Director of Public Prosecutions v Rowan (a pseudonym)

[2021] VCC 1135

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANNA ROWAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2021
DATE OF SENTENCE:	13 August 2021
CASE MAY BE CITED AS:	DPP v Rowan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1135

REASONS FOR SENTENCE

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Subject:  Criminal Law

Catchwords:

Legislation Cited: Crimes Act 1958 ss 44 and 47; Sex Offenders Registration Act 2004 s 34

Cases Cited:  DPP v Rowan (a pseudonym) [2020] VCC 360; Molyneux   (a pseudonym) [2018] VCC 2225; R v Verdins (2007) 16

VR 295; R v Reid (a pseudonym) [2014] VSCA 145

Sentence:  89 months imprisonment, non-parole period: 59 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Lewis	Office of Public Prosecutions
For the Accused	Mr C. Mylonas	Brown McComish Solicitors

HIS HONOUR: 

1Anna Rowan[1], after a trial of nine days, you were found guilty by a jury on 30 June 2021 of 11 charges of incest and one charge of indecent act with a child under 16. 

[1] A pseudonym.

2You were acquitted of one charge of incest, which was Charge 2.

3The maximum penalty for each charge of incest is 25 years' imprisonment.  The maximum penalty for the charge of indecent act with a child under 16 years is 10 years' imprisonment.

4You have no criminal history.

5Upon being sentenced to a term of imprisonment on two charges, you are to be sentenced as a serious sexual offender.  Once you are declared a serious sexual offender, the primary sentencing consideration is the protection of the community.  In this case, the prosecution is not seeking a disproportionate sentence.  The presumption of concurrency of sentences is removed.

6As a result of your convictions on these offences, in accordance with s34 of the Sex Offenders Registration Act 2004, you are registered as a sex offender and are subject to mandatory reporting for life.

Circumstances of Offending 

7The facts upon which the jury found their verdicts may be briefly stated.

8The two victims of your offending are your daughters Paige Rowan[2] and Alicia Rowan[3].  The offences against Paige spanned in date range from 27 November 2009 to 26 November 2015.  The offence against Alicia occurred between 1 January 2015 and 31 May 2015.

[2] A pseudonym.

[3] A pseudonym.

9Your offending against Paige occurred over the course of four separate occasions:

Charges 1 to 4 (Incident 1)

·Charge 1, November 2009 to September 2014, indecent act with a child under 16, where you and James Rowan[4] engaged in sexual intercourse in the presence of Paige during an occasion in your bedroom;

[4] A pseudonym.

·Charge 3, incest, where you were present when James Rowan introduced his fingers into Paige's vagina during the same incident as Charge 1;

·Charge 4, incest, where you were present when James Rowan introduced his penis into Paige's vagina during the same incident as Charges 1 and 3.

Charges 5 to 6 (Incident 2)

·Charge 5, between November 2009 to September 2014, incest, where you were present when James Rowan introduced his penis into Paige's vagina during an occasion in your bedroom that included the use of sex toys;

·Charge 6, incest, where you were present when James Rowan introduced a sex toy into Paige's vagina during the same incident as Charge 5.

Charges 7 to 10 (Incident 3)

·Charge 7, July 2011 to November 2015, incest, where you were present when James Rowan introduced a sex toy into Paige's vagina during an occasion in the cabin;

·Charge 8, incest, where you were present when James Rowan introduced his penis into Paige's vagina during the same incident as Charge 7;

·Charge 9, incest, where you were present when James Rowan introduced his penis into Paige's vagina on an occasion other than that referred to in Charge 8, during the same incident as Charges 7 and 8;

·Charge 10, incest, where you were present when James Rowan introduced a sex toy into Paige's vagina during the same incident as Charges 7, 8 and 9;

Charges 11 to 12 (Incident 4)

·Charge 11, July 2011 to November 2015, incest, where you introduced a sex toy into Paige's vagina during an occasion in the cabin;

·Charge 12, incest, where you were present when James Rowan introduced his penis into Paige's vagina during the same incident as Charge 11.

10Your offending against Alicia occurred on a single occasion:

·Charge 13, January 2015 to May 2015, incest, where you and James Rowan introduced a sex toy into Alicia's vagina.

11The Crown case for your guilt, which I conclude was accepted by the jury, was that on Charges 1, 3 to 10 and 12 you were complicit in the actions of your partner James Rowan in that you were present for and encouraged his actions.  The jury was satisfied that you personally committed the act of penetrating your daughter Paige's vagina with the sex object (Charge 11).  The jury was satisfied that you acted with James Rowan by either holding Alicia's legs open or penetrating her vagina with the sex object in Charge 13.  On the evidence, I consider it more likely that you held your daughter's legs open whilst James committed the act of penetration.

