Director of Public Prosecutions v Rowan (a pseudonym)

[2020] VCC 360

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES ROWAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2020
DATE OF SENTENCE:	27 March 2020
CASE MAY BE CITED AS:	DPP v Rowan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 360

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 J. Lewis	Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Dwyer Legal

HIS HONOUR:

1James Rowan[1], after a trial of 15 days, you were found guilty by a jury of 3 charges of indecent act with a child under 16 and 23 charges of incest.

[1] A pseudonym.

2Each charge of incest carries a maximum penalty of 25 years' imprisonment.  Each charge of indecent act with a child under 16 years carries a maximum penalty of 10 years' imprisonment.

3The offending in relation to your daughter Paige[2] was found to have occurred over the range of years when she was aged between 10 and 16 years old. In overview, you were found guilty of the following:

[2] A pseudonym.

·Charge 1, November 2009 – November 2011 incest, where you introduced your penis into Paige’s vagina during the first occasion at Robert’s[3];

[3] A pseudonym.

·Charge 2, November 2009 – November 2011 incest, where you introduced your penis into Paige’s vagina during a further occasion at Robert’s that started on a table;

·Charge 3, November 2009 – September 2014 incest, where you introduced a sex toy into Paige’s vagina during the first occasion in the caravan;

·Charge 4, November 2009 – September 2014 incest, where you introduced your penis into Paige’s vagina during an occasion without sex toys when Paige was told to moan;

·Charge 5, incest, where you introduced a sex toy into Paige’s vagina during an occasion where Paige urinated;

Charges 12 – 14 (one incident)

·Charge 12, incest, where you introduced your tongue into Paige’s vagina during the first occasion in the cabin;

·Charge 13, incest, where you introduced your fingers into Paige’s vagina during the same the incident as Charge 12;

·Charge 14, incest, where you introduced your penis into Paige’s vagina during the same incident as Charges 12 and 13.  This is the occasion where you told her to say ‘fuck me daddy’;

·Charge 21, incest, where you introduced your penis into Paige’s mouth during an occasion in the cabin when only oral penetration occurred;

·Charge 22, incest, where you introduced your penis into Paige’s vagina during an occasion when a pornographic movie with two females was played;

Charges 23 – 25 Single incident

·Charge 23, incest, where you introduced your penis into Paige’s vagina during an occasion when Dash[4] the dog was present;

·Charge 24, indecent act with a child under 16, where you caused Dash the dog to lick Paige’s vagina;

·Charge 25, incest, where you introduced your penis into Paige’s vagina after Dash the dog had left the cabin;

·Separately, Charge 26, indecent act with a child under 16, where you masturbated in the presence of Paige in the cabin while watching pornography and then ejaculated on her breasts;

·Charge 27, incest, where you introduced your penis into Paige’s vagina on the last occasion where you offended with Paige;

[4] A pseudonym.

4In total, you were found guilty of having committed 15 offences over 11 separate incidents in respect to Paige.

5In relation to your daughter Alicia[5], your offending spanned the period from when she was 12 to 14 years of age.  In overview, you were found guilty of the following:

[5] A pseudonym.

·Charge 28, incest, where you introduced your finger into Alicia’s vagina during the first occasion where you told Alicia you were checking for thrush, in the cabin;

Single incident

·Charge 31, incest, where you introduced your tongue into Alicia’s vagina during an occasion where Alicia had been drinking alcohol with you and Paige;

·Charge 32, incest, where you introduced your tongue into Alicia’s vagina on the occasion after Charge 31 but in the car;

·Then separately, Charge 33, incest, where you introduced your tongue into Alicia’s vagina during an occasion in the cabin where you told Alicia to sit on your face;

·Charge 34, incest, where you introduced your finger into Alicia’s vagina during an occasion when you checked Alicia for thrush and you penetrated her urethra (this occurred in the cabin);

Charges 35, 36 – single incident

·Charge 35, incest, where you introduced your tongue into Alicia’s vagina during the first occasion where Alicia cleaned the cabin;

·Charge 36, indecent act with a child under 16, on an occasion immediately after charge 35 where you pressed your penis against the outside of Alicia’s vagina;

Charges 37 – 39 Single incident

·Charge 37, incest, where you introduced your tongue into Alicia’s vagina on the same day when Eric[6] came to fix the computers but before Eric arrived;

·Charge 38, incest, where you introduced your tongue into Alicia’s vagina on the day when Eric came to fix the computers but after Eric had left;

·Charge 39, incest, where you introduced a sex toy into Alicia’s vagina on the day when Eric came to fix the computers, after Eric had left; and then separately

·Charge 40, incest, where you introduced your tongue into Alicia’s vagina on the last occasion where you offended with Alicia.

