Director of Public Prosecutions v Reardon (a pseudonym)

[2017] VCC 1324

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID REARDON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September 2017
DATE OF SENTENCE:	15 September 2017
CASE MAY BE CITED AS:	DPP v Reardon (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1324

REASONS FOR SENTENCE
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Subject:Sexual penetration of a child under 16; indecent act with a child under 16

Catchwords:  Sexual penetration; uncle with niece
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited:  R v Rumpf (1988) VR 466; R v Poulton [1974] VR 716
Sentence:  4 years imprisonment with 2 year non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Accused	Mr C. Morgan
For the Director of Public Prosecutions	Ms R. Champion

Pages 1 - 6

 

 

HER HONOUR:

Charges

1David Reardon,[1] you have pleaded guilty to one count of sexual penetration of a child under the age of 16 and one count of indecent act with a child under 16.  The act of sexual penetration occurred at a time when the complainant was aged between ten and 16 and was under your care, supervision and authority.

[1] A pseudonym.

2The maximum sentence for sexual penetration of a child under 16 is 15 years' imprisonment, and the maximum penalty for indecent act with a child under 16 is ten years' imprisonment.

Circumstances of offending

3The  offending occurred against your niece Kayla.[2] At the time of the offending you were 48 years old and Kayla was 11 years old.

[2] A pseudonym.

4The   offending  occurred one night in 2001 when Kayla was staying the night at your house. You said she could sleep with you. You got into bed together. Kayla was wearing underwear, pants and a top Kayla fell asleep and woke up to you touching her.

5She was lying on her side and you were spooning her from behind. You moved your hands up and down her arm and stomach. You grabbed her waist and pulled her on top of you so she was lying on top of you and facing you. You started kissing her. You held her waist and moved her up and down on your penis. It is unknown if your penis was erect.

6You continued to do this for a while and Kayla was scared. You then rolled her off you so she was lying on her back on the bed. You removed her  pants and underwear. The charge of sexual penetration relates to your actions of then rubbing her vagina and inserting your finger into it. She was in pain

7The second charge of indecent act with a child under 16 relates to your actions of then licking her vagina with your tongue. After you finished what you were doing you pulled her underwear and pants back around her ankles. You leaned over her and kissed her on the forehead and said “you were great” You rolled over and went to sleep. Kayla pulled her pants up and lay awake for hours.

Complaint

8When Kayla was 15 years old she told her boyfriend that she had been sexually abused by you and asked him to keep it a secret. In November 2007 she told the members of her immediate family including her father who did not believe her.

9However, in April 2016 after discovering that it had been alleged that you were involved in child pornography Kayla’s father confronted you about what Kayla said had happened. When you were asked whether you had sexually assaulted her you answered in the affirmative.

10On 17 September 2016 you were arrested and participated in a record of interview where you gave no comment answers.

Victim Impact Statement

11It is apparent from Kayla's victim impact statement that your offending had an adverse psychological effect on her.  She feels confused and betrayed by your actions and unable to clear the negative thoughts that she been suppressing for so long.  She said it was difficult for her to write her victim impact statement, and that while writing it she broke down and cried.

Personal circumstances

12Your personal background was outlined to the court by your counsel.  You are 64 years old and you are married with two adult sons.  Up until 2014 you have been in constant employment almost entirely in the payroll industry.  You are currently unemployed.

13While you have no prior convictions, on 11 October 2016 you were found guilty of a child pornography offence.  It is apparent from the report from Dr Joseph Poznanski, psychologist, that addiction to child pornography has been an issue for you for some time.  In fact, you were referred to the doctor by your GP in June 2013 to address that issue.

14In his report of 6 September 2017, Dr Poznanski confirms that you are having treatment with him for this issue and that you have been for the last four years.  He also confirms that during the sessions you disclosed to him that you had molested your niece.  You told him it was an opportunistic act for which you had felt guilty about since that time.  You informed him you were aware of the negative and devastating effects of child sexual abuse, and that you felt deeply remorseful for morally wounding your niece, and in turn causing severe anguish to her family.  You told him that you felt it was morally right to plead guilty and face the consequences for your actions.

Defence submissions

15In his plea on your behalf your counsel relied on the following mitigating matters;

·your early plea of guilty;

·your remorse and insight into the effect of your offending on both your niece and her family - which you had expressed in the counselling sessions with Dr Poznanski;

·that you had admitted your offending when confronted by your niece's father; and

·that you had no prior convictions.

16With respect to your subsequent child pornography charge you had successfully completed work hours and treatment obligations under a community corrections order you received on 11 October 2016.

17Your counsel informed the court that your wife and two adult sons continue to offer support and assistance in your rehabilitation, and it was submitted to this court that your prospects of rehabilitation were positive.  With respect to your sentence, while your counsel dabbled for a short while with the prospect of a combination sentence, he very sensibly made a submission that a gaol term with a proportionally short non-parole period might be appropriate.

