 18 months’ imprisonment.
189 Charge 5, five years’ imprisonment.
190 Now we come to the cumulation. Charge 2 is the base sentence.
191 I direct one year of Charge 1 be served cumulatively upon Charge 2. Have you got it?
192 Six months of Charge 3 be served cumulatively upon Charge 2.
193 Seven months of Charge 4 be served cumulatively upon Charge 2.
194 Now listen carefully for the next one. I direct three years and six months of Charge 5 be served concurrently and 18 months cumulatively upon Charge 2. You should come up with 11 years and seven months' imprisonment. Just check - - -
195 MS HEFFES: I agree with that, Your Honour.
196 HER HONOUR: You agree that is what it adds up - - -
197 MS HEFFES: Yes.
198 HER HONOUR: Thank you very much. All right. And the non-parole period was eight years and 10 months. All right, is there anything further in this matter?
199 MS JANKOVIC: No, Your Honour.
200 HER HONOUR: All right. Well, we are going to disconnect the link at that end. All right, so just wave. All right, yes, all right, I heard you. I can see you. All right, we are going to disconnect the link. Thanks very much for attending. Yes, disconnect the link. Yes, all right. I now - if you are wondering what I am doing, counsel, I have just signed the 464. I am now waiting to sign the SORA document and Mr Parker will be asked to sign for receipt of the document. He is not being asked if he wants to be on the SORA, Sex Offenders Register Act, to be clear. He is not being asked if he wants to do it. I have made the order. He is only signing for acknowledging receipt of the paperwork. If he does not want to sign, that is a matter for him, but my associate has to ask him to sign. So, that is what is happening now.
201 MS HEFFES: Yes, Your Honour.
202 HER HONOUR: All right. You will have to see him downstairs, if you want to. All right? I know that you are probably busy, but that is where you will have to see him, not here. I have got a trial happening in five.
203 MS HEFFES: Yes, Your Honour.
204 HER HONOUR: All right. You are being asked to sign for these documents. If you do not want to sign it, you do not have to but my associate has to ask you. It is in relation to the Sex Offenders Registration Act. I made the order. It is up to you whether you sign it or not, but she has to ask you. She has to give you the documents. I can at least see it, if you do not want to. Do you want to sign it or not?
205 ACCUSED: I will not sign it until I have read it.
206 HER HONOUR: Well, all right, you can read it all. Sit down. Very well. Do you have to be somewhere else, counsel? Anywhere? No?
207 MS HEFFES: No, Your Honour.
208 MS JANKOVIC: No, Your Honour.
209 HER HONOUR: Great. All right, this will not take long. As I say, the order has already been made, it is just acknowledging receipt of the paperwork, the contents are irrelevant but there you go, he is entitled to read it. Now, have you finished reading?
210 ACCUSED: Yes.
211 HER HONOUR: Excellent. All right, well as I said, all you are being asked to do is if you want to sign receipt of them, that is all. The contents are already part of the order that I made. Very well. All right, anything further. Thank you. Thank you, you will have to leave. Thank you very much.
212 (At this stage the accused left the court.)
213 All right, well I will come back. A bit of a revolving door. I think we are just going to run something off for you, Madam, is that what we are doing, Ms McWilliam? Just wait a minute. Oh, and you, probably.
214 MS JANKOVIC: As Your Honour pleases.
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