Director of Public Prosecutions v Sampson (a pseudonym)

[2018] VCC 1689

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT BALLARAT

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARETH SAMPSON (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Ballarat
DATE OF HEARING:
DATE OF SENTENCE:	15 October 2018
CASE MAY BE CITED AS:	DPP v Sampson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1689

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 B. Nibbs	Office of Public Prosecutions
For the Accused	Mr N. Hutton

HER HONOUR:

1Gareth Sampson[1], you have pleaded guilty before me to two charges of committing an indecent act with a child under 16 and one charge of incest. 

[1] Gareth Sampson is a pseudonym

[2] Nicola Sampson is a pseudonym

The victim of your offending was your then stepdaughter, Nicola Sampson[2], whose mother you married in 1998.  Charges 1 and 2 are both what are called course of conduct charges.  Charge 1 consists of a course of conduct consisting of all offending, involving your touching Nicola and having Nicola either touch or masturbate your penis.  Charge 2 relates to course of conduct consisting of all offending involving you touching Nicola's vagina.  Charge 3, incest, is a single occasion of digital penetration by you of Nicola's vagina.

2The offending began, as I have said, when you were living with Nicola's mother who you married in 1998.  She had three children from a previous marriage.  The father had died in 1996.  A fourth child, Leigh Sampson[3], is the child of yourself and your then wife. 

[3] Leigh Sampson is a pseudonym

3Nicola's mother detailed concerns that she had noting the behaviour between yourself and her daughter.  She gave examples of you, for example, getting an erection whilst Nicola was in the bath, another occasion when you had an erection when in bed with Nicola and, then after the family moved to a farm with a house where you lived, she noted you becoming more strict and controlling of her behaviour.  Nicola's mother, Patricia[4], noticed the bathroom was open on a number of occasions.  This is after the family moved in 2002.  She saw Nicola on your lap underneath the doona and on one occasion, when Nicola was eight or nine, Patricia walked into a darkened bedroom where she found Nicola sitting on top of you on the bed.  Each time you had no underwear on and your penis was erect and exposed.

[4] Patricia is a pseudonym

4The prosecution opening outlines offending against Nicola from the time she was six or seven up until February 2005, at which time Nicola was in about Grade 6.  Her first memory of your offending was when she was six or seven.  You came to tuck her in and told her you had "an itchy doodle".  She giggled and asked if she could scratch it and you opened your pants, you were not wearing underwear and instructed her as to how to scratch it.  This offending is part of the offending that underlies Charge 1 on the indictment.

5When Nicola was eight or nine, she recalled being in the car, a six-seat sedan, her brothers asleep in the back seats and she in the middle front seat.  You took her hand and placed it on your penis over your jeans.  She recalls your penis becoming hard and she pretended to be asleep during this.  This offending underlies part of Charge 1.

6Nicola also recalls between Grades 4 and 6 you coming to her bedroom to touch her, lying her down on her right side and while she feigned sleep, putting her left hand down your pants and moving her hand up and down on your penis.  You would also rub her nipples whilst this occurred.  This offending is also part of the offending underlying Charge 1.  At the same time you would rub Nicola's vagina with your right hand, which offending is part of the offending underlying Charge 2, doing this until you ejaculated.  You would then leave the bedroom holding your crotch.

7Nicola recalled that she knew that when your penis got erect you would not leave the room.  Her recollection was that you would come into her bedroom and offend this way about once a week.  This offending underlies Charges 1 and 2.

8She said that sometimes you would come to tuck her in and waited until she appeared to fall asleep.  Other times you would come into the room after you believed she was asleep.  You wore black tracksuit pants and no underwear.

9On one occasion when Nicola was in Grade 5 or 6, you came into her bedroom to tuck her in, got into bed with her and put your hand down the front of her pyjama pants and began rubbing her vagina, in the process inserting the tip of your finger into Nicola's vagina.  This offending underlies Charge 3 on the indictment, a single occasion of digital penetration, with the offence being incest.