Objective Gravity and Moral Culpability 

12I turn now to consider the objective gravity of and your moral culpability for your offending.

13The objective gravity of your offending is obvious.  The crime of incest is abhorred by the community.  Incest is a repugnant offence that strikes at the core of the family relationship and involves a fundamental breach of trust.  Incest stands in total conflict with your responsibilities as a parent to protect and nurture your daughters.  These were your own biological children that you abused.  Instead of protecting your young daughters, you did them both serious harm.  In the process the family unit has been destroyed.  Your actions will have profound ripple effects on the rest of your family members also.

14The criminal law prohibits sexual offending, and specifically sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity.  There is, and can be, no question or issue about consent.  The prohibition and the maximum penalty for its contravention is intended to deter others who may consider engaging in sexual activity with a child.

15The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious, and manifests itself in both physical and psychological forms.  Therefore, the harm to your victims is presumed. 

16In 2019, James Rowan was convicted of 26 charges of incest and related charges for his offending alone against Paige and Alicia (see DPP v Rowan (a pseudonym) [2020] VCC 360). In 2020, the Crown decided not to prosecute James Rowan on the 13 charges he faced with you. The sentence I imposed on James Rowan relates to different offending than that committed by you. Accordingly, the sentence I imposed on James Rowan cannot be used as a reference for your offending.

17The -

·nature of the charges (being principally charges of penetration);

·span of time over which the offences were committed;

·age of your children at the time of offending; and

·fact that these offences were committed against a background of James Rowan’s temper, violence, bullying and overpowering of family members;

makes all of the offending committed against Paige and Alicia objectively serious.

18The law requires principles of deterrence, denunciation, and just punishment to dominate the sentencing consideration.  In your case, as you are sentenced as a serious sex offender, protection of the community becomes the dominant sentencing consideration.

19I must also consider these principles in light of your moral culpability.

20The question of your moral culpability for your participation in the offending requires me to consider three principal factors which I must take into account:

(a)First, that you have no prior convictions and no matters outstanding;

(b)Second, the influence or dominance of James Rowan over you in your offending; and

(c)Third, the operation of your cognitive impairment.

21I take into account that you have no prior criminal history and no matters outstanding.  Nevertheless, I also take into account that you have exhibited no remorse for your offending.

22The second matter relates to the influence of James Rowan over your offending.

23The VARE hearings conducted with each of the complainants, the answers given in cross examination at the special hearings and the reports of psychologist Pamela Matthews (based on information you provided to her) are replete with instances of bullying, bad temper, violence, domineering and domestic tension created by James Rowan.  Moreover, there was some evidence that you received a disability pension and that James Rowan was registered as your carer.  It is also apparent, and I will refer to this in your biographical details in a few moments, that your relationship with James Rowan was the principal relationship in your adult life.

24Although you left Mr Rowan on two occasions, taking the children with you, you always returned to him.

25The state of the house and farm, the areas where the sexual offending took place, together with the bedrooms in the house, paints a picture of squalor.  I do not say this as a judgement upon you, but it is clear from the early evidence of Paige and Alicia that family life was miserable for the children and for you; that house work, domestic chores and the like were mostly beyond you; and that you got little help from the children, no help from James Rowan and certainly no sympathy from him.  It is also apparent from the evidence that you were subjected to frequent sexual demands from James Rowan who, in turn, turned those demands onto his own daughters.

26In the course of the trial in 2020, I ruled that a defence of coercion or duress was not available to you such as to afford you the opportunity to avoid liability for offending.  Further, there is no evidence that James Rowan was physically violent towards you or physically threatened you with direct physical violence into participating in the acts he committed against your daughters.

27I accept, however, from all that I have outlined above, that your family, domestic, social and sexual life was dominated by James Rowan.  The 2019 report of Pamela Matthews posited that you suffer from ‘Battered Woman Syndrome’.  Your specific answers to questions put by Ms Matthews indicate that you were not subject to direct threats of physical violence were you to not participate in these acts.  Nevertheless, I accept that you would not have committed these offences but for James Rowan initiating sexual activity with Paige and Alicia.  In this way I am satisfied that your participation in the sexual activity came about as a result of your acquiescence.  At one point in the transcript, Paige stated that James told her that he had 'talked you into it'.  Your role was largely, though by no means wholly, passive.  As such, I conclude that James Rowan was the real protagonist in the commission of all of these offences for which you were found guilty.

28I shall return to the question of your moral culpability after I have summarised the effect of the psychological material.

Personal Circumstances 

29I now turn to a consideration of your personal circumstances. 

