Director of Public Prosecutions v Pickford (a pseudonym)

[2018] VCC 1079

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTION

v

JAMES PICKFORD (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 July 2018
CASE MAY BE CITED AS:	DPP v Pickford (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1079

REASONS FOR SENTENCE

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Catchwords:

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr G B Hevey	Office of Public Prosecutions
For the Accused	Mr G W Casement	Stary Norton Halphen

HIS HONOUR:

1       James Pickford,[1] you have pleaded guilty to an indictment containing two charges. Charge 1 alleges an offence of incest which carries a maximum penalty of 25 years imprisonment. This is a course of conduct charge. Charge 2 alleges an offence of committing an indecent act with a child under 16 which carries a maximum penalty of ten years imprisonment. This is also a course of conduct charge.

[1] James Pickford is a pseudonym.

2       At the time that you committed these offences, you were between 29 and 35 years of age. The victim in this matter, to whom I shall refer to as T[2] for purposes of anonymity, was your stepdaughter. The circumstances in which you came to commit these offences are set out in detailed prosecution opening dated 19 June 2018, a copy of which was tendered as Exhibit A on the plea hearing. I will not recite the full circumstances of your offending, but it is sufficient for present purposes to provide only the following outline.

[2] T is a pseudonym.

3       You and T's mother, to whom I shall refer as Q[3], met in early 2010 while you were both serving with the Royal Australian Navy in Darwin. By April-May 2011, you and Q were in an intimate relationship and you were supplied a large house by the Department of Defence so that the two of you and your children from previous relationships could reside together. Q has three daughters; T was the middle child, and she and her younger sister lived with Q. You have two sons and a daughter, and they lived between you and their mother.

[3] Q is a pseudonym.

4       Approximately nine months after moving in together, Q was posted to HMAS Cerberus here in Victoria, and Q and her daughter moved to Langwarrin. You continued living and working in Darwin, but would fly down to Victoria to visit. Approximately four months later you were also posted to HMAS Cerberus and you subsequently moved to Victoria permanently. You, Q and the children briefly lived in a Department of Defence supplied house in Cranbourne South, before moving to Somerville in January 2013. Then in February 2014, you and Q were married.

5       Later in September 2016, together, you purchased and moved into a house in Melton West with the children. Soon afterwards, in December 2016, Q became suspicious that you were involved in an extra marital affair. She accessed your phone and discovered you were involved with other women. This led to a confrontation and ultimately the start of the dissolution of the relationship.

6       A short time later, T revealed to her mother that you had been entering her room at night when she was asleep and touching her. She did not reveal the specific details or extent of the offending, but Q was able to surmise that it involved you placing your hand down her pants.

7       She later confronted you and claimed, in an attempt to obtain an admission from you, that T had shown her a video of you putting your hand down her pants and sexually abusing her. When this was put to you, you claimed that it was an accident, that you did not mean to, and that T had "come on to you".

8       Q demanded that you leave the house immediately. You soon contacted her and said that she could have all of your assets, including the Melton West property if she did not report the offending. This aspect, and the financial agreement drawn up and signed, in which you forfeited all your assets to Q, including the house, is open to contrary view, but I need make no finding in relation to it.

9       A week later Q contacted you again via telephone, where you discussed the offending. You further apologised for what you had done to T. This conversation was recorded and later provided to police when Q and T came forward a short time later to report your offending.

10      On 10 July 2017, a VARE interview was conducted with T, during which she outlined the extent of your offending. You commenced the abuse when the family was living in Darwin, and T was nine or ten years old. You would digitally penetrate T's vagina, make her touch your penis and pull her head towards your penis. This would occur when Q left the room, was out of the house or had gone to bed early.

You continued to sexually abuse T in this manner during the time that the family lived in Langwarrin, between January 2012 and May 2012. These are referred to as being the context by way of uncharged acts. When the family then moved to Cranbourne South, during the period between May 2012 and January 2013, and when T was aged between ten and eleven years old, you rubbed her clitoris and digitally penetrated her vagina. She alleges this occurred approximately ten to twenty times, and is part of the incest charge; a course of conduct charge. As you digitally penetrated her, you would also place her hand on your penis; this being the indecent act with a child under 16.

