Director of Public Prosecutions v Rogers

[2014] VCC 1311

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00631

DIRECTOR OF PUBLIC PROSECUTIONS

V

DEREK ROGERS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2014
DATE OF SENTENCE:	14 August 2014
CASE MAY BE CITED AS:	DPP v Rogers
MEDIUM NEUTRAL CITATION:	[2014] VCC 1311

REASONS FOR SENTENCE
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: Subject: Criminal law - sentence          

Catchwords:   sexual penetration with child under 16 x 2;  indecent assault x 3; indecent act with or in presence of child under 16 x 1 -  pleaded guilty – historic charges –complainants were sisters, one aged between 4 and 12 at time of offending, the other aged between 3 and 5.

Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004

Sentence:      8 years and 1 month, with a non-parole period of 6 years.   

NOTE: Pseudonyms are used in place of the complainants’ names, in order to protect their identity.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	MsJ Verkade
For the Offender	Mr M Phillips

1HER HONOUR:  Derek Rogers, you have pleaded guilty to two charges of sexual penetration with a child under 16, three charges of indecent assault, and one charge of committing an indecent act with a child under 16.  You committed these offences between 1991 and 1998, when you lived with your family, next door to the complainants and their family.  The complainants were sisters, Jacinta[1] and Rachel Higgins[2].  Jacinta was aged between four and 12 at the time of the offending and Rachel was aged between three and five.  Your wife had become good friends with their mother, and the two families were close, with the girls spending a lot of time playing at your house with your son, who was of similar age.

[1] Pseudonym

[2] Pseudonym

2The offending occurred in the context of those visits.  Your wife was a nurse who often worked weekends and night shift and so she would sleep during the day.  For many years you had a workplace injury which confined you to the house and you often cared for your son.  The abuse occurred throughout the period when you were not working and ended when you and your family moved house and away from that area in 1998.

3Each of the girls recalled particular occasions when you committed certain acts upon them.  Charge 1 is a charge of indecent assault involving Jacinta which occurred when you licked her nipples.  Charge 2 is a representative charge of indecent assault upon her, involving five acts on five separate occasions.  On four of those occasions you licked her vagina and on one occasion you put your finger inside her vagina.

4On one of the four occasions just referred to, the assault occurred in your son's cubby house.  You had taken her in there and locked the door, taken her underpants down, and licked her vagina.  You then pushed your penis against her mouth but she refused to open it.  You said “Just a little bit” and continued to push your penis against her lips, again she refused.  Your son then tried to open the door and you stopped.  That is Charge 3, a further charge of indecent assault.  Charges 2 and 3 are in my view indecent assaults at the mid to high end of the range of seriousness.

5Charge 4 is a charge of sexual penetration of a child under the age of 16.  It occurred in your backyard swimming pool with your wife and son present.  Jacinta was in the pool and you grabbed her and moved her around the pool.  You held her, moved her bathers to one side, and put your finger inside her vagina.

6The other charges relate to the younger girl, Rachel.  They occurred in the cubby house during a game of hide and seek.  You licked her vagina, which gives rise to Charge 5, a representative charge of sexual penetration of a child, which includes three other occasions when you did the same thing.  Charge 6 is a charge of committing an indecent act.  You grabbed Rachel's hand and placed it on your erect penis and moved her hand up and down.  You then told her to leave.

7Rachel Higgins, who is now aged 25, made a statement in late December 2012 and Jacinta, who is now aged 28, made her statement early in 2013.  Rachel made a pretext call to you on 12 April 2013 in which you admitted the abuse and apologised for it.  You were arrested the next day.

8Both complainants and their parents provided detailed victim impact statements in which they described, in very moving and articulate fashion, the devastating effects of the abuse upon them.  The complainants and their mother read their statements to the court and Mr Fisher, the prosecutor, read aloud the father's statement at his request.  All these statements describe a close and loving family, and when Rachel began to experience depression and self-harm at the age of 15, and then attempted suicide and was hospitalised at age 17, her family could not fathom the cause.  Two further suicide attempts followed, as well as extensive treatment including medication, electro-convulsive therapy, and at one stage a three month period in hospital.

9Rachel described the terrible burden of keeping the secret for so long, unable to talk about it to anyone, until she disclosed it at the time of the second suicide attempt.  She stated that her success at school was jeopardised by her depression and consequent lack of motivation and she was rejected for a career in the armed forces on medical grounds, which she clearly found very upsetting.  She and her sister have now returned to university studies, assisted financially by their parents to enhance their career prospects.

10Both complainants suffer from fear of every day experiences, such as the dark, or being alone, which they attribute to the exploitation of their vulnerability at a very young age.  Both have found intimacy difficult and lack trust in men.  Jacinta Higgins described the impact of her sister's struggles, particularly given that she did not know the cause.

11The mother of the complainants provided some insight into how parents cope with a daughter suffering as Rachel has.  She and her husband noticed changes in the behaviour of both their daughters, as they grew up, and did not know to what this could be attributed.  In response they imposed strict discipline, which they now consider to have been inappropriate, because of the real cause of the behaviour problems.  Their father considers he failed to protect his daughters and feels the weight of responsibility because of this.  As a result of the health needs of his daughters he has had to change jobs to one less demanding of his time and with fewer responsibilities.  For long periods he had to manage Rachel's medication, because she could not be trusted to not attempt suicide.  A sense of great sadness pervades all four statements.

12The offending you committed is of a most serious kind and is regarded with abhorrence and disgust by the community.  The protection of children, because they are vulnerable, is one of the most important community responsibilities and Parliament had seen fit at the time of these offences to impose a very high maximum penalty of 20 years' imprisonment for the crime of sexual penetration of a child under 16.  The maximum penalty for indecent assault is five years' imprisonment, and for committing an indecent act with a child under 16, ten years.

