Director of Public Prosecutions v Reeves (a pseudonym)

[2018] VCC 1321

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELROY REEVES (a pseudonym)

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Reeves (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1321

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott
For the Accused	Mr R. Alexander

HER HONOUR:

1Elroy Reeves,[1] you have pleaded before me to two charges of sexual penetration of a child under 16 and one charge of committing an indecent act with a child under 16.  The facts underlying your offending are as follows.

[1] Elroy Reeves is a pseudonym.

2At the time of this offending against the complainant, who was then aged eight, you were in a relationship with her mother.  You would visit her home a couple of times a week, where consensual sexual activity would take place between you and the complainant's mother. 

3According to the complainant's mother, around 8 April 2017, you called her and said you wanted to come over and spend more time with her children, that being the complainant and her younger brother, as you wished get to know them better; she, thinking this was a sign that you were taking the relationship more seriously.

4The complainant’s mother has told police that around the beginning of May, you became more affectionate toward her daughter; you would go out of your way to go into her bedroom to hug her and to say "hello", and that during this period you started visiting more often.  She said that would come over every night. 

5The sexual activities that took place between you and the complainant's mother included bondage.  During these visits, you would place a hood over her head, restrain her and then place various battery operated sex toys on her and put a timer on for 15 minutes after which you would untie her.  Obviously, the situation that she was then in was one where she was unable to tell if you were in the room or not, and it is the Crown position, which appears not to be resisted, that the offending against the complainant would take place in those 15 minutes.

6On 18 May 2017, you arrived at the complainant's home at about 7.30 and on that evening the complainant's mother saw you give her daughter a hug while she was sitting up in bed playing on her tablet.  The two of you went into the lounge room, shutting the door to the hallway and undressing.  In the normal way, you restrained the complainant's mother, placing a hood over her head and a face mask over her eyes, placing various battery operated sex toys on her and setting a timer, saying, "There you go, you have 15 minutes."  Sometime later, you told her that the timer had gone off and that she had another 15 minutes, and at about 8.30 pm released her from her restraints. 

7On the morning of 20 May 2017, the complainant and her brother were at her father's home, where her father's partner was staying over with her children.  The complainant's father's partner asked the complainant how her mother was, how she was going with her new boyfriend, to which the complainant said they were good but then whispered that she and you had a secret which she was not allowed to tell.

8Eventually, after she had promised the complainant not to tell anyone, the complainant told her father's partner that you gave her "bum massages" and that you "use a cream so it didn't hurt and to make it nice and smooth."  The complainant's father's partner then called her 18-year-old son to come over so the complainant could tell him what had been happening before the complainant's father was told and police were called to the premises. 

9Police arrived at about 10.30am, at which the complainant burst into tears and said, “I'm going to be in so much trouble now."  Once police reassured the complainant that they were there to help, she told police that you gave her "butt massages" and "sticks his rude finger in the hole" and that, "when I get scared, he tells me to calm down and think happy things.  When he puts his finger in my front bum, it hurts and I want to scream."  She clarified that "front bum" meant her vagina and told police that the last time this had happened was on Thursday and that you had told her not to tell anyone or she would get in trouble. 

10The complainant participated in a VARE interview with police that afternoon.  In her VARE statement, she explained how you would enter her room naked, undress her and rub her vagina before applying lubricant and inserting your finger into her vagina, describing the touching as "a massage" and said that "he always does it all the other nights."  She said she thought that sexual penetration had happened four or five times.  She then identified six incidents of sexual offending against her by you between the start of May to 18 May.

11The Crown case is that whilst particular incidents have been identified and are the subject of the charges on the indictment, the disclosures by the complainant are of more sexual offending than that contained in those charges which are a part of the context of the offending overall.  Charge 1 is a representative count involving three occasions of digital sexual penetration of the complainant between 1 and 18 May 2018.  

12The complainant said the first incident occurred "a little bit after" she met you, when she was in her bedroom watching TV and you entered, naked.  You removed her pyjamas so that she was naked, rubbed her vagina, which she described as a massage, then said that you made "that funny movement in my butt again with his finger, kind of like a digging kind of thing at the front here."

13She said you then put a "soothing cream" on your finger and "squash it all around in my - in the front to make it nice and smooth" and that you then "put his rude finger like that into the hole there."  The complainant said these actions made her "really want to scream really loud".  She said that you wanted her to calm down but that she "really couldn't, it just sting."

