Director of Public Prosecutions v Redd (a pseudonym)
[2021] VCC 1142
•13 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN RYAN REDD (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 July 2021 | |
DATE OF SENTENCE: | 13 August 2021 | |
CASE MAY BE CITED AS: | DPP v Redd (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1142 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Persistent contravention of family violence intervention orders – Two rolled up charges – Offender sent multiple emails to first victim including information about second victim – Relatively serious examples of the offence – Relevant criminal history – Advanced age, ill health and psychological disorder – Verdins.
Legislation Cited: Family Violence Protection Act 2008 s 125A; Sentencing Act 1991 ss 6AAA, 40(1).
Cases Cited: The Queen v Cotham [1998] VSCA 111; Worboyes v The Queen [2021] VSCA 169.
Sentence: Community correction order for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Porceddu (Plea) Ms T Saville (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr J Miller | Leanne Warren & Associates |
HIS HONOUR:
Introduction
1Alan Ryan Redd[1], you have pleaded guilty to two rolled up charges of persistent contravention of a family violence intervention order contrary to s 125A of the Family Violence Protection Act 2008, which carries a maximum penalty of five years imprisonment on each charge.
[1] A pseudonym
2You have also admitted your prior Criminal Record.
Circumstances of the offending
3A prosecution opening was tendered on the plea and may be summarised as follows:
4At the time of the offending you were 70 years of age.
5The two victims in this matter are your biological daughter Zoe Piper Kermode[2] who was born on February 1986 and your stepdaughter Laura Seal[3] who was born on September 1967.
[2] A pseudonym
[3] A pseudonym
6In order to place the offending in some context it is necessary to provide some brief background information. As reflected in your prior criminal record, in August 1991, you were convicted on 12 counts of incest and one count of assault with intent to commit incest for which you served a term of imprisonment. The victim in relation to that matter is one of the victims in this matter, your stepdaughter, Ms Seal.
7Some time prior to 1989 the victims ceased having contact with you. However, between 2004 and 2012 you sent correspondence to Ms Kermode via Ms Seal.
8In late 2009, Ms Kermode’s mobile telephone number was published on the internet. Immediately after, Ms Kermode received a phone call from you. Ms Kermode also became aware that she had been listed on missing person websites by you. On 10 November 2009, Ms Kermode sent a letter to you stating that she did not want contact with you.
9In December 2011 Ms Kermode started a small business and her contact details were published on the internet. You then commenced emailing Ms Kermode on a daily basis.
10Due to the unwanted contact, Ms Kermode together with Ms Seal applied for an interim intervention order on 17 July 2012 at the Latrobe Valley Magistrates’ Court. An interim intervention order was granted in favour of them both, with you as the respondent.
11The order in favour of Ms Seal stated that you must not:
· intentionally damage any property of the protected person;
· attempt to locate, follow the protected person or keep her under surveillance;
· publish on the internet, by email or other electronic communication any material about the protected person;
· contact or communicate with a protected person by any means;
· approach or remain within 5 metres of a protected person;
· go to or remain within 200 metres of SOCIT, 8 Hazelwood Road, Morwell or any other place where a protected person lives, works or attends school/childcare; and
· get any other person to do anything you must not do under this order.
12The interim order in favour of Ms Kermode stated that you could not:
· intentionally damage any property of the protected person;
· attempt to locate, follow the protected person or keep her under surveillance;
· publish on the internet, by email or other electronic communication any material about the protected person;
· contact or communicate with a protected person by any means;
· approach or remain within 500 metres of a protected person;
· go to or remain within 200 metres of any other place where a protected person lives, works or attends school/childcare; and
· get any other person to do anything you must not do under this order.
13A further order was that the Interim Intervention Orders be served on you by email.
14The matter was then adjourned to 31 July 2012 for the purposes of making full intervention orders in favour of Ms Kermode and Ms Seal.
15Each of the interim intervention orders were served upon you on 17 July 2012 at 3.20 pm via an email from Jacob McGeorge, a Registrar at the Latrobe Valley Magistrates’ Court. On 17 July 2012 at 7.19 pm, you responded to Mr McGeorge’s email acknowledging receipt of the orders.
16On 31 July 2012, the Latrobe Valley Magistrates’ Court issued full orders in favour of Ms Kermode and Ms Seal with the same conditions as the interim intervention orders. The full intervention orders are due to expire on 31 December 2060. The magistrate further ordered that the final intervention orders be served upon you via email.
Charge 1
17Between 9 July 2016 and 25 October 2016 you sent 42 emails to Ms Kermode, in which you made reference to you being both 'set up' by police, your 'Full Pardon' and a compensation claim against Victoria Police.
