Director of Public Prosecutions v Sandford (a pseudonym)
[2015] VCC 1065
•7 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL SANDFORD (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 7 August 2015 | |
CASE MAY BE CITED AS: | DPP v Sandford (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1065 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Duckett | Office of Public Prosecutions |
| For the Accused | Mr P. S. Kilduff | Stary Norton Halphen |
HIS HONOUR:
1 Mr Sandford, on Monday 13 April 2015, your matter was listed for trial. The matter was adjourned to the following day when a special hearing was conducted in respect to one of the complainants. During the playing of the video and audio recorded evidence (VARE), the matter was stood down and you, through your counsel, Mr Kilduff, indicated that you wished to plead guilty to the indictment. Upon arraignment you pleaded not guilty. Accordingly, the special hearing continued and was completed that day.
2 On Wednesday, 15 April, you were arraigned in the presence of the jury panel and pleaded not guilty to the indictment. A jury was empanelled and a recording of the special hearing was played to the jury.
3 On Thursday 16 April, a Basha Inquiry was conducted in respect to the second complainant. At the end of that process the matter was stood down and you were subsequently re-arraigned and pleaded guilty to the trial indictment. Your plea was listed for 17 April and on that day the Plea Opening was read aloud in court and tendered as Exhibit A. The complainants’ Victim Impact Statements were tendered as Exhibits B and C. The Plea was commenced but part heard to a date later in the year so that a psychiatric report in respect of you could be obtained. That process took a considerable amount of time and ultimately your part-heard Plea was completed on Friday, 24 July 2015.
4 Before I turn to the facts that support the charges, I need to comment on the pre-trial and trial proceedings. You are a man who is seriously psychiatrically unwell. You suffer from medication-resistant Schizophrenia. In that state, before you could or would acknowledge your guilt of the crimes with which you stood charged, you needed to see each complainant testify as to your impropriety towards them. Having experienced that process, you accepted the truthfulness of their complaints. It is to be noted that there was no committal proceeding as you were too psychiatrically unwell to give instructions to counsel at that time. Your psychiatric state improved with medication to the extent that you became fit to stand trial. I am of the opinion that the viewing of the complainants via the remote facility and hearing their evidence was not indicative of a lack of remorse but was caused by your psychiatric illness rendering you incapable of acknowledging your guilt in the absence of being confronted with the evidence.
5 Turning now to the charges and the facts that support them. On 16 April 2015 you pleaded guilty to five charges of incest committed against each of your two daughters between July 2005 and December 2010. Your older daughter was born in August 1995, whilst your younger daughter was born in July 1997. Charge 1 relates to your younger daughter and occurred in the year when she was eight years of age. Whilst asleep in a bunk bed she awoke to you rubbing her clitoris with your fingers.
6 Charge 2 relates to your older daughter when she was 11 years of age. One evening she awoke to you licking her vagina. She asked you “What are you doing?”, to which you responded “Searching to see when you started bleeding”. On leaving the room you said to her “Don’t worry it won’t happen again”.
7 Charge 3 occurred during the same timeframe as Charge 2 and, likewise, was committed against your older daughter who was sleeping in your bed. You penetrated her anus with your penis. Your daughter was but 11 years of age at the time.
8 Charge 4 was committed against your younger daughter when she was aged between eleven and twelve years. Like Charge 3, you penetrated your daughter’s anus with your penis.
9 Charge 5 occurred some three to four years later and was committed against your younger daughter when she was about 15 years of age. You asked your daughter to sleep with you and after fondling her vagina you once again penetrated her anus with your penis.
10 Your older daughter ran away from home when she was 16 in 2012. When she was 17 she complained to an adult friend with whom you previously had a relationship. Your younger daughter complained to police in March 2013 after they intervened in an argument between you and her that took place in a local shopping plaza.
11 You were interviewed under caution on 10 January 2014 during which you denied any impropriety with your daughters. You were charged on that day and remanded in custody.
