Director of Public Prosecutions v Reed (a pseudonym)
[2016] VCC 889
•24 June 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH REED (a pseudonym) CATHERINE LLOYD (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE QUIN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | |
DATE OF SENTENCE: | 24 June 2016 |
CASE MAY BE CITED AS: | DPP v Reed (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2016] VCC 889 |
REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Hennessy | |
For Accused Lloyd | Mr S. Lindner | |
For Accused Reed | Mr A. Halphen |
HER HONOUR:
1Joseph Reed,[1] you have pleaded guilty to a single charge of persistently sexually abusing your cousin, Anne,[2] who at the time was aged between 12 and 15 years. The maximum penalty for this offence is 25 years.
[1] A pseudonym
[2] A pseudonym
2Catherine Lloyd,[3] you have pleaded guilty to two charges in respect of your daughter.
(1) Committing an indecent act with Anne Lloyd, then under 16, and(2) Sexual penetration of Anne Lloyd, a child under 16 under your care, supervision and authority.[3] A pseudonym
3The maximum penalties for these offences are ten years and 15 years respectively. These offences occurred in the same context or occasion as Mr Reed's offending.
4You have also agreed to a relevant summary matter, breach of a bail condition, being dealt with by me. The maximum penalty is two months or 30 penalty units.
5Before outlining the circumstances of the offending, the charge of persistent sexual abuse is constituted by conduct that on at least three occasions, over the relevant period, you, Reed, engaged in acts which constituted one or the other, or both of the particular qualifying sexual offences of either sexually penetrating a child under 16, or engaging in an indecent act with a child under 16, both of these in respect of Anne.
6Joseph Reed, by your plea to this charge and your acceptance of the agreed statement, you sexually abused Anne many times over the three year period. The agreed statement gives details of 12 incidents of sexual abuse on eight different occasions. I will identify each of these in my summary of the circumstances of your offending.
7By way of background, Reed, you are the nephew of your co-accused, Catherine Lloyd. Your mother and Catherine Lloyd are sisters. You are the cousin of Anne. During the course of your offending, you were aged between 37 and 40.
8Catherine Lloyd, you are Anne's mother. You were aged 50 when you committed the offences.
9Anne Lloyd was born in January 1999 and is now aged 17. She was aged 12 when this offending commenced and was 15 on the last occasion relied upon by the prosecution.
10In January 2011, you, Reed, moved into a property that you owned in Caroline Springs. Your aunt, Catherine Lloyd, was already residing at the house, as she had separated from her husband shortly before this. Ultimately you commenced a sexual relationship together.
11Approximately three to four months later, Anne moved into the house. Samantha,[4] her sister, sometimes stayed at the house for a few nights during the week.
[4] A pseudonym
12Approximately halfway through 2011, you, Reed, took Anne, then aged 12, to your parents' house, also in Caroline Springs. Whilst in the garage, you told her to sit on your lap. You then unzipped her jacket and pulled out her breasts, asking her if anyone had sucked them. You then sucked on her breast. That is Occasion 1, Incident 1. You ceased when your mother came into the garage.
13On an evening between June and December 2011, you were both sitting on the bed in your bedroom. Anne came in and sat on the bed with both of you. You, Reed, took off both your own and Catherine Lloyd’s clothes, then pulled down Anne's underwear. You then engaged in penile/vaginal sex together when Anne was in the room. That is Occasion 2, Incident 1.
14Whilst this was occurring, you, Reed, touched Anne's vagina. Occasion 2, Incident 2.
15Reed told Anne that he wanted Catherine to watch, and you, Catherine Lloyd, then smiled at Anne whilst this was happening. The agreed particulars of this occasion involved both sexual acts occurring in the presence of and involving Anne. That is Charge 1 in respect of you, Catherine Lloyd.
16The next morning, you, Reed, told Anne you were going to break her virginity. You were all naked in the bedroom. Joseph Reed, you had penile/vaginal intercourse with Anne, in your presence, Catherine Lloyd. That is Occasion 3 in respect of Joseph Reed, Charge 2 in respect of Catherine Lloyd.
