Director of Public Prosecutions v Pitt (a pseudonym)

[2019] VCC 487

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LACHLAN PITT (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE MCINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2019
DATE OF SENTENCE:	9 April 2019
CASE MAY BE CITED AS:	DPP v Pitt (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 487

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW
Catchwords:	Plea of guilty – indecent assault  - gross indecency with a person under 16 (4 charges) - incest
Legislation Cited:	Crimes Act 1958 (Vic)
Cases Cited:	Hasan v The Queen [2010] VSCA 352; DPP v Dalgliesh (a pseudonym) [2017] VSCA 360; The Queen v Wayland (unreported, Court of Criminal Appeal, 17 September 1992); R v Ware [1997] 1 VR 647; The Queen v Sposito (unreported, Court of Criminal Appeal, 8 June 1993); R v V Z [1998] VSCA 32; The Queen v Grantley (a pseudonym) [2018] VSCA 112
Sentence:	Convicted and sentenced to a total effective sentence of nine years’ imprisonment with a minimum term to be served before being eligible for parole of seven years’ imprisonment.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Solicitor for the Office of Public Prosecutions
For the Accused	Ms C. Foot	Patrick W Dwyer

HIS HONOUR: 

1Mr Lachlan Pitt,[1] is aged 73, having been born in August 1945.  As a result of his plea to these crimes he becomes liable, pursuant to legislation prescribed by Parliament, to a life reporting requirement and that is the document that has just been acknowledged by him.  The plea took place on 5 March of this year when Mr Pitt pleaded guilty to six charges in indictment No.J11664557.  The circumstances of those charges were fully detailed in the prosecution opening prepared by Mr Fisher, and tendered as Exhibit A.

[1] Lachlan Pitt is a pseudonym.

2Ms Foot accepted that the facts set out therein are the facts upon which I was to sentence her client.  At the time of the offending, Mr Pitt was aged between 42 and 46.  His victim, then Sarah Pitt[2] was aged between 8 to 12, it being noted that she had changed her name by deed poll in 1998.  The prisoner married the victim's mother in 1964 and Sarah was born in December 1979, and is now aged 39.

[2] Sarah Pitt is a pseudonym.

3The offending occurred from the third month of 1988 to April 1992.  Insofar as the sentencing was concerned, given the seriousness of the crimes involved, there was no issue between counsel as to the need for an appropriate head sentence and a parole period.  Insofar as the sentence was concerned, the learned prosecutor sought a just sentence which appropriately reflected the principles of general deterrence, just punishment and denunciation.

4The Crown did not submit, despite the operation of the serious sexual provisions, that a disproportionate sentence should be passed.  The points made were that this was very serious offending over a four-year period, committed upon a young child who should have been entitled to the protection and sanctity of the family unit to which she was denied.  As the learned prosecutor said, there was no greater indication of this breach and the impacts of such a breach than from reading Ms Cover's[3] statement, I will come to that in due course.

[3] Sarah Cover is a pseudonym.

5Insofar as the issues that occurred as to the failure to get parole in regard to the sentence that Mr Pitt is now serving, there was no issue between the learned prosecutor and Ms Foot, that an appropriate allowance has to be made for the time in which he would have otherwise been paroled, and also an allowance to some degree, for the fact that had the matter been heard earlier, a period of concurrency may have been available, however, this is quite speculative given the fact that essentially Mr Pitt only has one prior, albeit for the most serious offence that one can commit, being murder.

6Also, when one is considering the charges that I have before me today, delay is very much the scenario, people do not present themselves to the Court for many years, until they feel capable of making complaint.  Indeed because of the violent way in which Mr Pitt conducted his family life, there is much to be understood about the failure to disclose these crimes, no doubt evidenced by the circumstances leading to his imprisonment. As I understand the position, the fact of his imminent release may well have had some role in the disclosure of these crimes.

7I mentioned the victim impact statement made in this matter.  Ms Cover read her statement quite bravely I thought. I wish to refer to some portions of it.  The most stand out feature of it is the impact of such, being anathema to proper social relationships within a family, whereby she made a statement to the extent that, "I will always be damaged".  In particular, she stated that her childhood was absolutely miserable. 

