Director of Public Prosecutions v Reid
[2013] VCC 1469
•16 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01120
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM REID (Pseudonym used) |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 and 30 September 2013 | |
DATE OF SENTENCE: | 16 October 2013 | |
CASE MAY BE CITED AS: | DPP v Reid | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1469 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Sentence – guilty plea – multiple charges of incest – make child pornography – indecent act – 4 ½ years of sexual offending against stepdaughter between aged 13 and 17 – worst type of case – diagnosis of paedophilia and sexual sadism – problems with Crown submissions on range
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Gibson | Ms F. Coppini Office of Public Prosecutions |
| For the Accused | Mr D. Gray Mr P. Stefanovic (27/10/13) | Mr A. Lim McNamaras Barristers & Solicitors |
HER HONOUR:
1 In 2000 you met your now wife, Renee.[1] By 2002 she had moved from her home interstate to live with you. Along with Renee came her 2 children, a daughter Melissa[2] then aged 8, and son, Jordan[3] then 4. By 2006, when Melissa was 12, you and Renee had purchased a house together, and married. Melissa and Jordan’s father remained living interstate, so their contact with him was limited.
[1] A pseudonym.
[2] A pseudonym.
[3] A pseudonym.
2 Within a year of marrying Renee, when Melissa had just turned 13, you committed the first act of incest to which you have now pleaded guilty on Melissa. Over the next 4 and a half years you subjected her to repeated acts of sexual penetration, and other sexual abuse, much of it in circumstances which can only be described as depraved and humiliating.
3 On that first occasion, you digitally penetrated her, and stimulated her clitoris. You tried to make her touch you, and when she resisted, you had the gall to tell her that you were fine with that, as if you were granting her the right to decide whether you could sexually interfere with her.
4 Melissa told some school friends almost straight away what you had done, and they immediately told the school counsellor. DHS and the police were informed. On the agreed summary, you were adamant that Melissa should not tell anyone what had happened, telling her it would ruin things for the family. Melissa made only a partial disclosure to the school counsellor, saying you had touched her on the breast. When confronted, you vehemently denied any sexual misconduct. Your wife accepted your denials.
5 Melissa was questioned by the police in her mother’s presence, and asked if she understood how serious the allegations she had made were. Clearly, the impact on her was make her feel disbelieved, unsupported, and alone. She felt pressured, and ended up saying that nothing had happened, that the touching was accidental. In her victim impact statement she spoke of her fear of becoming homeless at 13, of feeling she had nowhere to go, because her father lived interstate and she thought it was impossible she would be able to go and live with him.
6 It was this combination of events which created the circumstances in which the sexual abuse of your stepdaughter continued, unchecked, for the next 4 and a half years.
7 It continued after she left home, and school, at the age of 17, and went to live with her father, who had by then moved to Melbourne. And it came to an end only because her then 14 year old brother, Jordan, discovered sexualised messages passing between you and Melissa, and inappropriate photographs of Melissa on her computer.
8 Even then, you did your best to protect yourself from being brought to account. For a considerable period of your offending, you and Melissa had communicated through an account you had established on a social media website that hosted pornographic material. There were many debasing photographs of her posted on it, and many messages passing between the two of you on it. When you learnt what Jordan had discovered, you instructed Melissa to wipe everything from her computer to destroy incriminating material. 2 weeks went by before you were interviewed by the police. As you had done when confronted with Melissa’s first allegations in 2003, you made no admissions. You denied ever sexually assaulting Melissa, and asserted that she, in consultation with her family, had concocted the allegations in order to break up your marriage with Renee.
9 You maintained this position until, on the first day of what had been booked in as a contested committal, and when Melissa was already waiting in the remote witness facility to be called so your counsel could cross examine her, you embarked on the negotiations which resulted in the acceptance of the matters set out in the agreed statement of facts and the guilty pleas to 13 charges of incest, 1 of produce child pornography and one of indecent act with a child between 16 and 17 under your care, supervision or control. It is for those charges that you now come to be sentenced.
10 I have already detailed the circumstances giving rise to the first charge of incest. I must now set out the circumstances of the other charges sufficiently to identify, for sentencing purposes, the conduct and surrounding circumstances of each charge, and to convey sufficient of the aggravating features which support my findings about the seriousness of the individual offences, and overall. I accept, and take into account, for sentencing purposes all the circumstances set out in the crown opening. I note that Mr Stefanovic, who appeared on your behalf on the first day of the plea hearing, advised the prosecution summary was properly described as a statement of agreed facts, and that you had provided him with signed a copy of it, acknowledging your acceptance of the facts set out in it.
