Director of Public Prosecutions v Royal (a pseudonym)

[2021] VCC 1963

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CALEB ROYAL (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 October 2021
CASE MAY BE CITED AS:	DPP v Royal (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1963

REASONS FOR SENTENCE

---

Subject:

Catchwords:

Legislation Cited:

Cases Cited:

Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Nugget	Office of Public Prosecutions
For the Accused	Mr G. Casement	Daniel Taylor Lawyers

HIS HONOUR:

1Caleb Joe Royal[1], you have pleaded guilty to one charge of incest and one charge of sexual penetration of a stepchild.  Those crimes both carry maximum penalties of 25 years.  They are essentially the same charge but there has been a legislative change.  Charge 2 is a rolled-up charge.  I am aware of the principles in relation to that.  Charge 2 is also a standard sentence offence.  A standard sentence in this situation being 10 years.  I am aware that the principles relating to standard sentences. They do not interfere with the instinctive synthesis.  They are something of a guideline and a judge is obliged to point out the objective aspects of the actual offending itself.  Incest itself is serious in any event; very serious.

[1] A pseudonym.

2You have pleaded guilty at a reasonably early opportunity.  I accept on the material before me that, because of the plea of guilty as much as other things, there is appropriate remorse now at least, you must also get the utilitarian benefit of that plea of guilty.  In these circumstances, it has saved the victim from the trauma of giving evidence and reliving the events and also the victim's mother.  You also pleading guilty in the circumstances described in Warboys v R and there must be demonstrable discount in so far as that is concerned.  It seems to me the situation where your plea of guilty has, as I have said, a very powerful utilitarian effect.  I have before me a Victim Impact Statement from the mother of the victim and it outlines the damage that such offending causes. 

3You have no relevant prior convictions.  Because of the nature of the offending, you will be placed upon the Sex Offenders Register and I advise that the reporting period will be for life.  It is a situation where you are on the video link and a copy of that notice will be sent to the gaol. 

4A summary of the offending is as follows and I point out that I will be using the names of people in this and the sentencing remarks will be anonymised before they are actually published.  I just find it somewhat offensive to be referring to people by pseudonyms when I was talking about them.  In any event, you, Mr Royal, were aged between 38 and 41 at the time of the offending and were the de facto stepfather of the victim.  You began a relationship with her mother in around about mid-2016.  She referred to you as dad.  In 2018, the family moved to Lakes Entrance and at that point in time, the brother of the complainant was no longer living there. 

5In so far as the circumstances of the offending are concerned, I look at the overall context aspect of it, together with some uncharged acts and point out that I am very conscious here of not sentencing you for a course of conduct charge.  It just simply means that the offending was not out of the blue, as they say, and some two or three years apart between the actual charges themselves.  But, as I say, certainly not out of the blue.  Aspects of it were that initially the victim did not like you but you apparently tried to your best to get her to like you.  You spent quite a lot of time with her.  You began spending a lot of time alone with her.  You would sometimes tell her she was cute, hot and sexy and that she had a nice butt. 

6One day, you saw her in the shower and told her that she had a nice body.  On another occasion, her mother was asleep and she got out of the shower, took her towel off and you picked her naked and put her on top of the sink and she was completely naked and you pulled your pants down.  Whether that is the incident you were referring to when you spoke to her mother later on or not, I simply do not know. 

7Around about April 2017, just before her 11th birthday, she began menstruating and sometime after that, you suggested to her mother that the victim should start to take contraception pills.  Her mother felt that she was too young and it was not necessary.  In May/June 2017, her mother woke up in bed; you were not there.  She went in and found you in the victim's bedroom with your right hand under her doona.  You said that you were just tucking her in.  The mother apparently confronted you and you denied that there was anything going on and told her that the victim was like your own daughter.

8In mid-September 2017, you and her mother were in the car travelling home.  At this stage, on my calculations, the victim would have been about 11 and a half.  You suddenly asked the mother, 'What would you do if Christine[2] fell pregnant?'  The mother said she was shocked and confused and about two or three days later you said to her, 'Something happened between me and Christine.'  You told the mother that you had had an intercourse encounter and that you were sorry.  You asked the mother to check if the victim was pregnant.  So that was round about the age of 11 and a half from what I can gather and it is an uncharged act and I am conscious of that.  You were confronted by the mother and you kept telling her, 'Don't call the police.  If you tell someone I'll go to gaol,' and it will never happen again and the victim also said she did not want you to go to gaol. 

[2] A pseudonym.

9In explaining that, you said that Christine was on the couch playing with your penis and you became aroused and ejaculated before you went to the bathroom.  You said you picked her up onto the basin, tried to get your penis in her.  'It went in there and I realised I was doing the wrong thing,' you said, so you stopped and ran out of the room.  The concerns about that is that it does initially start off as if somehow or other Christine instigated all this but it is not uncommon for offenders in this situation to take that attitude.  You then told the mother that you had taken too many tramadol tablets and did not know if what you told her was the truth.  Well, it seems to tie in with aspects of what Christine had to say.