14The second incident is said to have occurred soon after and as being very similar to the first incident, in that she described you as first doing "the digging thing cream, then put finger right deep in, which is the stingy part." 

15The third incident underlying Charge 1 occurred on 18 May when the complainant had gone to bed after playing with her toys; you, coming in her bedroom to give her "a massage", at which time you were naked and carrying a pink vibrator, which she describe as a buzzer and "kind of like a little timer" which you placed next to her shoulder.  You undressed her, told her you were going to get something, which she recalled was the cream, which she said you then "tried to squirt inside my butt”.  She said that you used the pink vibrator to "smooth in, soak the cream." 

16The complainant said she tried to keep calm but "couldn't because she was afraid it was going to hurt."  She said you penetrated her vagina with your finger, which she said "really hurt, it really stinged" and that she was "ready to scream."  She said she told you that it "that stinged" and tried to pull your finger out. 

17Charge 2 is also a representative charge, involving two incidents of your penis touching her lips between 1 and 17 May 2017.  She said that on one occasion, she had been watching TV, heard the door knob to her bedroom door turning before you entered the room and that you then placed your penis on her lips following a massage. 

18As to the second incident underlying Charge 2, the complainant said this occurred on a Tuesday or Wednesday when she was sleeping in her bed and woke to feel something against her lips, which she realised, when she opened her eyes, was your penis.

19Charge 3 is a single incident which followed the sexual penetration on
18 May 2017.  She said following that penetration, you then put your penis in her mouth, which she said felt "disgusting" and that it was all "furry and yuck."  She said that after this you tucked her into bed, that she tried to go to sleep but could not stop thinking about you placing your penis in her mouth and that it was nearly morning before she finally got to sleep.  Overall, the complainant said that, "On that Thursday, it was the worst because his doodle in my mouth.  I just really thought it was going to be the worst day ever and I was right." 

20Police attended the home of your parents, where they executed a search warrant on 21 May 2017, and during that search, found and seized items which underlie a summary charge of possession of a prohibited item, which has been uplifted pursuant to s.145 of the Criminal Procedure Act to be dealt with in these proceedings.  Those items were a plastic imitation handgun, including casing and accessories and a grey/black backpack containing ropes, ties, handcuffs, masks, belts and battery operated sex toys. 

21You were arrested at your parent's home and taken for interview to the police station.  En route, you told Detective Luke Aggett that you had hugged the complainant but "nothing has happened, I've never touched her."  When Detective Aggett asked you why you mentioned touching the complainant, you said, "Well, something happened but it only happened once." 

22At first, during the record of interview, you denied any offending, saying you had no relationship with the complainant's brother and that you were trying to be a father figure to the complainant, saying you would give her a cuddle every now and then and would talk to her as an adult.  You said that, the complainant “gets away with a lot of things, making up a lot of allegations of things that have happened", and said the complainant had a habit of walking out of her bedroom whilst you and her mother were engaged in sexual activity, despite being told to go to bed. 

23You denied visiting the complainant's home on 18 May, and when asked about your involvement in the allegation of sexual penetration, said that you knew the complainant came out of her room; "she does see what me and Sam have done in the past and that concerns me a little bit.  I know that Sam is very good at training her daughter in what she wants her to say", and later said the complainant had a very vivid imagination. 

24You denied massaging the complainant.  You did mention that you had a "mate that still does it.  I don't know what else he's doing 'cause he is a sexually convicted paedophile".  You said you had seen the material that your friend had on his phone and that, "It's crossed my brain once or twice but nothing's ever come of it.  It would seem like it would be fun, something new, something different, something that had been done before to other kids, but I'd never done it, sexual penetration."  You also said that you had hugged the complainant earlier in the week and got an erection but did not understand why this had happened. 

25After that record of interview had concluded, you asked for it to recommence, as you wanted to tell police what had happened on a Wednesday night, saying that whilst the complainant's mother was restrained, you went into the complainant's room, and that you "played with her and she licked my dick, I didn't forcibly make her do it, then I left the room." 

26You said the complainant had taken her pants off and told you to play with her and that you then "just played with her clit, that was it.  After she'd said stop, that was it.  I didn't put my fingers in her, nothing, just played with her clit, rubbing it up and down."  You denied penetrating the complainant with your finger and said that when you stood up, the complainant turned her head and licked your penis, later clarifying that you had asked her to do this, but saying that you did not place your penis in her mouth.