30You were born in August 1974 and are now 46 years old.  You grew up in Gippsland with your parents and older sister.  Your mother was a heavy drinker and drank alcohol 'every day basically'.  Your father was physically abusive towards you.  Your mother told you that you were sexually abused by an uncle when you were two years old.

31You lived with your mother after your parents divorced when you were aged about six or seven, until you moved to Dunkeld to live with your father and stepmother after completing Year 8.

32You had literary and social difficulties throughout your schooling and did not have friends.  You left school in Year 10. 

33You were in the care of Community Services Victoria between the ages of 16 and 18 after reporting a physical assault by your father and sexual abuse by your stepbrother.

34In 1992, you began a relationship with James Rowan and you moved in with him to his family farm.  You changed your surname to Rowan after four or five years together.

35Your first child Paige was born in 1999.  Your second child Alicia was born in 2001.  You suffered from depression in the periods after the births of Paige and Alicia.  You also have a younger son and daughter with Mr Rowan.

36You had an 'accident' in 2015 and have a bad knee.  You also suffer from arthritis and need glasses to read.

37You used to drink a bottle of Scotch in a week and smoked a 'joint' nightly.  You gave up alcohol, cannabis and cigarettes between September and October 2015.

38You obtained your driver licence in mid-2016.  With that, it appears you gained only a modicum of independence.  Until that time, you were entirely dependent on James Rowan or his father to drive you anywhere you needed to go.  It seems that they were relatively rare events.

39Character references were provided by Jolene Brown[5] and your Pastor.  Ms Brown sat with you as a support person during the whole of the 2021 trial.  She writes of your battle through the last year to get the services and support you need to cope with life with your disability.  Your Pastor wrote that you commenced attending his Adventist Church in mid-2019.  You impressed him as immature and carrying anxiety from your past.  You maintained some connection with the church even after lockdown.  He considers from what he has seen of you that you have been 'looking to grow' and have been attempting to 'make better choices'.

[5] A pseudonym.

40Handwritten psychiatric assessment notes of Dr Deb in 2013 indicate a provisional diagnosis of psychosis not otherwise specified with a differential diagnosis of depression with psychotic features.  He also diagnosed alcohol abuse, cannabis abuse and 'possibly borderline-mild ID [intellectual disability]'.

41Ms Schokman, clinical neuropsychology registrar, completed a neuropsychological assessment on 15 July 2016.  Overall the results of this assessment indicated that your 'general intellectual functioning was somewhat variable' and concluded that your, 'current clinical picture in conjunction with [your] cognitive assessment results is strongly suggestive of an intellectual disability'.  Your full-scale IQ was assessed as 70.

42In Professor Ogloff's report of 31 May 2018 he opined that you met the criteria for a diagnosis of Intellectual Disability (Intellectual Developmental Disorder), mild level.

43In her report dated 6 May 2018, Pamela Matthews, forensic psychologist, relied on the assessment of your cognitive abilities outlined in Ms Schokman's report dated 15 July 2016.  Ms Matthews stated that, based on Ms Schokman's assessment, your verbal abilities, verbal immediate memory and capacity to learn new material, speed of information processing and your ability to divide and switch your attention between two competing visual stimuli, fell in the intellectually disabled range.  Your reading ability was at the level of mild intellectual disability.  Ms Matthews opined that you have a mild intellectual disability.

44In her later report dated 13 May 2019, Ms Matthews stated that your 'psychological, emotional, social and cognitive functioning is limited'.  Ms Matthews opined that you are intellectually disabled and presented with symptoms of Post-Traumatic Stress Disorder and ‘Battered Woman Syndrome’, a subset of PTSD.

45Ms Matthews reiterated her opinion that you presented with symptoms of PTSD and ‘Battered Woman Syndrome’ in her report of 10 March 2020.  Ms Matthews considered that your intellectual functioning is at the 'mid-primary school to early high school' level and noted your high dependence upon NDIS services.

46Susan Hook, clinical psychologist, has been treating you since September 2019.  In her report dated 9 August 2021, Ms Hook diagnosed you with the following:

·‘Mixed personality disorder because of traumatic childhood abuse, with Borderline, Histrionic and Dependent traits.

·(Borderline features include a pattern of instability in interpersonal relationships, emotions and self-image, impulsivity, chronic feelings of emptiness, suicidal thoughts and impulses, and transient and stress-related dissociative symptoms.

·Histrionic features including at times excessive emotionality and attention seeking, rapid shifting and shallow expression of emotions and [you] consider relationships to be more intimate than they actually are.