17This occurred slowly, as Anne was crying and saying it hurt. Whilst this was happening, you, Ms Lloyd, lent forward and held Anne's legs so you could better see the intercourse.
18I confirmed in the course of the plea that you, Catherine Lloyd, accepted the statement of agreed facts. You, Ms Lloyd, were acting in concert with Reed.
19Ultimately this activity stopped because it was hurting Anne and she was pushing you, Reed, away.
20Catherine Lloyd, this was the last time that you were involved in any offending and I note that your involvement was of comparatively short duration.
21At a time after this third occasion, but before December 2011, you, Reed, had penile/vaginal intercourse with Anne a second time. That is Occasion 4.
22Anne has stated this occasion hurt less than the first and that there was a third, fourth and fifth occasion after this, whereby she had then got used to this happening.
23On a day in 2012, you, Reed, were with Anne in the garage at your parents' house. You pulled down your pants and asked Anne to suck your penis, and then you penetrated her mouth with your penis. Occasion 5, Incident 1.
24You then had penile/vaginal intercourse with Anne when she was leaning on
a chair, as directed by you. Occasion 5, Incident 2.25You then told her to suck on your penis again, which she did until you ejaculated. Occasion 5, Incident 3.
26On a day in 2013, Anne and you, Reed, were again in the garage at your parents' house. You told Anne to bend down and hold onto a pole. You then lifted up her dress and had penile/vaginal intercourse with her. That is Occasion 6.
27On a day between 5 November 2014 and 30 November 2014, when Samantha was at the house, she had a medical emergency and was taken to hospital by you, Ms Lloyd. You, Mr Reed, went into Anne's room to console her and started hugging and kissing her. You then turned her over, removing her pants and had penile/vaginal intercourse with her. That is Occasion 7. You stopped when you ejaculated on her stomach.
28On a day between October and November 2014, Anne had just got home from school and you, Reed, were home alone. Anne went to the bathroom for
a shower and you went in while she was undressing. You asked Anne to suck your penis. You then undressed her and started kissing, rubbing and sucking her breast. That is Occasion 8, Incident 1.29You then pushed her head down and penetrated her mouth with your penis. Occasion 8, Incident 2.
30You ejaculated on her face with some of the ejaculate going onto her necklace.
31On 5 December 2015, Samantha asked Anne if you both had touched her. Anne told Samantha that she had to watch you both having sex. Following this disclosure, the girls went to the park, where they contacted their other siblings. Anne told Samantha her mum was present when Joseph Reed first had sex with her. Anne also told her about the time when she had to go to hospital, "she" being Samantha. Police attended the park and Anne made a number of disclosures and then participated in a VARE.
32You, Reed, were arrested on 5 December 2014 at your home and interviewed. You answered the first few questions in the interview and then answered "no comment" to all other questions.
33You, Ms Lloyd, were interviewed on 17 February 2015. In your interview, you said that Anne walked in on you and Reed having sex, but she did not know if she had stayed there or not. You said you could not admit that Reed had sex with Anne the following day.
34Anne has provided a victim impact statement, which was directed to the effect of the crime committed by you, Reed. I take the admissible portions of the statement into account. It makes for disturbing reading. Your offending has had a significant impact on Anne. She has trouble sleeping, suffers nightmares and flashbacks. She has issues with eating, embarrassment, shame and problems socialising with peers, particularly males. You have taken away her childhood and innocence and the joys that most teenagers experience.
35Joseph Reed, you are currently aged 42 and the offending commenced when you were 37. You are the second of three children. Your parents came to Australia from Malta before you were born and you currently reside with both of them. You had an uneventful childhood and successfully completed your schooling to Year 12. You obtained and advanced certificate in avionics and were employed by Ansett until that company went into liquidation.
36You have a solid work history and have been gainfully employed during your adult life, working as both a machine operator and truck driver. You have provided financial support for your parents and you have worked up until May this year, when you resigned as a result of these proceedings.
37As to your physical health, you have suffered a heart attack in November 2014. I was provided with a list of medications that you are currently taking from your GP.