11 The statement of agreed facts, and the indictment, describes a number of the charges as representative charges. So far as the representative incest charges are concerned, they are representative in the sense that they particularise a discrete act of sexual penetration, against a background of other sexual acts occurring in the same episode. So far as the charge of produce child pornography is concerned, it is representative in the sense it encompasses a number of occasions where photographs of Melissa in sexualised poses, and engaged in sexual activity were taken by you or at your behest, and posted by you or at your behest, on the website to which I have already referred. It is an unusual way of relying on a representative charge, and, as Mr Gray, who appeared for you on the second hearing day pointed out in his written submission, results in the identification of 14 discrete occasions where you engaged in incestuous sexual activity with Melissa. Whilst it is clear I can sentence you only for the charged acts, and the agreed contextual acts surrounding those occasions, it creates, to some extent, an artificial and unrealistic framework for identifying and evaluating the conduct. Although the statement of agreed facts does not refer to any other uncharged acts, Melissa’s victim impact statement, and her depositional statement refer to conduct properly described as grooming, and I accept from those that it is clear these were not the only occasions on which sexual activity occurred. Apart from saying I am satisfied from the agreed conduct in the statement of facts that the charges are not isolated incidents, I place no weight or reliance on any other sexual misconduct.
12 In her witness statement and victim impact statement Melissa refers to you telling her you loved her, and that sexual activity was a natural progression. She speaks of her ambivalence, and confusion about the nature of her feelings, and of her understanding of yours, as the years progressed, and about her feeling that she was unable to say no, or to withstand your importunings. In my view, it is important that the prosecution summary (whether standing as an agreed statement of facts, as it was in this case, or not) should place the charged acts and surrounding circumstances in context, and avoid wherever possible this artificial and narrow interpretation of a representative charge. Generally, in my view, prosecution statements on a plea should also explain something of the complainant’s responses at the time of the offending, and as understood by her with the benefit of hindsight, by the time the plea is being heard.
13 Dealing then with the circumstances of other offences.
14 Charge 2 is a charge of incest and covers the circumstances of the first time you had sexual intercourse with Melissa. She was 14 and you were 43 or 44. You had been pressing her to allow you to do this for some time. You touched her in various places on her body and made her touch you. You had told her sexual intercourse was a natural progression from that other activity, that you had feelings for her and that it would not hurt. It was then that the act of sexual penetration of her vagina with your penis, the subject of the charge, occurred.
15 By January 2010 you had established the social media account to which I have already referred. You gave yourself the name for your email account linked to that of “yourmaster”. Melissa’s user name was “myslutypics”. Charge 3, of make child pornography is a representative charge which covers a course of conduct. You, whether by yourself or by persuading Melissa to do so, caused or facilitated the uploading of photographs of Melissa onto the website. The first photographs were explicit photographs of her body but did not reveal her face. Soon they progressed to photographs which could identify her by showing her face. You engaged in dialogue with other users of the website who could view the photographs. You boasted about the activities that you had engaged in with Melissa, hinted about the familial relationship and encouraged them to make suggestions about activities that you could perform on Melissa, photograph and upload to the website. One stranger suggested sexually penetrating Melissa with vegetables. You encouraged the discussion with him, and eventually posted photos of Melissa being so penetrated.
16 The photographs that were retrieved after the matter came to light included images of Melissa’s vagina being penetrated by your penis, by a baseball bat, and by vegetables. Others showed her in bondage poses, seated on a chair with a collar and chain around her neck, her hands handcuffed behind her back and some of them, so posed, also with your ejaculate over her face. Another photograph was of Melissa’s genitalia, on which the words “little slut loves daddy’s cock… Little fuck toy” were written.
17 The website was described in the depositions as an adult erotic site. Whatever definition of adult erotica people use, the evidence before me showed that that website hosted, without apparently any moderator control, child pornography and boastful talk of real acts of child sexual abuse as well as photographs of child sexual abuse. No arguments about individual freedom can justify the hosting, for the prurient pleasure of others, of photographs or messages concerning a clearly underage girl being exploited in such a fashion
18 Charge 4 is another charge of incest. It relates to the occasion when the bondage photographs were taken. Melissa was 15. In addition to making her wear the collar chain and handcuffs, you had her perform fellatio on you and you penetrated her vagina with your penis before ejaculating on her face. It is the act of penile vaginal penetration, against the background of this other conduct that constitutes this charge.
19 Charge 5 is another charge of incest, again occurring when Melissa was 15. It relates to the occasion when the photograph of the baseball bat inserted into Melissa’s vagina was taken. Causing Melissa to penetrate herself with the baseball bat at your behest is the subject of that charge.
20 Charge 6 is another charge of incest. By this time Melissa had turned 16. You went to her bedroom in the family home, woke her up, touched her over her body and over her initial resistance, eventually sexually penetrated her on a number of occasions and in a number of different positions, including in the missionary position. It is the act of penile vaginal penetration in the missionary position seen in the context of this other activity that constitutes Charge 6.
21 Charge 7 is a charge of committing indecent act with or in the presence of a child between 16 and 17 under your care, supervision or control. It is one concerning anal penetration using an item called a butt plug which you had specifically purchased from a sex aid store for use with Melissa. You procured Melissa to insert it into her anus.
22 You then penetrated Melissa’s vagina with your penis, whilst her anus was still penetrated by the plug. After that you removed the plug and penetrated her anus with your penis. You then put your penis into her mouth and had her perform fellatio on you before again penetrating her vagina with your penis. Finally you put your penis back in her mouth and ejaculated there. It is the act of penetration of Melissa’s anus with your penis, in the context of the other acts of penetration that constitutes Charge 8 of incest. The conduct, the subject of these charges, occurred when Melissa was 17.