[6] A pseudonym.

6In total, you were convicted of 11 charges over the course of seven different incidents against Alicia.

7The 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 both of them serious harm.  In the process, you destroyed the family unit.  Your actions will have profound ripple effects on the rest of your family members also.

8Your offending was sustained over years with each girl; each from a tender age and characterised by its frequent occurrence.  My summary of your offending cannot adequately summarise the context and circumstances of the acts you committed.

9Many of your acts were crimes of violence.  The sexual penetration of a child is inherently violent, whether or not it is accompanied by additional non-sexual violence.  Often, as in the present case, the act of sexual penetration causes the child actual physical pain; especially when you used sex toys to penetrate them.  Moreover, I am satisfied that your acts were accompanied on occasions by threats of violence, by your sheer physical domination, and against a background of general displays of anger and temper against the family.

10It is apparent that each girl found your acts degrading.  There was evidence (led as context) that you urinated on your daughter Paige’s naked breasts.  You subjected her to pornography.  I single out the occasion when you engaged the dog to engage in a sexual act with her.  This was disgusting offending which could only degrade and humiliate your daughter.  It is the stuff of nightmares.

11Your moral culpability is high.  You bear sole responsibility for the infliction of this abuse on two of your daughters from young ages and for years on end.  Your offending stopped only because you were caught.  You have no remorse.

12The 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.

13The 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 victim is presumed.

14I received victim impact statements from both of your daughters.  Neither of them wanted their statements read aloud in court.  I will respect their wishes.  It is sufficient for me to say you have had a deep and profound impact on the life of both of your daughters as they go forward into their adult lives.  The damage you have done to them may take a lifetime, if it can ever, be undone.  It was once said by a Judge of the Court of Appeal that the rehabilitation of victims of child sex abuse might be harder to achieve than the rehabilitation of the offender.  I fear this may be the case here.

15I was referred to the cases of Wakime, VZ and Reid during the course of submissions on your plea.  It is necessary to refer to some of the principles in Reid at this time:

The cases demonstrate that sentences at the top of the range are usually imposed in relation to multiple offences that have taken place over a long period.  Sentences of a high order are also imposed where the activity is multifaceted or of a perverted or depraved nature, where sex “toys” or objects are used, or where photographs or video is taken of the victim involved in sexual activity.  Physical assaults and threats are aggravating.  Moreover, the younger the victim, and thus the greater the abuse of trust, the more serious is the offence regarded.  Group sexual activity involving children is also a factor affecting the seriousness with which the offence is to be regarded.  Unprotected sexual activity, exposing the victim to the risk of pregnancy or sexually transmitted disease, may also bear on the seriousness with which the offending is to be seen.  Further, heavier sentences will be meted out where there is evidence of serious disturbance in the victim.

16With the exceptions of photographing/videoing either girl during the charged offending, and also with the exception of engaging in group activity, every one of these factors applies to the sentencing for the offending on which you were found guilty.  I was reminded during the submissions that Paige gave evidence in the course of her 1st and 2nd VARE that she was taken to the doctor for this specific purpose of receiving a contraceptive bar.  She gave evidence that this came about as a result of your concerns at her becoming pregnant because of your sexual activity with her.

17There is nothing to mitigate your offending.  Although you have no prior convictions, that factor cannot spare you from the severity of the sentence that must be imposed.  You maintained a plea of not guilty, and so your counsel could not point to remorse as a factor in mitigation.

18The sentencing principles of general deterrence, denunciation and just punishment assumed considerable importance in this case.  Severe punishment must be imposed.  As you fall to be sentenced as a serious sexual offender after the imposition of the first two periods of imprisonment, protection of the community becomes a dominant sentencing factor.

