Director of Public Prosecutions v Phelan (a pseudonym)

[2019] VCC 1791

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMUEL PHELAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	31 October 2019
DATE OF SENTENCE:	1 November 2019
CASE MAY BE CITED AS:	DPP v Phelan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1791

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr E. Robertson	Stephen Peterson Lawyers

HIS HONOUR: 

1Samuel Phelan[1], you have pleaded guilty to four charges of indecent assault.  Each of those crimes carries a maximum penalty of five years, or carried a maximum penalty of five years at the time.

[1] A pseudonym.

2I say at the outset of these sentencing remarks that Charge 1 involves an oral penetration.  The Crown case is that that oral penetration occurred between
1 December 1980 and 28 February 1981.  Had it occurred subsequent to
1 March 1981, the maximum penalty for it would have been 25 years. 
In that sense, it is a very close call.  And I simply point that out for the purpose of the transcript.  I am clearly very much constrained in the sentence that I can impose bearing in mind that particular timeframe.

3You are now 60 years of age.  You pleaded guilty at a late period of time, prior to the commencement of the trial, and I think remorse, in your situation,
is problematic.  I will give you the benefit of the doubt in relation to that. 
Clearly, you get the utilitarian benefit of that plea of guilty.  Trials such as this, when they do run, are distressing for all concerned, and I certainly take that into account.

4You have no prior convictions, but you do have a subsequent matter from 2009, when Her Honour Judge Rizkalla effectively - on Commonwealth matters, but effectively gave you a 12-month suspended sentence for, effectively, grooming.  That occurred subsequently and does not inflate this sentence at all.  It just simply shows that the prospects of rehabilitation are probably improved by the fact that you have now done a sex offender's program.  But clearly, the propensity persisted for quite some period of time.

5Firstly, pursuant to the Sex Offenders Registration Act, I advise you that the offending will put you on the sex offender's register and the reporting period will be for life.  I will get you to acknowledge receipt of that.  If you do not mind,
Mr Peters will go in with my - all right.

6Next, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.  That order is made and handed down.

7Thirdly, because of the offences for which you are to be sentenced to imprisonment, on Charges 3 and 4, you are to be sentenced as a serious sexual offender.  There is some debate as to whether that should not be from
Charge 2 on, but I will give you the benefit of the doubt in relation to that.

8I am aware of the provision that therefore, Charges 3 and 4 are to be cumulative unless otherwise ordered, and for reasons of totality, I will so otherwise order. 

9The Crown do not seek a disproportionate sentence, and I am aware that the principle sentencing purpose on Charges 3 and 4 is for community protection.

10The offending occurred over a significant period of time.  You are now 60, having been born in 1958.  The complainant in the matter - I will call her that for anonymity - was born in June 1971 and is now 48, as I understand it. 
She was between the ages of nine and 13 at the time of the offending.

11The offending occurred over a period of around about seven to eight years. That is from around about 1976 until around about 1983.  It happened at the complainant's house in Warragul, your house in Drouin, in your car, and finally, in a unit at Westall after you had moved house.  You are 13 years older than her.  You are her uncle, being her mother's brother. 

12The complainant's grandfather, who is now deceased, was your father. 
Your grandfather also allegedly sexually assaulted the complainant during this period of time, and also, as I understand it, allegedly assaulted her sister.  I will be dealing again with that in a few minutes.

13In terms of context, and I am well aware that there are provisions related to that, on an occasion in 1976 or 1977, the complainant was in a bedroom with you, she was wearing a school uniform.  You lay beside her, stripped naked, and lay on her back.  You then thrust your penis up and down between her buttocks until you ejaculated.  You then told her it was 'okay' to do this.

14Similar events took place over an extended period of time at the house in Warragul.  This sort of conduct occurred in the bedroom, her parents' bedroom, her brother's bedroom, the lounge room and the bathroom.  It took place regularly, and I make no finding other than that, between the period of 1977 and 1982.  It was the same behaviour:  lying on her while naked and rubbing your penis between her legs to the point of ejaculation.

