Director of Public Prosecutions v Porter (a pseudonym)
[2021] VCC 1667
•22 October 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
DIRECTOR OF PUBLIC PROSECUTIONS
| v |
NORMAN PORTER (A PSEUDONYM)
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 22 October 2021 | |
CASE MAY BE CITED AS: | DPP v Porter (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1667 | |
REASONS FOR SENTENCE
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Subject:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Brown | |
| For the Accused | Mr J. Sutton |
HER HONOUR:
1 Norman Porter[1], a jury has found you guilty of one charge of carnal knowledge of a girl under the age of 10 years and one charge of incest. The maximum penalty for each charge is 20 years' imprisonment. You were acquitted of a second charge of incest and the alternative charge of carnal knowledge of a child under 10, which were Charges 2 and 3 on the indictment.
[1] A pseudonym.
2 The victim of this offending was your then stepdaughter, Lulu Saunders[2], whose mother you began living with in 1974 and whom you married in 1977. You have a daughter from that marriage, Trina Tate[3]. The offending occurred at the family home. Charge 1 related to an occasion between August and December 1980 when Lulu was only nine years old and in grade 4 at school. One day, after school, Lulu was alone at home with you and Trina, who was then aged two. Lulu's mother, Louise Rois[4], was still at work.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
3 Trina and Lulu were in the lounge room when you put on a VHS tape for Trina to watch, looked at Lulu and gestured with your finger that she come with you. You took her to the bedroom that you shared with her mother, closed the blinds, got her to lie down on the floor and put a towel under her bottom and removed her knickers. She was embarrassed and tried to cover her vagina. You then bent her legs up and apart and inserted your penis into her vagina in a slow thrusting manner. Lulu cried and you told her to keep it down.
4 After you were finished, you told her that if she told anyone, you would kill her and her mother. Lulu believed this because of the physical violence you had inflicted on her, regularly beating her with a wooden stick and because of the violence she also saw you inflict on her mother. Lulu said the sexual abuse continued in the same form in her mother's bedroom thereafter on a frequent basis.
5
Charge 4, a charge of incest, was an occasion which occurred between
July 1982 and December 1983 when Lulu was aged 10 or 11. You drove her to a European dancing class in Keysborough that she attended once a week. Ordinarily, she was driven there by your sister. After the class on the way home when it was dark, you pulled the car over to the side of the road and told Lulu to get in the back. There, you again inserted your penis in her vagina. Lulu said the sexual abuse continued until she got her period when she was 12. She informed you of this and you never sexually abused her again.
6 Charges 2 and 3 on the indictment were alternative charges of incest and carnal knowledge of a child under 10. The alleged fact of that incident related to an occasion which occurred, the complainant said, when she was nine or 10 when you allegedly had penile vaginal intercourse with her after promising to buy her a mint green mini skirt. That skirt was allegedly purchased from Target later that same day on the way when you drove Lulu and Trina to pick up their mother from work.
7 The state of the legislation as at the time of the alleged offending was that if a child was aged 10 or over, the sexual offending complained of constituted a charge of incest. If the child was younger, then the appropriate charge was carnal knowledge. Thus, to prove either Charge 2 or 3, the prosecution had to establish beyond reasonable doubt that Lulu was either aged 10 or more - that is, in relation to Charge 2 - or less than 10 in relation to Charge 3.
8 The complainant's evidence in this regard was vague and varying, at one stage she saying the skirt was purchased before she was nine, at another saying that she was aged nine or 10 at the time. A photograph of her wearing this skirt was produced and tendered during the trial and identified as having been taken when Lulu was about 12.
9 The significance of this acquittal is that on the plea, defence counsel submitted I should take it as a rejection by the jury of the alleged uncharged acts. The prosecutor pointed to the complainant's varying evidence as to her age at the time of the alleged offending underlying Charges 2 and 3 as a proper explanation for the jury's inability to bring back a verdict of guilty on either of those charges.