Personal circumstances

19I turn now your personal circumstances.

20You are 48 years old.  You have always been raised and lived in rural Victoria.  You have generally lived in the same area all your life and you have rarely ventured elsewhere.

21You left school after Year 9 and worked variously driving trucks, undertaking earthworks and farm work.  In recent times before your imprisonment you worked on a mail delivery run and on the family farm.  

22You met your partner Anna Rowan[7] when you were about 23/24 and she was about 19/20.  Ms Rowan receives a disability support pension.  You had been her carer since shortly after you met.

[7] A pseudonym.

23You have four children together.

24You had separated a few times during the course of the relationship, and she moved away from the farm with the children on those occasions.  Although you reconciled on each of those occasions, you are now permanently separated from Anna Rowan.

25You had some indirect contact with your two youngest children during the period when you were initially on bail, but you have now had no contact with any of your children for some years.

26In a candid plea on your behalf, Mr Thyssen submitted that the houses on your farm could best be described as primitive.  Your lifestyle has been insular and rudimentary.  Mr Thyssen stated that yours has not been an easy life.

27Your father has returned to the farm to look after it in your absence.  You are concerned about him and the fate of the farm as he is now getting on and is in poor health.  You were the oldest of three siblings.  Neither one of your siblings are in a position to assist on the farm and you are concerned that there is no one to help your father.

28On your behalf, Mr Thyssen submitted that it is recognised that you will receive a significant sentence for your offending, but it is hoped there would be a reasonable period of parole to give you some hope of a meaningful life when ultimately released.

29Mr Lewis on behalf of the Crown submitted that upon being sentenced to a term of imprisonment on two charges, you are to be sentenced as a serious sexual offender.  Once you have been declared a serious sexual offender, as I say, the primary sentencing consideration on those charges is the protection of the community.  The Crown is not seeking a disproportionate sentence.  Also, the presumption of concurrency on those charges is removed.

30In sentencing you for such a large number of offences, I must keep the principle of totality firmly in mind.  That is, the sentences that I impose on each individual charge can only be accumulated to reflect the overall totality of your criminal offending.  The sentence must not be disproportionate to that offending or crushing in its effect.

31I therefore move to the sentences that I impose on each charge.

Charge no	Charge Description		Sentence	Cumulation
Offending against Paige
1	Incest	6 years	72 months (Base)
2	Incest	6 years	10 months
3	Incest	7 years	10 months
4	Incest	6 years	10 months
5	Incest	7 years	10 months
First occasion in the cabin
12	Incest	6 years	4 months
13	Incest	7 years	4 months
14	Incest	6 years	6 months
21	Incest	7 years	10 months
22	Incest	6 years	10 months
The occasion Dash the dog was involved
23	Incest	6 years	4 months
24	Indecent Act	5 years	15 months
25	Incest	6 years	4 months
26	Indecent Act	3 years	3 months
27	Incest	6 years	10 months
Offending against Alicia
28	Incest	6 years	8 months
Alicia had been drinking
31	Incest	6 years	6 months
32	Incest	6 years	6 months
33	Incest	6 years	6 months
34	Incest	6 years	7 months
When Alicia first cleaned the cabin
35	Incest	6 years	6 months
36	Indecent Act	3 years	8 months
When Eric came to fix the computer
37	Incest	6 years	2 months
38	Incest	6 years	2 months
39	Incest	7 years	8 months
40	Incest	6 years	6 months
TES: 247 months (20 years, 7 months) NPP: 180 months (15 years) PSD: 589 days (excluding today) reckoned as already served

32The total effective sentence is therefore one of 247 months, that is 20 years and 7 months.

33The non-parole period is set at 180 months, that being 15 years.

34I declare the period of 589 days pre-sentence detention, excluding today, reckoned as already served.

35Upon your conviction for the first two offences, they being relevant offences, you are declared to be a serious sexual offender and I order that declaration be noted on the records of the court.  You are therefore sentenced as a serious sex offender on Charges 3 – 40.

36Upon your conviction for these offences, you will also be registered under the Sex Offenders Registration Act for the rest of your life.

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