Director of Public Prosecutions v Roper

[2014] VCC 1161

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 14-00939

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID ROPER

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	22 July 2014
CASE MAY BE CITED AS:	DPP v Roper
MEDIUM NEUTRAL CITATION:	[2014] VCC 1161

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 P. Jones
For the Offender	Ms M. O'Brien

HER HONOUR: 

1David Andrew Roper, you have pleaded guilty to four charges of taking part in an act of sexual penetration with a child under 16.  The maximum penalty in the circumstances of this offending for that offence is 25 years imprisonment. 

2Your offending was against two young girls.  In order to maintain their privacy, I will refer to the girls as Bianca and Jasmine.  The details of your offending are set out in the Summary of Prosecution Opening which was tendered as Exhibit A.  In these sentencing reasons, I will only summarise the nature of your offending.

3Charges 1 and 2 concern a young family member Bianca.  Each of these charges is a representative charge concerning events which occurred between 1 November 2001 and 31 December 2001.  Bianca was then six and you were 22.  The offence covered by Charge 1 occurred in that period at your parents' home.  You and family members, including Bianca were living there.  You introduced your finger into the vagina of Bianca by rubbing her vaginal area.  You admitted to police that this had happened on about ten to 15 occasions altogether, and this charge is representative of the other occasions.

4The offence covered by Charge 2 occurred in the bathroom of the same house during the same period.  You performed oral sex on Bianca in the bathroom, thereby penetrating her vagina with your tongue.  You told police that that had happened about five to ten times and this charge is representative of the other occasions. 

5Charges 3 and 4 concern offences you committed against Jasmine, between 1 September 2013 and 30 September 2013.  Jasmine was then nine, and you were 34.  Jasmine was the daughter of friends of yours.  The offence covered by Charge 3 occurred when Jasmine was staying overnight with a member of your family.  You rubbed the girl's vaginal area, thereby penetrating her vagina with your finger.  You then pulled her leggings and underpants down and performed oral sex on her, thereby penetrating her vagina with your tongue.  This latter act is the subject matter of Charge 4. 

6These matters came to light in a rather unusual way.  Around September 2013, you contacted Bianca by text and said you had done sexual things to her when she was a child.  No details were given.  Bianca said that she did not need the stress or worry of this.  She did not keep the messages and nothing further was done. 

7On 4 January 2014 Jasmine told her parents about something you had done and made a statement to the police on 8 January 2014.  About the same time you were staying with Bianca's mother in Queensland and made some admissions to her in relation to Jasmine.  You then contacted Queensland police and self-reported your offending against Jasmine.  You were admitted to a psychiatric hospital in Queensland.  You told the staff about your offending against Jasmine who contacted Victorian police on 6 January 2014. 

8On 14 January 2014 you again contacted Bianca by text message.  You told her something of what had occurred.  Bianca did not recall the offending but understandably felt violated and angry when you disclosed your conduct.  On 15 January 2014, you contacted police in Victoria.  You handed yourself in and were interviewed in relation to your offending against Jasmine.  You made detailed admissions as to these offences.  You said that your offending had ceased when she asked you to stop. 

9On 22 January 2014, you contacted police in relation to your offending against Bianca and said you wanted to report your sexual offending against her.  You were then interviewed in relation to those offences.  You again made detailed admissions.  You described the course of conduct which developed over about two months of regular and increasingly inappropriate touching of Bianca.  You told police that you had "fallen in love with her" and that you regretted your actions.  You said you had betrayed the trust of Bianca and her mother.

10You have a limited but relevant prior criminal history.  In January 2000, at Shepparton Magistrates' Court, you were placed on a one year adjourned undertaking on one charge of indecent assault.  That offence concerned a six year old girl.  You had contacted police and confessed you were renting a bungalow from the child's mother. 

11In sentencing you, I have taken into account your personal circumstances.  On your behalf, a report was tendered from Ms Pamela Matthews, psychologist.  That report was marked as Exhibit 1.  I have taken your personal history from the contents of that report and from what counsel said on your behalf.

12You are now 35 years old.  You grew up in rural Victoria.  You had a generally stable upbringing although your mother had some problems with alcohol.  She is now unfortunately deceased.  Your father has been in court to support you.

