Director of Public Prosecutions v Prentice (a pseudonym)
[2017] VCC 759
•9 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAMISH PRENTICE[1] |
[1] A pseudonym
---
JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2017 | |
DATE OF SENTENCE: | 9 June 2017 | |
CASE MAY BE CITED AS: | DPP v Prentice (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 759 | |
REASONS FOR SENTENCE
---
Subject: Criminal law – Sexual Offences
Catchwords: Incest – Indecent act on child under care, supervision and authority
Legislation Cited:
Cases Cited:R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, Verdins (2007) 16 VR 269, R v AWF [2000] VSCA 172, DPP v Toomey [2006] VSCA 90, DPP v CPD [2009] VSCA 114, R v AB (No 2) (2008) 18 VR 291, DPP v DDJ (2009) 22 VE 444, DPP v Grantley (a pseudonym) [2016] VCC 1538, DPP v Grantley (a pseudonym) [2017] VSCA 67
Sentence: TES: 5 years 10 months with a minimum of 3 years before eligible for parole, forensic sample ordered and lifetime reporting on the sex offenders register
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | OPP |
| For the Accused | Ms H. Bate | James Dowsley & Associates |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the accused, the complainant and other family members in these reasons. The complainant will be called Victoria. Her mother will be called Audrey Michaels. The accused will be known as Hamish Prentice. I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[2]. That is the reason for the use of pseudonyms.
[2] Section 4 Judicial Proceedings Reports Act
2 Hamish Prentice, you have pleaded guilty to a representative charge of incest, an offence with a maximum sentence of 25 years’ imprisonment, and to a single charge of committing an indecent act on a child aged 16 or 17 under care, supervision or authority, which has a maximum sentence of 5 years’ imprisonment.
3 I proceed to sentence you on the basis of the prosecution opening[3], an agreed summary which was read out in court.
[3] Exhibit A
4 In brief, you entered a relationship with Audrey Michaels in 2012. She had four daughters; Victoria, then aged about 13, was the eldest. You had never been in a live-in intimate relationship before and moved from your mother’s home to live with Ms Michaels.
5 In December 2013, a son was born to you and Ms Michaels. In that year, before he was born, you committed incest on three occasions against Ms Michael’s daughter, Victoria, then aged 15 years. Charge 1 is representative of these three occasions, when you inserted your fingers into her vagina for between 5 and 10 minutes on each occasion. The first time, you pinned Victoria to the floor with your body; the second time, about two weeks later, you continued until you were interrupted by her younger sisters and then acted as if you were playing a game with her; and the third time, when she disturbed you watching adult pornography in the garage, you forced her onto the floor.
6 After this third occasion, Victoria ran inside, very upset and was asked by her mother what was wrong. When Ms Michaels was told by her daughter what had happened, she brought you into the house and confronted you. You denied it and her mother did nothing further about it, including not reporting it to police.
7 Despite that confrontation, you sexually abused Victoria again about 2 ½ years later, between May and August 2016. If your abuse had been reported to police in 2013, the further offence would almost certainly not have happened. On that occasion, you entered her bedroom, wearing only boxer shorts, got onto the bed where Victoria was lying under a blanket, and under the cover of the blanket, touched the outside of her vagina for about five minutes before she told you to get out. She was then aged 17, but because of your relationship and your position in the household, she was under your care, supervision or authority and so your sexual act is a criminal offence (Charge 2).
8 Victoria felt that her mother was ignoring the issue, nothing having been done at the earlier time when she complained to her, so Victoria confided in her best friend. Her friend told the school counsellor, who - given the mandatory reporting requirements of her position - inexplicably did not seek Victoria out to check on the information, apparently under the erroneous impression that nothing could be done unless Victoria came to her with the complaint. Fortunately, Victoria did personally speak to the counsellor and your criminal activity was finally reported to police.
