Director of Public Prosecutions v Reece Bell
[2015] VCC 2145
•15 July 2011
THESE
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| REECE BELL (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 July 2011 | |
CASE MAY BE CITED AS: | DPP v. Reece Bell | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2145 | |
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr A. Hassan | |
| For the Accused | Mr T. Oldfield |
HIS HONOUR:
1 Could you stand up, please, Mr Bell
2 Reece Bell, you have pleaded guilty to four charges of incest, Charges, Numbers 1, 2, 4 and 10, and six charges of indecent act with a child under the age of 16, Charges 3, 5, 6, 7, 8 and 9.
3 The details of your offending are set out in a summary of the prosecution opening, which is Exhibit 1 on the plea, and I attach that exhibit to these reasons for sentence. I do not now intend to recite the facts. The prosecution summary is accepted by the defence. It is the factual basis upon which I shall sentence. Any reader of these reasons can refer to the attachment to place the sentences in their factual context.
4 PROSECUTION SUBMISSIONS
5 The prosecutor submitted that the appropriate sentencing range was between a head sentence of 10 to 14 years and a non-parole period of between eight to 10. She tendered as Exhibit 2 a victim impact statement from Eve McKay[1]. Ms McKay read her victim impact statement in court and I have taken into account its contents.
[1] A pseudonym
6 The prosecutor also tendered your criminal record. She submitted specifically in relation to Charge 5 that it was an indecent assault at the highest level, although not alleged to be a penetration. Charges 2, 3, 4, 5, 6, 7, 8 and 9 are representative counts. She submitted that Charge 2 would be an appropriate base count. I have taken the view that Charge 4 should be the base count.
7 She submitted that there are three stages to the sexual abuse. The first stage is when the victim was aged between nine and 11, and the incidents occurred in her bedroom. The second stage, between the ages of 11 and 12, and the abuse was in your bedroom. And the third stage, between the ages of 12 and just before her 16th birthday, when you would abuse her in the shower. In addition to these three stages there is the single incident of abuse in a garden shed.
8 You will be considered as a serious sexual offender pursuant to sub-s.(6B)(2) of the Sentencing Act 1991 for the purposes of charges three to 10, as terms of imprisonment will be imposed on Charges 1 to 2. The prosecution does not seek a sentence longer than which is proportionate to the gravity of the offences in this matter. Pursuant to s.6E of the Sentencing Act all terms of imprisonment must be served cumulatively unless otherwise directed by the court. You will be registered under the Sex Offenders Registration Act.
9 DEFENCE SUBMISSIONS
10 Your counsel, Mr Johnston, submitted that:
11 (1) The offending occurred over a six year period and not as might be seen from a reading of the indictment, an eight year period, and I accept that.
12 (2) There were three discrete periods of offending in addition to the single charge.
13 (3) You have pleaded guilty.
14 (4) Although you have a criminal record it does not contain any convictions for sexual matters.
15 (5) He conceded the gravity of the offending and that it was over a protracted and sustained period.
16 (6) An immediate gaol sentence should be imposed.
17 (7) General deterrence was a substantial feature of the sentencing process.
18 (8) The aggravating features were conceded.
19 (9) He agreed that the principles in relation to a serious sexual offender would apply.
20 Mr Johnston tendered two reports from Dr Paul Grech, a Consultant Clinical Psychologist. The first report dated 11 May 2011, and the second report dated 28 June 2011. Dr Grech set out your previous medical and psychiatric history and the various times at which you had attended him for psychological counselling.
21 In his first report he set out your family background in which it was said you had one brother and three sisters. Your father was an alcoholic cross-dresser who repeatedly bashed your mother. Your parents divorced when you were aged nine and you went to live with your mother. Mr Johnston told me that you were made a ward of the state when you were aged 13 to 14, and subsequently billeted at St Paul's School for the Blind in Kew until you were aged 16. You have had learning difficulties because of an eye disability. You had to attend special classes. Your mother re-partnered with a Oskar Bruce[2], who according to you sexually abused your sister. He was reportedly imprisoned for child molestation offences.
[2] A pseudonym
22 You have two children to your wife and two stepchildren. Your wife is the mother of all the children. She has indicated that once you are imprisoned she will no longer support you. You met her some 16 years ago and the relationship has continued since then.
23 You reported to Mr Johnston that your father had inflicted severe corporal punishment upon you for things such as bedwetting and made you take cold showers and inflicted beatings. Dr Grech obtained medical records from Dr Yang Yiap in relation to anxiety, depression and mood disorder. A history of alcohol and drug abuse was outlined.
