Director of Public Prosecutions v Pearson (a pseudonym)
[2023] VCC 205
•14 February 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROMAN PEARSON (A PSEUDONYM) |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 January 2023 | |
DATE OF SENTENCE: | 14 February 2023 | |
CASE MAY BE CITED AS: | DPP v Pearson (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 205 | |
SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to two charges of incest – complainant was half-sister of offender - complainant has intellectual disability – offender has several learning difficulties and is severely compromised in regulatory areas – insight and remorse – low risk of reoffending - general deterrence – reduced need for specific deterrence.
Legislation Cited: Sex Offenders Registration Act
Cases Cited: Holland v R [2018] VSCA 241; Verdins v R [2007] VSCA 102
Sentence: 19 months imprisonment with npp of 9 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Malobabic | OPP |
| For the Accused | Mr P. O’Halloran | James Dowsley & Associates |
HER HONOUR:
1 Roman Pearson[1], you have pleaded guilty to two charges of sexual penetration of a half-sibling. The first offence occurred between 1 July 2017 and 15 October 2021 and the second on 22 January 2022. The maximum penalty for the offence is five years imprisonment. I will be sentencing you to prison for 19 months, with an order that you serve nine months before being eligible for parole. I will now explain my reasons for this sentence.
[1]A pseudonym.
2 Until October 2021, you were living with your grandmother and the complainant, who is your half-sister. On 15 October that year, the family moved and the complainant believes the offending occurred just before the move, making her aged 15. However, the charge is framed in terms of between dates, that is between 1 July 2017 and 15 October 2021, meaning that the complainant could have been younger when the first offence occurred. But this is accepted as being unlikely.
3 Assuming the first offence occurred just before the move, you were aged 28. The second offence occurred about three months later when you were both still aged 15 and 28, respectively. It is of course a very considerable age gap which you have acknowledged yourself.
4 In 2004 when you were 11 years old, you were placed in the care of your grandmother with your younger brother. When the complainant was born in 2006 she was also placed there and your grandmother looked after the three of you since then. Your father is also the father of your brother but not of the complainant. Your mother lived in a nearby suburb during these years.
5 In your childhood you were diagnosed with a mild intellectual disability and you attended a special school. Although you still have significant cognitive deficits, it is no longer considered that you have an intellectual disability. The complainant does have an intellectual disability and suffers from autism, anxiety and Attention Deficit Hyperactivity Disorder. At the time of the offending, she was attending a special needs school where you also attended.
6 Whilst still living at the first home you and the complainant were alone together in the lounge room. You were talking and you asked the complainant to lie on the floor, which she did. You then penetrated her vagina with your penis when she was lying on her back. You did not use a condom and you ejaculated. That is Charge 1.
7 On 22 January 2022, the complainant was on the couch in the lounge room at the second address watching the tennis on TV. Your grandmother was in her bedroom and your brother was at work. You asked the complainant if she wanted to have sex. She said she didn’t want to, but you pulled her pants down and penetrated her vagina with your penis while wearing a condom. You ejaculated and the complainant pulled her pants back up and you returned to your bedroom. That is Charge 2.
8 Two days later, on 24 January, the complainant was in the kitchen with you, your brother and grandmother. You were helping your grandmother clean out the freezer. The two of you had an argument which caused the complainant to become upset and she told her grandmother that you had hurt her. She asked the complainant what she meant and the complainant told her that you had pulled her pants down, put a condom on and had sex with her.
9 You started to walk off and your grandmother asked you if this was true. You replied that it was true. After this disclosure you went to live with your mother and on 27 January your grandmother reported the offending to the support worker from Anglicare. The next day she took the complainant to the Box Hill Police Station to report the matter. You were interviewed on 31 January 2022 and you told police that you had had sex with the complainant the previous week in the lounge room when she had been watching the tennis on TV and that the complainant had consented.
10 You said you knew it was wrong because you are older and you are brother and sister. You also told police that you had sex with the complainant once when you were living at the first address but you claimed to have used a condom. The complainant had not told the police about this.
11 The maximum penalty for sexual penetration of a sibling or half-sibling is five years imprisonment and it is a Class 1 offence if the victim is under 18. Because you have pleaded guilty to two such offences, you will be a registerable offender under the Sex Offenders Registration Act which will apply for the rest of your life.
12 At a committal mention in June 2022, you pleaded guilty. Incest is, of course, a very serious offence indicated in part by the maximum penalty and this case is a serious example of it.
13 The complainant was a young teenager with an intellectual disability which you knew about, and she was therefore very vulnerable. It happened twice in the family home where the complainant was entitled to feel safe from such harm.
14 Indeed, significant harm is presumed to flow to children who are subjected to sexual abuse. The complainant was aware of some harm because she told her grandmother that you had hurt her. You exploited her with no regard for her feelings, which indeed she expressed when she said she did not want to have sex. Her disability has prevented her from providing a victim impact statement.
15 The absence of a condom the first time exposed the complainant to pregnancy and sexually transmitted infection and it's use on the second occasion indicates planning by you. You told her not to tell her grandmother, a demonstration of your manipulation of her and your resort to subterfuge. Incest is a crime regarded with abhorrence by the community and so general deterrence is of great importance. I shall return to that matter later.