9 No Victim Impact Statement was available to me; I was told by the prosecutor that Ms Michaels has not made it possible for police to advise Victoria of her right to make such a statement. However, when it comes to children, being people aged under 18, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long-term and serious, and both physical and psychological[4] and which includes future harm[5]. I have no evidence to rebut that presumption and it is properly conceded on your behalf that you have caused harm to Victoria.
[4]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[5]Adamson v R [2015] VSCA 194, [56]
10 You and Ms Michaels have agreed for you to continue to see your son under supervision and the Department of Health and Human Services are aware of the situation. I was told that Ms Michaels wishes to preserve your position as father to your son, as her four daughters grew up without a father, before you became a father figure in their lives until disrupting that relationship by your gross breach of trust. Whatever Ms Michaels’ reasoning for hindering Victoria’s participation in the criminal justice process, I think it is highly likely that the position Ms Michaels has taken will exacerbate the impact on her daughter of the sexual abuse you perpetrated on her.
11 I want to make it very clear, in the hope that the message will get through to the adults involved in this case, that when a child is sexually abused, it is never the fault of the child. It is the responsibility of any right minded adult to protect children, most particularly those within their household, whether that protection is by not sexually abusing them or by reporting such abuse to authorities when it becomes known to them. As will become clear as I refer to your background, there has been an intergenerational ‘cone of silence’ and the destructive power of silence in the face of abuse, whether in a family or in an institution, is that the abuse often continues, with terrible impacts on victims.
12 Victoria is now 18, an adult, and I hope that she will be in a position to make her own way in life and protect herself from further harm. I hope that, as an adult, she is able to avail herself of any opportunities for professional assistance to deal with the impact on her and ameliorate any long term effects. I do wish her well for her future.
13 There are some features present in your case that characterise the offence of incest you committed as serious: “extreme invasion of the victim’s person; exploitation of a vulnerable child; violation of societal norms; [the potential for] long-term and severe victim impact; serious breaches of the trust reposed in [you] by the child; and an undermining of the familial roots of society.”[6]
[6]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, [72]
14 In order to pass a just sentence, I must assess the seriousness of your offending. What distinguishes worst case offending from midrange offending is the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurred. On the one hand, you used additional force against Victoria on two of the three occasions of incest, and repeated the sexual behaviour against her when you had had plenty of time to reflect and resist a repetition of your criminal acts.
15 On the other hand, it is sadly the experience of this court that there are worse examples of incest, and of indecent act. I make the finding that your offences are not in that category primarily because your offending was not of high frequency or protracted, being three occasions over three months, and the event two and a half years later did not involve penetration and so was a different and less serious offence. However, because of the use of force, the repetition, and the continuing sexual interest manifesting itself in the indecent act committed two and a half years later, I find your overall offending is mid-range.
16
As has been pointed out by your counsel, there are however some factors that must be taken into account in your favour. The first of these is the fact that you pleaded guilty, and did so at an early opportunity. I accept that this shows that you accept responsibility for your offending, and it demonstrates remorse for the impact on Victoria of what you did. Your plea of guilty has not only saved the community the time and cost of a trial, but it has saved her from the ordeal of giving evidence. As a result of your plea of guilty, the sentence I will impose is less than would have been imposed had you been found guilty by
a jury after a trial.
17 Next, you have no criminal record alleged against you. It means that you are to be sentenced as a person who was of good character until the first offence was committed.
18 Next, I take into account that you continue to receive support from your mother, who was present in court, and others who attended court with her on the day of the sentence. You also enjoy support from Ms Michaels, who wrote a reference, about which you had no knowledge until your counsel informed you[7]. Ms Michaels refers to you as being supportive of her during your relationship, as being a loving father to your son, and believes that you are remorseful, as you have expressed to her anger at yourself, and regret at your actions, although she says the two of you have not spoken much about the charges. She says she is fully aware of the charges. What is shocking to me in her letter is that her daughter, your victim, does not rate a mention, even when Ms Michaels is describing the charges. That failure to recognise that an offender has a victim in these cases and that victim is her daughter who needs her support, together with her apparent wish to keep you in the community to maintain your relationship with your son, makes me hesitant to rely on the reference.