24 Psychometric testing was conducted and you obtained a score of 31, which placed you at significantly increased risk of meeting criteria for an anxiety or depressive order, and reported symptoms which suggested the possibility of Adult Attention Deficit Disorder superimposed upon major mood dysfunction with some signs of post-traumatic sequelae also evident. Provisional opinion was made in the first report. A diagnosis of ADHD and bipolarity of mood had originally been made by a psychiatrist, Dr William Orchard, and you were treated for anxiety and depression and mood disorder by Dr Yiap. The preliminary conclusion was that you were settling under a regime of mood stabilising and stimulant medication.
25 In the second report Dr Grech considered the issues of your sexuality. You acknowledged to him harbouring a sexual attraction towards your stepdaughter but denied a general attraction towards minors. You presented as being extremely ashamed and remorseful, wracked with guilt for years and being relieved at having been caught out. You expected to completely lose your family.
26 You made a further allegation during that consultation of your mother fondling you on occasions and rubbing herself up against you when you were aged 10.
27 In his opinion, Dr Grech said that although it would be quite premature to endeavour to determine your risk status, you cannot be considered to be at the high end of the risk continuum in relation to assumptions about paedophilia because it would appear that your stepdaughter may be your only victim and you are demonstrating a considerable degree of genuine guilt and remorse. He said that it was anticipated that as a consequence of your mental and emotional disability you will suffer disproportionately whilst in custody.
28 It is noted you have been denied medication since I revoked your bail. Of course the reason for that is that you had overmedicated prior to the last hearing in an apparent effort at suicide, and since then prison authorities are understandably very cautious in providing you with any type of pharmacology.
29 Mr Johnston said that from the ages of 19 to 44 you have had many intermittent levels of employment, mostly in labouring positions. You have had a difficulty with a cataract in your eye and suffered from depression. He said that from the age of 18 to 19 you drank heavily and it was a problem between the period of 1993 to 1998. He also detailed some use of heroin and marijuana.
30 He submitted that your criminal history, although extensive, did not involve matters of a sexual nature. A perusal of it reveals that between the years 1993 and 1998 you were in court for a large variety of assault police matters, damage property, criminal damage, recklessly cause serious injury, assault with a weapon, intentionally cause injury and threat to kill.
31 You received a variety of penalties including a fine, a bond and Intensive Corrections Order. Mr Johnston submitted that in effect a lot of this offending was related to your interconnection with the drug world. You had only served gaol for a breach of other sentencing orders.,
32 Mr Johnston said you met Mairi[3] in 1994 and married her in May 1996. She attended this sentencing hearing but sat outside the court. His instructions are now that the relationship has finished. Your son, Matthew[4], is aged 20, your son Frazer[5], who is at primary school, is aged 10. The children are aware of this offending.
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
33 You had two friends in court to support you. Mr Johnston took me through a potted history of your psychiatric problems and submitted that there was a current diagnosis of ADHD with bipolarity of mood, which is a mild form of bipolar disorder. He submitted that upon a consideration of Dr Grech's report that the following matters should be considered; (1) That you have expressed shame and remorse, (2) that he was not relying on a Verdins connection except for the effect prison will have on your mental health issues. He submitted that you will suffer disproportionately in custody. There is some support for this submission in Dr Grech's report.
34 Mr Johnston outlined what occurred generally when you attended court last time, and you had taken an overdose of an antipsychotic medication at a railway station. He urged me to consider the principle of totality of proportionality. He submitted that I should sentence towards the lower end of the prosecution range. He handed up to me the case of FD v. R [2011] VSCA 8, which is a review by Redlich and Weinberg JJA, of similar types of cases, and the recent statistics of sentencing concerning them. I have read that case and take heed of what it says in respect of current sentencing practices and the method of cumulation in these types of cases as set out in paragraph 35.
35 SENTENCING CONSIDERATIONS
36 Under the provisions of the Sentencing Act you are to be sentenced as a serious sexual offender for Charges 3 to 10 inclusive, and that fact will be entered in the records of the court. That you are to be sentenced on those charges as a serious offender means that those sentences must be served cumulatively, unless I direct otherwise.
37 The prosecutor has indicated she does not seek a disproportionate sentence here, having regard to the principle of totality. I do not propose to wholly cumulate sentences and will apply the principles of totality and proportionality to your overall sentence.