13You had some difficulties at school, especially in making friends.  In 1995, you were assessed as being in the superior range of intelligence.  You began university but dropped out.  Your counsel said at that stage, you were smoking a lot of cannabis.  You went to court and the report for that court appearance says that at the age of 15 you had had an initial episode of depression and self-harm.  That report also says that you were diagnosed with Asperger's disorder. 

14Your counsel said that in 2001 you were depressed and were again smoking cannabis and it was in that context that the offending in relation to Bianca occurred. 

15In 2001, you had met a woman through the autism support channel.  You left Victoria and moved to Sydney in 2001 to live with that woman.  Your counsel said that you took the opportunity to cease your offending against Bianca and promised yourself that that sort of offending would not happen again.

16You lived with the woman for some time and married her in 2007.  She had two sons of her own, and you have a son with her who is now ten years old.  You ran a business with your ex-wife.  That business was successful, for some years but failed in 2010.  Your marriage broke down and you subsequently moved back to Victoria.  You have maintained employment in computer programming and maintained that employment until 2013.  Your counsel said that at the end of 2013, you were again living with your father, you were depressed and again using cannabis.  She said that it was in that context that your offending in relation to Jasmine occurred.

17Since you have been in custody on remand you have had some telephone contact with your ex-wife and children.  Your father has visited you on about a weekly basis and has been contributing to your financial support. 

18In her report, Ms Matthews says that you have an established history of episodic depression with self-injury or suicide attempts from the age of 16.  She said that you would meet the diagnostic criterion for major depressive disorder.

19Ms Matthews says that you have also suffered from the developmental condition of autism spectrum disorder mild since early childhood.  She says you were first properly diagnosed in 1999 and that you would meet the criterion for major mental illness.  Ms Matthews says:

"Mr Roper is of superior intelligence but has suffered from the developmental disorder autism spectrum disorder mild as defined by DSM-5 since he was a child.  While people with this disorder can be unaware of or confused about social cues, and impaired in regards to emotional reciprocal interaction, it is the writer's view these characteristics are not the cause of Mr Roper's behaviour."

20Ms Matthews says you acknowledged your sexual deviance and used putting long distances between yourself and the victims as a means of stopping your behaviour.  She says that you have also used self-reporting to the police as a means of containing your behaviour and seeking help.  She says that you are aware that your behaviour can have impacts upon the victims and that you are disgusted by your behaviour.  She says: 

"In this regard his behaviour is ego dystonic.  These aforementioned aspects of Mr Roper's offence cycle are positive prognostic features."

Ms Matthews says:

"Further, Mr Roper's offending, in the writer's view, appears to occur at times of acute psychosocial stress and depression, hence, in the writer's view, there is a mental state component to Mr Roper's diminished or loss of self-imposed control.  Substance use, licit and illicit also appears to be a factor at these times.  It is more likely that there is a complex interaction between psychosocial stress, mental a state and substance use interacting with self-containment, rather than any particular one of these three factors impacting specifically upon his behaviour."

21It is Ms Matthews' opinion that your Autism spectrum disorder impacts directly on your offence behaviour because of the emotional limitations you experience as a result of that disorder.  She says:

"The writer is of the view that Mr Roper does not present with personality pathology, but rather his sensitivity to psychosocial stress and limited coping skills at these times, particularly times of change which are reflected in externalised behaviours such as substance use, self-injury or suicide attempt is related directly to the emotional limitations Mr Roper experiences as a result of his autism spectrum disorder."

22Ms Matthews says that you are coping in custody but are likely to struggle with social nuances in the prison environment and that your time in custody is likely to be more onerous than most.

23In respect of the risk of re-offending, Ms Matthews assesses that risk to be moderate.  She says that risk has the potential to be lowered with offence specific treatment.  She says that you are more likely to offend if you do not have offence specific treatment and if you have elevated stress levels and a poorly monitored and maintained mental state.  She also says other factors which may increase the risk of offending are substance use and access to young women or girls under the age of 18 years and lack of a sexually intimate relationship.