18Within seven of the emails you made reference to Ms Seal and the following:
· that Ms Seal and her husband Oliver[4] were to be arrested and charged for what they had done to the relationship between you and Ms Kermode;
· being cleared by the Federal Family Court in 1988 and that Ms Seal would be facing many charges in the state arena;
· that you hoped Ms Seal and her husband were charged and put in prison;
· that Ms Seal alleged that you raped her when she was 16 years old; and
· given you were pardoned, Ms Seal and Oliver should be liable for costs and damages.
[4] A pseudonym
19The prosecution opening exhibited provides a summary of the emails as per the particulars on the indictment which I will not reproduce in these reasons. It is these facts that relate to Charge 1, persistent contravention of a family violence intervention order.
Charge 2
20Charge 2 relates to the fact that your emails to Ms Kermode between 9 July 2016 and 23 October 2016 involved you publishing material on 18 occasions about Ms Seal, who was a protected person, in contravention of the Family Violence Intervention Order dated 31 July 2012. The prosecution opening provides a summary of each email as per the particulars on the indictment.
Nature and gravity of the offending
21Persistent contravention of an intervention order is viewed as a serious offence which is reflected in the maximum penalty imposed by Parliament. The maximum penalty is 5 years imprisonment compared with the offence of contravening an intervention order simpliciter which carries a maximum penalty of 2 years imprisonment. In this instance, you breached both orders on numerous occasions as detailed in the particulars on the indictment. Further, the offending is made more serious by the fact that in 2013 you breached the same orders and were sentenced in the Magistrates’ Court. In addition to sending emails, on that occasion the offending also involved contact via the telephone and by sending material of an offensive nature to the victims.
22Acknowledging that the offending is serious, your counsel Mr Miller highlighted a number of matters that are relevant in assessing the seriousness of the actual offending. First, in each case the complainants were not exposed to personal physical attendance or contact by you, rather the contact was via email only. Secondly, the emails did not contain any direct threats or threats of violence. Thirdly, in relation to Ms Seal, the contraventions are constituted by the fact that you referred to her in the emails sent to Ms Kermode. Fourthly, in relation to the contraventions concerning Ms Kermode, they are constituted by a combination of emails sent directly to Ms Kermode and emails to different recipients where you copied her into those emails.
23While I accept that your conduct did not involve physically approaching the victims or telephoning them, nonetheless your persistent sending of emails were clear breaches of the terms of the orders, which you were well aware of. You were also well aware of the possible consequences of breaching the orders as you have been dealt with for breaches in 2013.
24The two victims are entitled to live their lives without your persistent contact, against their wishes and against orders of the Court. In my view, in all the circumstances, your breaches represent relatively serious examples of persistently contravening an intervention order.
Victim impact statements
25Victim impact statements were prepared by both victims and tendered on the plea, describing the long term and ongoing burden your conduct has had on them and their families. Ms Kermode writes of the emotional turmoil your offending has caused, and how she has developed depression and anxiety as a result of being contacted by you, after having firmly indicated to you that she wished to have no contact with you. She details the numerous steps she has taken online and in person in order to protect her privacy and prevent unwanted contact from you, including closing her business and installing cameras at her home.
26Ms Seal speaks of the distress your offending has caused her and how she relives the past trauma of it. She writes that she is in fear of being contacted by you in the future. She states that she has become protective of her family and that her social life and ability to trust others have been compromised as a result of your offending.
27I have taken the content of the victim impact statements into account.
Personal circumstances
28You are now 75 years of age and living in Western Australia in a retirement village.
29You were born in Surrey, England and you have three sisters and a brother. Your mother was a gambler and you describe her as sadistic.
30You were sexually assaulted at the age of 10 and the damage caused by the abuse compromised your fertility.
31You attended primary school in South London and left secondary school at the age of 15. You were bullied at school and struggled academically. You drank alcohol heavily in your early adulthood.
32After leaving school you started an electrician apprenticeship before ending it after six months. You then worked in a number of roles including as a builder’s merchant, in warehousing, sales and heating appliances. When you moved to Australia you worked as an area manager with Johnston Stali.
33When you were 32 you married a woman called Michelle[5], who already had three children – one being the second victim, Ms Seal. You and Michelle had a daughter who is the first victim, Ms Kermode.
[5] A pseudonym
34You later married your second wife Nancy[6] in 1995 and lived together in the UK and then in Western Australia. You had a son together, James[7], who was conceived through IVF.
[6] A pseudonym
[7] A pseudonym
35Your son, now 20 years of age, lives in Perth and he experiences his own psychological issues. You have a close relationship with him.
36You have significant physical and mental health issues. In 2004 you suffered a heart attack whilst you were in Queensland and you have since had a number of stents placed in your arteries. You have been diagnosed with ischaemic heart disease and hypertension and are currently taking a number of medications daily.