15As I say, those matters all put this in context.  These are not representative charges, and they are not rolled-up charges.  It is quite clear that the charges
I am about to describe did not happen in any way, shape or form in isolation.

16In December 1980, the complainant was admitted to the Royal Children's Hospital for elective surgical treatment in relation to a deviated nasal septum.  A day or two after leaving the hospital, the complainant went to stay with her grandparents at the Drouin house.  On that occasion, she was in the loungeroom with you.  You had her sit on the couch while you stood in front of her.  You then pulled your pants down and inserted your penis into her mouth.

17That occurred after the operation in relation to the deviated nasal septum, and it was some time, on the Crown opening, between December 1980 and
June 1981.  As I have already pointed out, the offending is alleged in the actual indictment to be prior to 28 February.  I am just making it clear that I am well aware of that. 

18She recalls that your penis was erect, and she found it hard to breathe because she could not breathe through her nose due to the operation.  You put your hand on the back of her head and wanted to see how far you could get your penis into her mouth.  It was the first time she had ever had such an experience, and she was shocked and scared.

19She could not breathe, and asked you to stop.  You then removed your penis, took her into a bedroom, had her remove her clothes and lay face down. 
You removed your clothes, laid on top of her, and rubbed your penis between her buttocks.  You thrust your penis up and down between her buttocks, and held it until you ejaculated on her.

20The first one is a charge of indecent assault - and as I say, a couple of months later and it would have been carnal knowledge or rape - and Charge 2 is of indecent assault.  Clearly, it is the same incident, so there is a degree of concurrency between them.

21Charge 3.  Between March 1981 and December 1984, you had two cars, a green car and a white car.  You took the complainant out for a drive on about a dozen occasions.  During those drives, you would park somewhere around Drouin and then have her fondle your penis and sit on your lap while you masturbated.  They are uncharged acts.

22On one of those occasions, you were driving with the complainant in the white car.  You parked it outside the Drouin primary school.  You then made the complainant fondle your penis until you ejaculated.  That is Charge 3 of indecent assault.

23Charge 4, again, between 1 March 1981 and 31 December 1984. 
Her grandparents and you moved to a unit in Westall.  After that, the complainant recalls that the abuse was much less frequent, as she did not go to that house that often.  She recalls the last occasion  that you sexually assaulted her was when she was about 12 years old. 

24On this occasion, she was in the loungeroom in her grandparents' unit in Westall, together with her grandfather.  No-one else was in the loungeroom at the time, but you and her younger sister, Deborah[2], were also at the unit.  She was sitting on the couch, reclined, with her legs over her grandfather's lap.  He was fondling her vagina with his hand beneath her underwear, and this continued until you appeared in the hallway adjoining the loungeroom together with her younger sister, Deborah. 

[2] A pseudonym.

25You then, in that circumstance, asked the complainant to go with you to one of the bedrooms.  She went with you while Deborah stayed in the loungeroom with the grandfather - who I understand has been accused, not necessarily on that day, but of sexually assaulting her as well.

26Both Deborah, who as I understand it, killed herself, and the grandfather are now deceased.

27That indecent assault is almost indescribable.  I do not know what was said between you and your father, but as Vincent J described it in the case of Toomey, it is degenerate.

28In any event, over the period of years, she complained when she was much younger.  She told her mother.  She told others.  You were confronted by her parents, and I accept that you in all probability admitted certainly the nature of the conduct alleged, if not the specific offences.

29You were ultimately charged and were interviewed in March 2015. 
You were arrested and ultimately the matter came on for trial.  There was what used to be known as Basha inquiry previously, where it was essentially that the matter was still being defended.  But as I said, in the ultimate, you pleaded guilty and must get the benefit of that.

30There has been a significant delay in the matter.  I will referring to the words of Vincent J in regard to that again in a moment. 

31The victim impact statements are, putting it quite simply, devastating. 
Her father made a victim impact statement which expressed his frustration, his outrage, and the psychological difficulties that this has caused him.  He clearly has suffered depression from this, as he sees his life as a failure.