27This matter resolved early, you entering a plea of guilty at a committal mention hearing, and it is agreed that this is an early plea for the purposes of sentencing.  There has been some delay in this matter.  You were charged on 21 May.  There was a committal mention on 31 August 2017, when you were committed for a guilty plea, the matter proceeding by way of a hand-up brief. 

28The matter was then initially to be heard in Ballarat but an adjournment was sought in order to obtain a neuropsychological report. 

29The maximum penalty for sexual penetration of a child under 16, where that child is less than 12 years old, is 25 years' imprisonment and/or 3000 penalty units.  The maximum penalty for indecent act is ten years' imprisonment and/or 240 penalty units. 

30I now turn to your personal circumstances.  You are 32 years old, the eldest of three boys born to your parents.  You were raised in Ballarat and told psychologist, Patrick Newton, whose report dated 25 October 2017 was tendered on the plea, that you had a happy upbringing, free of abuse or dysfunction.  Your family was a normal law-abiding family and you remain close to your parents, who continue to support you and attended the plea hearing. 

31You were educated both at primary and secondary school levels at Catholic schools.  You told Mr Newton you were a mediocre student, who experienced a level of persistent bullying in your secondary education, and at some stage you were diagnosed with ADHD.  You apparently exhibited certain behavioural problems at school, were suspended on a number of occasions and ultimately left school partway through Year 10.

32You then went on to compile a good work history, beginning with ten years working in your grandfather's earth moving business, then for a second earth moving company for four years, then finally you took up employment as a machinery operator and dumper driver, which employment you held at the time of this offending.  You have never been in receipt of Centrelink benefits.

33You have a very limited criminal history and none for sexual offending.  Your criminal history that you do have comprises a conviction and fine for unlawful assault on 4 May 2017 and you were also placed on an intervention order in relation to the victim of that assault, who was a former partner.  You were on that intervention order at the time of this offending. 

34You apparently became involved in using pornography at the early age of about ten, telling Mr Newton that you began viewing pornography in magazines, quickly became fascinated and moved to regular online use of pornography throughout your teenage years and into your adulthood, apparently spending hours at a time viewing online pornography. 

35You have had about six or seven age appropriate sexual relationships with women, three of them being significant relationships.  The first ended after about five years in 2013 and you have a daughter from that relationship but have no contact with her.  The second relationship lasted for about four months.  You described it as a chaotic and unstable relationship and it was this partner who took out the intervention order against you and was the subject of the assault charge.  The third relationship was with the complainant's mother.  It lasted for some months until you were arrested for this offending. 

36In the course of the relationship with the complainant's mother, you told
Mr Newton you were introduced to a number of sexual practices you had not experienced before, but which you enjoyed and led you to view a more diverse form of pornography, although you denied ever being involved in the viewing of child pornography.  At the time of this offending, you were a moderately heavy drinker, consuming about a six pack of beer in the evenings and a slab of beer on the weekend. 

37I am going to now refer fairly extensively to Mr Newton's report, as I believe is important to providing whatever explanation there is for this offending, but also very much, in my view, goes to the sentencing factors to which I must have regard in the exercise before me. 

38It appears that you have had over the years some doubts about your sexual orientation.  You told Mr Newton that you now identify as bisexual.  You have been remanded in custody since your arrest and apparently your sexuality has been difficult for you in there.  You have apparently been groomed by one prisoner, assaulted by others, and threatened by others, and you are currently held in protection.

39Under the heading, "Background to the current offending", Mr Newton said that you had considerable difficulty explaining the rationale behind your conduct.  You told Mr Newton that your offending was sexually motivated, saying, "I was bored and wanted something new."  You said that you had probably thought about offending against the complainant for about eight weeks, you admitted that you were excited to see her naked, stating, "a part of me wanted to have sex with a child but a part of me didn't.  The part that wanted to have sex with a child won." 

40You expressed remorse for your conduct, saying that you felt guilty about what you had done, stating that, "I wish I would have talked myself out of it because you shouldn't abuse kids because you could destroy their life really major way.  At the age of eight, they haven't developed the wits in their own brain to handle things." 

41Mr Newton said you presented with mild depression, with what he described as some intrusive suicidal rumination, saying that you could not think of a good reason to keep living, saying that when other prisoners put you down, "I figure they’re right", but you denied any active intent to act upon such ideation or having the means to harm yourself.

