Director of Public Prosecutions v Russell (a pseudonym)

[2024] VCC 122

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL RUSSELL (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Melbourne
DATE OF HEARING:	30 January 2024
DATE OF SENTENCE:	20 February 2024
CASE MAY BE CITED AS:	DPP v Russell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 122

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords: Sentence —— plea of guilty —three charges of incest.

Legislation Cited:  Sentencing Act 1991 (Vic)

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Biba v The Queen [2022] VSCA 168; Fichtner v The Queen [2019] VSCA 297; DPP v Toomey 2006 VSCA 90, DPP v Dalgleish (a pseudonym) [2017] VSCA 360; Shawcross v The Queen [2018] VSCA 295; DPP v Toomey [2006] VSCA 90; Soo v The Queen [2014] VSCA 304; R v Connolley [2004] VSCA 24

Sentence:                 Total effective sentence of 16 years with a non-parole period of 13 years

Section 6AAA declaration – but for the plea of guilty to these offences,

the sentence that would have been imposed would have been a total effective sentence of 20 years imprisonment with a non-parole period of 16 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Office of Public Prosecutions
For the Offender	Mr W. Blake	Warren Graham and Murphy

HER HONOUR:

1Michael Russell[1], you have pleaded guilty to charges involving the sustained sexual abuse of your three daughters, Sally[2], Baily[3] and Regina[4].

[1] A pseudonym.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

2The charges to which you have pleaded guilty are five charges of incest for which the maximum penalty is a term of imprisonment of 25 years and one charge of indecent act with or in the presence of a child under 16 for which the maximum penalty is 10 years' imprisonment.

3Tendered at your plea was a summary of prosecution opening which sets out the agreed facts and circumstances of your offending. I begin with your daughter, Sally. Sally is your eldest child and was born in August 1991.

4You began sexually abusing Sally when she was only around 5 years old.  You abused Sally regularly between the ages of five and 13, subjecting her to sexual touching and numerous and frequent instances of penile/oral penetration. Your charged offending against Sally is as follows.

5The first charge on the indictment, Charge 1, is a rolled-up charge of incest concerning three occasions when you made Sally suck your penis.

6The first occasion concerns an incident when Sally came home from school and heard you having a sexualised conversation on what she believed was a phone sex chat line.

7You called her over to you. Your pants were down around your ankles. You forced Sally to suck your penis. Sally cannot recall if you ejaculated. She did not know what to think. She did not tell anyone.

8The second occasion occurred when Sally was aged between 9 and 10 years old. On this occasion your wife was out playing tennis. You took Sally into the bedroom and made her take off her clothes. You rubbed her breasts and vagina and touched her clitoris. You made her suck your penis.

9The third and final occasion, which is part of Charge 1, occurred when Sally was 9 or 10. You had had a vasectomy. You were at the door of your bedroom. You pulled down your pants and made Sally suck your penis.

10While you were doing this you took Sally’s left index finger and inserted it into your rectum. This is Charge 2, a stand-alone charge of incest. Sally was confused and could not understand why you would do this.

11Your offending against Sally stopped when she reached puberty. The last occasion took place on 7 May 2005 when Sally was 13. On this occasion you got into bed with Sally and began kissing her. Sally began to cry fearing you would penetrate her vagina and take her virginity. You stopped what you were doing.

12Your next victim was your daughter, Baily.  Baily was born in November 1994 and is your second eldest child.

13You began your offending against Baily in around December 2007 when she was 13 years old and your abuse of her ended in approximately May 2008.

14In respect of Baily, you were charged with a rolled-up charge of indecent act with a child under 16 comprising of four occasions, which is Charge 3 on the indictment.

15On the first occasion you came into the bedroom Baily shared with your youngest daughter, Mia[5]. Baily was sleeping on the top bunk. You pulled back the doona and lifted her pyjama top and rubbed her breasts.

[5] A pseudonym.

16About two months later in late January 2008 you again rubbed her breasts when she was in bed and on this occasion you also rubbed her pubic area.

17The third occasion occurred in March 2008 when you again came into Baily’s room and rubbed her breasts and pubic area for a few minutes.

18The last occasion when you again rubbed Baily’s breasts and pubic area occurred in May 2008. On this occasion you rubbed her on the outside of the vagina for a few minutes.

19I turn now to your offending against your third child, Regina who was born in April 1997.

20In 2008 when Regina was aged around 10 or 11 years old you showed her a pornographic video.