12
Subsequent to your arrest the issue of your fitness to be tried arose and reports from Dr Sullivan, dated 26 August 2014, and Dr Patel, dated
6 November 2014, were obtained to address this issue and each document appears on the court record. Mr Kilduff of counsel relied particularly on the report of Dr Sullivan in the initial part of his Plea which was conducted on 17 April.
13 You are 41 years of age. Your parents are separated. Your mother lives in country Victoria. You were born in Melbourne and attended Westmeadows Primary School and Erinbank High School to Year 8. You repeated Year 8 and subsequently left school to get work. You worked at supermarkets and odd jobs, but have not worked since 1993. Since that time you have been in receipt of Commonwealth benefits including single-parent and disability benefits.
14 Your daughters are aged 19 and 17. Their mother separated from you in 1998, when your daughters were aged 3 years and 1 year respectively, and from that time you became their sole carer.
15 In 1996 you suffered a head injury as well as other injuries during the course of a run-through. You underwent surgery and a plate was inserted into your right hand. It is reported that you have suffered epileptic fits from time-to-time, however you have not received any medical treatment in respect to this complaint. In 2001 you suffered severe injuries to one of your legs as a result of a single vehicle collision, and this appears to have resulted in you being eligible to receive the disability pension.
16 You were introduced to alcohol at age 5 and between 8 and 14 you drank alcohol regularly. You have used cannabis since the age of 13. You have used amphetamines sporadically. You have also abused heroin and were addicted to that substance for approximately six months when you were aged 18 years. You have also abused benzodiazepines.
17 While on remand you were admitted to the Thomas Embling Hospital between 1 May and 30 June 2014. You were floridly psychotic upon admission and you had no insight into your condition at that time. Dr Sullivan diagnosed you as suffering from Schizophrenia. Dr Patel, opined that you appeared to have a schizophrenic illness that “has thus far responded only partially to antipsychotic treatment.”
18 Tendered as Exhibit 1 on the Plea, was the report of Associate Professor Andrew Carroll, psychiatrist, dated 20 July 2015. On 16 July 2015 you presented to Dr Carroll with bizarre and idiosyncratic use of language. You described a florid range of psychotic symptoms, including hallucinations and bizarre delusions. You lacked insight into your illness.
19 There is no reference in your medical history to referral to any mental health service prior to November 2012. Currently you are treated with clozapine, an antipsychotic medication reserved for treatment-resistant Schizophrenia. Since January this year you have been held at St Paul’s Ward at Port Phillip Prison. You have no visitors there, although you speak to your mother on the telephone twice a week.
20 There is no suggestion that your present psychiatric illness had any role to play in your offending. However, Dr Carroll opined:
“Although he is superficially currently coping well in custody, I believe that prolonged incarceration will have a disproportionately adverse impact on his mental health due to his schizophrenia.”
Dr Carroll further opined that prison will be more burdensome for you than it would be for the average person and that the prognosis for your Schizophrenia is poor.
21
In R v Sposito, an unreported judgment of the Court of Criminal Appeal on
8 June 1993, Marks J with whom Hampel and McDonald JJ agreed, said at page 4:
“A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted in their care, is degenerate. The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children…”.
22 The damage to your children is presumed, but the reality is seen in the contents of Exhibits A and B and includes confusion, depression, apprehension of how the acts perpetrated upon them will affect them as parents in the future, intrusive thoughts, thoughts of suicide and the loss of a father are but part of the impact that your offending has had upon your daughters.
23 Crimes of the kind committed by you normally call for condign punishment, giving pre-eminence to the application of the principles of general deterrence, public denunciation and just punishment. However, you suffer from a serious psychiatric illness and, accordingly, general and specific deterrence must be moderated in your case. You will find prison more burdensome than would a normal person. Additionally there is a serious risk that imprisonment will have a significant adverse effect on your mental health and this is a factor tending to mitigate punishment.