11      This offending would occur in the lounge room and in T's bedroom when Q was either asleep or in another room. You told T not to tell Q as it would "ruin everything" if she did. When the family was then living in Somerville, between January 2013 and September 2016, and T was aged between eleven and fourteen years old, you would rub her clitoris and make her touch your penis. T estimates this occurred over fifty times. It occurred mostly at night and during the school holidays when Q was working.

12      The family finally moved to Melton West in September 2016 and between then and January 2017, and when T was aged fourteen and fifteen years old, you digitally penetrated her vagina. As you did so, you would place her hand on your penis and make her masturbate you. T states that you would make her masturbate you on roughly every third occasion. This act of masturbation forms part of the indecent act with a child under 16, and during this period you also began touching T's breasts, although those acts are uncharged.

13      T recalls a specific incident on Christmas Eve on either 2015 or 2016, when she was aged around fourteen or fifteen, when the family visited your parents' house in Melton for a family gathering. After dinner, when you and T were alone in the lounge room, you digitally penetrated her vagina and made her touch your penis. Another specific occasion T recalls was whilst she was sitting with you on a Chesterfield lounge in the Melton West house, and on this occasion you kissed her and digitally penetrated her vagina. T recalled that she felt she could not get away from you as you had been “in the navy for ages” and you are “really strong”.

14      Sometime in late 2016, when the family was still living in Somerville, T told her friend W[4], that you were touching her inappropriately. On 3 August 2017, W made a statement to police in which she confirmed that T had told her that you were coming into her room when her mother and the other children had gone to bed, and were touching her inappropriately. T made W promise not to tell anyone, as she did not want to jeopardise her mother's marriage.

[4] W is a pseudonym.

15      You were arrested by police on 13 July 2017, and after being taken back to Hastings Police Station you participated in a formal record of interview which was recorded. During that interview you told police, amongst other things, the following.

16      That you did not know how the relationship became sexual; that it started when T was eleven years old, and that you have found her attractive; that you were not a predator, was just trying to get T to like you, and accept you for her mother; that you had touched T's vagina, but you had never penetrated her; that T had touched your penis, but had never masturbated you; that it was just "wondering hands and tickling, rolling around and pushing, and that sort of stuff", and that the offending had only happened four times, and definitely did not happen fifty times, as alleged.

17      At this point the prosecution opening clarified the basis on which it accepted the plea of guilty. Before setting that out, I should indicate that at the beginning of the trial on 2 May, as the transcript records it, I was told by the parties that though a plea was contemplated as possible at that time, there was an issue as to the frequency offending, which was preventing the cause proceeding. I indicated firstly, that no doubt your lawyers would have informed you of the position after a plea of guilty, as opposed to a finding by a jury of guilt, as to penalty, but that either course was open to you, and also that if the plea was put on the basis that I would then need to make findings beyond reasonable doubt, on the material, as to the frequency, that I would do so.

18      I encouraged the prosecution and defence to discuss this issue and reach a common understanding of the material acceptable to each, if possible. From the plea, the prosecution opening recited, as I have, the frequency I have mentioned by the complainant, and under the heading of the basis of the plea and its acceptance, the prosecution reiterated its rejection of the plea on the basis of your assertion, in the record of interview, that the offending happened maybe four times, but was accepted on the basis that, "the offending occurred as to each charge on a regular basis, during the stated period".

19      That is without being able to state an exact figure, and you should be sentenced on the basis that the offending was regular and occurred on unspecified number of occasions, much more than the admitted four occasions mentioned in your answer. Beyond that, the Crown did not specify the frequency. For your part, counsel conducting the plea reflected on what was an impasse before the plea, and that this position was accepted, it was said, bridging the gap between Crown and defence. As with most other cases that come before this court, the plea in mitigation was conducted on the basis of the prosecution summary of the facts. Defence counsel did not challenge that summary.

20      I proceed to sentence you on that basis, on the basis that the instances of digital penetration, incest, and rubbing of the clitoris, were numerous and regular, certainly more than four, over the charge period. As to Charge 2 of indecent act, also a course of conduct charge which related to placing her hand on your penis and on occasion made her masturbate you, on occasions when you were either digitally penetrating her or rubbed her clitoris. I proceed to sentence you on the same basis. That is that these instances were numerous, certainly more than four, over the relevant charge period.

