Director of Public Prosecutions v Pearce (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

ARCHER PEARCE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2020
DATE OF SENTENCE:	4 May 2020
CASE MAY BE CITED AS:	DPP v Pearce (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 559

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW
Catchwords:   Plea of guilty – One charge of attempted sexual penetration of a child under 16 – Two charges of sexual penetration of a child under 16 – Charge 3 is a standard sentence offence – Serious breach of trust – No relevant prior criminal history – Prospects of rehabilitation assessed positively – Offender has gained insight and demonstrated remorse – Circumstances of COVID-19 pandemic taken into account – Offender sentenced as a Serious Sexual Offender.
Legislation Cited:  Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:DPP v Dalgleish (a pseudonym) [2016] VSCA 148; Crouch (a pseudonym) v The Queen [2019] VSCA 30.
Sentence:  Total effective sentence of 5 years and 6 months imprisonment, with a non-parole period of 3 years and 6 months imprisonment.

APPEARANCES:	Counsel	Solicitors
For the DPP	Mr G Hevey	Office of Public Prosecutions
For the Accused	Ms A Burnnard	Slades & Parsons

HIS HONOUR:

Introduction

Archer Pearce[1], you have pleaded guilty to the following charges:
·One charge of attempted of sexual penetration of a child under 16, contrary to s 321M and 45 of the Crimes Act 1958, which carries a maximum penalty of 20 years imprisonment (Charge 1); and
·Two charges of sexual penetration of a child under 16, contrary to s 49B of the Crimes Act 1958, which carries a maximum penalty of 15 years imprisonment (Charges 2 and 3).
[1] A pseudonym.
You have also admitted your Criminal Record.

Circumstances of the offences

A prosecution opening was tendered on the plea and may be summarised as follows:
The victim in this matter, Paige Grimshaw[2], was born in September 2006 and is now aged 13. She was between the ages of six and 10 in relation to Charge 1, and 11 years of age in relation to Charges 2 and 3.
[2] A pseudonym.
You were in a relationship with the victim's mother, Rachel Hayes[3] from about 2011. Ms Hayes had separated from the victim's father in late 2007. You commenced living with Ms Hayes in 2015. Together with Ms Hayes, you have three daughters currently aged six, five and three.
[3] A pseudonym.
The victim resided in a unit in Alfred Street[4], Shepparton from 9 December 2007 to 19 October 2017. Between 1 January 2013 and 22 March 2017, whilst residing at this unit, the victim described an occasion when you attempted to penetrate her vagina while she was sleeping.
[4] A pseudonym.
You went into the victim's room at a time she believed it to be about 7.30am. The victim was lying on her back. She woke and you were on your knees with her legs between yours. You pulled her underpants to the side and put your penis against her vagina. She could see most of your penis near her leg and a 'little bit' in her vagina. The victim stated that this incident occurred in the final term of school while she was attending primary school in Shepparton. The victim told a school friend about what had occurred. It is these facts that relate to Charge 1, attempted sexual penetration of a child under 16.
The Alfred Street unit was too small for Ms Hayes and her four daughters, together with you, and the Department of Human Services arranged to move Ms Hayes and her four daughters to a unit in Marlin Avenue[5], Shepparton, at the end of October 2017. That unit had three bedrooms.
[5] A pseudonym.
Whilst living at the Marlin Avenue unit, Ms Hayes travelled to Melbourne to stay with her mother. The victim was left staying in Shepparton with you. One night, at around midnight, during Ms Hayes's absence, you came into the victim's bedroom, pulled her pants down and licked her vagina. You stopped licking her vagina a few times and said, 'Does that feel nice, does it?' The victim responded, 'it feels weird', and then described it as feeling 'disgusting'. You told the victim she would be in big trouble if she told anyone and she promised that she would not. You gave the victim a phone to play with, which she believes was given to her as a bribe not to tell anyone. It is these facts that relate to Charge 2, sexual penetration of a child under 16 years.
On Thursday 7 March 2018, the victim went to bed in her separate room between 8.30pm and 9.30pm.
The victim was in her bedroom when you walked in and put her alarm clock down to prevent the light from being emitted. You then pulled the victim's shorts and underwear aside whilst she was lying in her bed. You then licked the victim's vagina for a few minutes, and she could feel your tongue going inside the lips of her vagina. It is these facts that relate to Charge 3, sexual penetration of a child under 16 years. This is a representative charge.
The victim asked you for a drink, which you brought back to her. You then licked the victim's breast. You then returned to licking the victim’s vagina, this conduct forming part of representative Charge 3. You then left the room.
On the morning of 8 March 2018, the victim got up, and without showering, went to school at 8.35am. During that morning Ms Hayes received a phone call from her own mother, who lives in Melbourne, saying that Paige's school had made an 'emergency call' to her because they could not get a response from Rachel. Rachel Hayes then immediately rang the school and was told that Paige had a temperature and a sore lower spine.

