Director of Public Prosecutions v Ratliff (a pseudonym)
[2019] VCC 1361
•23 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALFRED RATLIFF (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2019 | |
DATE OF SENTENCE: | 23 August 2019 | |
CASE MAY BE CITED AS: | DPP v Ratliff (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1361 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Indecent act with a child under 16 – Incest – Plea of guilty.
Legislation Cited: Sentencing Act 1991; Sex Offender Registration Act 2004
Sentence: Aggregate term of 3 years’ imprisonment with a non-parole period of 2 years’ imprisonment; 16 days pre-sentence detention; 6AAA declaration: 6 years imprisonment with a non-parole period of 4 years imprisonment; Sex Offender Registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Lew | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P. Tiwana Ms R. Cashmore | Dribbin and Brown Criminal Lawyers |
HIS HONOUR:
1 Alfred Ratliff, on 7 August 2019, you pleaded guilty to Charge 1, indecent act with a child under 16, and Charge 2, incest. The offences occurred between 15 January 1995 and 31 May 1995, some 24 years ago.
2 The penalty for indecent act with a child under 16 is 10 years’ imprisonment, while the maximum penalty for incest is 20 years’ imprisonment.
3 Tendered as Exhibit A on the plea, and read aloud in court, was the Amended Summary of Prosecution Opening.
4 Your victim was aged between 10 and 11 years when you offended against her. At the time of your offending, you were aged 24 years and had been in in a de facto relationship with the mother of your victim for a period of four years or so. In 1993, there was a separation for some three months, but you became reconciled to your victim’s mother. Within the relationship, you had taken on the role of a father to your victim.
5 One evening, between 15 January 1995 and 31 May 1995, while your victim’s mother was at work, you went into the victim’s bedroom while she was asleep. You lifted the victim’s doona and this woke her however, she pretended to be asleep. You pushed your victim’s legs apart and placed your hand inside her boxer shorts and touched the outside of her vagina. (Charge 1) You then pulled your victim’s boxer shorts down and penetrated her vagina with your tongue, licking the inside of her vagina for about 10 minutes. Your child victim felt scared, she froze and was disgusted. After you stopped licking the inside of your victim’s vagina, you pulled up her boxer shorts, covered her with her doona, and whispered in her ear “sweet dreams”. (Charge 2)
6 After your offending against your victim she lay in bed contemplating what to do about your conduct. Your victim was fearful of telling her mother about your conduct as she did not want to upset her. Ultimately, your victim decided that she had to tell her mother to prevent any further abuse taking place.
7 The evening following your offending, the victim informed her mother of your conduct. At the time of her complaint, the victim was crying and was desperate for her mother not to go to work, as was her mother’s usual practice in the evenings. Your victim’s mother confronted you, and you admitted that you had sexually molested her daughter. Your victim’s mother returned to the victim and was informed by the victim that she did not want her mother to leave you. Your victim recalls, that her mother told her, that you “did it because we are having sexual problems”. That night, you slept on the couch and your victim slept with her mother in her mother’s bed. The following morning when your victim awoke, she found her mother had left her bed and joined you on the couch.
8 You remained in a relationship with your victim’s mother for a period of 12-18 months after your offending.
9 After your relationship with your victim’s mother ended, you paid for your victim and her mother to undergo counselling for a period of 12 months.
10 Some years later, in October or November 1997 or 1998, you were confronted by a friend, as to your conduct. You admitted to him that you had molested your victim, saying that you “went through some dark times and was drug fucked and did not know what [you] were doing”. You denied to him that you had penetrated your victim, but said there was some touching.
11
Tendered as Exhibits B and C respectively were the Victim Impact Statements of the victim and her mother. Both your victim and her mother have been profoundly affected by your conduct. In particular, your victim’s mother is
guilt-ridden because her child was offended against by you in circumstances where she had formed a close bond with you during the course of your relationship with her. Further, she permitted you to stay in the family home after you had offended against her daughter.
12 Your victim, now an adult, reported your offences so that you could be held accountable for your conduct. To this day, her sleep is affected by memories of your offending against her. The consequences of your offending reverberate adversely through every aspect of her life.
