Director of Public Prosecutions v Sandilands (a pseudonym)

[2019] VCC 1343

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

IAN SANDILANDS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	21 August 2019
DATE OF SENTENCE:	22 August 2019
CASE MAY BE CITED AS:	DPP v Sandilands (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1343

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	Ms D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr C. Bowen	Warren Graham & Murphy Pty Ltd

HIS HONOUR:

1Ian Sandilands,[1] you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 and one charge of indecent act with a child under the age of 16.  The sexual penetration is aggravated by the fact that the victim was under the age of ten years at the time of the offending.

[1] A pseudonym.

2That crime in those circumstances carries a maximum penalty of 25 years.  An indecent act with a child under 16 carries a maximum penalty of ten years.  You are now 68 years of age.  You pleaded guilty at a relatively late time.  It is put on your behalf that that plea of guilty is indicative of remorse and I have to take it into account in that way, but it is clear from early materials that there is scant evidence of remorse in your case.

3You must of course get the utilitarian benefit of that plea of guilty.  You have saved the victim from the ordeal of a trial, albeit she had to wait a long time before the plea was to be entered.  There is now a significant delay since the decision to plead guilty and bringing the matter on and I take that into account.

4Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you.

5Secondly, because of the nature of the offending you will be placed on the Sex Offenders Register and I must advise you that the reporting conditions will be for life.  I will just ask my associate if you would not mind to accompany my associate please, Mr Bowen, and get this signed?

6MR BOWEN:  Sorry, Your Honour?

7HIS HONOUR:  Go with my associate to the dock.  I do not ever let them go down there by themselves.

8MR BOWEN:  Sorry, Your Honour, yes.

9HIS HONOUR:  Yes, thanks, Mr Bowen.  The circumstances of the offending are concerning indeed.  You were born in 1950 and you are now 68 years of age.  At the time of this offending you were between 57 and 59 years of age.  The complainant is your step-granddaughter.  At the time of the offending she was aged between six and eight.  You are married to her paternal grandmother.

10Sometime between around 2008 to 2009 she and her family were visiting you at your home in Glenmaggie.  She was allocated a stretcher bed in the lounge room to sleep on.  While she was sleeping you would crouch next her to and ask if you could ask her a question.  You then said, 'It's a very personal private thing and you can't tell anyone about it.  This stays between me and you and you can't tell your nanny'.

11You then asked the complainant if she wanted to have sex.  Her at that stage of course being about eight or nine she said yes.  She then felt you lick her vagina for approximately three minutes.  I am always reluctant to accept a child's estimation of time.  The fact of the matter is that you sexually penetrated your granddaughter or step-granddaughter with your tongue under those circumstances.

12The next morning she woke up and walked down to her grandmother's bedroom.  Her grandmother was in the shower and you were in bed watching golf on television.  She sat on the bed with the dogs and you said to her, 'Remember we can't tell your nanny what happened last night.  This stays to ourselves'.

13A large part of the plea put on your behalf was that you have very little memory of these things.  You have in fact denied them to a neuropsychologist and accused the girl of making it all up.  It is quite clear from that that on that next morning you certainly remembered what you had done.

14Between 1 January 2009 and 31 December 2010 she was again staying at your house in Glenmaggie.  She was sleeping in her Uncle Peter's[2] old room.  She was sleeping on the left hand side of the bed and you were on the right hand side.  You were wearing a singlet, pants and socks.  You got out of bed, took off the pants and underwear and got back into bed and under the covers.

[2] A pseudonym.

15You then partially lifted the covers off and told her that she needed to make your penis go hard.  You then placed her hand on your penis and started rubbing her hand in an up and down motion before taking your hand away.  She then continued to move her arm in an up and down motion for a while and then told you she did not want to do it anymore because her arm was hurting.  Charge 2, indecent act with a child under 16.

16You eventually collected your clothing and left the bedroom.  After that the pair of you were in a car heading to the IGA supermarket in Heyfield.  You asked her if she remembered what had occurred and told her how important it was that she never tell anyone and that you were sorry.

17So one, at least you apologised, but two, it indicates clearly at that stage you knew exactly what you had done.  During March of 2017 she told a childhood friend that she had been sexually abused by you and started crying.  She mentioned two occasions when it occurred.