23 Charge 9 is again a charge of incest. After engaging in penile vaginal penetration with Melissa, and having her perform fellatio upon you, you digitally penetrated her and then produced 3 items described as “sex toys” which according to the agreed summary were items that you had used with your wife, Melissa’s mother. You caused Melissa to penetrate her vagina with each of them. It is your conduct in causing her to penetrate herself with the items that constitutes Charge 9, seen against the background of the other acts of sexual penetration.
24 Charge 10 is a further charge of incest, again occurring when Melissa was 17. You persuaded Melissa to allow you to penetrate her vagina with your fist. She described this as causing immense pain, particularly around the opening to her vagina.
25 Within a month of this act Melissa, who was still 17, had left home, that is the home where you, and your wife, her mother, lived. Her brother had already moved out to live with his father. The father had by then moved to Melbourne. Melissa had moved out and moved in with her father. You went to visit her at her father’s home in the middle of the day, saying you were calling in on your way back to the office. You engaged in a variety of acts of sexual penetration with Melissa on the lounge room floor. You digitally penetrated her and performed cunnilingus on her. You put your penis in her mouth and had her perform fellatio on you. You ejaculated. As soon as you had finished you cleaned yourself up and left. She describes herself being left feeling cheap and unloved, and, as she describes it, like a call girl.
26 It is the act of fellatio which constitutes this charge of incest, seen against the context of the other acts.
27 Charge 12 is another charge of incest occurring only days after the events, the subject of Charge 11. Again you went to see her at her father's home. Sexual activity occurred in her bedroom on this occasion. You performed cunnilingus on her and then had penile vaginal intercourse. It is this latter act which constitutes Charge 12, seen in the context of the other activity.
28 In January 2012 Melissa spent the night before Australia Day at the family home with you and her mother. In the morning, after her mother had left you went to Melissa’s room and woke her up by sexually touching her. You took her to your bedroom and there, after other sexual acts, you had penile vaginal intercourse with her, ejaculating into her vagina. It is that act of penetration in the context of the other activity that constitutes Charge 13, incest.
29 Just a few days later Melissa visited the family home again. She went to have a shower and you followed her in there, kissed and touched her and engaged in penile vaginal penetration in various positions, in the shower and on the bathroom floor. You eventually ejaculated inside her. You also gave her a love bite on her breast. This specific act relied on for Charge 14 is the one where Melissa was standing up and holding on to the shower door as you penetrated her. Again it must be seen against the context of the other activity in which you engaged on that occasion.
30 Charge 15 concerns events occurring about a week after the circumstances giving rise to Charge 14. Melissa was again staying overnight in the family home. You approached her in the kitchen on this occasion and after kissing her on her body, undressed her and had her perform fellatio on you. You made her give you love bites on various parts of your body before masturbating yourself between her breasts. You then again had her perform fellatio on you, ejaculating in her mouth. It is this last act of fellatio with ejaculation which constitutes Charge 15, and again it must be seen against the context of the other activity.
31 It was only 3 days after that that Jordan, Melissa’s 14 year old brother, inadvertently came across messages passing between you and Melissa, the sexual nature of which so concerned him that he confronted Melissa, who ultimately revealed the abusive nature of the relationship you had maintained with her over the years.
32 Jordan should be commended for having the courage and sense of what was morally right and wrong to tell his father and so set in train the investigations and enquiries that led to your questioning and charging.
33 The victim impact statements filed by Melissa and her father are heartrending. Melissa’s particularly sets out the ambivalence that she has felt about what she was subjected to, the cycle of unjustified guilt and pain that many victims of sexual abuse go through, feeling it is their fault although they know, and should understand, it is not. Melissa should be commended for her courage and understand that she is indeed a courageous young woman for having been able to come forward, say what she said and to maintain her position in the face of what has often been strenuous resistance and strenuous disbelief in what she has said. It shows that she has the strength and courage to move on with her life and that this is an important stage in her moving on rather than putting her in a basket of victim for the rest of her life. The courage that she has shown to date bodes well for her future.
34 This is sexual abuse of the utmost gravity. Melissa was your stepdaughter, and had lived under your care and protection since she was 8. For much of that time her biological father lived in a different state, and she did not have the access to him that may have provided her with a safe haven. The offending took place over a period of 4 ½ years, from when she was just 13 until she was 17. Even after she moved out of home and in with her father, you pursued her. It came to an end only because you were found out. The activity escalated over time and involved what can only be described as depraved, debasing, degrading and dehumanising treatment of Melissa. The psychologist Pamela Matthews, who assessed you and provided Melissa report which was tendered on the plea, noted you met the DSM V criteria for sexual sadism as well as paedophilia.
35 In a sense, “yourmaster,” the name you gave yourself on the social media site, and the publication of the photograph of what you had written on Melissa’s genitalia provides the clearest insight into the way you treated this child and the way you regarded her.
36 You had successfully bluffed and bullied your way out of exposure when Melissa was 13. Your wife, Melissa’s mother believed your denials and came to believe her daughter was lying. You successfully drove a wedge between mother and daughter, exploiting what was already a fraught relationship. Your power over Melissa was then established, as was her inability to confide in her mother.