13 Tendered as Exhibit 1 was the report of Pamela Matthews, psychologist, dated 25 February 2019. Ms Matthews was required for cross-examination by the Crown. Particular controversy centred on her risk assessment of you and her use of the Risk of Sexual Violence Protocol (RSVP). Of particular importance to her assessment, was your subsequent conviction at the Frankston Magistrates’ Court on 10 August 2017 for knowingly possessing child pornography. You were convicted and sentenced to a Community Correction Order for 18 months with conditions, one of those conditions being that you undergo offending behaviour programs. You undertook nine sessions with Ms Sizenko, provisional psychologist, who was, at the time of your treatment and at the time of Ms Matthews’ report, under Ms Matthews’ supervision. Many of these sessions occurred prior to your attendance at court. (See Exhibit 2)
14 Ms Matthews swore that the nine sessions with Ms Sizenko were deemed sufficient by them to meet the requirement of the Community Correction Order condition as to the offender behaviour programs, in that you had been provided with the necessary tools to reduce your risk of re-offending.
15 A recurring theme runs through both the instant offending and your subsequent offending, being your “unfulfilled physical and emotional needs” being primary contributors to your offending.
16 Under cross-examination, Ms Matthews conceded that the following were triggers to your offending:
(i) insufficient sexual intimacy;
(ii) situational depression;
(iii) relationship stress;
(iv) cannabis use; and
(v) excessive alcohol abuse.
17 Additionally, other matters that could potentially increase your risk of re-offending were:
(i) your addiction to pornography; and
(ii) boredom.
18 Further, Ms Matthews conceded that should any of these factors impact upon your life, then your risk of re-offending increased. Ms Matthews conceded that many of the risk factors were likely to occur in any relationship, and that she regarded your present alcohol consumption as excessive.
19 Of particular concern to me was the lack of information obtained by Ms Matthews from you or any other source concerning your subsequent conviction for knowingly possessing child pornography. This matter fed directly into the RSVP assessment at various levels and its significance was unable to be quantified by Ms Matthews in her risk assessment. Further, it impacted on her assessment of whether you suffered from a paedophilic disorder. If you do suffer from a paedophilic disorder, then Ms Matthews would change her risk assessment of you “enormously” from low to high.
20
Ultimately, I am of the opinion that Ms Matthews’ risk assessment is flawed and I am unable to accept it. Accordingly, I have no assessment of your risk of
re-offending to assist me in the exercise of my sentencing discretion.
21 Tendered as Exhibit D was your criminal record current as at 27 March 2018. On 1 August 2001, you were without conviction placed on a Community Based Order for a period of nine months for trafficking in cannabis, using cannabis, possess cannabis, and possess money being proceeds of crime. On 18 August 2003, you were sentenced to one month imprisonment together with fines for driving whilst disqualified, exceeding PCA, using an unregistered motor vehicle and failing to give way. On appeal to the County Court at Melbourne on 15 September 2003, your appeal was allowed and the Magistrates’ Court Order was set aside. You were sentenced to one month's imprisonment suspended for six months. On 20 February 2004 at the Frankston Magistrates’ Court, again without conviction, you were placed on a Community Based Order for trafficking in amphetamine, possess amphetamine, use amphetamine, use cannabis, possess cannabis and possess the proceeds of crime. You admitted these subsequent convictions.
22
As to your personal background, your biological parents separated prior to your birth. Your mother re-partnered, and you have always regarded your
step-father as “dad”. You grew up in Mildura with your mother and step-father, an older brother and a younger adopted sister. Your mother is currently 68 years of age and is a retired teacher. Your step-father is aged 71 years and is a retired school principal.
23 You first met your biological father when you were 18 years of age and occasionally have contact with him, although you regard the relationship to be “superficial”.
24 You reported to Ms Matthews that your childhood was a happy one and that you grew up with a good, supportive family. You were academically average and a slow reader, but a good sportsman. Apart from being a slow reader, you had no academic difficulties at school and were popular there. Throughout your later years at high school, you worked at a hardware store.
25 After completing high school, you enrolled in a Bachelor of Applied Science (Osteopathy) at the Royal Melbourne Institute of Technology, Bundoora Campus. With the newfound freedom of university life, you did not attend to your studies but rather intramural activities of a sexual kind, and this resulted in your failing 6 out of 10 exams in your first semester. For a time, you lived with your brother in Preston, but for the last four years of your degree you lived with the mother of your victim and your victim.
26 Throughout university, you worked at various jobs such as a barman, a bottleshop attendant, and a massage therapist at the Preston Football Club.
27 During the course of your relationship with the mother of the victim, you underwent four counselling sessions with her. I was not informed as to the detail or reasons for these counselling sessions.
28 After separating from the mother of your victim, you moved to Eltham, and your then partner fell pregnant with your daughter, Samantha[1] who is presently 20 years of age. You separated from your daughter’s mother some three months after your daughter’s birth, and thereafter you worked at various jobs, as well as playing in a band for the next seven years or so.