21      A course of conduct charge is defined in the Criminal Procedure Act of 2009 clause 4A(1) Schedule 1. I am satisfied the incidents taken together amount to a course of conduct, having regard to the time, place, and purpose and nature. It is not necessary to prove the offence with the same degree of specificity required to prove an offence constituted only by one incident, and it is not necessary to prove any particular number of incidents on the general circumstances, or the general circumstances of any particular one, or to give particulars which distinguish any specific incident from any other. And when sentencing for a course of conduct charge, s.5(2)(f) of the Sentencing Act provides that court must impose a sentence that reflects the totality of the offending that constitutes a course of conduct, and not exceed the maximum penalty prescribed for the single offence.

22      Your conduct was extremely serious. Its impact has been traumatic, as is common in such cases that regularly come before the court. Victim impact statements were received. I take their contents into account. T wrote a victim impact statement which reflects the profound impact of your conduct. She felt abandoned because there was no one there to stop the abuse. You followed your abuse by injunctions to prevent her from telling anyone with the threat and consequent fear of repercussions. As she got older, she has engaged in self‑harming behaviour, become disruptive and angry, tearing her apart from the relationship with her mother. Her sleep and peace of mind was deeply affected. She had nightmares, was nervous and apprehensive for her safety. She was hypervigilant and scared. She is trusting of no one and her mental health has suffered deterioration. She says you stole her innocence and shattered her soul, betrayed by someone entrusted with her care. Her schooling has been impacted greatly, and her self-esteem damaged by exhaustion, sadness, anger and a feeling of worthlessness.

23      Her mother, your partner, and later wife, wrote of her feeling of having failed her daughter, of the trauma of not being able to protect her. You shattered a fundamental trust reposed upon you, and that betrayal, manipulation and lies have left her empty and struggling to function. She suffers from mental health issues. She says, "My life was destroyed". She can't bring herself to attend the military functions or commemorative days she was once proud to be part of. She has been suicidal, suffers from insomnia and needs medication. She cries often and contemplates the irrevocably altered bond with her daughter.

24      An assessment of the objective gravity of your offending must start with the extent of your conduct. You behaved in this repugnant fashion for about five years from May 2011 to January 2017. The nature of your offending was merely touching, but penetrative in nature and with regular frequency. Not only did you impose your physical person upon a child in the most flagrant breach of her physical integrity, but made her participant to this abhorrent conduct, by making her touch and masturbate you on occasion. Other acts of a sexual nature mentioned in the opening, like touching her breasts and pulling her head towards your penis, are other adverse facts and circumstances of aggravation I accept beyond reasonable doubt.

25      The circumstances in which the offending occurred were usually when Q was working and out of the house, or when she was asleep in another room, as well as at your parents' home, which highlights the brazen manner in which you behaved. I find your moral culpability to be high. Your conduct was an egregious and contumacious breach of the trust reposed on you by Q and T, and an abandonment your responsibility to protect T and keep her safe from harm. This was a grave exploitation of the power which a parent has over a child, giving rise to a sacrosanct obligation to protect. During the times Q was away, you had effective control, care and authority over T. You were in complete dereliction of your parental duty, and T was very young.

26      Your answers when interviewed by police, as well as the discussion which followed the accusations and questions by Q, were attempts by you to minimise your offending and deny penetration, and rather than accept the responsibility, you attempted to justify and rationalise your behaviour. You placed responsibility at the feet of the child. It was said your plea was entered with regret, remorse and insight. This may have been so by the time of the plea, but not earlier. You told police you knew what you were doing was wrong. I do not accept that was said at the plea, that your explanation was given in this fashion, because you were struggling to describe what had happened, and having difficulties in coming to grips with the realisation of the conduct.

27      The realisation of the wrongfulness of your behaviour must have been crystal clear to you, every instance of your offending, but that did not stop you. I accept that you regret your behaviour at this point in time. You may well have some insight into the resulting damage done to Q and T, given what they have said in their statements. I also accept that this aspect of the victim impact statement should not, of course, swamp the sentencing process. Remorse, however, is a more complex emotion. I accept that during your plea, you now accept that your limitation on the occasions involved is not true, but arrived at the late hour at the beginning of your trial. I do take your plea into account and according to law, I will assign it a discount upon your sentence.