24 Taking into account the objective seriousness of your offending and its impact on your daughters into account, together with your plea of guilty and your serious psychiatric illness I must, by these sentences which I impose upon you, punish you, publicly denounce your conduct and deter you and others from committing these crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes and principles of sentencing in a manner appropriate to you and your offending I sentence you as follows:
25 On Charge 1, I sentence you to two years and six months’ imprisonment.
26 On Charge 2, I sentence you to two years and six months’ imprisonment.
27 On Charge 3, I sentence you to four years’ imprisonment.
28 On Charge 4, I sentence you to four years’ imprisonment.
29 On Charge 5, I sentence you to four years’ imprisonment.
30 I order that six months of each of the sentences imposed on Charges 1, 2, 3, and 4 be served cumulatively upon one another and upon Charge 5. This results in a total effective sentence of six years’ imprisonment and I fix a period of three and a half years’ imprisonment before you will become eligible for parole.
31 In respect of Charges 3, 4 and 5 you are sentenced as a serious sexual offender and I order that fact be entered in the records of the Court.
32 I declare that you have spent 575 days by way of presentence detention.
33 Pursuant to s6AAA of the Sentencing Act 1991 I declare that, but for your plea of guilty, I would have sentenced you to a total effective sentence of nine years’ imprisonment with a non-parole period of six years’ imprisonment.
34 Further, I declare that you be subject to the provisions of the Sex Offender Registration Act 2004 for life.
35 What is going to happen, Mr Sandford, is this; that my associate is going to come to you with a document that relates to the provisions of the Sex Offender Registration Act. It is a document that you are to sign. It simply acknowledges that you have received the notification of the document and no more.
36 MR KILDUFF: May I assist, Your Honour?
37 HIS HONOUR: Please, Mr Kilduff; that is very good of you.
38 There is an application for a forensic sample in respect of you and in that case it is of a scraping of your mouth is the forensic sample that I will authorise. What are your instructions - - - ?:
39 MR KILDUFF: We consent to that, Your Honour. I think we indicated last time we would consent to that.
40 HIS HONOUR: Mr Sandford, you may remain seated, there is one further matter. The Crown has made application for a forensic sample. I have ordered that that be way of a mouth scraping as a buccal swab. I have granted that order because of the seriousness of the circumstances of this offending warrant the order, the order is by consent and the granting of the order is in the public interest. I need to inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that blood sample to be taken.
41 I will hand down a copy of the order. You will note that in one aspect it is a bit of a mess in that, in error, I marked the box that related to the prisoner's prior convictions. I have since amended that and initialled that and it is not part of the order.
42 MR KILDUFF: If Your Honour pleases.
43 HIS HONOUR: I hope that appears obvious from the face.
44 MS DUCKETT: If Your Honour pleases.
45 HIS HONOUR: Are there any other matters that need to be dealt with?
46 MS DUCKETT: They're the matters that need to be dealt with, thank you, Your Honour.
47 HIS HONOUR: For those that have been listening through a remote facility I want to thank you for coming to court and for listening to this proceeding. I said at the outset that my reasons will be published under a pseudonym. That means that your father's name will not appear on the reasons but rather someone else's name will appear there as a pseudonym, that is, a fictional name. The purpose of that is to ensure that you cannot be identified in any way and I have drafted my reasons in a way that nobody could possibly identify you from these reasons. That is the purpose for both of those procedures, if I call it that. I hope you understand that.
48 VOICE (from remote facility): Yes, sir.
49 HIS HONOUR: Thank you very much indeed.
50 VOICE (from remote facility): Thank you, Your Honour.
51 HIS HONOUR: We will cut the link to you now. Would you remove the prisoner, please?
52 I would like to thank counsel for their assistance in this matter, it was of great assistance, thank you.
53 MS DUCKETT: If Your Honour pleases.
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