42You reported a history of mild depressive mood disturbance which had arisen about two years before this offending.  Mr Newton believed that this depression was "the continued outworking of Mr Reeves's poor self-esteem and social anxiety, which are currently being rendered more intense by his incarceration."  He said, "It is likely that Mr Reeves' symptoms will remit to some extent once his legal matters have been resolved."

43Again, Mr Newton said you had difficult discussing your offending behaviour.  You told him you were attracted to both men and women and that you had experienced strong sexual urges towards the complainant who was only eight.  He stated, "Mr Reeves acknowledged that he had no less intense sexual feelings for the complainant than for her adult mother and he could discuss the issues related to the age of consent in only a superficial manner." 

44Of importance, in my view, Mr Newton stated, "In particular, Mr Reeves was not able to discuss the likely effects of sexual contact with the complainant in any depth and he seemed oblivious to the issues of power and coercion that were applicable to his conduct with her.  Beyond this, Mr Reeves has a very limited understanding of the normative sexual development of children and he tends to attribute to them a precocious readiness for sexual interactions at an early age in their development.  These misunderstandings about the sexual development of children reflect significant psychosexual deviance."

45He believed that "such sexual distortions were combined with Mr Reeves' desire for sexual novelty to provide the context for Mr Reeves' offending."  He believed that you had prioritised your own need for "sexual gratification and novelty notwithstanding her age."  He said that whilst you denied any preferential attraction to children, it was clear that your response to the complainant "had been essentially no different from his response to the adult women with whom he had previously had sexual contact." 

46Because the offending against the complainant lasted for less than six months, you were not able to be formally diagnosed as having a paedophilic disorder, pursuant to the DSM-V.  But Mr Newton stated, "it is clear that within a context of uncertain sexual preference and significant social skills deficits, he has experienced unequivocal paedophilic fantasies and that he acted these out with the complainant.  There is a compelling need for him to undergo extended sex offender treatment."

47In interviewing you, Mr Newton administered two risk assessment tools, the Static-99 and the Risk of Sexual Violence Protocol, that is the RSVP.  Under the Static-99, you were located in the moderate to low risk category of re-offending, but under the RSVP, which is a widely used and comprehensive review of different risks, variables and scenarios, you were found to have a moderate to high risk.

48Mr Newton stated, "Specifically, Mr Reeves' sexual offending involved clear psychological manipulation of a vulnerable complainant.  He manifests limited insight, believes he was set up", (this was a belief that you expressed to
Mr Newton on several occasions during your interview), "experiences deviant paedophilic sexual fantasies, has significant problems with self-awareness, seeks out sexual novelty and is prone to utilise sex as a means of coping." 

49Mr Newton also expressed concern at the fact that you had breached the terms of a family violence intervention order in the past and believed that your ability to respond to treatment "remains equivocal."  You told Mr Newton that at the time that you were offending you were, in fact, attending upon a psychologist for some depression that you had been experiencing.  And Mr Newton notes that despite this psychological treatment at the time of your offending, you carried out the offending that you did against the complainant.

50Mr Newton also noted that the moderate to high risk revealed by the RSVP tool indicated a risk of recidivism which was "somewhat higher than that of a typical sex offender in the community” but that “with appropriate participation in treatment to address the risk factors above, Mr Reeves' risk of recidivism should decrease." 

51A neuropsychological report was also sought.  There was nothing in that report, as a result of the testing, indicating that there were any neuropsychological difficulties which contributed in any way to your offending against the complainant. 

52The offending was obviously extremely serious and it is quite clear, looking at the victim impact statements, that it has had a grave ripple effect in terms of the complainant and her parents.  The complainant, in her victim impact statement, reports still having bad dreams about what happened, stating "I wake up scared."  She further stated, "I feel like I am in trouble and have done something wrong to make people upset."  She said, "I have bad pictures in my head about the bad things that happened and it's hard to talk about it."  She expressed a high level of fear that she would see you again. 

53Both of the complainant's parents completed victim impact statements describing, most unsurprisingly, enormous distress over the offending against their daughter.  Each have described a loss of trust in the world in general.  Each have described anguish at being unable to protect their daughter.  And it is quite clear that these deep and distressing feelings continue on, are likely to continue on in the foreseeable future, and given the offending against their daughter, are entirely to be expected. 

54In my view, this is extremely serious offending, even of its type.  It contains a number of aggregating features.  The complainant was a very young child, extremely vulnerable and there was a great disparity between your respective ages.  The offending involved infliction of pain, which I am satisfied was made known to you.  The complainant was told to remain silent or she would be in trouble. 