10Additionally you would sit on a recliner in the lounge room and watch television with Nicola sitting with you, you would put your dressing gown over the two of you as a blanket at which time you were wearing black tracksuit pants with a hole in the left side of the crotch that she saw would become bigger over time and under which you would wear no underwear.  When you thought Nicola was asleep you would put her hand on the top of your penis and move it in a circular motion until she continued the movements on her own.  Again this offending is part of Charge 1. 

11On some occasions your penis was erect and during this time you rubbed Nicola's nipples and her vagina. That offending underlies part of Charge 2.  You normally touched her under her clothing and would continue until you ejaculated.  You would then wake Nicola who was, in fact, feigning sleep and send her to bed.  She recalled that you would do this until her hand got wet and she recalled this occurring approximately once a week between the ages of eight and 11.

12Also between the ages of eight and 11, Nicola recalled three occasions when she was in bed with you and her mother and when you thought she was asleep you put her left hand down your pants onto your penis moving her hand in a circular motion.  That offending underlies part of Charge 1.  You then rubbed her nipples and her vagina under her clothing, that underlying part of Charge 2.

13On one occasion when you stopped touched Nicola you nudged her head beneath the blankets towards your penis.  You had no pants or underwear on, held your penis towards her face and on two occasions rubbed your penis upon her lips.  On the third occasion Nicola pretended to wake up before your penis touched her mouth.  On that occasion you told Nicola that you needed to talk, saying the two of you had to stop what you were doing because it was wrong, that they could get into trouble and go to gaol, which scared Nicola because she did not want people to find out and obviously did not want to go to gaol.

14Between Grades 4 and 6 she was in the bedroom you shared with her mother.  You were not wearing underwear, you were lying on top of her and you kissed her using your tongue, rolling on top of her while you continued to kiss her and then her mother walked into the room asking what was going on, you saying the two of you were having a cuddle.

15She recalled you watching her in the toilet through the open window when you were outside smoking and that this occurred also whilst she showered.  When Nicola was between eight and ten she was in the en suite bathroom with you and you asked her to help you take off your pants.  You then had a shower, asked her to wash you and she stood outside the shower and washed your penis, back, stomach and chest. 

16Eventually Nicola told her brother, Jay[5], about you touching her. 

[5] Jay is a pseudonym

[6] Leila is a pseudonym

She believed she was in about Grade 5 at the time.  Jay thought that you were simply giving her cuddles.  When Nicola was in Grade 6 during a game of truth or dare she told her friend, Leila[6], that "my dad touches me" and Leila said she should tell Patricia. 

17One night Patricia, your mother, had a discussion with the children about others not being allowed to touch your private parts and Nicola then disclosed to her mother that you had been touching her, touching her breasts, trying to put her head onto your penis, getting a wet spot on your pants and leaving the room, putting your hands on her "rude bits", touching her vagina, getting her to take off your clothes and wanting her to touch your penis.

18You were then confronted by Patricia, initially denying the allegations and saying that Nicola was lying, but then when you were further confronted and ultimately made admissions.  The matter was not reported at the time to police because Nicola was concerned about getting in trouble and was worried about Leigh, your son, her youngest brother losing her father as she had lost hers.

19Locks were put on the children's doors and the bathroom door and you remained living there.  You also, after the disclosure was made, sent Nicola a letter apologising for what you had done.  Part of that letter, according to Nicola, included the words, "I told you it was wrong and we had to stop but we didn't".  She showed that letter to three friends in high school.

20Jay recalled you admitting the offending to him and your then stepson, Wallace[7], also recalled an occasion when you apologised for the offending when he was about 19.  In 2013, Leigh was told by you that you had sexually assaulted Nicola.  She ultimately reported the matter to police in 2017.  You were arrested and gave a no comment record of interview. 

[7] Wallace is a pseudonym

21The maximum penalty for incest is 25 years' imprisonment.  The maximum penalty for indecent act with a child under 16 is ten years' imprisonment. 
You are to be sentenced as a serious sexual offender if a period of imprisonment is imposed in relation to Charge 1.  The matter was listed for committal hearing but resolved before the calling of witnesses, although after they had arrived at court and you entered a plea of guilty.  I now turn to your personal circumstances.

