Director of Public Prosecutions v Ritchie (a pseudonym)

[2017] VCC 20

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LEONA RITCHIE (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATE OF HEARING:	14 November 2016
DATE OF SENTENCE:	27 January 2017
CASE MAY BE CITED AS:	DPP v Ritchie (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 20

REASONS FOR SENTENCE
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Subject:  Incest – Gross Indecency

Catchwords:  Ill-health of offender – organ transplant – management in custody of chronic health conditions

Legislation Cited:

Cases Cited: R vVerdins [2007] VSCA 102; DPP v Dalgliesh (a pseudonym) [2016] VSCA 148; Stalio v The Queen [2012] VSCA 120; Hicks v The Queen [2016] VSCA 162; DM v The Queen [2012] VSCA 227; DW v The Queen [2006] VSCA 196; CF v The Queen [2012] VSCA 22; Reid v The Queen [2014] VSCA 145; Spence v The Queen [2013] VSCA 197; R v WEF [1998] 2 VR 385; R v Hall (1994) 76 A Crim 454 RLP [2009] VSCA 271; R v AWF [2000] VSCA 172; R v Harris [2009] VSCA 287; GEM v The Queen [2010] VSCA 168; DPP v Terrick & Ors [2009] VSCA 220; DPP v Joseph Bruce Sinclair [2016] VCC; DPP v Reed and Lloyd [2016] VCC; R v Jobling-Mann [2000] VSCA 3

Sentence:6 years and 3 months imprisonment, 3 years and 3 months non-parole period

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Burnside
For the Offender	Ms K Blair

HER HONOUR: 

1I am ready to sentence in this matter.  Ms Ritchie can remain seated until I get to the end of the sentence.

Offences

2Leona Ritchie,[1] the jury has found you guilty of two charges of gross indecency and two charges of incest.  The maximum penalty for gross indecency with a child under the age of 16 is two years' imprisonment for a first offence and three years' imprisonment for the second offence.  The maximum penalty for incest is 20 years' imprisonment.

[1]A pseudonym

3The complainant in this matter was your stepson, David.[2] 

[2]A pseudonym

4In 1985 you married Robert Ritchie[3] who is the father of the complainant, and his two sisters, Michelle[4] and Louise.[5]

Circumstances of Offending

[3]A pseudonym

[4]A pseudonym

[5]A pseudonym

5The offences the jury found you guilty of were committed against the complainant between May 1985 and February 1987.  They took place on three separate occasions when the complainant was on access visits.  The complainant was aged between 13 to 15 years and you were aged between 25 and 26 years old.

Charge 5

6Charge 5 of gross indecency relates to an occasion between 23 May 1985 and 4 October 1986.

7On this occasion you were watching TV in the lounge room alone with the complainant when you gave him explicit instructions on how to give you oral sex.  You held open your labia and exposed your clitoris and told the complainant to put his fingers on each side of your clitoris to expose it more.  You gave him instructions regarding:

·where he was to put his fingers on your clitoris;

·how to locate your G‑spot; and

·how to vary the oral sex by playing game you called lick the alphabet where you asked him to a lick a letter of the alphabet on your clitoris and you had to guess what the letter was.

8You told the complainant that if he was to play the game with anyone else you would tell his father that you were lovers.

Charges 6 & 7

9Charge 6 of gross indecency and Charge 7 of incest concern an occasion between 5 and 7 October 1986 after you had attended a Cyndi Lauper concert with the complainant and his two sisters.

10After the concert you all returned home and the girls went to bed.  You and the complainant stayed up watching TV in the lounge room.  You started kissing each other and the complainant then gave you oral sex.  This act relates to Charge 6 of gross indecency.  The complainant then had penal/vaginal sex with you.  This act relates to Charge 7 of incest.

Charge 10

11Charge 10 of incest relates to an occasion between 8 October 1986 and 24 February 1987 when the complainant and his sisters were staying at your home.  You gave the girls some money and directed them to go to the shops to get some fish and chips.  You then directed the complainant to go and lock the front door.  You grabbed his hand and took him into the spare room.  After kissing, you lay down on the camp bed and took his penis in your hands and directed it into your vagina.  You had started having penal sex when you were interrupted by his sisters returning early from the shops.

12Your sexual relationship with the complainant ceased in April or May 1988 after Robert Ritchie found you together on the couch in the lounge room in the early hours of the morning.  He threw the complainant out of the house and rang his mother to come and get him. He told her that the complainant was no longer welcome. 

13The complainant was estranged from his father for a period of time following this incident.