10 I accept the prosecution's submission. To my mind, there was nothing in the evidence beyond the difficulty of proving to the required standard the complainant's age, which would rationally account for the guilty verdicts which were then returned by the jury on Charges 1 and 4. I do not accept that the verdict on Charges 2 and 3 represents a rejection of the uncharged acts of which Lulu gave evidence.
11 The jury were instructed that they could not find you guilty of either Charge 2 or 3 unless satisfied beyond reasonable doubt of Lulu's age at the time of the alleged offending underlying each charge. Indeed, it his final address, the prosecutor, Mr Brown, acknowledged to the jury the difficulties faced by the prosecution in that regard. As I have said, I do not accept that acquittal means the jury also rejected the evidence of other uncharged acts. You are not to be sentenced for the uncharged acts, but they are relevant as providing context to the offending of which you are convicted and mean that in sentencing you, I do not regard that the offending of which you were convicted, as comprising two single isolated incidents committed several years apart.
12 I now turn to your personal circumstances. You are now aged 72 and have no relevant prior convictions. Indeed, you have very little in the way of a prior criminal history. What there is, is old and minor and has no relevance to the sentencing exercise I must undertake. You are the eldest of four children born to your parents in the Former Republic of Yugoslavia and you emigrated here on your own in 1970. Your parents and siblings following a year later.
13 You told psychologist, Penelope Karvelis, whose report dated 10 September 2021, was tendered on the plea, that you had a poor but happy childhood within a close knit family. You worked, as I understand it, in the automotive parts industry and are now retired. Your first marriage was arranged by family with a Yugoslav woman who returned there with your then three year old daughter, Hazel[5]. You lived with Lulu's mother from 1974, married her in 1977 and she left you in 1987 after Lulu’s informed her of the sexual abuse you had perpetrated on her.
[5] A pseudonym.
14 Ms Rois’ evidence to the Court was that she met with Lulu at a restaurant in a shopping centre, returned home and confronted you. She said that she told you, 'You've been molesting Lulu,' that you initially denied this but then stated, 'Yes, I did,' and then said, 'You'd be happy now you've got something on me.'
15 You told Ms Karvelis your relationship with Ms Rois was fraught with discord and frequent arguments. You have been in a relationship with your current partner, Myra Mills[6], for the past 22 years and described this as happy and harmonious with you enjoying close relations with her children. Ms Mills' son, David Mills[7], gave evidence on the plea saying he enjoyed a good relationship with you as did his siblings and that he regarded your relationship with his mother as a happy one. He said he was shocked by the charges but conceded he could not comment on the offending as he did not know you then. He has visited you in prison. You continue to enjoy the support of your mother, siblings and partner.
[6] A pseudonym.
[7] A pseudonym.
16 Ms Karvelis opined that the continual marital discord during your time with Lulu's mother led to depression and anxiety and you reported to her an increase in alcohol consumption at the time. You have been in custody since the jury verdict on 15 April 2021 and she diagnosed you as currently suffering a severe major depressive disorder recurrent with anxious distress in response to that verdict and the prospect of a prison sentence. You have continued to maintain your innocence of the offending.
17 Lulu, her mother Louise and your daughter, Trina, read out their victim impact statements at the plea hearing. It is clear your offending has had a terrible ongoing impact on each of them. As a result of the abuse, Lulu withdrew from her mother, relentlessly bullied her younger sister and had effectively moved out of home by early adolescence. She was unable to concentrate at school and left during year 8 and this has then disrupted and limited her employment opportunities in the ensuing years.
18 Lulu left the family home to live with her best friend's family, whose mother was an alcoholic and abusive and at the age of 17, she had a child to that friend's brother, long before, as she said, she was able to be a mother and long before she had dealt with the sexual abuse you meted out to her. When she was 25, she had a second child. Lulu wrote in her victim impact statement that due to the trauma she suffered, she was unable to be a loving parent, which had both severely and adversely affected her relations with her children to this day. Lulu described this as, 'the most devastating impact of all.'
19 Despite years of therapy, she continues to suffer a range of severe mental health disorders, including complex PTSD - symptoms of which include continuing nightmares of being trapped with you - insomnia, concentration difficulties, severe anxiety and depression where she cannot get out of bed, a fear of public places, continuing low self-esteem, anger, intimacy and trust issues. She has been suicidal on many occasions, planning her death and writing suicide notes. Her relationship with her mother, although close now, was severely disrupted.