32The mother of the child - who as I understand it in fact give evidence for you, which I find incredible - at the hearing in front of Judge Rizkalla back in 2009, did a quite detailed victim impact statement.  I do not propose to go through all the detail of that.

33She outlines the history of the matter.  She outlines that her reaction when she found out that in fact you had been abusing her daughter in her parents' bed.  She goes into some detail about the ongoing shock and the dreadful aspects of all that.  Clearly, she has suffered greatly over all this.  She said at the end of her victim impact statement, in terms of social impact:

'The social impact of this crime on me is that I feel more reserved than
I normally am.  I feel ashamed of myself for allowing my children to be cared for by my brother, and for trusting him.  I feel ashamed that I did not talk to my children and teach them about sexual abuse, and that it should never happen.

I feel guilty that I did not do more.  I feel guilty because I let my children down.  I feel guilty because I did not protect them.  I feel guilty because
I trusted you, someone I should have been able to trust.  I feel guilty because I did not walk away from my family.  I feel guilty because I tried to be there for everyone who needed me.'

34That is her current situation.  The complainant herself, again, in a very articulate victim impact statement, describes what happened to her and describes the effect that it has had on her.  She said:

'Throughout the years of sexual abuse, I lived in fear of when the next time might be.  I was distraught and frightened when an arranged babysitter had pulled out at the last minute with the realisation of who would be looking after me instead.  The pain, anger, fear and frustration over what happened to me will never leave me entirely.

The emotions, flashbacks and nightmares from the trauma of sexual abuse, often awake and without any triggers or warnings.  The dreams consist of those who should have been able to protect me from such harm being present in the nightmares, but unable themselves to stop what was occurring.  I continually live with the anger of having to live my childhood and most of my adult life with the abuser still in my life, and that of my children's lives.'

35She then goes on to say:

'I lived through many periods of life where starving myself or self-harming to give me a different sensation of pain then that which I lived with resulting from the sexual abuse.  It seemed to be the only viable option to help rid me of the trauma inflicted on me.  Standing by my little sister's grave as she succumbed to her umpteenth attempt at suicide, I was near on anorexia myself, not caring for the words of concern by others as I too desired to have the pain end in one way or another.

Resulting from the sexual abuse, I find it difficult to do anything for myself where there is enjoyment for me as a person.  There is always an underlying feeling that I must do something for someone else.'

36She then goes on to describe what clearly is post-traumatic stress disorder, which she has suffered from for a long time.  The consequences of such a disorder in terms of fear of intimacy - all those matters are trite for me to be describing them again, and they are all present, as so often the case, in this matter.

37The offending - whilst you have not been charged with 'under the supervision', possibly because the timeframe was not right - involved a significant breach of trust.  You were doing this as a babysitter, as a trusted uncle. 

38The child, she says, lived in fear of you and I have no doubt about that. 
The victim impact statements speak for themselves.

39Insofar as delay is concerned, and the attitude that the courts must take to this sort of offending, I refer back to the decision in The Queen v Toomey where
Mr Vincent J went into some detail.  Toomey in fact was a Christian Brother, I think, who offended against a number of children.  But the principle holds even where there is the one victim.  His Honour said:

'Often such victims experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator will continue to remain so for many years.  Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.  Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour through the sentences imposed on perpetrator.  It must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.'

40He then went on to quote Hedigan J, who was indeed quoting Marks J, from The Queen v Sposito.  He said:

'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'

41In my view, all this offending is degenerate.  But that last one in particular is just shocking.

42A proper application of general deterrence, specific deterrence, which may not be so important now, denunciation, and appropriate punishment must be given effect to here.  Your counsel initially submitted that a wholly suspended sentence would be open, and I took the view that that would be appellable error.

43I regard myself as very much constrained by the legislation as it stood at the time, and the maximum penalties that are available.  I can make it very clear that had this matter occurred after 1 March, the sentence would have been far greater indeed.

44In any event, in determining as best I can the correct sentence to impose, I look at matters personal to you.  Firstly, I accept that the offending occurred a long time ago.  However, as has been pointed out already, in around 2008 and 2009, offending of a sexual nature took place again.