24In sentencing submissions, your counsel relied on a number of matters including the confessions you had made to family members and to the police.  She also relied on your early plea of guilty.  Your counsel submitted that your mental health issues ought be taken into account and that Verdins principles ought to apply to your sentence.  She relied on the matters set out in Ms Matthews' report.

25Your counsel submitted that you have relatively good prospects of rehabilitation, taking into account the insight that you have together with family support.  Your counsel said that you were anxious to seek counselling and that specific offence and behaviour based treatment would assist your prospects of rehabilitation.  Your counsel said that you had had some counselling during your marriage but that was apparently directed towards your relationship difficulties.  Your counsel said that you had had some difficulties in custody, presumably due to the nature of your offences, but counsel said that you are currently medicated but that you are expressing some suicidal ideas.

26The prosecutor, in sentencing submissions, submitted that you remained a risk to the public, but the prosecution position was that a disproportionate sentence was not sought for the purposes of community protection.  The prosecutor submitted that you clearly need treatment and that you seem motivated to confessing and disclosing your behaviour.  The prosecutor submitted that there should be some allowances made in application of Verdins principles but that it was a matter of degree. 

27Mr Roper, you have clearly engaged in very serious offending.  Parliament has passed specific provisions for the protection of children, particularly children under the age of 12.  If a court is satisfied beyond reasonable doubt that the child involved in the offence is under the age of 12, as I am with each of these offences, then the maximum penalty is 25 years' imprisonment. 

28These children were six years old and nine years old when you committed these gross and intolerable offences against them.  Bianca is a member of your family.  You abused her trust and the trust of her mother.  You used that trust and affection to be emotionally and physically close to her over a period of months.  You repeatedly engaged her in sexual activity of escalating seriousness.  According to what you told the police you had the perverted idea that you might be giving her sexual pleasure.  All this occurred when it was a few months after the expiration of an undertaking you had given to a court in January 2000 to be of good behaviour.  That undertaking was given because you had engaged in sexual behaviour with another six year old girl whose household you were effectively a member of.  Despite your confession and remorse for that offence, you went on to offend against Bianca in an even more serious and grotesque way.

29In her victim impact statement, Bianca briefly but clearly describes the impact the disclosure of your offending has had on her.  She feels hurt, angry and betrayed.  She is less trusting of people and is especially concerned in relation to her own daughter. 

30You are to be sentenced on Charges 1 and 2 as representative counts.  Your conduct as covered by those counts must be strongly denounced and justly punished.  A sentence must also be imposed which serves to deter others from exploiting the vulnerability of children and which attempts to discourage you from doing this again.  Community protection must be given significant weight in sentencing you.  A sentence of imprisonment is clearly warranted for these offences. 

31There are some matters which operate in mitigation of sentence on all of the charges which you face and I will address those in due course.  Your offending against Jasmine, covered by Charges 3 and 4, is also very serious.  Again you exploited the vulnerability of a child and the trust she, your family and her family placed in you.  Fortunately the offending against this girl only took place over one evening and did not continue beyond the night when you and she were staying in the same house.  Once again you offended against a child when the opportunity arose to gratify your own perverted sexual desires.

32In her victim impact statement, Jasmine describes how she felt unsafe and angry.  Her father describes his sense of shock and betrayal and the adverse impact on his own mental health.  Your offending against his daughter brought back events in his own past and this had a significant effect on him.  He also feels a significant loss, in the loss of friendship with your family which has arisen from your offending.  It appears that Jasmine's father's situation is now improving and it is to be hoped that continues to improve.  Jasmine's mother also explains that she felt betrayed.  She also describes her anger and her lack of trust in other people, especially when they are around her daughter.

33For the same reasons as I have set out in relation to your offending against Bianca, a sentence of imprisonment is clearly warranted for your offending against Jasmine. 

34You will be sentenced to imprisonment on each of Charges 1 and 2 and, accordingly, you will be sentenced in respect of each of Charges 3 and 4 as a serious sexual offender. Sections 6D and 6E of the Sentencing Act 1991 apply. I must regard community protection as the principal purpose for which the sentence is imposed. The sentences must be served cumulatively unless I otherwise order. In this case I do not intend to impose a disproportionate sentence for the purposes of community protection.