Complaint

14At some stage the complainant told a friend about having a sexual relationship with you. In June 2012 the complainant wrote a letter to his father concerning the relationship.  He gave evidence that he was seeking an acknowledgement that the sexual relationship had taken place. 

15In 2013 the complainant made a statement to the police.  You were then interviewed by the police. You have always denied that there was a sexual relationship.

Victim Impact Statements

16The complainant read his victim impact statement to the court.  It was apparent from his statement that your offending had a significant impact on his life, affecting his self-esteem and well‑being.  He often felt angry and depressed.  In his relationships with women, he was secretive and he found it difficult to trust them.  The complainant said: 

“I never aspired to be anything great because I always felt that I did not deserve to be happy and did not deserve anything good in my life.”

17The complainant's mother, Cathy McGee,[6] also read her victim impact statement to the court.  In her victim impact statement she referred to the complainant's use of drugs and self-destructive behaviour over the years.  She accused you and her ex-husband of deflecting blame on to him for what had happened.  She said that this “compounded the emotional damage already done and set him on a path of self-destruction and self-loathing which the family had walked with him for 30 years.”

Personal Circumstances

[6]A pseudonym

18Your counsel provided the court with details of your personal history and further details were contained in a psychiatric report from Dr Walton. 

19You were born in a rural town in New South Wales and are now 56 years old.  You have an older and younger brother.  Your mother was of aboriginal descent.  She died from complications of a cerebral haemorrhage when you were a teenager. 

20Your father remarried on two occasions and you have a number of step siblings. 

21As a child you suffered from visual difficulties. As there were no adequate treatment facilities for your condition in the town, between the ages of 7 and 11, you spent about six months of the year in a home for disabled aboriginal children. 

22Dr Walton reported receiving history from you that you were sexually abused from the age of eight to eleven years old by an uncle.  These episodes were violent and physically abusive.  They resulted in serious genital injury and at one stage there was a protracted period of hospitalisation.  You also contracted sexually transmitted diseases following this episode.

23When the abuse was discovered by your father, your abuser shot himself in the head in front of you which resulted in his death.

24You worked part‑time from the age of 13 babysitting and cleaning windows to pay for your school expenses.  Despite learning difficulties, including possible dyslexia and dyscalculia, you managed to stay in school until Year 11. 

25In 1977 you moved to Melbourne to train as a nurse.  After completing your training you worked in a number of hospitals particularly in the field of aged care. 

26You met Robert Ritchie in 1981 when you were working at a psychiatric facility and you married him in mid-1985.  You had previously been married to an alcoholic and violent man for some three years.

27In 1997, when you were working in a nursing home, you were bitten by a Hepatitis C carrying patient.  From about 2005 onwards you suffered from medical issues related to this incident.  You were made redundant in 2011 as you could not work due to liver disease.

Medical Conditions

28Your counsel tendered a number of medical reports regarding your physical health over the years.  There was a report from your GP, Dr Seevanayagam, from Mr Paul Gow, a Senior Consultant at the Liver Transplant Unit at Austin Health and three reports from Clinical Associate Professor John Gall, a Consultant Forensic Physician. 

29Your GP detailed the various medical conditions you have suffered throughout your life.  For the purposes of sentencing you the most relevant condition is your liver cancer and liver failure for which you underwent transplantation surgery on 19 December 2015.  Your GP reported that since being on immunosuppressive treatment after your liver transplant, you suffered from three post-transplant infections leading to inflammation of the colon. 

30Mr Gow reported that the liver transplant had been successful and that when he had last seen you on 21 July 2016 you were in very good health and had excellent liver function and renal function.  He said that your prognosis was excellent and he expected your survival to be for decades, not months or years. 

31Your current medical care involved clinical reviews between six weeks and three months, depending if there were active clinical issues or not. 

32In his report of 3 November 2016, which was his most up‑to‑date report, Professor Gall was of the opinion that while your prognosis with respect to your liver was excellent, the long‑term immunosuppressant therapy that you had been placed on put you at an increased risk of developing infections.  The therapy also had a number of adverse effects that would result in liver and kidney dysfunction and the development of malignancies and an increase in cardiac risk.

33As a result, regular monitoring by appropriate specialist medical practitioners was essential. 

34In his opinion, given the high density population within the prison system and its potential for exposure to infection, your placement within the custodial system increased your risk of developing infections.  It had the potential to adversely affect your health due to the exposure to infections and the potential for delays or unavailability of seeking appropriate and timely care.

35When he was called to give evidence, Professor Gall accepted that if your condition was optimally managed by Justice Health while you were in custody, he could not see any problems.  However, his concern was as to whether in fact your health issues could be optimally managed in the prison system, in particular with respect to the need for an urgent response if you were to get an infection.  He also gave evidence of his experience concerning cases where there had been delays in prisoners receiving prompt medical attention which had led to a worsening of their condition.