21Your abuse of her began in 2009 when she was aged about 12 and continued until late 2014 when she was around 17 years old.  During this period you offended against Regina on a monthly, sometimes weekly basis. You made her masturbate your penis, touched her vagina and on occasion made her suck your penis and touch her own vagina simultaneously. Regina would try and stop your abuse by telling you she was menstruating in order to get you to leave her alone.

22The first charge on the indictment in respect of Regina is Charge 4 which is a rolled-up charge of incest concerning two occasions when you inserted your fingers into her vagina.

23On the first occasion in 2009 your wife was out playing tennis. You came into Regina’s room and touched her on the vagina under her underwear. You left her room but came back and touched her on the vagina again. You then inserted your finger in her vagina. Regina was disgusted and scared and pretended to be asleep.

24The second occasion of digital penetration of her vagina occurred when Regina was 17 years old. Your wife was out and your elder daughters had already moved out of home.

25Regina was having a shower. You got into the shower with her and washed her naked body with soap, touching her breasts, buttocks and vaginal area. You made Regina touch and masturbate your penis. Later that night you made Regina get into bed with you and you inserted your finger into her vagina.

26Charge 5 is a rolled-up charge concerning two occasions of penile/vaginal penetration of Regina,

27The first occasion occurred in either December 2012 or December 2013 when Regina would have been 15 or 16 years old. You were in the family hut in a regional area. When you were alone with Regina you told her to lie on a bed in the lounge area. You removed your pants and underwear and put your penis in her vagina continuing to penetrate her vagina until you ejaculated onto her stomach. You then tried to tongue kiss her but she pushed you away.

28The second occasion occurred on the same night you digitally penetrated her when she was 17 years old after you had a shower with her.  That is the second occasion of Charge 4.  On this occasion you also inserted a vibrator into her vagina, which is Charge 6, and you inserted your penis into her vagina penetrating her vagina until you ejaculated.

29Baily made a disclosure about your offending in 2008 and made a police statement on 4 August 2008. You were interviewed on 13 August 2008 and told police that you did not touch her. Her mother disbelieved her and Baily retracted her allegations.

30In 2019 Sally made disclosures. She and Baily met their mother and both handed her letters saying that you had sexually abused them. Again, they were disbelieved and unsupported by their mother.

31Regina disclosed to Baily in late 2019. You were interviewed by police on 3 June 2020 and you denied all allegations.

32You have pleaded guilty. It is not an early plea. There was a contested committal at which all three of your victims were cross-examined. Your plea and arraignment on 21 August 2023 pre-dates the announcement that the backlog of trials occasioned by the Covid 19 pandemic has been cleared in this court. Given your plea pre-dated this development, I sentence you in accordance with the principles set out in the case of Worboyes.[6]  However, while I accept that you are entitled to a Worboyes discount for your plea of guilty, when applying the Worboyes discount it is necessary to consider the degree of pandemic-related delay at the time the plea was entered.[7]  In August 2023 the situation in this court was not what it was in 2020 when trials were suspended indefinitely at the height of Covid uncertainty. Accordingly, you will get a Worboyes discount but it will be reflective of the present circumstances and will not be of the magnitude that pleas were attracting at the height of the pandemic.  Your plea has spared your victims the trauma of a trial and it has saved the community the cost of a trial. Your plea demonstrates your acceptance of your criminal responsibility for your behaviour.

[6]        Worboyes v The Queen [2021] VSCA 169 (“Worboyes”)

[7]        Biba v The Queen [2022] VSCA 168

Victim impact statements

33I turn now to the victim impact statements and I begin with Sally.

34Sally says you were supposed to be her father, someone she could trust and someone who loved her. She says instead you ruined her childhood. She says she lived in fear and was always paranoid and angry. She said she found it difficult to maintain friendships because she could not explain to anyone what you were doing to her and its effects on her. She says for a long time she hated herself. She resorted to self-harm and ended up on anti-depressants. She said she saw a therapist but could not even tell her therapist the real cause of her suffering. She says your abuse of her has affected her intimate relationships. She says she has no self-confidence or sense of self-worth and allowed men to treat her badly. She says it took her a long time not to feel ashamed for what she went through and to realise none of it was her fault.

35Baily says when she disclosed she was told that she was lying and that there was something wrong with her. She says, 'You have stolen my childhood memories, my innocence and my confidence. Instead, you have given me anxiety, sadness and sleepless nights.'