38I received a report from Patrick Newton, clinical and forensic psychologist, dated 26 May 2016. You have no history of psychological difficulties, prior to being charged with these current matters. Newton links your personality traits of dependence and poor social skills as connected to your circumstances and this offending. He notes:
"Firstly, while he identifies his dominant orientation as being towards female aged peers, he attributes a precocious sexual maturity to young women aged about 12 and perceives them to be more ready for a sexual activity at a given age than is accurate. Secondly, Mr Reed has severe difficulties delineating between healthy familial affection on the one hand, and romantic or erotic feelings on the other. This is evident in his contemporaneous incestuous relationship with his aunt, as well as in his relationship with his cousin and reflects strong interpersonal dependency."
39Since 17 March 2016, you have attended five sessions with psychologist Matthew Barth. A report has been prepared by him, dated 29 May 2016, relating to your participation in sex offender's treatment program. Barth is of the view that although you have made some progress in treatment, it is apparent that you have limited insight into your offending and you will need considerable therapeutic work to be completed before you can address your relevant offending behaviour.
40You will require an extended period of specialist sex offender treatment to enhance your rehabilitative prospects in the community. You have expressed a desire to continue with treatment. Such a desire is relevant to your rehabilitation prospects that I will address later in these reasons.
41You have no prior convictions.
42I received a number of character references on your behalf from your family members, friends and work colleagues. I take that material into account. You are regarded as a trusted and loyal person in each of them. It is apparent from that material, you have been generous in providing financial support for your parents and others in need. In that material and in a letter from you to the court, it is clear you have suffered humiliation, shame and embarrassment regarding the circumstances of your arrest and your offending conduct.
43Your counsel submitted that the availability, volume and content of this material was unusual, given the nature and the details of your offending. You are fortunate to have retained the support of each of these people.
44As to your personal circumstances, Catherine Lloyd, you are currently aged 55. You are the youngest of five children, with one brother and two sisters still alive. Your family moved to Australia from Malta when you were young. You spent some of your younger years in Melbourne, but also in Malta where you travelled with your parents whilst your siblings remained here. You met your husband when you were 15 and married him a year later. You came back to Melbourne after you married and had five children, including Anne. They are now aged 36, 31, 29, 20 and Anne is now aged 17.
45In 2003 you returned to the workforce as a cleaner and remained doing that kind of work until 2012. You made a WorkCover claim for harassment, as
a result of bullying at your workplace. At this time you received psychiatric and psychological counselling, having being diagnosed initially with a depressive order and an anxiety disorder with panic attacks and agoraphobia. You subsequently developed major depression with concurrent psychotic symptoms.46You first separated from your husband in 2010. It was in these circumstances that you, needing accommodation, moved into a house owned by your nephew, Joseph Reed. As previously mentioned, ultimately he also moved into that house and a sexual relationship developed between you. It was in this context during 2011 that your offending involving Anne and Joseph took place.
47I received a report from Mr Jeffrey Cummins, forensic psychologist, dated
24 May 2016. He reports you are overwhelmed with guilt, shock and shame concerning your offending behaviour. You were unable or did not provide details regarding your conduct to Mr Cummins. As previously noted, you accept that the agreed facts or the material in Exhibit A encompassed your conduct.48In respect of your summary, I was informed that you had not understood that when you were released on bail, that you could not speak with or associate with your daughter, Anne, under any circumstances. You had thought you were only restricted to discussing the case with her. You have been in custody since your bail was breached.
49In Mr Cummins opinion, at the time of the commission of the offences, you were suffering from a major depressive disorder, and anxiety disorder and from an adjustment disorder, with mixed anxiety and depressed mood. The latter developed as a consequence of events at work, the separation from your husband and you feeling controlled and intimidated by Reed.
50In Mr Cummins opinion, your moral culpability was reduced at the time of your offending because of these mental health conditions and also because of your dependent personality style and difficulties with your relationship with Joseph Reed.
51Your counsel submitted, on the basis of that material, which the prosecution did not challenge, that you should be considered to have reduced moral culpability for your offending. I accept that submission and take it into account.
52You have no relevant prior convictions.