Ms Hayes asked you to attend the school and pick up Paige. When Paige got home, Ms Hayes gave her Panadol, an ice block, a moistened flannel and set up a fan. You then left the house at 1.55pm to pick up your daughter, Jane.
Ms Hayes went into the main bedroom to feed her younger daughter. While you were away, Paige came into the bedroom and lay on the bed next to

Ms Hayes. She told Ms Hayes that she wasn't feeling well. Ms Hayes told her that her gran was on the way up from Melbourne and that she,

Ms Hayes, wished to return to Melbourne.
The victim said, 'Don't keep me up here on my own'. Ms Hayes asked why, and the victim replied, 'Because last time you were in Melbourne, Archer touched me'… 'In the naughty way', and that 'He pulled down my shorts and panties and licked my fanny'. Ms Hayes asked, 'Why didn't you tell me this?' The victim replied, 'He said I'd get into trouble if I said anything'. Ms Hayes further questioned the victim who said, amongst other things that 'He also did it last night' and provided detail of the assault, including that she felt scared and did not know what to do.
A short while later you returned to the unit. Ms Hayes confronted you with words to the effect of 'How dare you touch my daughter'. She then struck you on your back with a pool cue, yelling at you to leave the house. You both briefly struggled at the front door, with you trying to grab the pool cue out of her hands. You then pushed Ms Hayes into the garage door, resulting in her falling to the ground, which hurt her arm and shoulder. You then left.
Ms Hayes then spoke further with victim, confirming with her that she was being truthful, before calling 000.
Police attended at the Marlin Avenue unit and made arrangements for the victim to be taken to a medical clinic in Shepparton for a forensic physical examination. A doctor conducted an examination and took swabs. The results of the DNA testing from those swabs is reproduced in summary form in the prosecution opening and would have been relied on by the prosecution at trial. In the circumstances, I do not need to repeat those findings in these sentencing reasons.
On 8 March 2018, after police had taken the victim to see the doctor, police located you at the Shepparton train station and brought you back to Shepparton police station for an initial interview.
In the initial interview, you agreed that you were living at the Marlin Avenue unit, however essentially stated that you were not related to the victim and that you were not her stepfather. You otherwise denied the allegations put to you.
On 9 March 2018 and 25 July 2018, the victim participated in video taped interviews.
On 21 August 2018, a further interview was conducted with you at the Altona North police station. In that interview, you denied all allegations put to you.

Nature and gravity of the offending

Sexual offending against young people under the care of adults is very serious offending. The victims of such offending are vulnerable and reliant on adults to guide them and care for them. In this instance, your offending also represents a serious breach of trust in relation to both the victim and the mother of the victim, who trusted you with the care of her young daughter. Children are entitled to feel safe in their own homes when clearly under the care of an adult, as the victim was in relation to all charges.
The seriousness of the offending in this instance is also recognised by the maximum penalties imposed by Parliament. Sexual penetration of a child under 16 carries a maximum penalty of 15 years imprisonment, while attempted penetration of a child under 16 in this instance (as the victim was under the age of 12 at the time) carries 20 years imprisonment.
Moreover, as the Court of Appeal explained in Director of Public Prosecutions v Dalgleish (a pseudonym)[6]:
The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.
[6][2016] VSCA 148 at [47], referring to Clarkson v The Queen (2011) 32 VR 361 at [3].
In relation to Charge 1, the victim was between the ages of six and 10 when you woke her in her bed and put your penis against her vagina, attempting to penetrate her vagina. In my view, your conduct on this occasion represents a serious example of the offence, particularly when consideration is given to the age of the victim at the time and the surrounding circumstances.
Charge 2 represents a single act of penetration of your tongue into the vagina of the victim when she was 11 years of age. As to Charge 3, the victim was also 11 at the time and the conduct is similar to Charge 1, however it is representative of two acts of penetration that occurred on the same occasion, separated, it seems, only by minutes. It is clear from the detail provided in the prosecution opening, that the victim expressed to her mother the next day that during the offending she felt scared and did not know what to do.
The responses of the victim to her mother when she complained shortly after the conduct of Charge 3 demonstrates that she was very confused about what had occurred. She was, at that time, only 11 years of age and very vulnerable. She also conveyed that in relation to the occasion when her mother was in Melbourne, you told her not to tell anyone or she would get into trouble. Thus, in my view the conduct that gives rise to Charges 2 and 3 represent relatively serious examples of sexual penetration of a child under 16.