37 Throughout the whole of the period of offending you had unprotected sex with her. It is in my view of little consequence to say now that there was no or little risk of pregnancy because you had had a vasectomy. You exposed her throughout this period to unprotected sex, a risk, although a low one of pregnancy but also a risk of transmission of sexually transmitted disease or other infection.
38 You took away her childhood and warped and distorted her view of what was a normal parent-child or step-parent-child relationship, and a normal sexual relationship. You distorted her relationship with her mother and created ambivalent feelings in her by telling her you loved her but at the same time telling her that she would be responsible for bringing the relationship between you and your wife to an end if she exposed you. According to Melissa in her victim impact statement, you blamed her for seducing you. You treated her like a toy, an object, or a vessel for your sadistic acts, your perverted lust and your own selfish sexual gratification.
39 You maintained your vehement denials when questioned by the police, and to your wife and you maintained them up until the time of the committal.
40 It is a gross breach of trust. The primary victim is of course Melissa. You have also, however, breached the trust of her mother your wife, of Melissa’s brother your stepson, and of Melissa’s father, who had consented to her remaining in the custody of her mother after she partnered with you.
Sentencing considerations
41 It is clear that considerations of denunciation, deterrence and punishment loom large. In R v Ware[4], Hedigan AJA cited with approval the observations of Marks J in Sposito:
“a society which fails to protect its children from sexual abuse by adults, particularly by those entrusted with their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children. It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of 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 the irreparable fundamental damage to the victim. An even more alarming revelation is the frequent failure in these cases of support for the victim from other members of the family”.
[4] [1997] 1 VR 647
Accused’s background
42 You are 48, just short of your 49th birthday. Despite early parental separation, followed by the death of your father in whose custody you remained when you were 10, followed when you were 15 by a rupture with the aunt and uncle who had taken over your care, which resulted in you leaving the small town where you had grown up, and moving to Melbourne to live with your older brothers, you settled into life and work in Melbourne without difficulty. You completed an apprenticeship as a fitter and turner and for the last 22 years have held stable and good employment as a weights and measures Inspector. You have on all accounts an excellent work history. You have been a good material provider to your families. Your first significant relationship lasted for 13 years. You have 2 children from that relationship, daughters now aged 19 and 13. You maintain good relations with them and their mother, Anita.[5] I am told that Melissa’s mother, your second wife remains supportive of you. She and your former partner Anita were at court on the hearing of the plea and again today, apparently in support of you. I was told nothing of the current state of the relationship between Melissa and her mother, but note they have been sitting well apart in the court.
[5] A pseudonym.
43 Towards the end of your first relationship you developed a problem with gambling, which you have now addressed. I am told you have not gambled since 2000.
44 You have some health issues: in 2010 you had a quadruple bypass. You suffer from irritable bowel syndrome, and since 2011 have required a CPAP machine to deal with your sleep apnoea. It would appear none of these conditions interfered with your capacity to sexually abuse your stepdaughter.
45 The forensic psychologist, Pamela Matthews, diagnosed you as presenting with moderate levels of major depressive illness reactive to your circumstances.
46 In his carefully considered and measured submissions on the plea, Mr Gray acknowledged that the offences were serious examples of serious offences. He submitted that they were not at the highest end of the scale as they were absent some of the aggravating features present in other cases which had attracted that characterisation of highest end of the scale. In particular he submitted that these cases were not as serious as those of RSJ[6] and RLP,[7] as there was not here as there had been in those cases physical intimidation, overt violence or threats of recriminations for disclosure, or multiple victims or intergenerational abuse. Once his attention was directed to the circumstances surrounding Charge 1 on the agreed summary Mr Gray acknowledged that there were threats of recrimination for disclosure, and that the conduct involved in some of the charges was properly characterised as conduct which caused extreme pain or was attended by other degrading and humiliating treatment.
[6]RSJ v R [2012] VSCA 148.
[7]R v RLP (2009) 213 A Crim R 461.
47 It is possible to imagine even worse acts of depravity than those, the subject of these charges. In other cases sometimes the abuse has been exacted on more than one victim. Sometimes it has gone on for longer. Sometimes there are more charges.
48 However, one must be careful not to fall into the trap of assuming that cases that fit into the worst category must have all the features of every case that has attracted that description. The worst category is just that, a category. It is not an unseemly competition for a lower place on a hierarchy or ranking of evil. In my view, the features of your conduct which I have identified, whilst not involving every feature said in other cases to have put them into the category of the worst cases, do place this within the category of the worst type of these cases.
49 You pleaded guilty at committal and are entitled to the benefit of that early plea. Although Melissa had been required to attend for cross-examination, and was actually waiting in the Remote Witness Facility at the time the matter resolved, she was not subjected to cross-examination; she was not subjected to the ordeal of reliving the events, or the humiliation of having it put to her that the events of which she had given evidence had not happened. Your plea therefore is entitled to considerable weight, not only for its utilitarian value and for the early stage at which it was entered, but because it represents a vindication of the truthfulness of Melissa.
50 You are otherwise a man of good character. You have no other criminal history, and a good work history. You are entitled to have those count in your favour.