36She says she lacks self-esteem and is submissive in relationships and constantly seeks approval. She says she wanted a happy family but now accepts that she does not have a mother or a father and that she is slowly gaining her happiness back.

37Regina says you took her childhood innocence. She says, 'No father should ever put their daughter through that type of pain. I am upset that I never had a father figure in my life and that kills me inside every day. I tend to think about how my life could have turned out had this never happened to me'.

38Regina makes the exact point which is made in so many of the authorities when discussing the pernicious effects of childhood sexual abuse, which is that victims will never know what life could have been and who they would have grown up to be, if they had not been subjected to childhood sexual abuse which, as the courts have regularly observed, destroys the opportunity of a healthy and natural development and transition into adulthood,[8] and the effects of which are often lifelong. And, as is so often seen in cases of child sexual abuse within the family, the family unit has broken down as a consequence of the abuse, the initial denial of the abuse and the conflicting loyalties within the family that this produces.

[8]        Fichtner v The Queen [2019] VSCA 297 at [66] – [67]

Personal circumstances

39I turn now to your personal circumstances which are set out in the submissions of your counsel, Mr Blake.

40You were born in June 1970. You are presently 53 years old. Your parents are deceased.  You have one sibling.

41You grew up in a stable and supportive home. You attended school until Year 9. You reported being a below average student.

42Your father was a cattle farmer and most of your working life has been spent working on your father’s farm. You have held a number of jobs in recent years.

43You left home at 24. You married your wife Aileen[9] when she was 21 and you have five children. Your three eldest children are your victims.

[9] A pseudonym.

44You do not abuse drugs or alcohol. You do not have a mental health condition. You were involved in a serious motor vehicle accident on 14 June 2022 when you fell asleep at the wheel and crashed into a tree. You were in a coma for a number of months but did not suffer brain trauma and have no ongoing cognitive difficulties. You do have some limitations with your mobility because of the accident.

45You have one prior criminal appearance in the Magistrates Court, which I regard as irrelevant for the purposes of sentencing you.

46As this very brief summation of your personal circumstance discloses, I have really no material about you upon which to draw in sentencing you. You have offered no explanation for your offending nor proffered any expression of remorse or contrition.

Submissions.

47I turn now to the submissions of the parties and I begin with the submissions made on your behalf.

48On your behalf your counsel relied on your plea of guilty. He acknowledged that my assessment of your prospects of rehabilitation was difficult in a case of historic child sexual abuse but submitted you have a strong work ethic and have no relevant prior convictions, nor any subsequent convictions.

49He submitted notwithstanding the application of the serious sexual offender provisions and the serious nature of each charge that the application of the principle of totality calls for a total effective sentence that is no more than is necessary to satisfy all the objectives of sentencing and is not crushing.

50Mr Blake referred me to a table of cases involving the sexual abuse of children to serve as some guidance on current sentencing practices.  He referred me to the case of Quinlan[10], a recent decision of Judge Lauritsen of this court, in which His Honour imposed a total effective sentence of 15 years and four months and a non-parole period of 10 years and three months for offending involving the sexual abuse of the accused’s four daughters. This material has been of some assistance in formulating an appropriate sentence, but ultimately I must sentence you on the facts and circumstances particular to you.

[10]        DPP v Quinlan (a pseudonym) 2023 VCC 2226

51Mr Blake acknowledged the very serious nature of your offending and acknowledged that the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period.

52On behalf of the prosecution it was submitted that your offending occurred over a significant period of time, approximately between 1 January 1997 and 27 November 2014. It involved three of your children and it continued after you were interviewed by police in respect of Baily’s disclosures in 2008.

53The prosecution submitted I have no material to assist me in my assessment of your risk of reoffending and your prospects of rehabilitation.

54The prosecution submitted this was objectively very serious offending and the sentencing principles of general and specific deterrence, denunciation, just punishment and community protection were all engaged in sentencing you. The prosecution referred me to some comparator cases.[11] The prosecution submitted that given the serious nature of all the charges, and given there are three victims, there should be appropriate cumulation between charges.

[11]        DPP v Toomey 2006 VSCA 90, DPP v Dalgleish (a pseudonym) [2017] VSCA 360; Fitchner v The

55The prosecution submitted the only appropriate sentence was a term of imprisonment consisting of a head sentence and a non-parole period.

Objective gravity and moral culpability

56I tun now to my own assessment of the gravity of your offending and your moral culpability.