45You clearly, from the time that you left school, have had a good work record.  You have various jobs.  You worked for companies for years at a time. 
You were seriously injured, as I understand it, in around 2002 in a work accident, and you were unconscious and stayed in hospital for a number of days.  You have always supplemented your income since you have been on the disability pension, as I understand it, with driving work.  And more recently, you have been working as a delivery driver and courier doing runs from the south-eastern suburbs to Gippsland, and sometimes further afield.

46I take into account that you were relatively young at the time of the offending.  And as I said, I take into account the fact that you had no prior convictions. 

47When you were interviewed, you basically said you did not recall any of it occurring - though as I say, in the end, despite challenging it for a long time, you accepted your responsibility and your guilt.

48A number of comparative cases were put before me.  The difficulty with these is that every case must be decided upon its merits.  A lot of those cases involve, in effect, relationship situations.  This is not one of those.  This is, in my view, the sexual predation by an adult on a child who was in a defenceless situation.  It is clear from all the circumstances that the family were all involved in the Salvation Army, and all sorts of pressures, embarrassments and shames were involved.

49It seems clear from the victim impact statements that the complainant in this matter had never even had any sexual education, so what this did to her, if one had not read the victim impact statement, is unimaginable.  Having read that statement, it is quite clear.

50When Her Honour Judge Rizkalla sentenced you back in 2009, matters were put to her at that point.  There was a report from a Mr Bruso, psychologist. 
Her Honour at that point in time in fact obtained a Forensicare report on you.  As I understand it, neither of those documents are now available.  She found that there was an indication of some cognitive difficulty, and took that into account.

51It was said then that there were almost no risk factors for sexual offending, but of course, those materials were all prepared absent the knowledge of what you had been doing to your niece over the extended period of time.  I have read her sentencing remarks, and I take them into account in this sentencing process.

52She, pursuant to s.6AAA of the Sentencing Act, told you at that time, for that offending, which was endeavouring to groom a step-niece, that but for your plea of guilty, she would have given you imprisonment of 30 months with 12 months to serve.  As I said, she gave you 12 months and effectively, it being Commonwealth legislation, adjourned it.

53The prospects of your rehabilitation, having done the sex offender's program pursuant to Her Honour's disposition, are potentially good.  The risk of you reoffending I am not prepared to have a guess at.  I would think, at your age, with all these circumstances, it would hopefully be low. But I do not see how, in the history of all this, that I could make such a positive finding.

54In this situation, I am aware of community protection but I am indicating clearly that I am not going to inflate a sentence because of that in these circumstances.   And indeed, as I have already indicated, the Crown do not seek a disproportionate sentence and I simply will not be doing that.

55However, bearing in mind the limitations that have been placed upon me, taking into account the sentencing practices at the time and the maximum penalties at the time, you are sentenced as follows.

56On Charge 1, two years.  On Charge 2, nine months.  On Charge 3, nine months.  On Charge 4, the incident which involved effectively your father as well, 12 months.

57I direct that two months of the sentence imposed on Charge 2, four months of the sentence imposed on Charge 3, and six months of the sentence imposed on Charge 4 be served cumulatively upon each other and upon the sentence imposed on Charge 1.

58That gives a total effective sentence of three years' imprisonment.

59I direct, because I consider it in the interests of justice to do so, that 18 months of that three years be suspended for a period of three years.

60I direct that one day be reckoned as having been served under this sentence. 

61During the course of submissions, it was initially put that a combination sentence would be sufficient for these purposes.  Having reviewed the situation and read through all the material again, I do not think that is the case.  I think it would not reflect the seriousness of what you did. 

62Section 6AAA - so but for your plea of guilty, I would have sentenced you to be imprisoned for a period of four-and-a-half years with a minimum term of three.

63Are there any other orders I have to make, gentlemen?

64COUNSEL:  No, Your Honour. 

65HIS HONOUR:  All right.  Take him now.  Thank you.  Yes, thank you, gentlemen.

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