20 Lulu has abused alcohol to block out the mental anguish. She wrote, 'The extended length of the trial' - Lulu was cross-examined by your counsel for five days -
'Caused havoc with my mental health issues. I had to stay strong and focused the entire time I was giving evidence, which was completely exhausting. I managed to hold myself together during the process but ended up falling in a heap afterwards.'
21 Lulu concluded,
'Overall, the sexual assault that I experienced from my stepfather has robbed me of having a normal life. His actions took away my innocence and my childhood. He caused me to have debilitating mental health problems and negatively impacted every relationship in my life. My relationships with my children have been destroyed. I feel that I will never have been able to achieve my full potential. I don't know what it feels like to be truly happy. My life is in ruins.'
22 May I say that the reactions of Lulu to the sexual abuse you inflicted on her are, in the experience of this Court, entirely normal for those who have suffered childhood sexual abuse of the kind perpetrated by you. Ms Rois, your former wife, wrote of the anguish involved in supporting and watching her daughter suffer the emotional impact of your offending. Lulu, as I have said, told her mother of the offending in limited terms when she was 15 or 16 and this caused her to leave you, an experience she found devastating as was the revelation that you had sexually abused her daughter. Again, her evidence was that she confronted you and that you admitted the abuse.
23 Lulu imparted more details as the years went by. Her mother spoke of being ostracised by your family after she left you. This caused her great suffering as she loved them very much and was particularly close to your mother. Ms Rois herself has suffered anxiety and depression. She has been diagnosed with post-traumatic stress disorder. She wrote that she was haunted by what you did to her daughter, memories of which she said were etched on her memory. Ms Rois also wrote of the trauma of the trial which she said was like reliving the events of 35 years ago when she discovered what you had done. She wrote, 'I cried many, many tears over the years. The pain has been never ending. Facing trauma has changed my innermost core. I try not to let it dictate my life however I feel as though I'm fighting a losing battle most of the time.'
24 Your daughter, Trina Tate, also wrote of the anguish she suffered over many years knowing that you, her father, had sexually abused her sister. She realised that Lulu's terrible bullying treatment of her as a child - which alone caused her great suffering - was due to that abuse. Trina wrote, 'For as long as I can recall, I have had huge issues with intrusive thoughts about the sexual abuse of my sister on a daily basis, multiple times a day.' The knowledge of what you did to Lulu has caused her to suffer low self-esteem, lessened self-confidence, feelings of worthlessness and to seek out psychological help on many occasions over the years.
25 Trina spoke of the great difficulty in maintaining a relationship with you, which you were always eager to do and in particular of her devastation when after eventually admitting to her in 2007 that you had abused her sister, you then challenged the evidence she gave about that at the trial. I should note that Trina also gave evidence of a later admission by you of the sexual abuse when she confronted you, abused you and asked why you done what you done, you replying, 'I don't know.' She said, 'My father attempted to have my character assassinated in court rather than take any responsibility for his actions.' Trina also spoke of what she called the heart wrenching experience of seeing her sister being, 'Dragged through the courts,' after everything she had endured at your hands.
26
Your counsel submitted that the offending occurred many years ago and at a time when sentencing for it would likely have been much less. He submitted that you have since led a responsible prosocial life so that principles such as protection of the community and specific deterrence had no application in your case. He submitted that you were suffering from depression at the time of the offending and that the psychological evidence of your current mentally impaired state, which included a concern by the psychologist that you may be a suicide risk, meant you would find the service of a sentence of imprisonment more difficult than would the ordinary prisoner. He submitted that limbs 4,
5 and 6 of Verdins should be applied to the sentence I am to impose upon you.