18In July of 2017 she told her own father's partner at that time that she did not like the surname Sandilands and said it was because it was in your surname that you had sexually abused her.  She apparently at that time burst into tears and was shaking.  She then said what had happened to her.

19Eventually the following day she told her father that you had been sexually abusing her.  Importantly in my view on 31 July 2018 she telephoned you from Moorabbin police station.  That conversation was recorded by police.  During that conversation she asked you why you had sexually assaulted her when she was younger.

20You asked if you could ring her back and then said, 'Oh, God'.  She suggested you go into another room and you said, 'I'm really sorry what happened and I think about it every frigging day what I did'.  You then said to her, 'Look, you took me to the bedroom as well'.

21You obviously were unaware that that was being taped.  I think that is a clear acknowledgement that you knew what you had done and probably, mind you, that does not matter for these purposes, you still do.  For somebody who has been falsely accused of something you did not ask her to go into detail of, 'What am I supposed to have done and what are you talking about?' or any reaction like that.

22Yours is an apology and the assertion you think about it 'every frigging day'.  In my view that clearly indicates you had a memory of it.  Also the extraordinary proposition that she took you to the bedroom as well, which is what is known in this area as victim blaming.

23But in any event during that conversation you also said you were drunk and you do not know what you did and you kept repeating that and you said you could not remember everything that you did to her.  You repeated the apology.  When police specifically asked about the licking of the vagina you said you did not remember but said it could be possible.  This is when you were being interviewed.

24You agreed effectively in your record of interview that something had happened, that you had touched her but you basically said you did not really know what had gone on.  You said you had had a drinking problem and you were not aware of what you had done until the next day.

25You said, 'I just thought I did something.  It's hard to explain.  It was just something that went through my mind that I had done something wrong to Beatrice[3] but I didn't know what'.  You referred to a second occasion and said, 'The other time is when she took me to the bedroom'.

[3] A pseudonym.

26So not only in the pretext conversation but in the record of interview you have a clear memory for some reason, if you did not do anything, of going into her Uncle Peter’s bedroom.  In any event, in that record of interview when she had spoken about being in Peter's room, you claimed that in fact the victim had said to you, 'Don't tell anyone'.

27A preposterous suggestion in my view.  But in any event that is the history of it as it is outlined.  In the formal aspects when you know you are being taped or being interviewed there are no full scale admissions and there is no sense of apology, but to your credit I suppose when you are talking to the girl direct you do in fact apologise to her.

28Cold comfort I suppose when she knows for months or years possibly that she is being called a liar and has now been, from her victim impact statement, excommunicated from a large part of the family.  The offending is very serious indeed in my view.  It calls for the application of general deterrence, denunciation and obviously an appropriate punishment.

29In your situation I think specific deterrence is not all that important because I think it is very unlikely that you would offend in this way again because of the age situation and because of the circumstances of it.  Importantly obviously and it is put strongly on your behalf you have no prior convictions and as I understand it no allegations of anything subsequent.

30There are two victim impact statements one from her and one from her father.  Her father displays anger as much as anything.  Hers, as the Crown pointed out, is a very, very powerful victim impact statement.  She says that the main problem that she has now is that, having had the courage to come forward and disclose what you did to her as a little girl, she is now being blamed for it. She is now being called a liar and she has now been, effectively as I have just mentioned, excommunicated from a large part of the family and held to blame for all this.

31That is one of the consequences of this sort of offending and one of the reasons why the courts treat is so seriously.  She said that she has fear of relationships, that she finds it difficult to be intimate and she is describing many of the symptoms that come from a diagnosis of post-traumatic stress disorder which is quite commonly the result of all this sort of thing.

32She talks about how much she adored her uncles who are now estranged from her and want nothing to do with her.  She points out that she was blocked on Facebook just on her birthday.  I think her victim impact statement brings home how she feels all about this when at one point she says, talking about her nanny which she says has been a very hard thing to accept being rejected by her.

33She said, 'I confided in her heaps.  I sent her a long message regarding how I felt because I needed to let her know how hurt I felt that she doesn't want me in her life anymore.  The only response I got was, "Love you but you know you have problems".  "I'm sorry, but how the fuck do I have problems because of your paedophilic husband, because your paedophilic husband got caught out?"'  I think that is a pretty good summation of it from her point of view.