37A report was prepared by psychologist, Gina Cidoni and tendered on the plea. Together with background material, Ms Cidoni was provided with some recent material including a letter you had sent to the Prime Minister where you continued to deny the allegations of incest against your stepdaughter. Ms Cidoni conducted psychometric testing and states that you exhibit a number of symptoms characteristic of a delusional disorder. In her opinion together with the results of testing, Ms Cidoni is of the view that you present with Schizotypal personality disorder, generalised anxiety disorder, depressed mood and that you showed signs of post-traumatic stress disorder.
38Ms Cidoni provides some detail as to the nature of schizotypal personality disorder and in your case reports that your thinking includes a grandiosity and that you believe you are equipped with special powers that enable you to sense events before they happen, or that you are able to read other people's minds. Ms Cidoni concluded that you are actively psychotic and required urgent psychiatric intervention. She also states that the nature of your disorder was likely to be present during the offending.
39You have a relevant criminal history. As noted above, in 1991 you were sentenced in this Court in relation to offending against your stepdaughter. As noted, in 2013 you were sentenced to a period of two years' imprisonment in relation to 12 charges of contravening the same family violence intervention order the subject of this offending. You also have prior convictions from 2015 of contravene family violence intervention order and stalking for which you received fines.
40Letters from three fellow residents at your retirement village were tendered on the plea. They describe you as a kind neighbour who is willing to help others.
Sentencing considerations
41I turn to sentencing considerations. Mr Miller outlined a number of matters in mitigation.
42First and foremost is your plea of guilty. A committal hearing took place in the Latrobe Valley Magistrates’ Court on 17 December 2018 during which the victims gave evidence and were cross examined. The matter was initially listed for trial on 1 June 2020 but ultimately adjourned to 17 May 2021 due to trials being suspended as a result of the pandemic. On 17 May 2021 following a ruling I made in relation to a pre-trial evidentiary issue, the matter settled and you were arraigned the next day. Whilst your plea was made at a late stage, it still has utilitarian value as it has spared the resources and time of a jury trial and meant that the victims have not had to give evidence again. Your plea carries additional weight in the context of the pandemic which has created a substantial backlog of cases in the criminal justice system.[8]
[8] Worboyes v The Queen [2021] VSCA 169 at [39].
43Mr Miller submitted that your mental health is a relevant consideration and that Verdins principles are enlivened. Ms Cidoni is of the opinion that if you were imprisoned your condition would deteriorate and that you would find prison more burdensome than if you did not suffer the serious psychotic disorder you battle with. I accept that view, however the evidence is not clear in terms of a causal connection to the offending at the time. The offending occurred over a period of approximately three months involving numerous contraventions, and the offending occurred some five years ago. While Ms Cidoni is of the view that your condition is organic and therefore likely to have been in existence during the time of the offending, in my view the evidence does not provide a causal link. Nonetheless, I accept that your serious psychological conditions are existent now, at the time of sentencing, and therefore general deterrence is able to be moderated to some degree.
44Deterrence both general and specific are prominent sentencing considerations which was conceded by your counsel. The courts must make clear that conduct such as yours will not be tolerated.[9] However, Mr Miller submitted that in the five years that have passed since the offending, there has been no further breaches. He submits that while it has taken time, and that you are suffering from a serious psychological disorder, you understand and accept that you cannot have any further communication with your daughter or stepdaughter.
[9] The Queen v Cotham [1998] VSCA 111 at [14].
45It was submitted on your behalf that in all the circumstances including your age, your physical ill health and the fact that you are currently suffering from a serious psychological disorder, a community correction order is able to meet the applicable sentencing considerations in this instance. As you are living in a retirement home in Western Australia, any such order would need to commence in Victoria and then be transferred to Western Australia if approved. Mr Porceddu who appeared on behalf of the Director of Public Prosecutions submitted that while the offending is serious, in the circumstances, a community correction order is within range.
46I had you assessed for such an order and you have been found suitable. In all the circumstances, in my view a community correction order is able to meet the relevant sentencing considerations while seeking to address your metal health, your offending and to provide a level of supervision in the community.
Sentence
47Mr Redd, l would you please stand.
48Alan Redd, on Charges 1 and 2, you are convicted and will be placed on a community correction order for a period of 3 years. As you have been convicted of two offences which are part of a series of offences of the same or similar character, pursuant to s 40(1) of the Sentencing Act 1991, the community correction order will incorporate both charges.
49In addition to the core conditions that apply to all corrections orders, the order will contain a number of specific conditions. There will be a condition to address your mental health and a condition to address your specific offending. You will also be subject to supervision.
50Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment followed by a community correction order.
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