27 Ultimately, Mr Sutton submitted that in all the circumstances, a sentence comprising a term of imprisonment combined with a community corrections order was open in your case. This would involve a term of imprisonment of no more than 12 months. The prosecutor, Mr Brown, submitted that only a term of imprisonment comprising a maximum and minimum term should be imposed. He correctly pointed out that pursuant to the provisions of the Sentencing Act, the Court must have regard to current sentencing practices, not those of decades ago. He submitted, in any event, the penile vaginal sexual penetration of a child under ten would even then have been regarded as a serious example of this serious crime. Further, in cases of historical sexual abuse, delay has considerably less weight as a mitigating factor.
28 Mr Brown pointed to the 2016 Court of Appeal decision in Dalgliesh, where the Court stated that sentences being imposed for incest were inadequate at that time, which view was upheld by the High Court in that case in 2017. Further, he submitted that your mental health difficulties were in reaction to being charged, found guilty and placed in custody and thus, not exceptional. He did concede that as an elderly man being placed in prison for the first time, you may find gaol more difficult than the general prison population.
29 Finally, Mr Brown submitted that general deterrence, denunciation and just punishment were principles at the forefront of the sentencing exercise presented by your case. I agree with these submissions. In my view, the sentence suggested by your counsel is entirely inadequate for this offending and his sentencing submissions were in fact wrong in law. You may have gone on to live an exemplary and happy life in the years since offending so grievously against your young stepdaughter, Mr Porter, but you have left a trail of grief and destruction in your wake, as in inevitably the situation in cases of this kind involving serious sexual abuse of young children.
30 Lulu, her mother and your daughter have lived lives of continuing anguish and suffering. You committed heinous sexual offences against an innocent child left in your care and the result and damage she described is, as I have said, entirely familiar to these Courts. That offending was a gross and cruel breach of trust and the utter exploitation of a little girl in order to satisfy your sexual desires. That you threatened to kill Lulu and her mother if she told anyone, I regard as an aggravating factor. The ill effects of your offending have rippled out to envelop her mother and your own daughter whose birth, according to what you told your psychologist, was the happiest day of your life.
31 Each are likely to suffer from the psychological impact of your offending for the rest of their lives. You have shown not one shred of remorse apart from protestations of sorrow to Trina in 2007 when you admitted to her what you had done. They count for little in the face of the cross-examination to the effect that her evidence on this point was a lie. Lulu, her mother and your daughter were subjected to the trauma of cross‑examination at committal and trial during which each of whom was accused of dishonesty and fabrication. The prosecution case, involving as it did, evidence from Ms Rois and your own daughter of admissions by you to sexually abusing Lulu was, in my view, a strong one. Lulu, her mother and her sister were also, to my observation, credible and reliable witnesses who stoically withstood lengthy cross-examination at trial.
32 In my view, the principles of general deterrence, denunciation of your offending and just punishment dominate the sentencing exercise I must undertake. In sentencing you, I do accept that gaol at your age and for the first time will weigh more heavily on you than other prisoners. I accept you did go on to lead a responsible and law-abiding life and I accept you do not present a danger to the community. However, I do not regard your current reactive emotional state as exceptional and in any event, those mitigating factors in my view pale somewhat against the gravity of your offending. I must also apply current sentencing principles to your case. I do note that you suffer from blood pressure and high cholesterol, but these were the only health difficulties presented to me.
33 Taking into account all the matters I have referred to, I therefore sentence you as follows: On Charge 1, you are sentenced to six years' imprisonment. On Charge 2, you are sentenced to six years' imprisonment. I order that two years of the sentence imposed on Charge 1 be served cumulatively to the sentence imposed on Charge 2. This gives a total effective sentence of eight years and I order that you order six years before becoming eligible for parole. I declare that 190 days of this sentence have been served by way of pre-sentence detention.
34 HER HONOUR: Am I required to make any orders in relation to the sex offender's register?
35 MR BROWN: Yes, Your Honour. The period of registration is for the remainder of his life being two class 1 offences.
36 HER HONOUR: Yes. You will be placed upon the sex offender's register for life. Those papers will be served on you and your counsel will explain your obligations pursuant to that order. Yes, thank you. Is there anything else I need to attend to?
37 MR BROWN: No, Your Honour.
38 HER HONOUR: Thanks very much.
ADJOURNED TO A DATE TO BE FIXED
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