Director of Public Prosecutions v Peterson (a pseudonym)
[2020] VCC 1192
•5 August 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS PETERSON (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE JOHNS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 21 July 2020 |
| DATE OF SENTENCE: | 5 August 2020 |
| CASE MAY BE CITED AS: | DPP v Peterson (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1192 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW SENTENCE
Catchwords: Historical sexual offending – Protracted offending - Incest - Gross indecency with person under 16 - Indecent assault - Sex offender registration for life.
SENTENCE:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | Office of Public Prosecutions |
| For the Accused | Mr C. Morgan | Palmer, Stevens and Rennick |
HIS HONOUR:
Circumstances of Offending
Douglas Peterson[1], on 21 July 2020 you pleaded guilty to five charges, being one charge of gross indecency with a person under 16, three charges of indecent assault and one charge of incest. Each charge was a course of conduct charge.
[1] A pseudonym.
The maximum penalty that applies in your case for incest was 20 years imprisonment at the time. The maximum penalty for indecent assault at the time was five years imprisonment. Lastly, the maximum penalty for an act of gross indecency with a child was two years imprisonment.
At your plea, no prior criminal history was put before me.
The circumstances of your offending were outlined in the ‘Outline of Prosecution Submissions on Plea’ dated 21 July 2020. This was Exhibit A on your plea and forms part of these reasons.
All your offending relates to your daughter. The offending stretched over a period of five years where you frequently perpetrated sexual abuse against her when she was aged between eight and 12 years old.
Upon examination of your offending, it is clear that you followed a distinct pattern of criminal behaviour by abusing the victim, when your wife was away and the house relatively empty. This is reflected by the fact that all charges on the indictment are course of conduct charges.
Charge 1 relates to occasions where you showed your victim a pornographic video, watching it in the lounge room while she was present, aged approximately eight or nine. This progressed to you masturbating while watching pornography as she looked on. This occurred on almost a weekly basis, often ending with you ejaculating into a hand towel while she sat next to you.
Charge 2 pertains to occasions when you would get into the bath with the victim and get her to touch and masturbate your penis.
Charge 3 relates to instances where you touched or licked the outside of the victim’s vagina while sitting in the lounge room.
10Charge 4, is a charge of incest, and the most serious charge on your plea. This charge is a result of your repeated acts to instruct the victim to perform oral sex on you, culminating in you ejaculating into a hand towel.
11Charge 5 involves approximately four occasions where you would put the victim on top of you and she would move her vagina back and forth over your erect penis, under your direction, until you ejaculated into a hand towel.
12Your physical abuse ceased after the victim had her first period at approximately 12 years of age in 1988. The victim recalls at a later time, in 1992, you entering her bedroom while she was watching television. You were naked and your penis was erect and covered with a black condom. You asked the victim ‘Do you know what this is?’. She responded by pushing past you in a terrified state, fleeing to the backyard and hiding until her mother got home. That is an uncharged act of course, but it sets the narrative of when these matters first came to light in a sense.
13The following day, after that event, the victim told her grandmother about the abuse. The victim was told that if she went to the police, the sexual abuse would be reported in the newspaper and the victim’s mother, Mrs Peterson, would not be able to cope.
14The victim left the family home at age 16 shortly thereafter.
15Your victim also told her mother about the abuse, however, when she tried to raise it with her mother, her mother would get upset and refuse to engage in any conversation about the matter. This reaction was perhaps typical of the times.
16At age 18 or 19, the victim also told an aunt about the abuse, and later her then husband. The aunt cannot recall much about the conversation, however, your victim's husband confronted you at a family funeral in 2005 with a bare allegation and you said something akin to 'I did it'.
Arrest and Police Interview and Committal Hearing
17On 20 May 2019, you were arrested in relation to this offending. During the interview, you made several admissions, which varied in degree of specificity. At that stage, you denied ever having instructed the victim to perform oral sex on you.
18I note in your interview with police, at multiple points, you admitted that the victim was telling the truth and her account should be believed. This is a matter of some significance.
19It is the experience of the courts that admissions to serious allegations of child sexual abuse are the exception rather than the norm. Denials are often made and a trial is run where the essential evidence is the sworn evidence of the complainant only. In this context, your admissions are significant and to your credit. They lead to a conclusion that you are contrite and remorseful to some degree.
20There is also a significant value in sparing your victim, not just from the prospect of giving evidence, but from the impact of the audacity of a complete denial.
21
Your counsel indicated your intention to plead guilty to all, but the charge of incest, prior to the limited committal hearing, where the victim was not
cross-examined.
22You maintained your position in this court in relation to an intention to plead guilty to all of the matters, save for the incest offence. That changed not long after a case management hearing in this matter. At that point in time, I indicated that a plea of guilty would have significant utilitarian value in this particular time.
Personal Background
23You were born in September 1955 and you are now 64 years old. You were aged between 27 and 32 years of age at the time of the offending. You have recently separated from your wife.