·Dependent features include excessive need to be taken care often leads to submissive behaviour and fear of separation, difficulty making decisions without excessive amount of reassurance and advice from others, [you] need others to assume responsibility for most major areas of [your] life, [you] feel uncomfortable or helpless when left alone, and [you] urgently seek another relationship as a source of care and support when a close relationship ends.

·Post Traumatic Stress Disorder, with intrusive thoughts and nightmares, great distress when reminded of traumatic situations, avoidance of triggers and physiological hyperarousal with transient dissociative symptoms and psychogenic seizures,

·Although not formally diagnosed, [you] appear to have a borderline-mild intellectual disability.’

47That last diagnosis of Ms Hook has, of course, been confirmed through other sources.

Sentencing Submissions

48Mr Mylonas, who appeared on your behalf, submitted that the following factors should operate to mitigate your sentence:

(a)First, the principle of totality;

(b)Second, the effect of the COVID-19 pandemic;

(c)Third, the fact you have no prior criminal record;

(d)Fourth, the risk of your reoffending is 'remote';

(e)Fifth, you no longer have any drug or alcohol issues or relevant psychiatric morbidity; and

(f)Sixth, the prevalence of the offence committed by a female is extremely rare.

49I do take into account that your time in custody has been affected by two COVID-19 pandemic lockdowns.  The immediate effect of a lockdown when you are in custody is a reduction and suspension of vocational and personal improvement courses, a restriction on your ability to move around the prison, a severe reduction in work available to you and a suspension of visits. 

50The other more insidious effect of the pandemic and lockdown is the stress and isolation. That is, the fear that the pandemic would penetrate into the prison system and that isolation is used by prison authorities as a strategy to limit close contact. 

51I shall take this into account as a mitigating factor in the sentencing process. 

52Mr Mylonas submitted that your offending occurred in the context of your abusive relationship with James Rowan and that your role in the offending was largely complicitous.  Mr Mylonas also submitted that I should not ignore the larger, more insidious role played by James Rowan who, as I say, was convicted on a large number of offences committed against both complainants by him alone.  By contrast, none of the offending against either complainant was perpetrated by you alone.

53Mr Mylonas further submitted that the delay in this matter was not due to you, but due to James Rowan’s influence over you while you were residing together, the confronting subject matter that several juries have struggled with and the COVID-19 pandemic.  Mr Lewis agrees with that submission and so do I.

54Mr Mylonas submitted that you are not an appropriate vehicle for general deterrence, and protection of the community and specific deterrence should not be emphasised due to your lack of criminal record, the remote risk of your reoffending and the rarity of similar offences being committed by female offenders.

55Mr Mylonas then submitted that rehabilitation is an important consideration, although your capacity for rehabilitation must be guarded, and that the principle of parity should not apply due to your co-accused's vastly different offending and moral culpability.  Mr Lewis agrees the principle of parity does not apply to your sentencing consideration and, as I have already said, so do I.

56Mr Mylonas submitted that I must be careful not to doubly punish you and that a large measure of concurrency should be ordered between sentences.  In reality, I take this submission to be part of the totality submission.

57Mr Mylonas submitted that the principles enunciated in Verdins are particularly relevant here.  That is that:

·First, your moral culpability is diminished so that denunciation is less likely to be a relevant sentencing objective;

·Second, you are not an appropriate vehicle for general deterrence due to your intellectual disability and PTSD diagnosis;

·Third, that specific deterrence is more difficult to achieve and is arguably not worth pursuing as such;

·Fourth, you face an increased burden in serving a custodial sentence due to your 'borderline intellectual functioning'. Mr Mylonas conceded that there is no express expert opinion on this matter.  Rather, Mr Mylonas submitted that this could be inferred from the undisputed evidence of your intellectual disability and the wealth of evidence about your experience of life dominated by James Rowan.  Ultimately, the opinions expressed by psychologists to the effect that you are socially less able than other adults, unable to assert yourself, were generally unable to escape from the influence of James Rowan and your experience of prolonged social isolation through your adult life is being graphically realised by you in the experience of your first month or so in custody.

58Mr Mylonas referred me to the Sentencing Snapshot, the Higher Court statistics and a selection of Victorian case summaries.  In particular, Mr Mylonas referred to the case of Molyneux (a pseudonym) [2018] VCC 2225, where one of the offenders was female.

59In the end, Mr Mylonas submitted that I should sentence you to time served with a Community Corrections Order.  I pointed out during the course of the hearing that I considered that a term of imprisonment with a head sentence and non-parole period was the only appropriate sentence, and to do otherwise, even having regard to the many factors raised in mitigation on your behalf, would be hopelessly inappropriate and inadequate.