Prosecution submissions

18The prosecutor submitted that your offending was serious and that your moral culpability was high.  This was because of the young age of your niece, your breach of trust and your abuse of your position.  With respect to your subsequent offending it was submitted that there was an increased need for specific deterrence; particularly because your subsequent offending occurred 12 years after this offending and you had not rehabilitated in that time.  It was submitted that your prospects for rehabilitation were more limited than they would otherwise have been if there had been no subsequent offending, and if you had given an explanation for your offending.

19The prosecutor submitted that your offending warranted a term of imprisonment to be served immediately.  The defence submission that there should be a shorter non-parole period was not accepted.  The submission of the prosecutor was based on what was submitted to be aggravating features of your offending, including the young age of the complainant and the increased need for specific deterrence, the limited prospects of your rehabilitation and the gross abuse of trust by you.

20The prosecution relied on the authorities of R v Rumpf[3] and R v Poulton[4] in submitting that your subsequent offence could be taken into account as part of your antecedents for the purpose of fixing a minimum non-parole period.

[3] (1988) VR 466

[4] [1974] VR 716

Sentencing remarks

21In sentencing you I have taken into account all the mitigating factors referred to by your counsel.  Your plea of guilty saved your niece the trauma of giving evidence in a trial and the State the costs of a trial.  You have received an appropriate discount for this plea.

22While the prosecutor raised some concerns about your remorse I accept that you are remorseful for the harm you caused your niece and the anguish you caused her family.  Your remorse is evidenced not only by your plea of guilty, but also in the statements you made during your treatment with Dr Poznanski.

23With respect to your prospects of rehabilitation it appears from your subsequent offending involving child pornography that you continued to exhibit a sexual interest in children after offending against your niece.  It is also apparent from your subsequent offending that you had not rehabilitated over that 12 year period.  I accept the prosecutor's submission that your prospects of rehabilitation are more limited than would otherwise have been the case if there had been no subsequent offending and you had explained your offending. However, I also accept that for the last four years you have engaged in appropriate treatment with Dr Poznanski to try and deal with your sexual interest in young children.  I accept that you have demonstrated insight into your offending and that you are trying to do something about it.  Consequently, I accept that your prospects of rehabilitation are at least reasonable.

24Your counsel, as I said, was realistic in recognising that your offending calls for a gaol term.  In offending against your niece you committed a grave breach of trust.  General and specific deterrence, as well as just punishment and denunciation, are important sentencing considerations in cases where adults abused the trust placed them in by children.  You were Kayla's favourite uncle and you abused her.  She was only 11 years old and you were 48.  It is apparent from her victim impact statement that your actions have caused her psychological harm, and that she feels betrayed by you.  The psychological effects of your abuse and your betrayal are likely to be something that Kayla will have to deal with for the rest of her life.

25Taking all the circumstances of this case into account in sentencing you and balancing the fact that you committed a subsequent offence with your more recent effects of rehabilitation, I have given you a slightly shorter than normal non-parole period.

Sentence

26On the charge of sexual penetration of a child under the age of 16 you are sentenced to three years and six months' imprisonment.

27On the charge of indecent act with a child under the age of 16 you are sentenced to 18 months.

28The base sentence is a sentence of three years and six months on Charge 1.  I cumulate six months of the sentence on Charge 2 on the sentence on Charge 1, so the head sentence is four years.  I fix a non-parole period of two years and four months.

29But for your plea of guilty I would have sentenced you to six years with a non-parole period of four years.

30As on 11 October 2016 you were found guilty of knowingly possess child pornography, which is a Class 2 offence - I think that is right; a Class 2 offence - and you have now been found guilty of a Class 1 offence.  You must comply with reporting conditions under the Sex Offenders Registration Act for life.  Yes, is there anything else?

31MS CHAMPION:  No, Your Honour.

32MR MORGAN:  No, Your Honour.

33HER HONOUR:  Thank you.  Was there something?

34MR MORGAN:  Sorry, Your Honour, just - we're just wondering about the effect.  I'm not sure what happens when someone's currently reporting under the Act where ‑ ‑ ‑ 

35HER HONOUR:  He has to sign new ‑ ‑ ‑ 

36MR MORGAN:  He does?

37HER HONOUR:  Yes.

38MR MORGAN:  No, that's what we're asking.  Yes.

39HER HONOUR:  Yes.

40MR MORGAN:  No, that's ‑ ‑ ‑ 

41HER HONOUR:  Just unfortunately it has to go through it all over again because it's now life and not ‑ ‑ ‑ 

42MR MORGAN:  Yes.

43HER HONOUR:  Was it 15 years previously?

44MR MORGAN:  Eight years previously.

45HER HONOUR:  Eight years previously.

46MR MORGAN:  But, no ‑ ‑ ‑ 

47HER HONOUR:  Yes.

48MR MORGAN:  I was worried that we missed ‑ ‑ ‑ 

49HER HONOUR:  So he just signs the documentation.  Yes, you've been handed the sex registration documentation.  You're aware of what it's all about and you have been complying with it, so I don't see any problem with that.  Thank you.

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