28      It may be said to arrived late in the piece, but it is also true that once an acceptable way to deal with frequency was agreed, you pleaded forthwith. I accept that you regretful and have experienced that, and expressed that regret. I accept that you have expressed shame and anger at your behaviour, which signals some remorse. Certainly your plea has a significant utilitarian value, more than the usual benefit, because you've saved not only the community the cost of a trial, but the victim further trauma of that criminal trial. Your plea will attract the stated discount at your sentence.

29      I accept also that there are certain aggravating features, which are fortunately absent from your offending, such as more serious threats of harm, penile penetration and ejaculation, risk of other consequences like sexually transmitted diseases or pregnancy. However, as has been recognised many times by the courts, I consider incest to be an inherently violent act, which involves the physical subordination of the victim during the offending. The fact that each penetration may have been of a limited duration, is only one aspect of the offending, which proceeded over a protracted period, for over half a decade in the life of a young victim.

30      I have considered the High Court authorities of Dalgliesh and the subsequent examination and application in McCray v The Queen [2017] VSCA 34, Thrussell v The Queen [2017] VSCA 386, DPP v Tewksbury [2018] VSCA 38, Carter v The Queen [2018] VSCA 88, Packard v The Queen [2018] VSCA 45, Grantley, Crawford and Phillips [2018] VSCA 112, 113, and 114, all of which I have read and considered, making due allowances for differences in both offending and the circumstances of the offender, in forming a decision about an offence which lies in the midrange. I take your personal circumstances into account. You have no prior convictions, and that up to the period of the offending, you appeared to be a person of good character and worthy endeavour.

31      You were born in Melbourne and have two younger brothers. Your parents moved from Melbourne to Melton, purchasing a home they still live in and tyre business which still operates and in which you have assisted your family from time-to-time. Your childhood was unremarkable. You played baseball at State level, until injury prevented you from continuing after leaving school in Year 11. You were an average student who did not experience bullying or abuse. You commenced an auto-electrical apprenticeship, which you could not complete. In 2001, you joined the Australian Navy and rose to the rank of boatswain's mate. You were posted to HMAS Manoora. There you met your first wife, whom you married in 2004, and with whom you have two children, aged 15 and 13.

32      You served in Iraq and the Solomon Islands, and both those postings resulted in being awarded medals. You were then in Darwin in 2004, where you received the commander's officer's commendation. Whilst on leave, you were diagnosed with Bell's Palsy, completed rehabilitation and returned to work. You were involved in the interception of asylum seekers arriving by boat, which had distressing effect on you, particularly on the occasion in which you had to fire on illegal fishing vessels, resulting in injury to its occupants. Whilst in Darwin your marriage broke down and following that, you formed a relationship with Q. In that time, you received the abovementioned commendation for bravery during patrol boat duties for the rescue of persons in a vessel which hit rocks at Christmas Island and sank.

33      Clearly your navy record, your performance of difficult duties in the service of your country, must carry significant credit, and I do take this into account. Q moved to Victoria and you also then followed, ultimately marrying Q in February 2015. It was submitted that you had already suffered much ultra-curial punishment. It was said you have lost everything. You apparently had the care of your 15 year old son, and in anticipation of your imprisonment, your children have returned to live with their mother. You will also miss, therefore, their critical years. I accept that this is a difficult consequence for you. You have lost the career which you have built over a number of years, and this of course affects your prospects of rehabilitation somewhat, which you will need to face and attempt without such a career, but which nevertheless, I consider reasonably good.

34      I accept the loss of this position and military standing is a relevant extra-curial matter. Thirdly, it was said that you handed over all the assets available to you to Q, as result of the fallout from the victim complaint about your conduct. There seems to be contention about the issues and allusions to litigation. And I do not, and do not need to make any findings in this respect, as I have said. The prospective or continued deprivation of property or other assets you have accumulated, as a result of the offending and it's punishment, is a factor in the face of what is said to be a challenge by you as to its legitimacy, and is difficult to ascertain, but I accept your financial and economic position may well be affected by it, and I accept that it may be a further impact of your offending, but I do not consider that it can form part of the punishment which you should be subjected to, and so cannot in a meaningful sense, diminish the appropriate curial sentence that I impose today.