8She lived in constant fear of her father.  "My father threatened to kill me if I ever told anyone what was happening to me.  My body was violated at a very young age and the pain of the crimes, both physically and emotional was terrible.  No young girl should lose her virginity in such a way.  As a result of the crimes by my father, I suffer from severe debilitating anxiety, depression, post-traumatic stress disorder and a further condition called hyperhidrosis", which essentially is a profuse sweating issue.

9Her schooling was interrupted.  She was in herself reduced to a state where she felt sad every day.  She spent a large portion of her life as a recluse, who suffered panic on leaving the house and had a lack of friends and a feeling of worthlessness.  There were times when these feelings were too much for her.  These impacts have affected her family life.  She has difficulties as to how and where she sleeps. 

10She makes the comment that I tried to express before, which is set out on the second page where she said, "My sleep is continually disturbed and disrupted by the horrible crimes he did to me in my bed as a child.  I feel this should be a safe place for any child and something I missed out on in my own childhood".  She has had impacts in her own life, the saving grace and greatest thing for her has been, not only her husband, but her kids who have been a great positive in her life.

11She suffers anxiety.  She said she finds it very hard to talk about my own childhood.  "I try not to mention anything to do with my father but one day I know I'll have to give my own children an answer as to who he is and what he's done to me.  I know that I'm going to be so scared the day you read this statement because I will be in the same courtroom as my father".  That day has come unfortunately.  It did not at the last hearing.

12I do not know whether I need to apologise, it was my decision that your father should be in Court to be sentenced.  "I feel the need to be seen, to be acknowledged and heard, something I have not felt in my whole life".  It seems to me they are appropriate feelings.  "I am hopeful that by coming forward and telling my story it will help to heal me in the future but realistically I know that will not happen.  I will always be damaged".  As I said, that is the impact of these types of heinous crimes.

13In addition, as part of the victim impact statement was, Exhibit C, the report of clinical psychologist, Richardson, I will not read all that out, however, it is clear that the professional opinion was that Ms Cover has been severely affected by her emotionally traumatic childhood experiences.  In addition, Exhibit D was the report of the psychiatrist, Professor Keks.  Again, I will not read out all those details, however, his opinion was that the manifestations of Ms Cover's trauma are likely to continue indefinitely and treatment will also need to continue in the long term.

14Because the crime is so anathema to the principles upon which our society is founded, Courts have much difficulty, as does society, in understanding the full impact of these crimes.  It seems to me that those brave comments, and the fact that Ms Cover is prepared to read them in Court, will not only help this Court but the community to understand the severe impact that these crimes wreak.

15Coming to the crimes themselves, it is necessary for me, for the purposes of the sentence to recite them. It is not a pleasure. The first charge is indecent assault, such is a breach of s.44(1) of the then Crimes Act and was committed on 16 March 1988.  The seriousness of this is reflected in the fact that the maximum penalty prescribed by Parliament is one of five years.  The victim was then a child aged eight and, I stress, a child of the prisoner.

16Under the guise of playing a game in the bedroom, you managed to digitally penetrate the child in a most violent manner, for a considerable period leading to bleeding.  There were concerns, which became apparent the next day at school in a gymnasium period, I think it was, and when the doctor examined the child she had a split perineum. The matter was reported to police.  Unfortunately, given the age of the child, and the terror in which she lived, she cast the blame on someone else and nothing further happened.

17The second charge is the first of a number of charges of procuring the commission of an act of gross indecency.  This occurred when the child was eight, and it was on the day that the family she was then living with, the O’Dowd’s, it was the birthday of Hannah O’Dowd.[4]  On that day, after the party, she was required to touch the top of Mr Pitt's penis for a period of some 10 minutes.  She did so at his bidding and did not tell the woman in the house, that is Ms Samantha O’Dowd[5] about those matters.

[4] Hannah O’Dowd is a pseudonym.