24You worked as a glazier since leaving school at age 17, completing trade school in that trade. You worked as an employee from 1972 until 2000, after which you started your own business in the same trade. You have been retired for about two years.
25You currently live alone near Bendigo and recently purchased a property which is subject to a restraining order in relation to pending compensation or restitution applications.
Gravity of the offending
26I must impose sentences which give voice to the community's denunciation of such crimes. I must impose sentences which not only provide sufficient deterrence to you, which is not at the forefront of my consideration at present, but more importantly, to others who may contemplating engaging in such wicked behaviour for their own gratification at the expense of a child and a childhood.
Impact on the Complainant
27There was a victim impact statement read aloud by the Prosecution. I accept all the matters contained therein. It was very clear from the victim's words that your actions have and will continue to burden her for the rest of her life. This unfortunately is a well-known and well understood consequence of sexual offending against children, particularly in relation to offending by father against his biological child.
28To extract one aspect of the victim's words:
‘As my father, it was your duty and responsibility to protect me…Your selfish, perverted crimes against me stripped me of my childhood innocence and left me with lifelong emotional and psychological scars and false beliefs….As a result, I have suffered untold damage to my self-esteem and self-worth. A battle that will go on forever'.
29Your breach of trust as a father by harming your daughter in such a way is reprehensible and has had dire consequences for her and for you, there is a significant price to pay in terms of a period of incarceration.
Prospects of Rehabilitation
30In relation to your prospects of rehabilitation, I find that your prospects of rehabilitation are reasonable, given this is the only matter in your history other than an incident of public indecency involving indecent exposure in public occurring some time ago.
31Apparently, you received some counselling in relation to that and your history does not disclose any further aberrations or offences. The Defence submission in relation to prospects of rehabilitation is not challenged by the Prosecution and as I have stated, I find that your prospects are reasonable.
32There was an issue raised by the Defence on your plea, in relation to the effects of delay and issues in relation to delay. Whilst at all times, your counsel acknowledged that for historical sexual offence matters such as this, it is often the case that there is a lengthy delay, particularly given that it involves offending against a child and it is often not until many years later, that the matter is able to be adequately brought to light.
33Your counsel emphasised that your offending was raised to some degree in 2005. Whilst I accept that matter, I found it has little weight in the exercise of my sentencing discretion.
34It differs from situations where matters are perhaps raised with the police and due to some reason within the investigation, matters are not prosecuted until sometime later. The fact that the matter was raised and you acknowledged whatever was put to you, is consistent with the admissions that you ultimately made and it may well have been that the matter could have been dealt with at some time earlier.
35However, other than considering that you are now a 64 year old man and the sentence I impose will represent a greater portion of your remaining years than it would have if you had to face the court at some earlier stage, I am not persuaded that delay is a standalone matter as a significant sentencing consideration in your particular case.
36That is not to say that I have not considered the period of time since the commission of these offences, in the context of your prospects of rehabilitation and in the circumstances that you face the court as a 64 year old man who has demonstrated, over that period of delay, the likelihood of rehabilitation.
37I was also urged by your counsel to have some regard to sentencing practices in the early 2000s when matters were raised, in the context that I have described in around 2005, and also to some degree, at the time of the commission of the offences, it was acknowledged by your counsel that I have to have regard to current sentencing practices and I have regard to, what I will refer to as historical sentencing practices, only in a very limited sense. Of course I have noted the maximum penalties that apply in your particular case, that differ, certainly to a significant degree in relation to the most serious offence of incest, differ from the maximum penalties that apply, if this offence was committed in more recent years, so that is one matter.
38I have also had some regard to the limited extent that I am able to, to sentencing practices in the past, but I have, in particular, had regard to current sentencing practices and I was provided with some sentences to inform my assessment of current sentencing practices by the Prosecution listed at paragraph 14 of
Exhibit C. I note in passing of course, that those cases I was referred to involve offences where the maximum penalty for incest was 25 years, rather than
20 years. I also note that other than the case of Grantly, they did not involve course of conduct charges.39I was urged by your counsel to apply the principle of totality, which I do. By virtue of the serious sexual offender provisions which I will come to there is a presumption of cumulation. However, I still, whilst giving effect to ss6D, 6E and 6F of the Sentencing Act 1991 (Vic), I give effect to those sections, I also apply the principle of totality and as I will come to, that will result in me making orders for cumulation with sentences otherwise being concurrent.
40Your counsel also made submissions in relation to the subsequent matter of wilful exposure. It was unclear whether that is a prior matter or subsequent matter. I do not regard that matter as a significant matter in the exercise of my sentencing discretion. It has been a relevant matter to consider and submissions were made as to the effect of that matter and how the response to that matter has resulted in rehabilitation during a period of delay. Turning to the Prosecution’s submissions in relation to sentence. I have already made some observations about the gravity of the offending in relation to a matter of this type and involving the particular aspects of this case.
