Director of Public Prosecutions v Reynolds

[2015] VCC 1353

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL REYNOLDS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	24 September 2015
CASE MAY BE CITED AS:	DPP v Reynolds
MEDIUM NEUTRAL CITATION:	[2015] VCC 1353

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr K. Doyle	Office of Public Prosecutions
For the Offender	Mr R. Backwell

HIS HONOUR: 

1Michael Reynolds[1], you have pleaded guilty to three charges of incest.  That crime carries a maximum penalty of 25 years imprisonment.

[1] a pseudonym

2Charge 1 of the three charges is a representative count and I take it into account in that way.  You pleaded guilty at a reasonably early opportunity and I accept that you pleaded guilty in the face of a real chance of acquittal had you fought the matter out.  That gives me confidence that there is remorse on your part despite denials or in your record of interview and obviously you get the benefit or the utilitarian benefit of that plea of guilty.

3Saving the victim in a matter such as this from the ordeal of cross-examination and the ordeal of a trial must attract a discernible discount.  You do have a prior criminal history but it is of no significance in this sentencing process.  There has been a very significant delay in my view of some years between the allegations being made, you being interviewed and then being charged.  That must also play a part in this sentencing process.

4Firstly pursuant to 464ZF of the Crimes Act, I make and order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

5Secondly, because of the nature of the offending, I must tell you that you will be placed on the Sex Offenders Register and the reporting conditions will be for life and that will be given to you now. 

6Because of the sentence which I will be imposing, you are to be sentenced as a serious sexual offender on Charge 3, I am aware that community protection becomes the principal sentencing aspect and that the sentences are to be cumulative unless otherwise ordered.  The Crown do not seek a disproportionate sentence and I would not have given one in any event. 

7The circumstances of the offending are that you were back in the mid-2000s in a relationship.  I point out that I will not be naming the complainant in the matter, just so that is not taken as being offensive, it just saves me a lot of trouble with the anonymisation on it.

8When the complainant was 11, she shifted from the Latrobe Valley to a different rural address.  You, the mother and her shifted.  The mother worked full time.  You had a back injury but worked occasionally and I accept, from what your counsel has told me, had a pretty good work record despite that back injury.

9You sexually abused the complainant commencing when she was aged approximately 12.  She made a VARE on 10 June 2011 and another on 29 September 2011 and a statement on 11 March 2014.  You had been interviewed back in August of 2012 but you were not charged until December 2014.  As I have indicated that is a significant delay.  The mother says that she never saw anything untoward but had some suspicion.

10Charge 1 is a representative charge.  The complainant said that on occasion at home in the lounge room you put her on a couch where you inserted your fingers into her vagina.  You asked her if she wanted you to go faster or harder and she told you faster.  That representative charge covers another occasion that took place in a kitchen that had been set up as a lounge room where you again inserted your fingers into her vagina.  She said that she did not deny it, she did not say no.  I point out at this stage in her victim impact statement she says how this offending at the outset made her feel important which explains quite a lot of it.

11In any event, Charge 2 when she was aged between 12 and 13 was a situation where you were home alone together.  She was leaning against a wardrobe and you took her pants off.  You asked her to move her hips and open her legs at the same time which she agreed to do.  You had her sway her hips from side to side.  You wanted her to point her bum in the air.  As she was doing this, you were standing facing her masturbating.  Initially you had your hand down your pants but then withdraw your penis and ejaculated onto the floor.

12After this, and this is what gives rise to the actual charge, she lay on her back on the bed.   You inserted your fingers into her vagina and asked if she wanted it and she said yes.  You asked her to thrust back and forth with her hips and asked her if she liked it.  When you had finished doing this, you asked her to give you a hand job but she refused.

13Charge 3 is in around about 2008/2009, all within the same year or so.  She describes being at farm in a shearing shed.  You had dropped in there to pick up some wood.  You brought some pornographic magazines in a nearby town and you and her looked at the magazines at the farm.  You pulled out your penis and masturbated.  She recalls you looking at the magazines while doing this.  She was then standing up and you walked towards her.  She had her back to you.  She pulled her pants down, you put your penis between her legs running it between the outer lips of vagina moving it back and forth.

14She described this as you putting your penis "up the top of the vagina, at the vagina area" saying that it was "in the top part in between the flaps".  She said that it was scared and told you it wasn't a good idea.  However she said it didn't hurt.  At some point during this incident you ejaculated.

15When interviewed by the police you denied the offending but as I have indicted you, after having been charged, have pleaded guilty at the earliest opportunity and must get the benefit of having said the child from the ordeal of a trial.

16I have had the victim impact statements of both the complainant and of her mother which endeavour to describe the effect this has had.  I am not going to go into all the detail of it but obviously DHS involvement occurred and as the complainant says, she has no family.  She describes the emotional and psychological difficulties that this offending has caused her and quite poignantly in terms of the future says:  "have no idea what my future will be at this point.  Just hope it goes better - it's better than this, is right now".  The child could not put it any better.