53I note that you have been in custody since your bail was breached over a year ago in March 2015, and that this has been your first experience in custody.
54You both pleaded guilty to these matters. You, Catherine Lloyd, pleaded guilty at a special mention on 11 December 2015, prior to the listing of the committal on 17 February 2016. You, Reed, pleaded on the day when the committal was listed to commence. In respect of both of you, you receive a discount in sentence for your plea. Your plea has a utilitarian benefit and has saved the community time and the cost of running a trial. Your pleas have also avoided the need for Anne to give evidence and re-live the traumatic incidents, and also serves to give her a sense of certainty and finality.
55I accept the pleas indicative of remorse. In respect of you, Ms Lloyd, Mr Cummins is of the opinion that he was left with no doubt that your expressions of remorse, regret and victim empathy were genuine.
56In respect of you, Reed, Mr Newton notes that you have expressed some remorse for your conduct and that you have expressed a desire to apologise. However, he notes that your insight into the likely effects of your conduct on Anne was quite limited. Consistent with this view, was concerns expressed by you in material provided to me regarding the circumstances of your arrest and the effect these events have had on you, immediate family members and friends. I accept that you have shown some remorse for your actions.
57As to rehabilitation, in respect of you, Reed, there are a number of positive features, namely:
(1) The level of support from family and friends;
(2) Stable employment history and positive work adjustment:
(3) Stable accommodation and financial situation, and;
(4) Mr Newton's assessment of the absence of generalised behavioural factors that would have contributed to a heightened risk of recidivism.
58Mr Newton carried out a detailed risk assessment of you, which encompassed both stable and dynamic factors. He is of the view that you pose a moderate risk of recidivism to sexual offending. However, it is apparent that you have limited insight into your offending behaviour and that you require considerable specialist intervention and therapy over an extensive period to address your sexual offending behaviour. Your rehabilitation prospects are guarded.
59In respect of you, Ms Lloyd, as to your prospects of rehabilitation, I accept that they are good. Although there was some question regarding the support that you children are prepared to give you, I was informed that you are in regular contact with your husband and hope to reunite on your release from custody.
60Mr Cummins conducted a risk assessment based on your interview with him, coupled with the assessment tool Static-99 and risk for sexual violence protocol. It was noted these tools have only been validated in respect of male perpetrators. Considering each of those risk factors, he is of the opinion your risk of re-offending is low. Assuming you take advantage of the mental health treatment available and are properly medicated, I accept that your chances of re-offending are low.
61There are a number of aggravating features of this offending that apply to both and some only to you, Joseph Reed. The offending involved a gross breach of trust. You were both, as adults, entrusted with Anne's care.
62In respect of the offence of sexual penetration with a child under 16, committed by a parent, in PG v The Queen [2013] VSCA 09 at 103, it is remarked:
"The sexual penetration by the parent of a child is a total repudiation of not only the high obligation of trust which ought necessarily adhere to the relationship between the two, but also of the respect which every person, but especially a parent, owes to the psychological integrity of everyone else, especially his or her children."
63You both exploited the position of power and authority you had over Anne.
64Anne was aged only 12 when the offending in which you were both involved took place. You were both actively involved in the sexual penetration of Anne. It was on this occasion that she lost her virginity. She was obviously upset and indicated that it was hurting whilst this activity was taking place. This offending occurred in her home.
65As to you, Reed, the offending occurred over an extended period of three years, on eight different occasions. You had unprotected penile/vaginal sex with her on a number of those occasions, with the risk of pregnancy or STD
a possibility. The maximum penalty for this offence is 25 years. Your conduct amounts to a very serious example of this offence. This offending qualifies you as a serious sexual offender.66In sentencing you, I must take into account the current sentencing practices. That enquiry is directed particularly, though not exclusively, to the kinds of sentences imposed in comparable cases, as reflected in the relevant table in sentencing statistics or snapshot provided by the prosecution. I am mindful that such material is of limited assistance, given the varied circumstances and sentencing considerations applicable to each individual case.