41The Prosecution submit that your moral culpability is high and I accept that submission. They point out that each charge is a course of conduct charge and you will be sentenced accordingly. The offending was prolonged and persistent over a lengthy period of time. It involved a gross breach of trust in relation to a vulnerable victim, given her young age. She was manipulated, she was groomed, you were motivated by your own sexual gratification. She was your daughter. The victim impact statement details the significant and ongoing effects upon her.
42You will receive a very significant discount for your pleas of guilty. For the most part, your pleas of guilty were at an early stage, save for the charge of incest. As I have already touched upon, in relation to all of your pleas, they have a significant utilitarian value, that value is amplified in the midst of Stage Three and Stage Four COVID-19 restrictions. You entered custody during stage three restrictions, in relation to the COVID-19 pandemic and you are now being sentenced during Stage Four restrictions of that pandemic.
43You indicated your intention to plead guilty whilst we were in the midst of the confines and restrictions that are at play in custody during the pandemic. It is significant that you entered custody rather than seeking to avoid the matter further and engage in delays which could have seen a trial in this matter not taking place until the end of next year, or maybe even some time the year after.
44You confronted the matter, cooperated in entering custody remotely in Bendigo whilst I appeared in Melbourne. All of those matters, in the context and in the environment that we are currently in cause me to consider that there is a significant utilitarian value to your pleas. I also accept your admissions, viewed in their entirety and your plea of guilty, a demonstrative of remorse and contrition.
45I have also taken into account that you entered custody as a 64 year old man in the context of a pandemic where not only will your experience of custody be harsher due to that, due to no visits, and a more restricted environment with certainly less available, by way of programs to participate in, in custody, here will also be the anxiety of the presence of the disease and your vulnerability at your age. General deterrence is of course of paramount importance in a case of this nature. Denunciation and just punishment are also very important sentencing considerations.
46As I have indicated, once you are convicted of two or more sexual offences, for which a term of imprisonment is imposed, you will be a serious sexual offender.
47That means that in relation to Charges 3 to 5, you will be sentenced as a serious sexual offender and as I have stated, 6D, 6E and 6F apply and they have effect in your case. I have also got to consider the principle of totality and I have arrived at a position where orders for sentences will be announced as concurrent with orders for cumulation.
48 I direct that in relation to Charges 3 to 5, it be entered into the records of the court that you are being sentenced as a serious sexual offender.
Sentence
49I now turn to sentence. You can remain seated Mr Peterson. I sentence you as follows. I will start with Charge 4, but of course making it clear, that Charge 4 follows Charges 1 and 2 on the indictment, so you are sentenced as a serious sexual offender for Charge 4, but as the base sentence. In relation to Charge 4, I sentence you to six years imprisonment, this is the base sentence.
50In relation to Charge 1, I sentence you to 12 months imprisonment.
51In relation to Charges 2, 3 and 5, I sentence you to two years imprisonment.
52In relation to Charge 3, you are sentenced to two and a half years imprisonment.
53In relation to Charge 5, you are sentenced to three years imprisonment.
54I direct that two months of the sentence imposed on Charge 1. Four months of the sentence imposed on Charge 2. Twelve months of the sentence imposed on Charge 3 and twelve months of the sentence imposed on Charge 5 be served cumulatively on each other and on the sentence imposed on Charge 4. That makes a total effective sentence of eight and a half years imprisonment. I set a non-parole period of five years. I just need an update on pre-sentence detention. I did not do the calculation. It was 20 July was it? So what is that 15 days or
16 days?55MR PLUMMER: Sixteen days, Your Honour that's correct.
56HIS HONOUR: Sorry Mr Plummer, 16 or 15?
57MR PLUMMER: That's 15 (indistinct words).
58HIS HONOUR: Fifteen, all right. Pursuant to s.18 of the Sentencing Act, I declare that you have served 15 days of pre-sentence detention and direct that this be administratively deducted from the amount that I have imposed today.
59Due to the charges on your indictment, I declare that you have been sentenced as a serious sex offender in relation to Charges 3, 4 and 5.
60As a consequence of your convictions on the charges on the indictment, you are to be registered under the Sex Offender Registration Act. The period of reporting is for life.
61Pursuant to s.6AAA, I declare that but for your pleas of guilty, I would have imposed a sentence of 11 years imprisonment, with a non-parole period of seven years. Are there any other matters?
62MR MORGAN: Your Honour, could I just check that, I just - you cut out a bit on your 6AAA declaration, I didn't - - -
63HIS HONOUR: Yes sorry.
64MR MORGAN: I couldn't hear you.
65HIS HONOUR: Eleven years' imprisonment with a non-parole period of seven years. Anything else?
66MR PLUMMER: (Indistinct words), Your Honour.
67MR MORGAN: No, Your Honour.
68HIS HONOUR: All right, thank you. Yes, we'll adjourn the court.
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