38 My attempt of sentencing will be to reflect such totality, but also to have reference to the offending here. That you are a serious offender also requires that I regard the protection of the community as a principal sentencing purpose, and I may, to achieve that, impose a longer sentence than one proportionate to the gravity of your offences. I do not intend to impose a longer than proportionate sentence. Your offences are serious, but a proportionate sentence which also takes into account the relevant purposes, will be in my view sufficient to meet the purposes of the protection of the community in this case.
39 To that end I have attempted to balance and weigh up the relevant considerations. The sentence that I impose must be one that meets the relevant considerations and reflects the seriousness of what has occurred here.
40 I have taken into account all the submissions and matters put to me by both the prosecutor and your counsel, including any not specifically mentioned in these reasons.
41 Your behaviour here was appalling and incomprehensible to an ordinary person. It was aggravated by the breach of trust towards your victim, and her age. As Eve McKay said, you robbed her of the innocence of her childhood, and the effects of your offending upon her will be with her for a long period of time.
42 The sentencing purposes of general deterrence, specific deterrence, an expression of the community's denunciation of your crime are important here. Your moral culpability is high. I refer to the case of R v. WEF [1998] 2 VR 385, where President Winneke said:
"It must be understood by the community, and in particular those who stand in a position of trust and responsibility towards young children, that if they wish to enjoy the benefits which derive from a relationship with young children they will pay a heavy price if they abuse such trust and responsibility by resorting to their own sexual gratification at the expense of those whom they have in their charge."
43 I accept that you have entered a plea of guilty at the first reasonable opportunity. This entitles you to a significant discount, particularly since the victim has been spared the ordeal of having to give evidence in a contested trial. I accept that you have shown remorse, as detailed by Dr Grech in his report. I have adjusted the sentence appropriately to take into account any hardship that might be occasioned upon you in prison because of your mental health issues. I have taken into account that although you have a previous extensive criminal history it does not include any sexual matters.
44 In respect of the representative counts, I adopt the position set out in SBL v. R [1991] VR 706 where at paragraph 70, Batt JA said:
"Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context."
45 You will be automatically registered under the Sex Offenders Registration Act. The period of reporting will be for life, for offences of this nature. At the end of this sentencing process there will be a document shown to you which indicates to you what your obligations are. For the period of the rest of your life you will be required to provide certain information, and when you are not in custody, to report to the police.
46 There are other obligations set out in this document, which my associate will ask you to sign at the end of this sentencing process. You do not have to sign if you do not want to.
47 It is always a difficult exercise to frame a sentence in these types of matters appropriate for each count. However, doing the best I can I have fixed on sentences which as best as possible distinguish the circumstances of each count. I have then sought to impose partial cumulative orders in respect of some of them, so as to reflect the episodes and the overall criminality and the principles of totality and proportionality.
48 On Charge 1, a charge of incest, I sentence you to a period of imprisonment of three years.
49 On Charge 2, a charge of incest, I sentence you to a period of imprisonment of five years.
50 Charge 3, indecent act, 12 months.
51 On Charge 4, a charge of incest, five years, six months.
52 Charge 5, indecent act, 18 months.
53 Charge 6, indecent act, 15 months.
54 Charge 7, indecent act, 12 months.
55 Charge 8, indecent act, 12 months.
56 Charge 9, indecent act, 15 months.
57 Charge 10, indecent act, four years.
58 I order that six months of the sentence on Charge 1, and three years of the sentence on Charge 2, and two years of the sentence on Charge 10 be served cumulatively upon each other and upon Charge 4, making a total effective sentence of 11 years. I fix a non-parole period of eight years. I declare under s.18 of the Sentencing Act that the period of 64 days that you have spent in custody is to be reckoned as a period of detention already served.
59 Under s.6AAA of the Sentencing Act I state that but for your plea of guilty I would have sentenced you to a head sentence of 13 years with a non-parole period of 11 years.
60 Does anyone want me to go through those figures again on the counts?
61 MR OLDFIELD: No, Your Honour.
62 MS HASSAN: No, Your Honour.
63 HIS HONOUR: I think my arithmetic is correct. Would you give the Sex Offenders papers to Mr Oldfield and ask if his client wants to sign them. Could you perhaps go up to my associate, Mr Oldfield, and explain to your client that he does not have to sign them and explain to him the effect of them.
64 MR OLDFIELD: They have been signed, Your Honour.
65 HIS HONOUR: Thank you. Would you remove Mr Bell, please. I may as well stay here. You two are excused. Thanks.
66 MS HASSAN: Thank you, Your Honour.
67 MR OLDFIELD: As Your Honour pleases.
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