22You are 53 years of age.  You are one of six children.  You have five sisters, two of whom are deceased, three of whom are still living and who all wrote references on your behalf.  According to what your counsel told me and what you told psychologist, Ian Joblin, whose report was tendered on the plea, you left school midway through Year 9.  You completed a carpentry and joiner apprenticeship but at the age of 19 were forced to cease that occupation because you developed arthritis in your hips and hands.  Thereafter you worked in factories for some years, then when you were about 30 began working in offices in associated industries including office manager, delivery manager and so forth. 

23You met Nicola's mother in 1996.  The two of you moved to a farm which you bought in 1997.  The two of you married in 1998.  Eventually when the marriage broke down, according to your counsel, you left Patricia and her children in the house that you built.  You did not pursue any particular financial entitlements that you had.  You started life over again in 2006 with about $13,000 in your pocket.

24Over the next ten years to about 2016 you worked full time, renting in the meantime and paying child support for your son, Leigh.  In 2016 you decided you would move on with your life.  According to your counsel you had been expecting in those intervening years to be visited by police, questioned and arrested over your offending against Nicola. 

25You met your wife, a Chinese national, online, visited her and eventually she came to this country and the two of you are now married.  She is here only on a tourist visa.  It had been your intention to sponsor both she and her 21 year old daughter to this country. 

26Financially the situation is one where you own a unit worth about $180,000, which has a caveat over it due to a compensation claim by Nicola in relation to this offending.  You have not seen your son, Leigh, since June 2017. 

27It is clear your offending has had a long-lasting and grave effect upon not just Nicola but her brothers and her mother.  Both Nicola and her mother, Patricia, very courageously read their victim impact statements out in court. 
The effects of what you have done as described by Nicola are, in my view, serious and long-lasting.  She describes in her victim impact statement constant recurrent sequences of memories arising from your offending against her.  The effects of your offending are, unfortunately, utterly familiar to this court which deals with so many of these sorts of cases and there is nothing abnormal about Nicola's reactions to your offending against her when she was a child. 

28I make that comment aware of the fact that Nicola is in court and that she understands that she is not reacting to the offending against her in any way that is different to so many of the victims of sexual abuse that come before this court.  It is a normal reaction that hopefully subsides over time but is recognised to be long lasting and ongoing. 

29Similarly I should add, in her victim impact statement Nicola describes the overwhelming sadness arising from your offending to the point that she felt that she was a burden on her family, and at times considered taking her life.  She also described acting out as a teenager, another very common reaction by children who have been sexually abused, behaving sexually in ways that was beyond her years, again, another common reaction and that she still has great concerns about the capacity of female children to be offended against by men, a fear she harbours in relation to her fiancé's own daughter.

30Similarly Patricia described the enormous guilt she feels as a mother in not protecting her daughter, again, a classic response by the parents, mothers, of daughters who have been sexually abused.  She describes her lack of faith in the world and the enormous grief this has brought to her family. 

31Both Nicola's brothers and her half-brother, Leigh, described their great sadness and sorrow at your offending against their sister, the resultant complete removal from their lives of a father figure that they once believe you to be, and the continuing distress that they continue to feel that they observed their sister to feel, that they see their mother to feel.  These are all, as I have said and I do not want to describe them in any way that makes them seem commonplace because they are not, they are long-lasting, they are terrible, emotional impacts that inevitably follow offending of this kind.

32Yours was a somewhat unusual case.  All too often this court sees offenders against children deny that offending trenchantly uphill and down dale.  They will drag their victims through every court procedure that they can.  You have not behaved in this way.  Your counsel, in my view, correctly said that, as was the case in Newton, this is a very strong prosecution case largely built on your own admissions of your offending at the time.  Each of Nicola's brothers, it would seem, were potential witnesses in any trial had you chosen to plead not guilty, not including Nicola's mother and Nicola herself.

33You wrote a letter, you engaged in pretext conversation where clearly it could be said you had admitted your guilt.  It is to your credit that you have behaved in this way notwithstanding the terrible behaviour and offending against Nicola.  I accept that you have saved Nicola and her family the time and trauma involved in being part of contested proceedings where they would have had to give evidence and be cross-examined.