[7] Exhibit 2
19
However, I do accept that you have been a good father to your son and that you had nothing to do with Ms Michaels providing the letter, and whatever
I think of it, I make no finding adverse to you.
20 Turning to your background, you are now aged 32 years, and you were aged 29 - 31 at the time of the offending. I was told that you yourself were the victim of non-penetrative sexual abuse by your paternal grandfather, from the ages of 4 to 14 years. By the age of 14, you were beginning to question what was happening, but it came to an end when your grandmother apparently interrupted your grandfather with you. You report that she did not look surprised, but did nothing about it, then, or any earlier or later time, other than to admonish her husband. You did not tell anyone about this offending until after your own offending came to light. I will return to the relevance of your own abuse to the abuse you committed in a moment.
21 Perhaps as a result of this sexual abuse, when at age 9, you were introduced to cannabis, extraordinarily by the parents of a school friend, you took up this habit, with them and alone. By the age of 16, you were regularly drinking alcohol and using cannabis. This grew into daily cannabis use, even when you still lived at home, and continued in the relationship with Ms Michaels, such that you spent a lot of time in the garage, smoking and on your computer.
22 Despite your high cannabis abuse, you completed Year 12, and report that you were a good student. You began part time work while in Year 10 and after school, you commenced work in the area of information technology, but fell into a pattern of leaving employment after a period of time in a job. As I will discuss shortly, you were suffering from anxiety, and this led you on occasions to simply stop working in a job, without notice, when overwhelmed by your anxiety. In 2002, you began working, when required, for a local cultural centre in lighting, audio, and set-building. This has continued until the present. But you will not be able to resume this work after this sentence, as you will be a registered sex offender and will not be able to maintain the necessary authorisation for working with children. You did work for a period in 2006 - 7 with your brother-in-law, progressing through various positions with increasing responsibility, but again left that job abruptly.
23
You have a younger brother and sister, and as I mentioned earlier, your mother was in court to support you. You lived at home with both parents until your father left the home when you were aged 24, when it became known that he had sexually abused your sister and a female cousin, his niece, from
a young age. I understand that your sister has been severely traumatised by the abuse, and perhaps as a result of the impact on her, there was no report to any authorities. However, it meant that the silence continued. Nevertheless, you were made aware of the extent of the abuse, and the impact on your sister, if not immediately after your father left, at some stage before you began offending against Victoria. You have had no contact with your father since.
24 You were assessed by a forensic psychologist, Ms Carla Lechner, who also provided a report[8]. In her opinion, you present with symptoms of Major Depressive Disorder in the extreme category, and symptoms of Cannabis Use Disorder, and as an introverted man, are socially anxious to a severe degree. She noted that you have had only two friends, your brother-in-law and a friend who died of a drug overdose.
[8] Exhibit 3
25 She is of the view that you do not meet the diagnosis of paedophilic disorder because of the sexual attraction being to one child only and considers your offending to be opportunistic. She assessed your risk of reoffending to be low, but recommended your evaluation by the Sex Offender Assessment and Treatment Service. I agree with that recommendation.
26
While Ms Lechner is of the opinion that you have a long-standing mood disorder and your depression clouds your judgment and decision-making, your depression is not relied on by your counsel to bring into consideration the principles in a case called Verdins[9]. Ms Lechner thought you are capable of reflecting on the impact of your behaviour on others, but because of
a ‘depressed thinking mindset’, you believe you have only a limited ability to make positive changes in your life. You appropriately expressed to her shame for your actions and she says you understand the impact of your behaviour on Victoria. Given that you were yourself a victim of years of abuse from a young age, and given that you became aware of the impact of familial sexual abuse on your sister, that clearly provides a basis for understanding the impact of your offending on your own victim.