16 You are a 29 year old single man living with several specific learning difficulties. As a young child, you exhibited difficult behaviour leading to various interventions and testing, which then disclosed an intellectual disability. Recent testing showed that your cognitive and language difficulties have improved significantly and you no longer qualify as having an intellectual disability. However, your ability to sustain attention, concentrate and exert mental control are severely compromised. This opinion was provided by psychologist, Ms Sandra Cokorilo, in her report dated 9 January 2023 following her assessment of you in October 2022. She had been provided with copies of many reports dating from 2001 including more recent reports from the neuropsychologist, Mr Martin Jackson. Those reports were also provided to the court on the plea hearing.
17 She concluded that you are at low risk of further sexual offending but would benefit from psychological counselling, designed to promote insights into intimacy, relationships and beliefs about sex.
18 During your childhood, your behavioural problems were addressed and you were carefully monitored. For most of your childhood, after your parents separated you were in the care of your father and grandmother who also cared for your brother and sister, as I said before. You were regarded as a pleasant and enthusiastic boy, and you became captain of your special school. This achievement appears to be consistent with Mr Jackson's opinion that your abilities were masked by your difficulty in paying attention and focusing, so that accurate testing of your abilities was not possible.
19 This led to the erroneous conclusion about your disability. Instead of that diagnosis, Mr Jackson identified separate learning difficulties with reading, mathematics and short-term auditory memory. You have a low level of basic language skills and functionally you cannot read. Mr Jackson concluded that in order to compensate for your low level of language function, you have developed excellent new learning and memory skills. When told something, and particularly when it is reinforced you can remember it. You have a driver's licence and you have been working part-time for the last six years at Hungry Jacks. You also received a disability support pension, but not an NDIS package.
20 Since the offending, you were living with your mother and a five-year intervention order was in place to prohibit you from seeing your sister and from going near your grandmother's house. As a result, you were only able to see your grandmother and your brother away from the house. You have the support of your father who attended court. You have no previous criminal history and have never been in trouble before. You have not had problems with alcohol or drug abuse.
21 You pleaded guilty to the charges at an early stage which means you are entitled to a discount on your sentence, as the utility of your plea is recognised by the court for having avoided a trial. This means that importantly, you have spared the complainant and other family members from having to give evidence. While the court is still dealing with a large backlog of cases because of the COVID-19 pandemic, a plea of guilty has additional value.
22 A plea of guilty can also be accepted as an indication of remorse and acceptance of responsibility for the offending. Remorse can be closely linked with insight. In your record of interview with the police, you said that you knew what you did was wrong, and you said you were not happy about it. But otherwise, you could not say what you thought about it. When you discussed the topic with professional people later, it was said that you did not seem to have a sense that it was inappropriate to have sex with a family member and according to Mr Jackson, you still have limited understanding of this.
23 However, you did admit straight away to your grandmother that you had done the wrong thing and you know that you've caused hurt and sadness to your sister.
24 I said I would return to the importance of general deterrence. The sentence I impose on you should deter others from such offending but I take into account your cognitive difficulties, which somewhat set you apart from most other people. I also take into account your low risk of reoffending and both those matters will result in a somewhat moderated sentence. Rather than consider the principles of Verdins v R[2], I was asked to take into account your cognitive disabilities in an overall sense. That is the approach I have taken.
[2] Verdins v R [2007] VSCA 102
25 I was referred to the case of Holland v R[3], which was an appeal arising out of a plea of guilty to two charges of incest. The complainant in that case had an intellectual disability and there were some similarities with this case, although the offending was somewhat more serious. The offender had been assessed as a child as having an intellectual disability but more recent testing showed his IQ to be low-average to average with ADHD. He had never been able to work and had no previous criminal history. There was a moderate to low risk of reoffending with prospects depending on treatment. The sentencing judge concluded that a prison sentence was warranted and the offender was sentenced to 30 months imprisonment with a non-parole period of 15 months.
[3] Holland v R [2018] VSCA 241
26 That case offers some limited guidance, but in your case, the sentence should be lower given that the second charge in Holland was a rolled-up charge and the longer sentence reflected that.
27 Mr Pearson, I sentence you to 15 months imprisonment for each charge. Using the sentence for Charge 1 as the base sentence, I order that four months of the sentence for Charge 2 be served in cumulation. That results in a total effective sentence of 19 months. I order that you serve a minimum period of nine months before being eligible for parole. You have spent 21 days in pre-sentence detention, not including today. I declare that time to be reckoned as already served and I shall note it on the court record.
28 If you had pleaded not guilty to these charges, I would have sentenced you to two years imprisonment, with a non-parole period of 15 months.
29 I make an order under the Sex Offenders Registration Act for you to provide your contact and other details each year for the rest of your life. That is a mandatory requirement and I have no discretion concerning it. Mr Pearson, a form will be sent to you in prison for you to sign with the details about that order and that it will then be returned to court.
30 Now, Ms Malobabic, is there anything I've neglected or omitted?
31 MS MALOBABIC: No, Your Honour.
32 HER HONOUR: I Anything further, Mr O'Halloran?
33 MR O'HALLORAN: Nothing arising, Your Honour.
34 HER HONOUR: Thank you.
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