36In addition, he was concerned as to whether you could continue to receive your treatment from the Austin Liver Transplant Unit given that Justice Health largely referred patients to St Vincent's Hospital.  I will return to these matters later in your sentence.

37Given your medical issues, the court obtained a report from Justice Health concerning the treatment available in prison for prisoners who had undergone a liver transplant and management of prisoners with depression.  Once again I will come back to this report shortly but before doing so I need to refer to your mental health issues and the reports dealing with your mental health.

Mental Health

38Your counsel tendered two reports which are relevant with respect to your mental health.  There was a report from Dr Kerry Mack and a report from Dr Lester Walton who was called and was cross‑examined. 

39Your counsel informed the court that after the jury had found you guilty of the offences, you were actively suicidal with plans to ingest pesticide.  Dr Mack reported that you were referred by the Austin crisis assessment team to the North Park Private Hospital on 12 September 2016 for containment, of risk and treatment of major depression.  You were an inpatient at that hospital until 27 September 2016. 

40Dr Mack’s diagnosis was major depressive disorder with associated anxiety features and some features of post-traumatic stress disorder.  She considered that “this was precipitated by the current court processes which had also triggered symptoms associated with your past court processes which had also triggered symptoms associated with your past trauma.”  She reported that you were currently taking an anti‑depressant medication and seeing her for treatment.  Her prognosis was that your symptoms were likely to continue in the context of the stresses of the court hearing. However with pharmalogical and psychological treatment, you had made good progress.

41Dr Walton diagnosed you as suffering from a chronic major depressive disorder and chronic post-traumatic stress disorder. 

42In the last paragraph of his report he stated: 

“It is perhaps to state the obvious that this woman, with her major psychiatric problems and ongoing multiple disabling physical health problems, will endure incarceration as substantially more onerous than a prisoner in more robust physical mental health.”

43In his opinion, if you were incarcerated, it was highly likely that you would become actively suicidal again.

44He gave evidence that your depressive disorder was due to a number of factors including:

·your visual difficulties when you were a child and the necessity for you to receive treatment away from home;

·sexual abuse by your uncle and the witnessing of his suicide;

·the contacting of Hepatitis C when you were bitten by a patient; and

·the ongoing stress of the medical conditions related to the liver transplant and the stress of your trial.

45When cross‑examined, Dr Walton agreed, given that you denied the offending, that it could not be said that there was any causal link between the offending and your childhood abuse.  In addition, that it could not be said that you had shown any insight or remorse for the offending.  He also agreed that the details of your suffering from psychological problems over the years were vague.  However, he did not resile from this opinion that due to your mental health issues, a gaol term would be substantially more onerous for you and that would become actively suicidal again.

Justice Health Report

46The previously mentioned Justice Health report explained that prisoners who have gone undergone an organ transplant are assessed by general medical and nursing staff on reception into prison.  Ongoing care includes reviews by medical officers in prison and continuity of appointments with any pre‑existing organ transplant clinicians. 

47Chronic health care plans are developed and implemented for all prisoners with chronic health conditions including mental illness and prisoners on immunosuppression medication.  Care provided is in line with the principles outlined in the Department of Health integrated chronic disease management model and the World Australian College of General Practice Guidelines for Preventative Activities and General Practice. 

48Where conditions require more complex and specialised skills and facilities than primary health care, services referral can be made to an appropriate internal or external services including specialist out‑patient services and general acute ‑ WASSUP acute inpatient care. 

49Should a prisoner's condition deteriorate and require acute care, transfer to a tertiary health care provider is arranged.  With respect to prisoners with mental health issues, they are reviewed by mental health nurse practitioners, psychiatrists or psychologists as required.  An urgent review process is in place to manage prisoners at risk of suicide or self-harm.

Defence submissions on sentencing

50Your counsel conceded that current sentencing practices reveal that almost all those sentenced for incest receive an immediate sentence of imprisonment.  It was also accepted that current sentencing practices mean those practices at the time of sentence.  However, it was submitted that given your offending took place between May 1985 and February 1987, the court must take into account that the maximum penalty at the time was 20 years and not 25 as it is today. 

51In addition, your counsel referred the court to the case of Stalio v The Queen[7], in which the Court of Appeal accepted that regard can be had to sentencing practices at the date of offending for the purpose of ascertaining just punishment in accordance with the principle of equal justice. 