Victim impact statements

Two victim impact statements were tendered on the plea.

The first was from Paige Grimshaw, the victim in this matter. Ms Grimshaw eloquently speaks of the effect your crimes have had on her. She states that she feels like you stole something from her childhood. She also expresses the irony in that while she is happy not to have you in her life, she laments the fact that she and her sisters now are without a father. She speaks about the stress and anxiety she has experienced as a result of the criminal process and that she feels like she is being judged.
The victim's mother, Rachel Hayes, outlined in her statement the effects that your conduct has had on Paige. She also expresses the guilt she feels that she failed to protect her daughter, even though she was unaware of what had occurred. She acknowledges the difficulty in being able to explain what has happened to her other children and why their father is no longer there.

Ms Hayes expresses that she feels isolated and cannot imagine having another relationship that may put her daughters at risk

Personal circumstances

You are 37 years of age and are the second of three children. You have an older sister aged 38 and a younger sister aged 21. Your parents separated when you were in your early twenties. You currently reside with your father and your younger sister however both your parents remain supportive of you and your mother supported you by being present at the plea hearing.
You grew up in Melbourne and initially attended primary school in Clifton Hill before moving to Queensland following your prep year, as your mother was imprisoned for credit card fraud for six months. You returned to Victoria and were placed in foster care, as your father was working three jobs while your mother was in custody. Ultimately, you returned with your older sister to your mother's care but were exposed to her difficulties with drug addiction and attempts at self harm.
You attended several different primary schools and required special needs teachers, as you struggled with behavioural problems. For a period, you attended both a high school and an alternative school. You ultimately left school halfway through Year 10.

After leaving school, you worked for a fast food restaurant for a few months and then attempted a number of apprenticeships, including fitting and turning, cabinetmaking and baking; however, you did not complete any of those courses. You worked at Dairy Farmers for about a year in a packaging role, before working as a sheet-metal apprentice for approximately three months. You then began working for a tyre fitting business and completed certificate two in fitting and repair. From about 2011, during your relationship with the victim's mother, you worked in various tyre fitting roles. Once you moved to Shepparton to live with the victim's mother, your work became sporadic.
In 2004, when you were 21 years of age, you met your first partner. You had a son with that partner, born in 2008. You were married three months later but separated in 2009. You have had no contact with your son for the last 12 months.
In 2011 you met the mother of the victim. At that time, the victim was about four years of age. You and Ms Hayes went on to have three children together, now aged six, five and three. When the relationship initially started, you were still working in Melbourne and would travel to Shepparton on the weekends. After your second child was born you moved to Shepparton full-time.
Your relationship with Ms Hayes was initially positive, however it became conflictual following financial problems. Ms Hayes threw you out of the house on many occasions and there were a number of separations. During that time, you smoked cannabis daily and your alcohol consumption increased.
You began drinking alcohol at age 18 and have stated that you would consume a bottle of bourbon a day if you were able to afford it. You smoked cannabis from the age of 18 and have continued to smoke regularly.
A report was prepared by Carla Lechner, clinical psychologist, and tendered on the plea. Ms Lechner interviewed you and conducted psychometric testing. As a result of the testing, Ms Lechner concluded that you present with a history of complex development trauma that has undermined your social and emotional development. She states that you present with symptoms of alcohol and cannabis use disorder and major depressive disorder. She notes that while you have limited recollection of your offending as a result of being intoxicated, you have expressed appropriate victim empathy and deep shame for your actions.
Since the offending was disclosed, you have continued to struggle with your mental health issues whilst this matter has been pending. In mid 2019 you were intoxicated and state that you attempted to take your life by putting your head through a glass window in a motel.
Having conducted testing in relation to risk and clinically assessing you,

Ms Lechner expressed her opinion as follows:
In respect of his offending, Mr Pearce appears to fit the description of "child molester" as outlined by Lanning, very well. Whilst his actions are paedophilic in nature, he does not appear to have a sexual interest in children per se, rather he accessed his stepdaughter for his sexual gratification in the absence of availability of his partner and poor impulse inhibition on account of his alcohol abuse. He expressed regret and shame for his actions. Mr Pearce presents as a "moderate/low" risk of sexual reoffending. This risk level would be lowered through treatment that targets his psychological immaturity, mental health and substance abuse issues.