35As I have said, there are a number of matters which operate in mitigation of sentence.  You are entitled to a significant discount for your plea of guilty.  Your plea of guilty has saved the expense and trauma of a trial.  You have made very significant admissions to the police.  Your admissions are particularly of critical importance in relation to your offending against Bianca, as she herself had no recall of these incidents.  The prosecution in this matter could not have proceeded apart from your admissions.

36I accept that you are genuinely remorseful.  I take into account what Ms Matthews has said about your views about your offending.  I also take into account what Ms Matthews says about your mental state.  It is clear that your mental health situation is complicated and that there are a number of factors operating.  It appears from what Ms Matthews says that your mental state has led to some reduction in your ability to control your own behaviour and therefore there some reduction in your moral culpability for this offending.

37In application of Verdins principles, I consider that there should be some limited moderation of sentence to reflect the diminution of your moral culpability in respect of the punishment to be imposed.  I also consider that in application of those principles there should be some moderation of the application of principles of general deterrence and specific deterrence.  I accept that your time in custody will be to a degree more difficult because of your mental state.  I have also taken that into account in moderation of sentence.

38In sentencing submissions, your counsel submitted that your prospects of rehabilitation are relatively good.  Ms Matthews assessed you at being at moderate risk of re-offending.  She suggested that that risk could decrease with appropriate treatment.

39I assess your prospects of rehabilitation as being low to moderate.  It appears you have some insight and you are remorseful, you are an intelligent person and able to engage in treatment.  On the other hand, you have in the past, despite your remorse and some insight, continued to have a sexual interest in young girls and to offend against them.  Your loss of control of your own behaviour is reflected in your offending against them and in also your contacting Bianca directly about your past offending.  You did that rather than go straight to the police which would have been the appropriate action.  These matters demonstrate the limitations of your insight into your own behaviour, the harm that you can cause and your limitations on your ability to control your own behaviour.  As I have said, I can assess your prospects of rehabilitation as being low to moderate.  Those prospects would clearly improve with appropriate treatment.

40This matter was not addressed in submissions, but I have also taken into account in sentencing you that there is a considerable delay between this sentence and the offending against Bianca.  That matter has not been hanging over your head, but on the other hand you were no doubt aware of what you had done.  There was a considerable period of time when you were working, contributing to your family and not offending.  I have taken those matters into account in sentence.

41I have taken the matters in mitigation into account in sentence and also setting the non-parole period.  I have also taken into account the issues of rehabilitation and community protection in setting the non-parole period.  I have taken into account the principles of totality and proportionality in determining the appropriate sentence including the amount of cumulation or concurrency.  I have borne in mind that you are being sentenced in respect of Charges 3 and 4 as a serious sexual offender.

42You have pleaded guilty to four offences which are regarded as three Class 1 offences for the purposes of the Sex Offender Registration Act.  As a result, you will be required to comply with the obligations of that Act for the remainder of your life. 

43I am now going to ask my associate and Ms O'Brien to come to the dock.  You will be asked to sign a form which says that you have received the appropriate paperwork about the Sexual Offenders Registration Act.  Ms O'Brien can explain that form to you, so thank you, Ms Ollquist and Ms O'Brien.  Thank you, Ms O'Brien.

44(Sexual offenders registration order signed and acknowledged.)

45On Charge 1, you are convicted and sentenced to four years' imprisonment.

46On Charge 2, you are convicted and sentenced to four years' imprisonment.

47On Charge 3, you are convicted and sentenced to three years' imprisonment.

48On Charge 4, you are convicted and sentenced to three years' imprisonment.

49The sentence on Charge 1 is the base sentence.  Six months of each of the sentences on Charge 2 and Charge 4 and two years of the sentence on Charge 3 are to be served cumulatively on each other and on the sentence on Charge 1.

50The total effective sentence is seven years' imprisonment.  I fix five years as the period you are required to serve before you are eligible for release on parole. 

51But for your plea of guilty, I would have sentenced you to a term of imprisonment of nine years and six months with a non-parole period of seven years.

52I declare that you have served 165 days of this sentence by way of pre-sentence detention to be deducted administratively. 

53It is to be recorded that you have been sentenced on Charges 3 and 4 as a serious sexual offender.

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