[9] (2007) 16 VR 269; [2007] VSCA 102
27 Ms Lechner refers to the possibility that keeping the secret of your abuse by your grandfather may have been a contributing factor to your social withdrawal and lack of confidence. I note the research that shows that many victims do not complain.[10] Ms Lechner also notes that this abuse and that by your father, being your grandfather’s son, was never openly discussed in the family or elsewhere, so that it is difficult for her to assess if you regarded this behaviour as normal or acceptable. She considers that the abuse perpetrated through the paternal line raises questions about what “familial messages were conveyed [to other family members, including you], about one’s sexuality and the importance, or not, of keeping sexual boundaries”[11].
[10] See also s.52(4) Jury Directions Act (Vic) 2015
[11] Exhibit 3
28 Your own sexual abuse is relevant as a background factor to your offending, but it provides no excuse, of course. It must not be forgotten that, whatever led you to commit these crimes, you knew it was wrong to be sexually attracted to your teenage step-daughter, and wrong to act on that sexual attraction. You apparently had never been the instigator of sexual activity in other relationships, and I find that you took advantage of her vulnerability and the power of your position as a father figure in her life and instigated the abuse for your sexual gratification when the opportunities arose.
29 The fact of your own sexual abuse may come to play a part, even an important part, in you developing insight into why you did what you did. However, on the evidence before me, while questions are raised as referred to by Ms Lechner, there is no clear evidence to find that the abuse by your grandfather led to a condition or state of mind which is a proper basis for viewing your criminality as less serious or for reducing either your moral culpability, or the need for my sentence to deter other men, and to deter you from committing such offences[12].
[12]R v AWF [2000] VSCA 172, [6]
30 Although your depression and anxiety have been issues for you for a long time, you have only recently commenced taking prescribed medication. I am told that you will undertake treatment for your sexual offending and will consider treatment for your cannabis use, which I consider is highly likely to have aggravated your depression and anxiety.
31 On balance, I find your prospects of rehabilitation are reasonable, on the basis of your acceptance of responsibility, your remorse and some empathy, the fact that only one victim was involved and your willingness to undertake further treatment, as to both your depression and anxiety and the offending.
32 However, it should be clear to you that without such treatment, your prospects of rehabilitation become less positive.
33 Apart from those matters personal to you to which I have referred, I must also take into account deterrence, especially general deterrence which is of the utmost importance in cases involving sexual offending against a child, and even more so, when committed by a parental figure. That means that by my sentence of you the court must seek to deter other men from committing sexual offences against children, especially those within their care. Further, I find that without treatment, there is a risk of you committing more offences, even if a low risk, and so my sentence must also seek to deter you from re-offending.
34
Before I turn to the sentence, there are two further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this.
I am satisfied that it is in the interests of justice, that in all the circumstances,
I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the sample that will then be taken will be a blood sample and the police may use reasonable force to enable such a procedure to take place.
35
The second matter is that as a result of my sentence today, you become
a registrable sex offender. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting, required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My Associate will now ask you to sign a document to acknowledge that you have received notice of these obligations. And perhaps, Ms Bate, you might accompany my Associate in case your client has any questions.
36 MS BATE: Yes, Your Honour. Thank you, Your Honour.
37 HER HONOUR: Yes, you can take a seat again, thank you.
38 The prosecutor submitted that only a period of immediate imprisonment was appropriate in this case, and that the suggested disposition by your counsel of a combined sentence of imprisonment and a community correction order would not meet the sentencing objectives in this case, not adequately reflect the nature and gravity of the offending and not be consistent with the principles expressed in the case of Dalgliesh[13] that sentences properly characterised as mid-range offences of incest must be subject to incremental uplift from past sentences for similar offending.
[13] [2016] VSCA 148
39 Your counsel submitted that such a combined sentence was appropriate having regard to the objective and the personal circumstances, and that the sentencing principles of general and specific deterrence, denunciation and just punishment would be met with strict conditions, a period of intensive compliance and an appropriate duration. You were assessed and found suitable for a community correction order, potentially to follow a period of imprisonment.