13In this case, an aggravating factor is the breach of trust that the children's parents placed in you and the children's trust as well.  They were your son's very young playmates and you preyed upon their innocence and trust.  The relationship between the two families provided you with easy opportunities to do so and you took advantage of that for a long time, about seven years.  You were brazen in your manipulation of the children, involving elements of grooming, and you intimidated them in to silence.  The permanent damage you caused them is a factor I take in to account.

14In relation to each charge you are to be sentenced as a serious sexual offender, because in 1997 you were convicted in the Magistrates' Court of other child sexual assault charges. You were sentenced to an aggregate sentence of four months' imprisonment, wholly suspended for 24 months. This is not a prior conviction but it brings this case within the application of s.6D to 6F of the Sentencing Act 1991.  It also affects any consideration of your prospects for rehabilitation.  The other matters occurred 18 years' ago and the end date for the current offences is 16 years' ago, partially covering the same period of time.  I note that you continued offending against the children after your conviction in the Magistrates' Court.

15Your plea of guilty to these charges avoided the need for a trial, even though the plea was not entered at an early stage.  The indication was given at the committal hearing before the complainants or their parents were required to give evidence, but when they were standing by ready to do so.  However, its chief value is its facilitation of the criminal justice system and you are entitled to some discount on your sentence.  I also accept the plea as an indication of remorse.  You told the psychologist, Ms Pamela Matthews, who assessed you recently, that it should never have happened and that you understood the two complainants would be upset.  No doubt on hearing their victim impact statements in court you would have achieved a better understanding.

16A further mitigating factor is your state of health.  You are now aged 64 and you suffer from osteoarthritis and peripheral neuropathy of unknown origin, as well as recurrent cellulitis, apparently quite severe, causing reduced mobility.  You also have an irregular heart beat and you take a range of prescribed medication.

17You were sexually abused as a child between the ages of eight and 16.  Ms Matthews diagnosed depression of varying degrees, since before the offending, and she noted your recent suicide attempt.  She is of the opinion that you are at low risk for reoffending, mainly because of the passage of time since the offences.  She added that your propensity to offend at the time was heightened by a number of factors in addition to depression, including low self-esteem, unemployment, and social isolation.  These factors still exist but with much reduced opportunity, as well as some insight and remorse, and therefore the risk is low.

18I have already referred to aspects of your personal background and I add that you were born in England and came here alone, aged 20, to escape an unhappy past, having been bullied as a child.  You worked at various places and married when you were 27 and your wife much younger.  Your daughter was born when you were living next door to the complainants’ family and sadly she died aged nine months, from a heart problem.  Your son was born several years' later.  Your marriage broke down when you were charged with these offences, but you remain in contact with your son, indeed he is your only support.  You have had long periods of unemployment after your foot was badly injured in a workplace accident, with a considerable period having been spent on WorkCover. 

19A combination of circumstances, as I have described, together with the lower risk, and your health in particular, mean that specific deterrence need not be the chief focus of the sentence I impose.  Your health problems mean that the experience of imprisonment will likely be more onerous for you than for someone in better health and I take that in to account.  General deterrence is a different matter.  This type of serious offending, and these instances of it, call for a harsh sentence that reflects the community's abhorrence of it and the court's stern condemnation.

20The representative nature of Charges 2 and 5 place them, and indeed the other charges, in a more serious context of overall offending and I take that in to account. There must be some cumulation in order to reflect that and having regard to s.6E of the Sentencing Act.  I must also consider the need for proportionality and have regard to the principle of totality in order to avoid a sentence that is crushing.  Would you stand now, please, Mr Rogers?

21I sentence you to the following terms of imprisonment.  For Charge 1, indecent assault, six months; for Charges 2 and 3, indecent assault, two years for each charge; for Charge 4, sexual penetration of a child under 16, in the case of Jacinta, four years; for Charge 5, sexual penetration of a child under 16, in the case of Rachel, four years; for Charge 6, committing an indecent act with a child under 16, two years.

22The sentence for Charge 5 is the base sentence for purposes of cumulation.  I order that one month of the sentence for Charge 1, eight months of each of the sentences for Charges 2, 3 and 6, and two years of the sentence for Charge 4 be served in cumulation upon the base sentence.  That results in a total effective sentence of eight years and one month.  I order that you serve a minimum period of six years before being eligible for parole.

23You have been in custody now for six days, as pre-sentence detention, I declare that to be time already served and that shall be noted on the court record.

24Under the Sex Offenders Registration Act you are required to report your details to the police every year, for the rest of your life, after your release.

25Pursuant to s.6AAA of the Sentencing Act, if you had pleaded not guilty to these charges I would have sentenced you to ten years' imprisonment with a non-parole period of eight years.

26The prosecution seeks an order under s.464ZF of the Crimes Act, for an order for a forensic sample of saliva, to which you have given your consent through your counsel, and I make that order.  I must advise you that the police have the power to use reasonable force to obtain that order but I trust that will not be necessary.

27Are there any other matters, first of all Mr Phillips?

28MR PHILLIPS:  No Your Honour.

29HER HONOUR:  Ms Verkade?

30MS VERKADE:  No Your Honour.  No.

31HER HONOUR:  Thank you.  Mr Rogers will need to sign the Sex Offender Registration form, Mr Phillips.

32MR PHILLIPS:  May I assist him with that?

33HER HONOUR:  Yes you may.

34MR PHILLIPS:  Thank you Your Honour, that's been signed.

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HER HONOUR:  Thank you Mr Phillips.  Officer, you may take

Mr Rogers now, thank you.

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