55There was the use of a vibrator; the vibrator was tested for the complainant’s DNA, the probability rate being found to be 100 billion times more likely to be her DNA than another random member of the population.  That is, it indicated at the highest level you did use a vibrator on her.  Your actions involved an enormous breach of trust.  You were invited into the complainant's home, you were given free reign of the home, you were given access to the children. 

56I am satisfied there was a degree of planning in your offending.  It involved certain actions being carried out on the complainant's mother, rendering her incapable of either knowing what was going on or of being of any assistance to her daughter.  The offending, although said to have occurred only over a two week period - indeed, I accept it occurred only over a two week period - was, once it began, continuous and intensive.  The prosecution, in my view, correctly described this offending as most concerning. 

57On the mitigatory side, you are entitled to a discount for your very early plea of guilty, which has meant that no witnesses were called and subjected to the trauma of cross-examination, and you have saved the community the time and expense of a trial. 

58I do accept that you do have some remorse for your actions and although it is of less significance in cases of this kind than with other offending, you have no previous history of sexual offending against children.  I accept that you have a commendable history of employment and hard work.  The mitigatory factors, however, in my view, pale into insignificance against the aggravating features, and the truly appalling offending that you carried out against this little girl. 

59Having regard to Mr Newton's report, it is impossible for me to conclude that your prospects of rehabilitation should be seen as anything other than very guarded.  In my view, the learned prosecutor correctly submitted that the issue of specific deterrence, that is the imposition of a disposition which is partly designed to deter you from behaving in this way in the future, is appropriate. 

60I am satisfied that the dominant principal in the sentencing exercise before me are the principles of protection of the community - and by community, I mean children - principles of general deterrence, denunciation of your offending and just punishment for it. 

61I note that the first two charges on the indictment, being representative charges, warrant a heavier penalty, and I refer to the case of Beyer in that respect.  Taking into account all these matters, I therefore sentence you as follows.

62On Charge 1, you are sentenced to six years' imprisonment.

63On Charge 2, you are sentenced to two and a half years’ imprisonment, and I make the comment that that offending I regard as a serious example of that offence.

64On Charge 3, you are sentenced to three years' imprisonment.

65The base sentence will be the sentence imposed on Charge 1.  I order that one year of each of the sentences imposed on Charges 2 and 3 be served cumulatively to the sentenced imposed on Charge 1, giving a total effective sentence of eight years.  I order that you serve three months for the summary charge, which will be served concurrently with other charges.  I order that you serve a minimum term of six years before becoming eligible for parole.  What is the pre-sentence detention?

66MS PIGGOTT:  Four hundred and fifty-nine days, Your Honour.

67HER HONOUR:  I declare that 459 days of this sentence has already been served by way of pre-sentence detention.  I also grant the forfeiture order and I grant the application pursuant to 464ZF. 

68Pursuant to s.6AAA, I declare that - have I done this - I declare that had you not pleaded guilty, I would have sentenced you to a maximum term of nine years and six months, and order you serve a minimum term of seven years and six months.  All right, and the forfeiture orders, I will just hand down what I have signed.  Sorry, I think your name needs to be substituted for that of Mr Bourke's, Ms Piggott, in those orders.  Thank you.  Is there anything else that I need to attend to?

69MS PIGGOTT: Yes, Your Honour. Pursuant to s.67 of the Sentencing Act ‑ ‑ ‑

70HER HONOUR:  Yes.

71MS PIGGOTT:  ‑ ‑ ‑ noted on the record that on Charge 3 ‑ ‑ ‑

72HER HONOUR:  Yes, on Charge 3, I declare you to be a serious sexual offender.  You are to be placed on the Sex Offenders Register for life.  Have we got those papers ready to - they will be served on you now, sir, and
Mr Alexander will explain to you your obligations under the register. 

73MR ALEXANDER:  Your Honour, may I be excused from the Bar table to assist Mr Reeves in understanding his obligations?

74HER HONOUR:  Yes, all he has to do is sign it.  It is not necessary at this stage that you explain the conditions of it because it is mandatory.  And he must sign it, he has been placed on it and you can make that explanation in the cells once I have left the Bench.

75MR ALEXANDER:  Thank you, Your Honour.

76HER HONOUR:  Thank you, Mr Alexander.  Yes, thank you. 

‑ ‑ ‑