17In any event those victim statements say why offence of this sort is almost invariably treated with an active custodial sentence.  As President Winneke said back in 2002:

"This court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community.  Its capacity to erode decency of family wife and the trust and confidence of its young victims.  It is a crime which.  It is a crime which obliges the court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes. 

The insidious effects of the crime of incest upon its victim should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence proposed in them by those in their charge.

Parents and those in loco-parenting have failed to exercise the restraint which the community expects of them and they give into their own sexual gratification, must expect to be severely and appropriately punished".

18Your offending did not include violence.  On the face of it there do not appear to have been overt threats and I take those matters into account. 

19I then look to matters personal to you in determining what has to be a custodial sentence.  Tendered on your behalf was a report from Professor Carroll as well as a letter from your GP.  You have the support of a partner and children and siblings and there has been significant support for you in the court room here today.

20I accept because your physical condition gaol would be more difficult for you than it would be for a physically well prisoner and I take that into account.  I also take into account that the odds are very high that you will have to do the sentence in protection for various reasons and that there is a real possibility that you will be in isolation at Ararat in the sense that your current partner and family reside in this area.

21Professor Carroll outlines a number of matters about your background and I take all of those into account.  Of importance is that you have no matters pending.  You are now, on my calculation, almost 49 and there is no history of sexual offending.

22Insofar as the risk of you re-offending is concerned, as Professor Carroll points out, it is difficult to ascertain because you have not given him a version.  However in your situation where there is the one complainant within the time frame and no other priors I would have thought that it was, in all probably situational and would not appear to have been paedophilic.  In those circumstances I think it is a situation where I can give an opportunity for parole earlier than might otherwise have been the case.

23Professor Carroll points out that you have two daughters, aged 25 and 28 from a previous relationship.  You had a relatively happy childhood it would seem.  At the age of 16 you had been involved in a road traffic accident.  You have given to him - as he said, “a good account of a pervasively depressed mood and irritability until the pain came under control just a couple of years ago.”

24You were diagnosed with depression around about 2005, which I note is shortly before the occurring of this offending.  You have medication for that and that would seem to have been ameliorated to a degree.  I have no doubt that in your particular situation incarceration poses a risk that that depression will increase or will re-occur.  While it is not to the level of Verdins I certainly take that into account in terms of the difficult that you may have in going through a custodial sentence.

25Your background is one of having worked pretty well, on what is explained to me, having dropped out of school in Year 9.  Professor Carroll points out you have an unremarkable developmental history.  He also points out that as the background became worse over the years, particularly in your 30's, you came to abuse both alcohol and cannabis and at other stages have used various other drugs.  I do not see how they really relate to this particular offending in circumstances where you are not talking about it.  In any event it would appear to have been a depressed substance abusing, low self-esteem, existence for you.  In those circumstances it would appear that is how this offending has come about.

26As I said I think the prospects of your rehabilitation should be pretty good bearing in mind your previous history and the risk of you re-offending if you do rehabilitate should be relatively low.

27In a sentencing situation such as this there is not much else a judge can say.  Children have to be protected and custodial sentences, in the normal course of events, have to be imposed.  As I have indicated I have given credit for what you have been able to achieve over the last six months or so and I take that all into account. 

28In any event, on Charge 1, three years.  On Charge 2, three years.  On Charge 3, three years and six months.

29There has to be, even though it is one continuing course of conduct there has to be some cumulation and accordingly four months of the sentence imposed on charge 1 and four months of the sentence imposed upon Charge 2 are be served cumulatively upon each other and upon the sentence imposed on Charge 3.  That gives an effective head sentence of four years and two months.  I direct that you serve a minimum term of two years and three months before becoming eligible for parole. 

30As I have indicated the reasons why I have chosen to do that in your particular situation.  So that you fully understand and others understand the benefits that can be obtained by pleading guilty to matters such as this and removing the need for a trial and the trauma associated with it.  I tell you that but for your plea of guilty to these matters and allowing for the fact that there almost certainly would have been an extra count or two on an indictment you would have been sentenced to be imprisoned for a period of six and a half years with a minimum term of four and a half.

31All right are there any other orders I have to make?

32MR BACKWELL:  No, Your Honour.

33HIS HONOUR:  The fact that he is sentenced as a serious sex offender on Charge 3 I direct be entered in the records of the court.

34MR DOYLE:  Yes, Your Honour.

35HIS HONOUR:  All right.  If you would go into custody now, thank you, gentlemen.  Yes thanks, Mr Backwell.

36MR BACKWELL:  Your Honour pleases.

37HIS HONOUR:  All right, yes.

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