[7] [2012] VSCA 120

52At the time of your offending, a suspended sentence was one of the available sentencing dispositions.  Your counsel relied on this case to submit the wholly suspended sentence was an appropriate disposition.  She tendered a table of statistics set out in Fox and Freiberg with respect to sentencing dispositions from incest to 1986 to 1996 which revealed that in nine of those years, a relatively small percentage of offenders had received a suspended sentence. 

53In seeking this disposition, your counsel submitted that your offending had been at the lower end of the range for incest cases. 

54The mitigating matters relied on were as follows: 

·You had no prior convictions, there had been no subsequent offending; 

·You had been severely sexually abused when you were a young girl and you had a deprived upbringing;

·You had suffered from learning difficulties;

·You had excellent prospects for rehabilitation as you had ongoing support from your husband;

·You had ongoing monitoring with respect to your post liver transplant therapy and mental health treatment from Dr Kerry Mack;

·that due to your ill health and need for a liver transplant there had been a delay from the date of your arrest and interview of some three years before your matter came to trial.

55In particular your counsel relied on the medical opinion as to the impact of a sentence of imprisonment would have on your physical and mental health.  With respect to your physical health on the opinion of Professor Gall, that placement in custody would be more onerous for you than others due to the increased risk of infection because of your immunosuppression therapy and the potential for delay in seeking appropriate treatment. 

56With respect to your mental health care. Dr Walton's opinion was that your major psychiatric problems would cause you to find the conditions in custody more onerous from those not suffering from those problems and it was highly likely that your condition would be exacerbated.

57Consequently, your counsel submitted that limbs five and six of Verdins[8] case were applicable.  In support of these submissions, your counsel referred the court to a number of decisions of the Court of Appeal including cases where the appellant's sentence had been reduced due to ill health.[9]

[8]R vVerdins [2007] VSCA 102

[9] Hicks v The Queen [2016] VSCA 162; Reid v The Queen [2014] VSCA 145; Spence v The Queen [2013] VSCA 197; Stalio v The Queen [2012] VSCA 120; R v Jobling-Mann [2000] VSCA 3

58I have read and considered all these decisions.

59Your counsel also tendered a number of character references and I accept that they show that you are otherwise hard working and have been of good character.

Prosecution submissions on sentencing

60The prosecution submitted that the only appropriate sentence in your case was a substantial term of imprisonment.  In seeking this disposition, counsel submitted that your offending was squarely in the mid-range for such offences and that there are a number of aggravating features.  These were that the offending was prolonged, taking place over a two‑year period.  There had been a substantial breach of trust when you played on the complainant's vulnerability as a young boy whose parents had separated.  You had given him instructions on how to perform sex on you.  You had taken advantage of occasions when he was in your care and his father was not home or not present.  You had threatened to tell his father that you were lovers if he performed the alphabet game with anyone else.

61It was submitted that it was clear from the victim impact statement of both the complainant and his mother that your offending had a substantial impact on them. In particular that the complainant had struggled with the loss of his relationship with his father who to this day does not accept that sexual abuse took place.

62As had defence counsel, the prosecutor referred the court to a number of decisions in support of her submissions.[10]  In particular the prosecutor relied on the recent decision of DPP v Dalgleish.[11]  I have read and considered this decision and all the other decisions and sentencing statistics that were referred to.

Sentencing Remarks

[10] Stalio v The Queen [2012] VSCA 120; RLP [2009] VSCA 271; DW v The Queen [2006] VSCA 196; R v AWF [2000] VSCA 172; Harris [2009] VSCA 287; R v Hall (1994) 76 A Crim 454; G E M v The Queen [2010] VSCA 168; CF v The Queen [2012] VSCA 22; DPP v Terrick & Ors [2009] VSCA 220; DPP v Joseph Bruce Sinclair [2016] VCC; DPP v Reed and Lloyd [2016] VCC; DM v The Queen [2012] VSCA 227;

[11]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148

63In sentencing you, I have taken into account the mitigating factors referred to by your counsel.  You have no prior convictions and it is apparent from the character references that your referees hold you in good regard.  There has been no subsequent offending and I accept that you are unlikely to re‑offend. 

64While your counsel was not able to obtain any records relating to the history you gave of being abused as a child, it was over 45 years ago. 

65You gave a consistent history of abuse to both Dr Walton and Dr Mack and I accept that the abuse took place.  I accept Dr Walton's opinion that this abuse, together with the other matters he gave evidence about, contributed to your depression and your post-traumatic stress syndrome.

66With respect to your mental health, I accept his opinion that due to your psychiatric issues, prison will be more burdensome to you than for those who do not suffer from such conditions.  In addition, I accept that imprisonment is likely to have a significant adverse effect on your mental health and that it is likely to increase your suicidal ideation. 