10The mother said she did not report it to the police at that time as she was scared of you.  In any event, where the purpose is the relationship continued and in around about August 2019, Christine told you that she wanted it to stop, said she did not want to do it anymore and you agreed but kept complimenting her.  On occasion at least you entered her bedroom and gave her a kiss, 'With open mouth and tongue.'  You tried to make her have oral sex with you but she refused.  You would say to her, 'You don't want me to go to gaol, do you,' and you told her that you loved her and that she would not be able to see you while you were in gaol.  She promised she would not say anything. 

11So according to the terms of the objective seriousness of it, you do have the passing of guilt onto the child, making the child feel as if they have to keep a secret or be responsible for all sorts of dreadful things happening, including you go to gaol and that, in my view, aggravates the circumstances of it. 

12In any event, Charge 1 between November 2016 and June 2017, Christine was in the lounge room of the home and her mother was asleep.  Her brother was staying with the father at the time.  She was sitting on the couch playing with an iPad.  You came up to her and started saying how you liked the way her body looked and you then asked her if you could play a game with her and called it the 'tip game'.  You told her to go over to the edge of the couch and lay down and put her legs up.  You took her pants off and then took your pants off.  You then penetrated her vagina.  She described it as, 'He put the tip of his penis in my vagina.'  Interesting that when you spoke to the police, when asked about that, you said that you would no way “play the tip game” with Christine, but she certainly got that description from somewhere.

13There is Charge 2, the sexual penetration of a stepchild.  During the week of

[3] A pseudonym.

10 August 2020, you and Ms Hill[3] were frequently arguing and you were sleeping on the couch at Lakes Entrance.  Between the 11th and 14th Christine was asleep in her bedroom.  It was dark.  She woke up and you had your fingers inside her vagina.  She tried to pull away but she was tired and you held her.  You were moving your fingers backwards and forwards.  She was on her back and you were kneeling beside the bed.  She tried to pull your hand away but you grabbed her arm and held it against the bed, so there is an element of violence involved in that one.  Although, incest is inherently violence, I suppose. 

14You then lifted her up by the waist, pulled her pyjamas down.  She was kneeling on the side of the bed and you penetrated her vagina with your penis and you kept moving backwards and forwards until you had finished.  You then went to the bathroom and closed the door and you did not say anything.  She did not think that you ejaculated inside her but on each of these occasions it is clear that you were not wearing a condom.  That does not help the situation either.  It puts one at risk of pregnancy, which you were obviously concerned about, having a look at what you were saying to the mother, and also, of course, the risk of disease. 

15In any event, you were taken into custody over unrelated matters, I understand, and it was during that time that the mother reported the sexual offending against her daughter and when you were interviewed you denied it.  But as I have already said, you have pleaded guilty at a reasonably early opportunity and you must get the benefit of that.  In terms of the admissions that you made to the mother, you told Ms Cidoni, the psychiatrist, that you could not remember making that admission because of the all the tablets that you were taking at the time and alcohol.  Whether that is true or not, I have got no idea.

16That is the offending.  In these circumstances, one would say that it is certainly not the worst case of incest I have ever seen, but it is certainly not at a lower end either and it is a very unfortunate thing that judges have to try and put this into some sort of objective perspective because of the provisions of the standard sentencing legislation but as is the situation I think with Warboys and the plea of guilty, the sentence on Charge 2 will be less than the standard sentence, even though, as I say, incest is an inherently violent act.  I think it is literally an impossibly to rate it in terms such as moderate or high or low.  In any event, a very significant gaol sentence is inevitable. 

17You have now been in custody for some 436 days.  It calls for the application of general and specific deterrence, denunciation and, obviously, appropriate punishment.  In your situation, I think specific deterrence is probably unnecessary.  It is pointed out by the Crown that Ms Cidoni in her report does not say whether the risk of offending is general or it was situational.  I think in these circumstances unprepared, we have no priors to accept on the balance of probabilities it probably was situational and accordingly, in that regard, your personal risk of reoffending as low whether you rehabilitate after the prison sentence or during the prison sentence is entirely up to you. 

18The principles involved in sentencing for incest - I do not need to go through all the authorities and counsel for the Crown has very helpfully provided me with a number of comparable cases and, obviously, I have read those.  Justice Hedigan quoting from Justice Marks in R v Sposito put it very bluntly:

The offence of incest is particularly erosive of human relations and cast out on the assumption the parents and actual trustees of the welfare of the children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent which include the exploitation by the stronger will of the adult of the weaker will of the child.  The physical and psychological subordination of the child to the verdant indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim.