57Your offending was objectively very serious offending. It involved the protracted sexual abuse of your three daughters, which in the case of Sally and Regina involved multiple acts of sexual penetration, including in Regina’s case a charge involving unprotected penile/vaginal sex. I note you had had a vasectomy at this time but you still exposed Regina to the risk of disease. Your conduct towards all your daughters must have caused them considerable fear, distress and humiliation. It involved a gross breach of trust. You were the victims’ father, it was your role to love and nurture your children and not to exploit them to satisfy your abhorrent sexual practices.

58Baily complained about your offending and made a police statement in 2008. You denied her allegations and continued to offend for approximately six more years.  This is a highly aggravating aspect of your conduct.

59Charges 1, 3, 4 and 5 are rolled-up charges. One of the benefits to you by virtue of your plea of guilty is that you are to be sentenced on these charges in accordance with a single maximum penalty.  However, in assessing the gravity of these charges and your moral culpability, I take into account that they involve multiple incidents and the sentence I impose must be reflective of the full criminality of your offending.

60There is uncharged conduct in respect to Sally and Regina. You do not fall to be sentenced for this conduct, however, it remains relevant to my assessment of the overall gravity of your offending and its effects on your victims, as well as to the application of the sentencing principles of specific deterrence and community protection.

61I assess your moral culpability for your offending as very high.

Application of sentencing principles.

62The predominant sentencing considerations in cases involving the sexual abuse of children are general deterrence and denunciation. The sentence I impose must send a clear message that the sexual abuse of children will not be tolerated by the courts and on behalf of the community I denounce your conduct. A father sexually abusing his own children is morally depraved conduct which has profoundly damaging consequences for its victims.

63In my view, specific deterrence and community protection are also engaged in sentencing you.

64I have no material which explains your behaviour. I have no evidence of remorse on your behalf.  I accept the prosecution submission that in the circumstances I am unable to assess the risk of reoffending you pose or your prospects of rehabilitation.

65In my view the only protective factors in terms of community safety are your advancing age and the fact that you face a significant period of imprisonment.

66You fall to be sentenced as a serious sexual offender on Charges 3 through to 6.   The court is therefore required to consider protection of the community as the principal purpose for which sentence is imposed, although the prosecution do not seek a disproportionate sentence. The court is also required to impose cumulative sentences unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.

67Totality is an important sentencing consideration given you face a number of very serious charges, all potentially attracting significant terms of imprisonment. I must sentence you to an overall head sentence and non-parole period which reflects the totality of your offending against all of your victims. I accept the prosecution submission that given there are three victims who have all endured very grave sexual abuse at your hands, there should be significant cumulation between the three and also between all charges which all concern very serious instances of sexual offending against your children.

68I take into account the maximum penalty for the offences.

69Taking into account all the matters I am required to under the Sentencing Act and matters personal to you, I intend to sentence you as follows:

70You can remain seated in the circumstances, Mr Russell.

Sentence and orders.

71You are convicted on all charges.

72On Charge 1 you are sentenced to nine years' imprisonment.

73On Charge 2 you are sentenced to five years' imprisonment.

74On Charge 3 you are sentenced to three years' imprisonment.

75On Charge 4 you are sentenced to seven years' imprisonment.

76On Charge 5 you are sentenced eight years' imprisonment.

77On Charge 6 you are sentenced to five years' imprisonment.

78Charge 1 is the base charge. I direct one year of the sentences on Charges 2, 3, 4 and 6, and three years of the sentence on Charge 5 be served cumulatively upon Charge 1 and upon each other. That makes a total effective sentence of 16 years and I direct you serve a non-parole period of 13 years.

79You are sentenced as a serious sexual offender on Charges 3 through to 6 and I direct that be entered into the records of the court.

80Pursuant to s6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty you would have been sentenced to a total effective sentence of 20 years' imprisonment with a non-parole period of 16 years.

81Pursuant to s18(4) of the Sentencing Act 1991 (Vic), I declare you have served 20 days of the sentence I have passed upon you and I direct that this be entered into the records of the court.

82Pursuant to the Sex Offender Registration Act, you are a registered sex offender for life and I make the disposal orders sought by the prosecution.

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Queen [2019] VSCA 297; Shawcross v The Queen [2018] VSCA 295 [63]; DPP v Toomey [2006] VSCA

90, [14], [17]; Soo v The Queen [2014] VSCA 304; R v Connolley [2004] VSCA 24 [40].