40
I have decided that there is no alternative to a period of imprisonment and that the available maximum sentence of 12 months, when combined with
a community correction order, is grossly inadequate to reflect the seriousness of your offending.
41 Despite the factors that mitigate the seriousness of your offending, these are offences which the community expects to result in stern punishment. As courts have said,
“A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate”[14]
[14] Hedigan AJA, cited in Toomey [2006] VSCA 90 [18]
and
“Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their care.”[15]
[15]Dalgliesh, [43]
42 The court must impose a sentence that is just in all the circumstances and that reflects the community’s abhorrence of sexual violence, particularly committed against children, with the damage that causes.
43 Further, I note that Court of Appeal authority states that the guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum, and where that is so, the requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences[16]. The Court of Appeal in 2009 and again in 2016, found that there is a disparity between the maximum penalties and the sentences handed down for sexual penetration offences against children[17], with a real question as to the adequacy of current sentencing.
[16]CPD [2009] VSCA 114 [7], [72]-[81] citing R v AB (No 2) (2008) 18 VR 291, [68], [71]-[74]
[17]CPD,[8]-[9]; DDJ (2009) 22 VR 444, [72]; Dalgliesh,[87]
44
I take into account that you are in custody for the first time, and are a first time offender, having therefore the experience of the most serious disposition in your first contact with the criminal justice system. I also take into account your mental ill health, and have decided the sentence accordingly. These factors, and the others in your favour, are to be weighed against the breach of trust by
a father figure, the offences occurring in the home where the victim was entitled to feel safe, the age disparity of 14 years, the duration and repetition of the offending, the offending which took place following an initial confrontation with the victim and her mother, and the additional force involved in two of the three penetrations in the representative charge.
45 The prosecutor referred me to the sentence I imposed in a case called Grantley[18], of 6 years, 6 months’ imprisonment for a representative charge of incest and 12 months’ imprisonment for a single charge of indecent act. She submitted that was a relevant case to consider because it involved similar offending.
[18] [2016] VCC 1538
46 There are a number of similarities between that case and yours, but I note three matters of difference. First, there were two victims in that case; second, despite a dysfunctional background, the offender in that case did not have any psychiatric disorder; and third, he was sentenced as a serious sex offender with the different sentencing principles that apply. Further, leave has been granted to the prisoner in that case to appeal, effectively on the basis of whether the sentence there imposed involved greater than an incremental uplift as foreshadowed in the case of Dalgliesh[19] and is therefore manifestly excessive.[20]
[19] [2016] VSCA 148
[20]Richard Grantley (a pseudonym) Application for leave to appeal, determined ‘on the papers’ [2017] VSCA 67
47 Yes, could you stand up please.
48 You are convicted and sentenced to imprisonment as follows:
49 On Charge 1 - representative charge of incest - 5 years, 6 months.
50 On Charge 2 - indecent act - 12 months.
51 The sentence on Charge 1 is the base sentence. I direct that four months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
52 That makes a total effective sentence of five years', ten months’ imprisonment.
53 I direct that you serve three years before becoming eligible for parole.
54 I declare that you have served three days in pre-sentence detention including today. These will be deducted administratively from your sentence.
55
If you had not pleaded guilty, but had been found guilty after a trial, taking into account that the representative charge would become three separate charges, the total sentence I would have imposed is 9 years’ imprisonment with
a minimum of 7 years.
56 Yes, are there any other orders?
57 COUNSEL: No, Your Honour.
58 HER HONOUR: Yes, thank you, the prisoner may be removed.
59 SECURITY OFFICER: Yes, Your Honour.
60 HER HONOUR: Yes, so the forensic sample orders have been signed.
61 MS PARKES: Thank you, Your Honour.
62 HER HONOUR: And I thank counsel for their assistance and I again acknowledge those present in court in these difficult cases.
63 Thank you, we will adjourn sine die.
- - -
13
0