51 You continue to enjoy, I am told, the support of your wife, your former partner and your 2 children from that relationship. It means you will have the support from them during your time in custody and to look forward to upon your eventual release. You have in the past shown yourself able to confront a problem (your problem gambling) and address it.
52 You do not suffer from any psychiatric or psychological condition, physical impairment, intellectual impairment or problems with substance abuse or other problem behaviours which bear on your offending or which might affect your rehabilitation. Those matters, combined with the absence of any other offending, your good work history and the support that you will apparently continue to receive from your wife, your former partner and her children and your management of your past gaming problem all count in your favour in assessing your prospects for rehabilitation.
53 I note that Mr Gray expressly disavowed any reliance upon the principles in Verdins,[8] submitting that the evidence of your reactive depression was simply something appropriate to be considered in the general sentencing mix. It was not relied upon in support of a submission that imprisonment would be more onerous for you than for others not suffering from reactive depression. Nor, he submitted, was it relevant to any of the other principles in Verdins.
[8]R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
54 I have already made reference to the psychological assessment conducted by Ms Pamela Matthews. It is important to note that that assessment was conducted at the request of your legal advisers and with your consent. I have noted her opinion, which I accept, that you meet the DSM V diagnostic criteria for both paedophilia and sexual sadism.
55 Ms Matthews assessed your risk of sexual re-offending, using what current research indicates is best practice. That is, she utilised a structured approach combining actuarial prediction with clinical factors. She used the well recognised risk for sexual violence protocol, or RSVP.
56 Ms Matthews concluded that your current risk of reoffending is moderate to high and, in the absence of treatment, on the high side of the spectrum. In her opinion your future risk of reoffending may be reduced from moderate to high to low to moderate level with appropriate rehabilitation.
57 Ms Matthews notes as a positive that you have been able to take responsibility for your offending and that you have not subjected the victim to committal and trial proceedings. You told Ms Matthews that you would like to say to Melissa that you are sorry, that you could and should have stopped it.
58 This insight may be late, but it is a start. Although you have not sought any counselling to address your aberrant sexual behaviour since being charged or since entering your pleas of guilty or indicating that you were prepared to do so, I am told that you are prepared to participate in a sex offender treatment program as directed. I recommend that you be assessed for participation in appropriate sex offender treatment programs during your sentence. It is in the community’s interest and yours if steps are taken by the authorities and by you in attempt to reduce your risk of sexual reoffending.
59 I have referred to the positive features which bear favourably on your general prospects for rehabilitation. However, so far as the risk of sexual reoffending is concerned I take into account and accept Ms Matthews opinion. The sentence must reflect the need to deter you specifically, as well as to denounce the conduct, give proper weight to general deterrence and to impose a just punishment, one which reflects the totality of your offending, and is not crushing. Importantly, in my view, it must allow for the prospect of release and supervision on parole.
Submissions on range
60 I invited submissions from the parties on the appropriate sentencing range. Mr Gibson initially submitted a total effective sentence of 12 to 14 years, with a non-parole period of 9 to 12 years was appropriate. When I asked for a breakdown by reference to the sentencing range for the individual offences, and how the cumulation had been worked out, Mr Gibson advised that he did not have instructions on individual sentencing ranges, or cumulation periods. He was unable on that day to consult with the prosecutor who had given instructions on the total effective sentence and non-parole period range he had submitted to me. However, he advised that he had taken guidance from the approach, and the individual sentences imposed in the case of Bellerby[9] which he submitted had many similar features to yours.
[9] [2009] VSCA 59.
61 He had broken down the offences into categories:
·the worst, exemplified by Charges 5 and 10, attracting a range of 5 to 6 years;
·the next, involving Charges 8, 4 and 9, a range of 4 to 5 years; and
·the 3rd, involving the other incest charges, a range of 3 to 4 years.
·He submitted the range for Charge 3, the make child pornography charge, was 2 to 4 years.
62 Consistently with the approach in Bellerby, he submitted that one of the worst category cases should be selected as the base sentence, and 12 months of each of the other sentences for the incest charges should be cumulated upon it and each other.
63 Doing the math, that would have resulted in a total effective sentence just for the incest charges of 17 to 18 years, and without consideration being given to the appropriate sentence or cumulation periods for the child pornography and indecent act charges.
64 As a result I requested the prosecution to give further consideration to the appropriate sentencing range, by reference to the ranges for the individual offences, and cumulation periods. and directed that written submissions on sentencing range be provided by the prosecution and responded to by the defence.
65 The written submission filed by the Crown states that the range has been reassessed. That is a masterly understatement.
66 First, it has substantially increased the range for the head sentence and the non-parole period. It has gone up to 16 to 18 years with a non-parole period of 12 to 14 years.
67 Secondly, it has revised the charges which fall into the three categories, adjusting between all three categories, moving some charges up, and some down the scale. It has added one charge, Charge 8, to the highest category, added Charges 1 and 2, the first acts of incest to the second category, and removed Charges 4 and 9 from that category. As a result, Charges 1 and 2 have been removed from the third category, and Charges 4 and 9 added.
68 Thirdly, actual sentences, not a range, were proposed for all of the incest charges, and the child pornography charge. They are 12 years for the charges falling into the highest category, 7 for the middle, 5 for the remaining incest charges, and 5 years for the child pornography charge. The only charge where a range has been put forward is for Charge 7, the indecent act charge. There, a range of between 15 to 21 months was given.