34I note in the report from Ian Joblin that you described extreme remorse and
self-loathing for your offending.  You gave the entirely inadequate explanation for your offending (but at least it is an explanation) that at the time, physical relations between yourself and your then wife were non-existent and you therefore inappropriately used Nicola as a substitute.  As I say this is completely inadequate in terms of an explanation.  It, by no means, excuses in any way your offending against her or in any way justifies it. 

35Too often this court sees the terrible effects upon children when a parent or parent figure sexually offends against that child and as I have said it is quite clear the effect of that offending has been long-lasting and ongoing and can be expected to remain that way perhaps for some time.

36I also take into account the delay in these proceedings.  That is not to lay any blame on Nicola at all.  It takes a long time very often for victims of sexual offences, particularly when the offending has occurred when they were children, to reach a stage where they can report that offending and delay is a less powerful mitigatory factor in cases of this kind.

37Nevertheless I accept that you lived your life expecting to be dealt with at law for this offending for a number of years and that your situation has now worsened because of the plight of your wife.  It is clear pursuant to the provisions of the Migration Act that as a result of your offending and the sentence that I must impose upon you, your wife will have to return to China within 30 days of this sentence and on your release it is highly unlikely, because of this offending, that you will be able to make contact with her there.  This I regard as fairly substantial extra curial punishment, that is punishment additional to any punishment meted out by the court, in this case.

38I accept that you are remorseful for your offending and I do accept the observations of Mr Joblin, that it appears you are not paedophilic, that the offending was opportunistic and situational and that you do not generally represent a threat to other children in the community.  As I said I received very positive references from your sisters, all of whom regard this offending as out of character and it would appear your lack of prior and subsequent convictions bear that out. 

39Nevertheless in cases of this kind it is quite clear that the court must have primary regard to the issues of punishment, denunciation and general deterrence.  Although, because of the timing of your offending, a suspended sentence is open to me, in my view that is not a course this court can take.  You offended on multiple occasions against a child to whom you were a father figure.  It was an extremely serious breach of trust and your offending occurred over a period of years.  In my view only a sentence of imprisonment to be immediately served is appropriate in your case. 

40The somewhat unusual mitigatory factors that I have outlined in your case mean that I have imposed a lesser minimum term that would otherwise be the case.  Can you stand up please, sir?

41On Charge 1, you are sentenced to three years' imprisonment.  On Charge 2 you are sentenced to three years' imprisonment and on Charge 3 you are sentenced to 18 months' imprisonment. 

42Charge 1 will be the base sentence of three years.  I order that two years of the sentence imposed on Charge 2 and 12 months of the sentence imposed on Charge 3 be served cumulatively to the sentence imposed on Charge 1 giving a total effective sentence of six years.

43I order that you serve a minimum term of three years and eight months before becoming eligible for parole.  Thank you.

44Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of eight years and order that you serve a minimum term of six years.  Is there anything else I need to attend to?

45MR NIBBS:  Forensic ‑ ‑ ‑ 

46HER HONOUR:  You are a serious - I declare you to be a serious sexual offender in relation to Charges 2 and 3 and you are placed on the Sex Offender's Register for life.

47MR NIBBS:  Life.

48HER HONOUR:  Thank you.  Have a seat please, sir.

49MR NIBBS:  Sorry, the other thing was the 464.

50HER HONOUR:  I am not going to grant that.  I do not think it is appropriate in this case.

51MR NIBBS:  Yes, Your Honour.

52HER HONOUR:  I do not regard him as, as I said, a danger to the community.  I regard his prospects of rehabilitation as positive.  Have a seat, sir, while we prepare the Sex Offender's ‑ ‑ ‑ 

53MR HUTTON:  Would you excuse me one second, Your Honour?

54HER HONOUR:  I return the victim impact statements and the references.

55MR HUTTON:  Thank you.

56HER HONOUR:  Your counsel will explain to you your obligations pursuant ‑ ‑ ‑ 

57MR HUTTON:  I will, Your Honour.

58HER HONOUR:  ‑ ‑ ‑ to the Sex Offender's Register.

59MR HUTTON:  Would  you like me to do that now or after ‑ ‑ ‑ 

60HER HONOUR:  No.  You can do that after, thank you.

61MR HUTTON:  Yes, Your Honour.

62HER HONOUR:  Yes thank you.  We'll stand down until 2.15.

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