Relevant sentencing considerations

Ms Burnnard, who appeared on your behalf, highlighted a number of matters she submitted should be taken into account in mitigation.
First and foremost is your plea of guilty. While there was a contested committal, you entered a plea of guilty in December 2019 in circumstances where your trial would not be heard until mid to late 2020. Thus, in the circumstances, your plea, while not entered at the earliest opportunity, has still saved court time and expense and, most significantly, it has avoided the need for the victim and other witnesses to have to give evidence and relive the events which is significant in cases such as this. You are entitled to have that taken into account in your favour.
It was submitted that over and above your plea of guilty, you have demonstrated genuine remorse. What is relied on is your comments to
Ms Lechner, where you say that you felt 'sick to your stomach' and 'deep shame' about the offending. You were also able to articulate that you understood that your conduct would ruin future relationships of the victim. In the circumstances, I accept that you have gained insight into your offending and have demonstrated a degree of remorse.
In cases such as this, general deterrence, just punishment and denunciation of your conduct are paramount sentencing considerations. So much was conceded by your counsel.
Specific deterrence, in my view, must carry some weight in the sentencing discretion, however, is able to be moderated when consideration is given to the fact that you have demonstrated insight into your offending and expressed remorse. Further, while you have some prior history, you do not have any prior history of offending of a sexual nature. That said, you have some substance and mental health issues that, according to Ms Lechner, you must address in order to lower your risk of reoffending.
In my view, your prospects of rehabilitation are able to be assessed positively. As noted, you have no prior history of this nature and have already gained insight into your offending conduct. You will be required to undertake further rehabilitative courses before you are eligible for parole, and thereafter will be subject to strict supervision on your release. In that regard, while protection of the community must play some role in the sentencing discretion, it need not feature heavily for the reasons already outlined above as to your lack of prior history and relative insight.
I take into the account the current circumstances of the COVID-19 pandemic. You will enter the prison system where there are significant restrictions. Also, as a new prisoner, once you enter the system, you will be quarantined for a period of 14 days, requiring you to stay in your cell for meals, with only very limited time out. Physical visits are not able to be accommodated and there are restrictions resulting in only limited time out of cells. The uncertainty of the extent of the restrictions adds additional stress and concern for you and for your family. As such, I take these matters into account as part of the sentencing discretion.

Charge 3 is presented as a representative charge and, as such, I am cognisant of the principles that apply to sentencing in relation to a representative charge which have recently been summarised by the Court of Appeal in Crouch (a pseudonym) v The Queen.[7]
[7] [2019] VSCA 30 at [36].
You fall to be sentenced as a Serious Sexual Offender pursuant to pt 2A of the Sentencing Act 1991 on Charge 3. Section 6D of the Sentencing Act 1991 provides that when sentencing you as a Serious Sexual Offender, I must have regard to the protection of the community as the principal purpose for which the sentence is imposed. In my view, protection of the community is able to be achieved by the sentence that I will impose. Further, the prosecution does not contend for a disproportionate sentence.
Finally, in addition to the matters I am required to take into account under s 5 of the Sentencing Act 1991, I must also take into account that Charge 3 is a standard sentence offence by reason of the commencement of those provisions. Charge 2, whilst the same offence is not captured as a standard sentence charge. The standard sentence for Charge 3 is six years imprisonment.
Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence, in this case I form the view the sentence I will impose on Charge 3 is lower than the standard sentence.

Sentence

Mr Pearce, can you please stand.
Archer Pearce, on Charge 1, attempted sexual penetration of a child under 16, you are convicted and sentenced to 3 years and 6 months imprisonment.
In relation to Charge 2, sexual penetration of a child under 16, you are convicted and sentenced to 3 years and 6 months imprisonment.
In relation to Charge 3, sexual penetration of a child under 16, you are convicted and sentenced to 4 years imprisonment. This will be the base sentence.
I direct that 9 months of the sentences on Charges 1 and 2 be cumulative on each other and on the sentence imposed on Charge 3. That makes for a total effective sentence of 5 years and 6 months imprisonment.
I direct that you serve 3 years and 6 months before becoming eligible for parole.
Further, as you have been convicted of three class 1 offences, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of 6 years and 9 months imprisonment, with a non-parole period of 4 years and 9 months.

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[2020] VCC 559

4 May 2020