60Mr Lewis, on behalf of the Crown, conceded that your offending was committed with a reduced moral culpability.  Furthermore, the Crown submitted, using the legal expression, that you are not a good vehicle for general deterrence.  Mr Lewis, however, submitted that I ought be careful before I conclude that you will feel the burden of imprisonment more heavily than those in the general prison population as a consequence of your intellectual disability.  Mr Lewis points to the lack of express professional opinion in this respect.

61Mr Lewis submits that your offending is aggravated by the use of sex toys, the young age of your victims and the fact that you participated in group sexual activity.  In that respect, he referred to the case of Reid.

62The Crown agrees that on the whole, you are unlikely to offend again, unless you were to enter a relationship with a dominant abusive partner.  Mr Lewis submits that your prospects of rehabilitation are good.

63Mr Lewis submitted that you were not entirely without authority in the relationship with James Rowan.  He points to instances where you were able to persuade James Rowan to stop sexual abuse from being perpetrated against Paige on specific occasions. 

64Ultimately, Mr Lewis submitted that a period of imprisonment with a non-parole period was the only appropriate disposition in this case.  Notwithstanding the many extenuating circumstances submitted on your behalf, Mr Lewis urged me not to lose sight of the very serious nature of the offending and the need to serve the sentencing principles which still apply.

65It is implicit from everything I have said to this point that I have concluded that:

(a)First, although the objective gravity of your offending is serious, your role in the offending must be placed in its true perspective.  For the most part you were complicit in the acts performed by James Rowan.

(b)Second, your moral culpability must also be measured by your role in the offending and that dominant role played by James Rowan; not only in the offending but in your life overall.  I accept the psychological evidence as to your intellectual disability, the likelihood that you suffered from PTSD (through ‘Battered Woman Syndrome’) and of your social isolation and difficulties with social mixing and interaction as a result of your life experiences and disability.  As such, I agree that your moral culpability for your offending is reduced and that you are not a good vehicle for general deterrence.

(c)Third, I consider that your offending was situational rather than sought out.  In this way, I am satisfied that unless you enter another relationship with an abusive, dominant partner, you are unlikely to offend again.  I also consider the prospect for rehabilitation to be good.

(d)Fourth, I must have regard to the principle of totality.  That means, when imposing individual sentences and cumulation periods, I must not impose a disproportionate sentence, or a sentence that is crushing.

(e)In the end, I am reluctant to conclude that the burden of imprisonment will weigh more heavily on you than other persons in the general prison population.  In this respect, I have regard to the fact that I do not have a professional opinion from any of the multiplicity of psychologists who have been consulted over the last four years in relation to your condition. 

(f)I accept that your reception into prison, and especially during COVID, must have been a great shock to you, particularly as you have no prior convictions and have had nothing like the experience of prison in your life before.  However, as Mr Mylonas himself conceded, there will be some adjustment time in order for you to get used to your new surroundings.

(g)Finally, I have also had regard to the case summaries provided to me and I have read the sentencing remarks of the learned sentencing judge in Molyneux.  I must ultimately formulate a sentence appropriate to the circumstances as I find them in this case, having regard to the applicable sentencing principles and giving weight to the factors in mitigation so far as they are permitted to operate.

66In the end I have decided that a period of imprisonment with a non-parole period is the only appropriate sentence to be imposed in this case.

Sentence and Orders

67The sentences I impose are as follows:

No.	Charge	Sentence	Cumulation
Incident 1 - FHG
1	Indecent Act with a Child Under 16  - s 47(1) Crimes Act 1958	9 months	nil
3	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
4	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
Incident 2 - FHG
5	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
6	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
Incident 3 - FHG
7	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
8	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
9	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
10	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
Incident 4 - FHG
11	Incest  - s 44(1) Crimes Act 1958	4 years	Base
12	Incest  - s 44(1) Crimes Act 1958	3 years	3 months
Incident - LG
13	Incest  - s 44(1) Crimes Act 1958	4 years	14 months
TES	89 mths
NPP	59 mths

68On my calculation the sentence which I intend is a sentence of 89 months.  That is seven years and five months.  I order a non-parole period of 59 months, that is four years and eleven months, be served before you are eligible for parole. 

69I declare presentence detention of 44 days reckoned as time already served.

70After your conviction and sentence of imprisonment on Charges 1 and 3 you are to be sentenced as a serious sexual offender pursuant to Part 2 of the Sentencing Act1991.  I cause this fact to be noted on the records of the Court.

71You are subject to mandatory reporting pursuant to s34 Sex Offenders Registration Act2004 for a period of life.  I note that Charge 1 is a Class 2 offence and Charges 3 to 13 are Class 1 offences.

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