67In accordance with principles five and six in Verdins case, I have taken these matters into account as mitigating your punishment.

68I have also accepted that you had this matter hanging over your head for a period of an extra three years because of a delay which was due to your ill health and that this delay cannot be held against you. 

69With respect to your physical health, I accept Professor Gall's opinion that imprisonment will be more onerous for you than for inmates with normal health. This is because I have accepted that you face an increased risk of developing infection in the prison population due to immunosuppressant therapy.  I also accept that the therapy can have adverse effects and that regular monitoring of your condition is important.

70However, while I have taken into account, as a mitigating matter, that imprisonment will be more burdensome for you because of your mental and physical health issues, the authorities establish that old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.

71Incest has always been regarded as a very serious offence which is reflected in the maximum sentence which applies to your case of 20 years. 

72The statistics reveal that a suspended sentence has been rare.  In R v WEF[12], Winneke P said: 

“This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive cogent punishment.  Such conduct is not only destructive of family values and all they stand for, it is now well‑known that it has the capacity to destroy, for its victims, the chance to enjoy a natural and healthy lifestyle.” 

[12] [1998] 2 VR 385

73In the recent decision of Dalgleish, the Court of Appeal stated that: 

“Sentences for incest must reflect society's denunciation of the sexual abuse of children and the profound harm which it causes.  General deterrence and denunciation must be given their proper emphasis.  The long‑term harm done to victims now better understood must be given due weight in the sentencing calculus.  Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.”

74I accept that your offending was in the mid-range for offences of this type albeit at the lower end of that range.  Your offending against the complainant was not an isolated incident.  You initiated sexual activity over a two‑year period.  On each occasion he was on an access visit where he should have felt safe.

75By offending against him, you committed a grave breach of trust.  He was a child, you were the adult.

76When you were discovered by Robert Ritchie in a compromising position with the complainant, you left him to take the blame for what had happened.  It is clear from his victim impact statement that your offending has had a significant impact on his life.

77After taking into account the sentencing guidelines set out in s.5 of the Sentencing Act including all the mitigating matters put on your behalf by your counsel and after consideration of all the cases referred to by both counsel, I consider that the only appropriate sentence is a sentence of imprisonment.

78While Professor Gall expressed concern as to whether optimal care would be provided in custody, the authorities have an obligation to facilitate your medical care.  I am satisfied, in light of the report from Justice Health, that there will be an appropriate ongoing care plan for you within the prison system. There is an ongoing care plan within the prison system to cope with prisoners who had had a liver transplant and who suffer from depression. 

79Professor Gall also expressed concern as to whether you would continue to receive treatment from the Liver Transplant Unit at the Austin Hospital.  I note in the report from Justice Health, the aim was that you would continue to receive follow‑up at this hospital as required.

80There is no evidence before this court that you are currently suffering from any complications due to the liver transplant or from being on immunosuppression medication. 

81You gave your counsel instructions that you were suffering from side effects related to your medication and that it was to be changed.  However, inquiries made by the court to the Liver Transplant Unit revealed that this was not the case.  In a letter to the court dated 25 January 2017, Mr Gow revealed that there are no current plans to change your immunosuppression medication in the foreseeable future.  If the medication was to be reduced, which is the usual plan, Mr Gow did not foresee this causing any side effects although occasionally it could precipitate rejection.  However, he considered that this would be an unlikely consequence of the change of medication.  If there was to be a change in your medication, all that would be required was a regular liver blood test which may be required to be performed monthly.  I do not see this as causing any problems with the prison authorities.

Sentence

82Would you please stand up.  On Charge 5 of gross indecency, you are sentenced to 12 months' imprisonment.  On Charge 6 of gross indecency, you are sentenced to 15 months' imprisonment.  On Charge 7 of incest, you are sentenced to five years' imprisonment.  On Charge 10 of incest, you are sentenced to five years' imprisonment. 

83The base sentence is a sentence of five years on Count 7 of incest.  I cumulate nine months of the sentence on Count 10 on Count 7 and three months of the sentences on both counts five and 6.  This means that your sentence is six years and three months.  I fix a non‑parole period of three years and three months.

84Given the mitigating circumstances that I have referred to in considerable detail, including your medical issues, I have fixed a longer than normal parole period. I declare pursuant to s.6F of the Sentencing Act that I have sentenced you as a serious sexual offending on charges 7 and 10. I note that the prosecution did not seek a disproportionate sentence.

85The offences of incest are Class 1 offences and pursuant to the Sex Offenders Registration Act, this means that you are registrable offender and subject to mandatory registration for life.