[5] Samantha O’Dowd is a pseudonym.

18The next charge occurred when the child was aged between eight and nine, somewhere in the period from the 3 October 1988 to 1 March 1999. Again an offence under s.51 of the Crimes Act, an offence which carries a maximum penalty of two years.  In this instance he induced the child to touch the top of his penis with her mouth.  She was induced to hold his penis and held the penis for about 10 minutes, while he was moaning.  The criminality stopped when Samantha O’Dowd returned home.

19At that stage she was now living with her mother and visiting the father. Next charge is a further charge of committing an act of gross indecency, this time in the presence of a child under the age of 16. This occurred somewhere between 28 January 1990 and 28 February 1990, again, an offence under s.51. The child was in grade five, aged ten at the time. She was given some sort of sweet and he placed her in a position where she was naked and on all fours in front of him, while he masturbated.

20The next count, Charge 5, occurred on the first day of May, or somewhere between 1 May 1990 and 31 May 1990 in circumstances when the child was then ten, when he was making various comments about whether she could or could not live with her mother.  He required her to again be naked on the floor on her back and he masturbated while observing her.  There was concerns expressed by the mother at the school following these circumstances.  The mother expressed some concerns as to whether indeed her father might be interfering with her and she was prevailed upon by her father who told her he would get into trouble if she told anyone.

21The final charge on the indictment is the most serious charge.  It occurred at or about the time of her 12th birthday.  The crime of incest was committed upon her, that is by way of penile intercourse. Her father introduced her, in the most obnoxious way, to sex by having full sexual intercourse with her.  Consequently while living with her mother she did have an instance where there were concerns about her being in such a state that she attempted suicide.

22She retained knowledge of these matters until the age of 14, when she finally told a boyfriend.  She was subsequently interviewed by the police but no further action was taken.  The matters were not formally reported, till 26 years later in 2018 when this offending was finally reported to the police.  A record of interview was made on 25 June 2018 when the no comment response was made by Mr Pitt, and it was not until I think the second day of the committal, part way through the cross-examination of the victim, in November 2018 that a plea was determined.

23The learned prosecutor indicated that given the classification of these crimes, a life reporting order was appropriate as determined by Parliament.  He also referred the Court to the requirements of the serious sexual offending legislation, the consideration of the issue of cumulation and in particular the issue of protection of the community.  But as I have said, there was no call by the prosecutor for an inordinate sentence.

24A request for a 464ZF order was made, and I have signed that document.  One hesitates to try to describe behaviour such as this.  However, being as restrained as I can, this is heinous and outrageous objective criminality committed by a father upon his daughter.  As described in a number of authorities, to which I am about to come, such behaviour is seen in our community as not only heinous but egregious offending.

25In a number of decisions which have been determined by the Court of Appeal, the first is Hasan v The Queen [2010] VSCA 352, [4]:

"The principles to which a sentencing judge must have regard include those laid down by the relevant legislation in Victoria.  The most important repository of sentencing principles is the Sentencing Act.  Section 5(2) of that Act prescribes the matters which a court must have regard when sentencing an offender.  The first of those is the maximum penalty prescribed for the offence".

26The Court at that time went on to another principle but I will not refer to that given recent decisions in Dalgliesh.  However, I also want to refer to principles set out initially by the Court of Criminal Appeal 1992, VSC 418, an unreported judgment of 14 September where the Court said in The Queen v Wayland:

"The courts and particularly this court is, I consider, bound to respond to the legitimate community concern with the response placing emphasis on the need, in particular, to have sentences give effect to both specific and general deterrence.  In this as in many like cases, the victims are young.  They are debauched in a manner calculated to cause serious psychological harm to all but the most resilient.  The conduct often is, and in this case was [and clearly was in this case also] abhorrent, disgusting and repulsive".

27The Court of Appeal considered these crimes again in R v Ware [1997] 1 VR 647, and in particular not only referred to Wayland, but to the unreported case of The Queen v Sposito.  The determination of then Justice Marks was made on 8 June 1993, when His Honour said as follows, at p.653:

"Over the recent past the large number of incest cases before the court that made it apparent that the commission of incest, repulsive and unnatural as one would assume it to be, is not the rarity for which a civilised society might be expected to hope.