67Counsel for you, Joseph Reed, conceded that, given the seriousness of this offence, that a term of imprisonment was the only appropriate disposition. Reference was made to a number of authorities regarding sentences for this offence, with reliance on the consideration of the relevant cases for this offence in Cummins v The Queen [2013] VSCA 352 at paragraphs 40 and between 57 to 68.
68Counsel for you, Ms Lloyd, submitted that all the relevant sentencing purposes could be served with the imposition of a term of imprisonment, combined with a community corrections order to be undertaken at the expiration of that term. Counsel relied on Boulton and submitted that all relevant sentencing considerations could properly be met by the adoption of this course, including punishment and rehabilitation.
69The prosecution submitted that you both should be required to serve immediate terms of imprisonment. In respect of you, Ms Lloyd, the prosecution submitted that the time you had already served was not sufficient. The prosecution also submitted that it was open for me to impose a combined disposition, but submitted that I should not adopt that course.
70Sexual offending of this nature has features that require condign punishment. Your offending has characteristics which the Court of Appeal recently remarked, in respect of incest, a crime with some analogous features to your offending as follows:
"It involves the exploitation by the stronger will of the adult to the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community and irreparable damage to the victim."
71See Sutton v The Queen [2015} VSCA 251, and approval of these remarks in The Queen v Esposito, unreported, 8 June 93 per Marks J.
72I take into account all those matters previously outlined relating to you individually, including your pleas of guilty and each of your personal circumstances. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your conduct and protection of the community.
73In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, your personal circumstances and that of your victim. I am required to balance those interests with the interests of the community, in seeking to ensure that as far as possible, you, as offenders, are rehabilitated and reintegrated into society.
74If you could both stand up please.
75In respect of you, Mr Reed, on Indictment F10607238, in Charge 1, you are convicted and sentenced to a period of nine years' imprisonment, with
a non-parole period of seven years.76In respect of you, Ms Lloyd, in relation to Indictment 10595887, in respect of Charge 1, you are convicted and sentenced to a period of 12 months' imprisonment. In respect of Charge 2, you are convicted and sentenced to a period of four years' imprisonment, with a non-parole period of two years.
77In respect of the summary matter, breach of bail, I find the offence proven and make no further order.
78Now, the prosecution has applied for a forfeiture order and 464ZF, have those orders been done? I have already signed those.
79MR HENNESSY: Yes, Your Honour.
80HER HONOUR: Thank you. Ms Lloyd, by pleading guilty to indecent act with a child under 16, and sexual penetration of a child under 16, that is a Class 1 and a Class 2 offence. Pursuant to s.34(1)(c)(2), offenders who have been found guilty of a single Class 1 offence and one or more Class two offences, are required under the Sex Offenders Registration Act to report for life.
81Mr Reed, in respect of pleading guilty to persistent sexual abuse of a child under 16, s.34(1)(c)(ia) provides that if you are found guilty of a single offence, that you will be required to report for life as well.
82Pursuant to s.6AAA of the Sentencing Act, Mr Reed, if you had not pleaded guilty, I would have imposed a sentence of 12 years, with a minimum term of nine. Ms Lloyd, in respect of your matter, a sentence of six years, with
a non-parole period of four years.83Mr Hennessy, pre-sentence detention please.
84MR HENNESSY: For Mr Reed, Your Honour, it was 23 days, and this is - that is back on 16 June.
85HER HONOUR: No, no.
86MR HENNESSY: I am sorry.
87HER HONOUR: He only went into custody the day ‑ ‑ ‑
88MR HENNESSY: No, I'm sorry, 23 days.
89HER HONOUR: Twenty-three days, and Ms Lloyd?
90MR HENNESSY: Not including today's date.
91HER HONOUR: Yes.
92MR HENNESSY: And Ms Lloyd, 453.
93HER HONOUR: Very well. Thank you. I declared pre-sentence detention in respect of Mr Reed, 23 days, and in respect of Ms Lloyd, 453 days. Could you please take the relevant Sex Offenders Registration orders and if counsel could please go and assist, thank you.
94Thank you. I will stand down because I have got another matter listed for 10.30. thank you.
95MR HALPEN: As Your Honour pleases.
96MR HENNESSY: If Your Honour pleases.
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