69 And finally, the cumulation periods were revised, again by the proposing of an actual period, not a range. That is, 12 months on each charge apart from that selected as the base sentence for those attracting a 12 year sentence, 7 months for each charge attracting a 7 year sentence, and 3 months for each charge attracting a 5 year sentence.
70 The Crown further submitted that 3 months of the sentence on the child pornography charge and one month of the sentence on the indecent act charge should be cumulated.
71 In the DPP v Fabriczy[10] the court distinguished between a sentencing range, and a contention about the actual sentence. In that case the prosecution on appeal having disavowed the sentencing range advanced to the trial judge, contended the sentencing range fell for the charges then before that court between 4 and 4 and a half years as a head sentence, and 2 and 2 and a half years as a non parole period. The Court (Maxwell P, Neave and Redlich JJA) said:
“The identification of such a narrow range will rarely constitute compliance with this court’s decision in R v MacNeil Brown. The range identified in a crown submission should mark up the boundaries within which (according to the submission) the sentencing discretion can lawfully be exercised. In any case with a likely sentence of 4 years or above it would be most unusual for the area of reasonable difference in opinion to be confined to 6 months. The narrower the range put forward by the crown the more nearly the crown’s submission will resemble a contention as to what the actual sentence should be. A contention of that kind would of course be wrong in principle and directly contrary to the decision in MacNeil Brown.[11]
[10](2010) 30 VR 632
[11]At [34]
72 It is in my view wrong in principle and inconsistent with these authorities to contend for particular sentences for individual offences. I must and I do make my own decision about the individual sentences.
73 If the individual sentences and fixed periods of cumulation proposed by the crown in the written submission were applied, it would result in a total effective sentence of 17 years and 9 months. Yet the prosecution written submission submitted that the head sentence should be a range between 16 and 18 years. Thus, the submission on the total effective sentence was in conflict with the math on the submission on the individual sentences.
74 I had stopped as a general practice inviting submissions on range from the crown. In my experience, sometimes they were considered, sometimes the simplest of inquiries would reveal they were not in line with current sentencing practices. Rarely, if ever, was there a breakdown of the range for individual charges. When I had asked for a breakdown of the range for individual offences, my experience had been that led either to a refusal to provide a breakdown or a significant revision of the range once the breakdown was provided. Often I discovered the range had been given without knowledge of significant mitigatory matters relied on by the defence. If I indicated I thought the range was too high or too low, I would be met either with a reminder that the Director’s published policy was not to reconsider range simply because a sentencing judge thought it was too high or low, or there would be a reconsideration, and a revised range would be put. Even if the original Crown position on range had not been part of the plea negotiations, as was the case in Dux and Talbot,[12] if a range was reconsidered, and increased, it was not surprising such a change in position that it generated a sense of grievance in a person about to be sentenced. And, all too often in my experence, if a sentence was appealed, the Crown would do what it did in Fabriczy: disavow the range put forward at plea and put a different range on appeal. I had taken the view that until I could see evidence of a consistency in approach from the Crown in respect of submissions on range that entertaining range submissions was time-consuming and not sufficiently reliable to be of assistance.
[12]Talbot v R; Dux v R [2012] VSCA 118.
75 The complexity of this case had led me to seek the assistance of the Crown on range. Despite Mr Gibson’s obvious care, the instructions he was given, originally, and after I asked for further consideration, are not in my view, in conformity with MacNeil Brown[13] and Fabriczy, and have served to make my task more difficult.
[13]R v MacNeil-Brown; R v Piggott [2008] VSCA 190.
76 Mr Gray in his written submission in reply pointed out how much higher the revised prosecution range was than the range detailed in Sentencing Snapshot No 134, the most recent analysis of sentencing trends for incest. It took into account sentences imposed between 2006 and 2011. Mr Gray submitted the distinction between the second and third categories was artificial and unhelpful.
77 In his submission all category 3 charges, that is, the original category 3 that had been put by the Crown as I understand it, should attract the most common sentence in the snapshots, namely between 3 – 4 years, as all occurred when the complainant was 17, and there was no violence or physical intimidation involved. He submitted Charge 1 should fit in the same category.
78 He conceded that Charges 4, 5, 8 and 10 were more serious but were absent overt violence or threats of intimidation, and so fell short of offences properly characterised as falling into the worst case category. It followed, he submitted, that they should attract individual sentences well below the 12 year sentence contended for by the prosecution.
79 He pointed to the fact that only 3 cases in snapshot 134 attracted a penalty of over 9 years, and only one, a sentence over 11 years. He relied too, on snapshot 134 to support the submission that both the total effective sentence and non-parole period were too high. He pointed out that only 4 cases had received a total effective sentence within the prosecution range, and only five, a non-parole period within that range. It followed, he submitted, those sentences must be seen as ones attaching to the worst cases and, as in his submission, this did not fall into the worst category of offending, the sentences for these offences both individual and total effective, must fall below those.
80 As I have already made clear, I consider this offending, in its nature and duration, is properly to be regarded as falling into the worst category of cases.