28His Honour went on to say:

"A society which fails to protect it's children from sexual abuse by adults, particularly by those entrusted with their case is, in my view, degenerate".

29The final matter I wish to refer to is a comment of the then Appeal Justice Batt, R v V Z [1998] VSCA 32, [9] where His Honour said:

"Incest is regarded by Parliament, the courts and the community as a very grave crime.  It is an abhorrent offence striking at the root of family, relationships and usually involving breach of trust and dereliction of protective duties in the pursuit of perverted gratification or the exercise of power.  Accordingly, the offence merits condign punishment, since general deterrence and denunciation of the offender's conduct will usually be important for sentencing purposes".

30Recently the current Court of Appeal have come to consider these crimes in the context of the current law and, in particular, following the determination of the High Court in the case of DPP v Dalgliesh.  I simply want to quote from two paragraphs of The Queen v Grantley [2018] VSCA 112. At [23] the Court said this, quoting from the High Court:

"The only expectation that an offender can have at sentence is of the imposition of a just sentence according to law".

31And at [24] when talking of the objective gravity of this type of offending and the sentencing for such offences, and the circumstances of the particular case in Dalgliesh, the High Court was quoted where they said this:

"The range was seen in that instance by the Court of Appeal to reflect a disregard of the gravity of the offending as indicated by the maximum sentence prescribed for the offence and the moral culpability of the offender.  The view of the Court of Appeal that this amounted to an error of principle was clearly correct".

32I find that the objective offending in regard to Charge 6 is at the mid-range.  In saying that, it probably sounds remarkable given the type of offending, but I unfortunately have to say that this Court has to experience far more extreme crimes than you were subject to, and I make the same finding in regard to 1.  In regard to the other offences, Charges 2, 3, 4 and 5, I find that they are somewhere between midrange and high insofar as those particular offences are concerned.

33Coming then to the plea itself, as I said, Ms Foot appeared and the written submission on behalf of Mr Pitt was tendered as Exhibit 1.  The age in particular of Mr Pitt was relied on and I was asked to take into account his current position.  As I said at the time it did not seem to me that his medical condition is much different than is common to persons of his age, although he has got, currently, a chronic issue with his prostate.

34It was put to me that there was some unique aspects about this sentence and clearly the impact on his parole is something that must be taken into account.  The end result of that was that the first complaint to the police was made in March 2018.  It led to Mr Pitt not being able to be released on the date that was prescribed, being 29 June 2018, and ultimately in October 2018, his parole was formally revoked.

35While not in any way trying to disregard the seriousness of the matter, Ms Foot said to the Court that the issue of totality was of particular note.  The issue of delay needs to be taken into account, although, as I have already indicated, delay is almost part of these type of offences and really comes about from the consequences of the crime itself, people are so decimated that they cannot bring themselves to complain, and it is probably only the fear of her father getting out of jail that motivated her to finally complain.

36I do, however, take into account, as best I can, the issue of had this matter been heard, a more concurrent sentence may have been able to be passed.  I also note his age.  As I say, I do not think his health is necessarily any worse, however, he is in a particular stage insofar as his prostate issues are concerned.  One of the problems and dangers of offences of this type is the personal revulsion that one feels for these types of crimes.  One has to be careful not to allow that to overtake the sentence so that the sentence becomes one that is crushing, and that is a matter that Ms Foot put to the Court.

37The plea, when it finally came, was utilitarian in the sense that it allowed the matter to be finalised, allowed Ms Cover not to be further cross-examined and ultimately facilitated the course of justice.  Despite the operation of the serious sexual provisions, Ms Foot put to me that totality was still fundamentally important. I accept that it was necessary for this Court to balance as best it can the statutory requirement of Parliament that the sentences, after the first two be cumulated, and the statement made in various authorities that this is a requirement that must be adhered to by Courts.  Although ultimately what must be balanced, in determining a just sentence, is the totality of the sentence.