35      Apparently the family home was sold and the proceeds were exclusively given to Q. As of the date of the plea, your request for your service medal has not been complied with. This is another matter that, in my view, lies outside the scope of matters which can significantly or meaningfully alter a sentence properly determined. It may be, as was argued, that you will serve your custodial term in protection. The matter of your reclusion is a matter for correctional authorities, but I acknowledge prisoners incarcerated for sexual offences do spend some of their time in such classification. I will take this potentiality into account when guided of the principle of totality, to impose an appropriate term.

36      I accept your good prospects are enhanced by the support of your family, your parents in particular, and I note you have undergone some counselling in recognition of the need to reform. In this context I received a note from Mr Stanton, a psychologist, who wrote of six occasions of counselling between July and September 2017 and May 2018, in which he says that you do not present as a person who has issues with suicide or self-harm, and that you have hope for the future with your children, parents, current partner, and a fulfilling life. He says you are continuing to recover from post-traumatic stress disorder, which I infer must be related to your service at sea. I note however, that there was no psychological report relied upon, nor were Verdins principles sought in aid, during your plea.

37      In my view, the indecent act charge should carry some cumulation upon the incest sentence, in recognition of the separate acts involved, but that given the contemporaneous nature of the acts, such cumulation should be moderated. I consider that general deterrence is of paramount consideration in this sentence. The court must denounce such conduct in no uncertain terms to deter others who may be like minded, and do so by stern punishment. Special deterrence is still relevant, but of much lesser significance and totality, parsimony, and proportionality remain relevant important principles, to which I pay particular attention.

38 I order that a biological sample under s.464ZF of the Crimes Act be obtained from you. That is so that it can be placed on a database. You fall to be sentenced as a serious sexual offender on Charge 2, the indecent act with a child under 16, with Charge 1 being the qualifier. I declare and cause to have entered into the court's records that I have so sentenced you for Charge 2 under the provisions of Part 2(a) of the Sentencing Act, and s.6D in particular, having regard to protection of the community as the principal purpose for this sentence, imposed without, however, imposing a longer sentence to that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. I have also not cumulated the entire period, as there is a clear contemporaneity in most offences, as I have said.

39      Please stand Mr Pickford. On the course of conduct charge of incest, you are convicted and sentenced to seven years imprisonment. On the indecent act with a child under 16, you are convicted and sentenced to two years. I order that nine months be served cumulative on Count 1, making a total effective sentence of seven years and nine months. I order a non-parole period of five and a half years.  Is there an agreed period of pre-sentence detention?

40      I note for the records of the court that you have served twenty days, which I declare to be pre-sentence detention, excluding today. But for your plea, I would have sentenced you to eight and a half years with a non-parole period of six and a half years. As a result of your sentence, you are subject to mandatory registration as a sex offender under the Sex Offender Registration Act 2014. You become subject to the obligations under that act as a sex offender, not as part of my sentence, but because it is triggered by the sentence, and under s.34(1)(c)(ii) of the Act, you are subject to reporting for the remainder of your life. Your counsel will explain the significant obligation that arise a result of that. There will be a document that can explain those circumstances.

41 Pursuant to s.464ZF I order that you undergo a forensic procedure for the taking of a scraping from the mouth, in accordance with Part 3 of the Crimes Act until a sample of sufficient standard is obtained for placement of the DNA database. I should inform you that at the time that a request is made of you, if you do not consent to the taking of a mouth scraping under supervision, which is not a painful procedure, an authorised member of the police force will be able to take a blood sample and may use reasonable force to enable that forensic procedure to be conducted. Do you understand? 

MR CASEMENT:  Thank you Your Honour.

HIS HONOUR:  The material in relation to sex offender registration, Mr Casement, will be provided for Mr Pickford in the cells.

MR CASEMENT:  Thank you.

HIS HONOUR:  I note that his mother is in court - - -

MR CASEMENT:  Yes.

HIS HONOUR:  If she wishes to speak to him she may. She won't be able to have physical contact. I will remain on the Bench while that happens.

MR CASEMENT:  She does, Your Honour.

HIS HONOUR:  Yes.  Thank you.  She can approach him.  Thank you, you can remove the prisoner once he's spoken to Mr Casement.  Mr Hevey, are there any other orders in this matter?

MR HEVEY:  No other matters.  Thank you, Your Honour.

HIS HONOUR:  Thank you both, gentlemen.  I have other matters to proceed with.  You're excused.

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