81 However, I agree that the sentence contended for, for what the prosecution characterised as the worst individual offences, falls outside current sentencing practices. Untrammelled by such a constraint, I would consider a sentence of 12 years, still less than half the maximum set by parliament, to be appropriate for what I consider to be the worst individual charges. But I consider I should moderate the sentences, for those worst charges, in conformity with current sentencing practices. If departure from current sentencing practices is considered warranted in this case, in my view it is for the DPP to make a considered submission to the Court of Appeal, or for the Court of Appeal of its own volition to raise that issue for consideration.
82 I have come to a different view from both the prosecution and defence about how to rank the individual offences. In my view, Charges 5 and 10 call for higher sentences than the other charges because of the nature of the penetration and the fact that each of those penetrations caused pain and distress. Next in gravity in my view are the charges which occurred when Melissa was only 13 and 14, and which represent the original breach of trust. They are aggravated, in my view so far as Charge 1 is concerned, by your vehement denials of wrongdoing when Melissa made her disclosure, and your consequent ability to exercise power over her without fear of exposure. Charge 2 also marks not only the start of penile vaginal penetration, but also the establishing of the pattern of unprotected sex. Attracting the same sentence as Charges 1 and 2, but for different reasons are Charges 4, 8 and 9. Charge 4 because you photographed the act, Charge 8 because it followed the pain causing act of vaginal penetration whilst the plug was inserted in Melissa’s anus, and was followed by further acts of penetration of her mouth and her vagina, and Charge 9 because it involved the use of the 3 separate sex aids, which, as Melissa knew, belonged to her mother and had, you told her, also been used by you on her mother.
83 Charges 6 and 13, which occurred in the family home, one of them in the bed you and your wife occupied, Charge 14, which involved you following Melissa into the shower, and Charge 15, which occurred in the kitchen of the family home, and Charges 11 and 12, which occurred in what should have been the safety of Melissa’s father’s home did not involve any of the aggravating features that I have identified which attach to the other charges. But each of them has its own elements of exercise of dominion and control, of demonstrating your determination to engage in whatever activities you wanted to, whenever you could, or whenever you wanted to. These are all charges which have been characterised as representative, that is as involving multiple acts of penetration. In my view, this takes the sentences for each of these charges above the 3 – 4 years, the most common length of sentence imposed in the period covered by snapshot 134.
84 In considering the appropriate sentences for the other two charges, I have regard to the maximum sentence fixed by parliament, and to the circumstances of each. So far as the child pornography charge is concerned, it is in my view a particularly egregious example of such offending. It involved multiple acts on multiple occasions. Melissa was identifiable because her face was visible in later photographs. Many photographs were of conduct which can only be described as debasing and degrading. You placed the photographs or caused them to be placed on a website where others could view them and you used them as a way of boasting about your power over Melissa, and you exposed her for the sick enjoyment of others.
85 The indecent act is also a bad example of its type, made worse by the conduct which accompanied it and surrounded it.
86 In considering the appropriate amount of cumulation for these charges, I am conscious of the need to avoid double punishment, and so I have detailed the matters, independent of the conduct, the subject of incest charges, which for the charge of make child pornography and the charge of indecent act, warrant separate punishment.
87 Because of the nature of these charges, and the acknowledged inevitability of a sentence of imprisonment for them all, you come to be sentenced as a serious sexual offender in respect of each of Charges 3 to 15. I agree with the prosecution submission that this is not a case where a disproportionate sentence is required in order to achieve the stated primary consideration of protection of the community in respect of those charges. That aim can appropriately be achieved by imposing individual sentences which reflect the seriousness of each individual offence, and by imposing periods of cumulation to reflect the overall offending, and so also comply with the principle of totality.
88 I declare therefore that you are sentenced as a serious sexual offender in respect of Charges 3 to 15 and direct that be placed on the record.
89 There is a degree, more than a degree of artificiality, in fixing the periods of cumulation, having regard to the number of charges, and the need to comply with the principle of totality. But, within those constraints, the structure of the sentence is designed to reflect each individual act of charged wrongdoing, and to cumulate in such a way as to comply with totality and reflect the enormity of your overall abuse of Melissa.
90 Could you now please stand, Mr Reid.
91 William Reid, on the 15 charges to which you have pleaded guilty, you are convicted.
92 On Charge 1, you are sentenced to be imprisoned for a period of seven years, and I direct that eight months of that sentence be served cumulatively upon the base sentence and the other partial cumulation periods I am about to announce.
93 On Charge 2, you are sentenced to be imprisoned for a period of seven years, and again, I direct that eight months be served cumulatively upon the base sentence and the other cumulation periods.
94 On Charge 3, the child pornography charge, you are sentenced to be imprisoned for a period of five years, and I direct that two years of that be served cumulatively upon the base sentence and the other partial cumulation periods.
95 On Charge 5, you are sentenced to be imprisoned for a period of 10 years, and I direct that be counted as the base sentence.
96 On Charge 6, you are sentenced to be imprisoned for a period of five years, and I direct that four months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
97 On Charge 7, the indecent act charge, you are sentenced to be imprisoned for a period of two years and six months, and I direct that eight months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
98 On Charge 8, you are sentenced to be imprisoned for a period of seven years, and I direct that eight months of that sentence be served cumulatively upon the base sentence and the other partial cumulation periods.