38In particular, Ms Foot asked me to take into account in regard to setting what was then put as a new minimum for both offences, that is the murder and these charges, the particular circumstances.  However, as I pointed out today, I do not have to set a new minimum.  I do, however, intend to make the sentences concurrent.  I do not intend to order any period of cumulation with the existing service, which I understand will take Mr Pitt through to a period of about 22, as best my notes are.

39As I have said, Mr Fisher detailed the matters on behalf of the Crown which I have already indicated, which I needed to take into account.  As I say, essentially on Renzella principles I take into account that parole, that would otherwise have been granted on 29 June 2018, was denied to Mr Pitt and I take that into account in sentencing and I give some recognition to the issue as to concurrency brought about by delay in the matter.

40Mr Pitt if you would stand please.  On the first charge, you will be sentenced to a period of imprisonment of two years.  On the second charge, a period of imprisonment of nine months.  Given those two sentences you come, therefore, pursuant to the legislation to be sentenced by this Court as a serious sexual offender.  Parliament requires me to take into account, as the prime factor for sentencing, the protection of the community.  It also requires me under s.6E to cumulate the sentences I pass upon you in the next four matters and also to record, which I do, that your sentences in regard to Charges 3, 4, 5 and 6 are sentences recorded as being sentenced as a serious sexual offender.

41In regard to Charge 3, you will be sentenced for a period of imprisonment of 12 months.  Charge 4 a period of imprisonment of 12 months.  Charge 5 a period of imprisonment of 12 months.  I point out that the maximum penalty appropriate to those penalties at the time was two years.  Insofar as Charge 6 is concerned for the charge of incest, I sentence you to a period of imprisonment of seven years.  Using that sentence as the base, I determine that to that seven years, be added by way of cumulation, nine months from the sentence imposed in regard to Charge 1 and four months on each of Charges 3, 4 and 5 and three months on Charge 2.

42Those periods of cumulation are to be served cumulative upon each other and upon the head sentence, making a total effective period of imprisonment of nine years.  I order that the period that you should serve before being eligible for parole is a period of seven years.  For clarity, I make no order which would in any way cumulate this sentence upon the current sentence being served.  The effect of that would be that this would be served concurrently with the sentence being served.

43Under s.6AAA, Mr Pitt, it is necessary for me to tell you as best I can, given the circumstances of this case, Parliament requires me to point out to you the gain to you from pleading guilty.  Having sentenced you to a period of imprisonment of nine years with a minimum of seven, can I tell you, despite this being a somewhat artificial exercise, because it is supposed to relate to one of the many, many factors that I take into account.

44Had you not pleaded guilty and doing as best I can to comply with what Parliament has said, I would have sentenced you to a total effective period of 12 years with a nine-year minimum, hence the benefit to you of pleading guilty, that you have been sentenced to a period of nine years with a seven-year minimum.  As I said, I have signed the 464ZF certification.  Mr Prosecutor, are there any other matters that I need to attend to?

45MR FISHER:  Just two matters.

46HIS HONOUR:  Yes.

47MR FISHER:  I'd ask Your Honour to announce or declare, there's no PSD in this ‑ ‑ ‑

48HIS HONOUR:  Yes, there's no PSD.

49MR FISHER:  Yes.  And the second matter is, I noticed there are some students in the Court that have been writing things.  The one thing they can't report or write is the name of the victim, they can refer to her as the victim ‑ ‑ ‑

50HIS HONOUR:  Yes.

51MR FISHER:  ‑ ‑ ‑ but no names in relation to her.

52HIS HONOUR:  Students, there's a requirement on the press and on every member of our community that the names, if you have been here and heard the actual name of the victim in this matter, that cannot be published.  That means, it can't even be put in your essays.  So, all you'd do is put, "Victim", all right.

53MR FISHER:  Thanks.

54HIS HONOUR:  Yes, the prisoner can be taken away.  Thank you, Ms Cover.  Thank you.  Yes, I'll stand down till the jury's ready.

‑ ‑ ‑