19That is clearly the situation here.  In so far as this is concerned of taking questions of totality, it is my view that, although, on one basis the rolled up count could be regarded as more serious and, indeed, it has to be a standard sentence offence, the first incest is when the child has only just started menstruating and some two or three years, I think, I have not done the actual arithmetic, the difference between them, I think the sentence for each should be the same.  This incest has taken place with this young girl during probably, without being a psychologist, one of the most important periods of a young woman's life in terms of maturity, sexual understand and the like, and the consequences of it can be long lasting.  I hope in her situation it is not the case but experience shows that it often is.

20I then turn to matters personal to yourself and that can be done in fairly brief terms.  Your history is set out in the report of Dr Cidoni and I propose to take that into account.  I also take into account the number of courses and the like that you have done whilst you have been in custody.  The matters that are put on your behalf are the plea of guilty and I accept that.  I think if the situation were (indistinct) some short quotes from Ms Cidoni and then pass sentence. 

21You were born in New South Wales.  You were raised by your mother.  You had limited contact with your father.  Apparently, the father was alcoholic and abusive.  Your mother had other relationships, again, with people who appeared to have been violent and alcoholic.  You have no contact with any of your half siblings.  You moved out of home at 17 and stayed in a caravan park.  You went to the Australian Defence Force and was discharged around 18.  You then went back to your parents, or whoever she was living with, and about 18 you moved to Queensland.  You stayed in Queensland until your early 30s.  You have a son who is 15 but you have not seen him now for almost a decade. 

22You had a couple of relationships and in so far as education is concerned, you got halfway through year 9.  You have had various jobs over the years working hotels and the like.  You worked at Reinforced Concrete Pipes for a period of time till you were injured and when you moved to Lakes Entrance, you had a kayak hire business.  You claim that apparently went well but Ms Hill did not like the hours you were working so you purchased a charter boat, using some of the WorkCover payment that you had received and obviously you were all right with that.  You completed a coxswain and skipper course in December 2019. 

23So far as physical difficulties are concerned, it cannot be said you are in bad health.  I will mention some psychological matters in a moment.  You reported to her that you had begun self-harming in your teenage years and cut your arm and, in more recent years, had cut an artery.  You reported to Ms Cidoni that you were bullied as a young person, although, I notice you boxed from the age of 14 onwards and you have been doing weight training in gaol.  Her tests say there is no obvious cognitive problems.  In so far as the principles of Verdins are concerned, they have very little, if any, application here.  Mind you, they certainly do not reduce moral culpability in situations such as this.  She says that you have clinical syndromes indicated in the area of bipolar affective disorder, alcohol abuse disorder and historical post-traumatic stress disorder. 

24And I accept that that is probably the case but it is not being put here that, as I say, that in any way involves a diminution of general deterrence.  In so far as this matter is concerned, it does not reduce moral culpability.  I accept that, though matters may well be exacerbated in gaol, and I do not know whether they have or they have not, but I take that into account in a general way.  She assessed your risk of sexual reoffending as low, based on static risk indicators.  As I have said, on the balance of probabilities, I am prepared to accept that is right. 

25I am aware that you have now spent, as I say, 436 days in custody.  That has been done during the COVID period of time and I am aware that there would have been anxiety amongst prisoners as to what would happen if they caught it and the dangers of being confined in such a situation.  I am not aware, in your circumstances, where - I am assuming you will undergo the sentence at Hopkins, if you are not there already.  I understand that the lockdowns up there have not been as serious, but I do take into account the fact that gaol, at a time like this and over the last year or so, has been a rather scary place to be and that is going to continue into the indefinite future. 

26So taking all those matters into account and bearing in mind the written submission of your counsel which I have obviously taken into account and which are exhibited and on the court file, you are to be sentenced as follows:

27On Charge 1, six years.

28On Charge 2, six years.

29Three years of the sentence imposed on Charge 1 to be served cumulatively and the sentence imposed on Charge 2, bearing in mind the timelapse between them, gives you a total affective sentence of nine years. 

30I would direct you serve a minimum term of six years before becoming eligible for parole. 

31In so far as s6AAA is concerned, to say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 12 years with a minimum term of nine and I direct that 436 days be reckoned as having been served over this sentence. 

32     HIS HONOUR:  Are there any other orders I need to make, Mr Casement or Ms Nugget?

33     MR CASEMENT:  No, Your Honour, but the sex offender order that Your Honour's already referred to, that's it.

34     HIS HONOUR:  That's it, yes.  Nothing else you can think of?  Thank you for that letter about the legislation too, Madam Prosecutor. 

35     MS NUGENT:  Thank you, Your Honour.

36     HIS HONOUR:  Yes, thank you for that.  Yes, all right.  You want to talk to your client, Mr Casement?

37     MR CASEMENT:  Just briefly, Your Honour.  Thank you very much.

38     HIS HONOUR:  Yes, of course.  Yes, of course.  Thank you. 

- - -