99 On Charge 9, you are sentenced to be imprisoned for a period of seven years, and I direct that eight months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
100 On Charge 10, you are sentenced to be imprisoned for a period of 10 years, and I direct that 12 months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
101 On Charge 11, you are sentenced to be imprisoned for a period of five years, and I direct that four months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
102 On Charge 12, you are sentenced to be imprisoned for a period of five years, and I direct that four months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
103 On Charge 13 you are sentenced to be imprisoned for a period of five years, and I direct that four months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
104 On Charge 14, you are sentenced to be imprisoned for a period of five years, and I direct that four months of that be served cumulatively upon the base sentence and the other partial cumulation periods.
105 On Charge 15, you are sentenced to be imprisoned for a period of five years, and four months of that I direct be served cumulatively upon the base sentence and the other partial cumulation periods.
106 MR GIBSON: Charge 4, Your Honour.
107 HER HONOUR: Did I not read charge 4? Thank you.
108 MR GIBSON: No.
109 HER HONOUR: On Charge 4, you are sentenced to be imprisoned for a period of seven years, and I direct that four months of that be served cumulatively upon the base sentence and upon the other partial cumulation periods.
110 That, on my calculation, makes a total effective sentence of 18 years 8 months and I direct that you serve a period of 14 years and 8 months before being eligible for parole.
111 I declare that you have spent 19 days in pre-sentence detention and direct that that be reckoned as part of the sentence already served.
112 Pursuant to s.6AAA of the Sentencing Act I declare that but for your pleas of guilty I would have sentenced you to be imprisoned for a period of 25 years and I would have fixed the period of 21 years as the time you must serve before being eligible for parole.
113 Pursuant to the Sex Offender Registration Act you are required by reason of the conviction for these offences to be placed on the Sex Offender Register for life. I must provide you with a copy of the registration conditions and I ask Mr Gray to accompany my associate to the dock or to take it to you in a moment. I am required to have it handed to you; I am required to ask you to sign a receipt acknowledging that you have been provided with it. You do not have to sign the receipt but the court record will show in any event you have been provided with that.
114 I have also been asked to make an order under s.464 of the Crimes Act for retention of the forensic sample provided by you and I propose to do so having regard to the seriousness of the offences. I have also been asked to make a disposal order in respect of the items seized in the search of your home relating to the commission of the offences and I propose to make those. You can take a seat whilst the ancillary matters are being dealt with.
115 Can I ask counsel to check the arithmetic and make sure it is right and reflects what I said I intended to do?
116 I note that the signed receipt has been provided. Mr Gibson and Mr Gray, have you had a chance to - - -
117 MR GRAY: I haven't as yet, Your Honour, I'll do that.
118 HER HONOUR: No, that is all right.
119 MR GIBSON: Yes it accords with my calculation, Your Honour.
120 MR GRAY: I am still working on it, Your Honour.
121 HER HONOUR: It should be 104 months, which is 8 years, 8 months. That is the cumulation - - -
122 MR GRAY: That's the cumulative - yes.
123 HER HONOUR: Yes. But 104 months of the cumulations, which is 8 years, 8 months added to the base sentence of 10. We have got a calculator for you, Mr Gray, if you like.
124 MR GRAY: I am getting there, Your Honour.
125 HER HONOUR: Would it help if I gave you a printed copy of my schedule as well?
126 MR GRAY: Yes, thank you, Your Honour. Yes, Your Honour, thank you.
127 HER HONOUR: Very well, no further orders?
128 MR GIBSON: No, Your Honour. I've been asked by one media personnel to raise a matter on his behalf and if I may do that, it is really out an abundance of caution in relation to the Judicial Proceedings Reports Act1958 and that is the naming of the accused's name, Mr Reid, in any report as to whether that would be likely to have a tendency to identify the complainant. So I raise that for his benefit and I think he was seeking some guidance from the court in relation to that.
129 HER HONOUR: It is not for me to give legal advice but it might assist if you reminded the members of the press that I was the judge who decided Doe v ABC[14] which was a case where substantial damages were awarded to a complainant because the naming of the accused led to identification of a complainant in a sex case. But no doubt the media have their own legal advisors who will be well aware of the provisions of the Judicial Proceedings Reports Act 1958. But it is very clear that no information can be published which could tend to identify a victim. How they apply that is I am afraid for them rather than me to give advice at this stage or at any stage.
[14][2007] VCC 281.
130 MR GIBSON: If Your Honour pleases. No other matters, Your Honour; no other orders sought.
131 HER HONOUR: Very well, thank you. My reasons are in very clear draft form but not yet in revised published form. I am not sure whether I would get them back from VGRS today but enquires had been made about the availability of the recording for the purposes of media representatives accurately getting what I have said; that can be made available to them if they want it and if application is made for release of my draft reasons for the purposes of accurate reporting I would be prepared to entertain that as well but subject to that need to be absolutely scrupulous about ensuring that the complainant is not in any way identified.
132 MR GIBSON: If Your Honour pleases.
133 HER HONOUR: Could you now please remove Mr Reid?
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