[1] Samantha is a pseudonym.
29 You returned to the practise of osteopathy some 15 years ago at the age of 33 years. Due to your conviction for knowingly possessing child pornography, your practice was placed under supervision by AHPRA, and when charged with the instant offences, your right to practise was suspended.
30 You and your partner of some 18 years sold your family home in July 2018 and moved to Ballarat to be closer to the support of your family. You are presently trying to establish a practice as a masseur, and you were working on a casual basis as a traffic controller. Your partner is a qualified childcare worker and has found work in the Ballarat region.
31 Tendered on your behalf were a number of references: from your partner, Diana Serrano[2], dated 15 February 2019; your daughter, Samantha Ratliff, dated 27 February 2019; your mother and father (separately) by references dated 20 January 2019 and 18 February 2019; and finally a patient of some seven years, Virgie Guenther,[3] dated 15 February 2019. I have noted their contents.
[2] Diana Serrano is a pseudonym.
[3] Virgie Guenther is a pseudonym.
32 Mr Tiwana of counsel, who appeared on your behalf on the plea, emphasised that your plea of guilty was an expression of genuine remorse, and consistent with your frank admissions made to the mother of your victim immediately after being challenged by her in respect to your offending. Further, you paid for counselling for the victim and her mother for a period of approximately 12 months. Additionally, you informed your mother of your offending at or around the time of the offending.
33 Emphasis was placed upon your age and lack of prior convictions at the time of your offending. In addition, your counsel emphasised the significant delay of 24 years in being prosecuted, and the way that the issue of your offending was settled as between the mother of your victim and your victim, giving rise, it was submitted, to a legitimate sense held by you that the police would not become involved in this matter.
34 Further, your counsel relied upon your background, family support (from your parents, your partner and daughter, Samantha), and your work history. Additionally, the suspension and likely cancellation of your right to practise as an osteopath was relied upon as extra curial punishment. As well, the revelation of your offending brought about the intervention of DHHS. The consequence of this was that you moved to Ballarat and lived with your parents, but commuted on a daily basis to your home in Frankston to continue your practice. You were only allowed access to your son for two hours, two days a week, and this access had to be supervised by your father until the involvement of the department ceased.
35 Further, your counsel relied upon the fact that you had not served a term of imprisonment before, and that a term of imprisonment was likely to weigh heavily on you because of your separation from your wife and your young child, now aged three, and the fact that you would be unable to support them financially during the period of your incarceration.
36 Ultimately, your counsel submitted that a wholly suspended sentence of imprisonment was available, and was the appropriate sentencing disposition when all relevant matters were taken into account.
37 The Crown submitted that the nature of your offending was such that it called for the imposition of an immediate term of imprisonment that involved the fixing of a head sentence and non-parole period.
38 Each of the matters relied upon by your counsel have merit and must impact upon the sentence that I impose upon you. However, your offending was an appalling breach of trust and the courts have always turned their face against the imposition of inappropriately lenient sentences in cases of this kind.
39 You are an appropriate vehicle for the application of specific and general deterrence. Your conduct must be publicly denounced. However, each of the matters relied upon by your counsel have the effect of reducing your sentence considerably from that which might otherwise have been imposed on you.
40 Will you please stand?
41 Taking into account the circumstances of your offending and its effect, with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, in all the circumstances, as your offending occurred over a limited time and in one episode it is appropriate to sentence you to an aggregate term of imprisonment of three years, and I fix a period of two years imprisonment which you must serve before you will become eligible for parole.
42 I declare that you have spent 16 days by way of pre-sentence detention, not including today.
43 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to a head sentence of six years’ imprisonment with a non-parole period of four years’ imprisonment.
44 I declare that you are subject to the provisions of the Sex Offender Registration Act 2004 for life.
45 You may be seated.
46 Mr Ratliff, what is happening now is that the documents that relate to the application of the Sex Offender Registration Act 2004 is being brought to you. It is simply an acknowledgment when you sign it that you have received the documents and no more.
47 Are there any other matters?
48 MR LEW: There are no other matters, Your Honour.
49 HIS HONOUR: Thank you very much. Remove the prisoner please.
50 OFFENDER: I don't understand the sentence. How long have I got?
51 HIS HONOUR: You have been sentenced to three years' imprisonment with a minimum term of two years. You must serve the minimum term of two years' imprisonment before you will become eligible for parole.
52 OFFENDER: All right. Thank you.
53 HIS HONOUR: We will stand down till 12 o'clock.
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