34I then look to matters personal to you.  It was put on your behalf that a short gaol sentence would be sufficient.  I think the Crown position - they are not allowed to give me a range anymore - the Crown position was that there was a very powerful victim impact statement and clearly what I will be talking about in a moment about the neuropsychologist was there is very little evidence of genuine remorse being displayed other than that pretext call.

35I think that a short gaol sentence would be an utterly inappropriate response accordingly in these circumstances.  I do look at matters personal to you.  Tendered on your behalf was a report from a neuropsychologist, Mr Jackson.  Parts of that report are in terms of whether admissions are true or not it is none of his business, but the fact of the matter is that you clearly do have significant problems that have arisen because of abuse of alcohol over a very significant time.

36He did the testing and he is surprised in fact that you have still retained the functions that you do if the amount of alcohol you claimed to have drunk was in fact what you did drink.  It is clear also that you throughout the years have been able to maintain steady and gainful employment as a welder as I understand it and despite your drinking and despite the material before me of the gross excesses of that drinking you do have a very good work record.

37I take all the matters of Mr Jackson's report into account but they do not give rise to the principles in Verdins, other than gaol being harder for you, and I cannot really take it much further other than you will probably find gaol more difficult with the cognitive deficiencies that you have as a result of that drinking.

38A number of references were tendered on your behalf from various people and friends and people in the area.  There is also one from your wife and it is difficult in these situations because I can understand the nature of relationships and the reluctance to accept what has really occurred, but those references are in my view permeated with the, 'It is all her fault', and you really did not do anything.

39It does not really take it much further rather than indicate or confirm that you do not have any prior convictions, you have never been in trouble like this before and you have never been in trouble like this since.

40Again tendered on your behalf were a number of medical reports and I take them all into account.  I think as Mr Marshall on your behalf pointed out the summary of all that can be obtained from the report of a Dr Robert Stein dated 19 August 2019, so now only some three days ago.

41He described you as in this following situation, that alcohol abuse, he described you having gone through an inpatient detoxification admissions with resulting abstinence, he talks about at this time, this is three days ago, you are currently drinking heavily and he says you are at risk of adverse effects from alcohol withdrawal.

42He talks about how you have gone to counselling and talks about what the consequences of stopping drinking suddenly might be.  He talks about you have a major depressive disorder that has been persistent and evasive characterised by low mood, hopelessness, poor energy, motivation, negative rumination and on occasion suicide ideation.

43There have been hospital presentations due to that and there is obviously a pharmaceutical approach to all that as well.  He said that you continue to have severe depressive symptoms and I take that into account in terms of gaol being harder for you though it does not give rise to any of the other principles in Verdins.

44He also describes the cardiac disease that you have of systolic heart failure, dilated cardiomyopathy and atrial fibrillation and clearly that has symptoms which will be distressing for you.  He indicates that in his report that there is risk of acute alcohol withdrawal.  He said there is also the possibility that your heart condition might deteriorate in gaol and gaol very rarely I accept cures depression.

45Tendered by the Crown was a letter from the Department of Justice and Community Safety which indicates what can be done in gaol and obviously it is a sad thing for a community to have to admit that we have a gaol that is designed towards treating people of your age. There is nothing in what has been put before me that cannot be adequately treated within a custodial environment, bearing in mind that you will almost certainly be sent to Ararat.

46I do take those matters into account.  Mr Marshall pointed out to me a number of aspects about you which is going to make gaol more difficult.  He described how in terms of dealing with you over a period of time he says there has been something of a change in attitude in more recent times and he said that you were examined in fact by the neuropsychologist because he was having difficulty getting instructions from you.

47I accept that there is almost certainly a co-dependency between you and your wife and that it will be difficult for you being by yourself.  I also take into account the fact that even though you might be denying it to family you yourself know that this is all brought about by your doing and if she struggles during the period of your incarceration there is nobody to blame but you.

48The aspects of the neuropsychological report of which I accordingly have real concern were the assertions by you when speaking to the neuropsychologist that, 'There was certainly an angry undertone in his present' - and this is when he is seeing you on 1 August 2018 - 'There was certainly an angry undertone in his presentation due to what these allegations have done to both his working and personal life, especially in the context that he denies that he has done them'.

49Your IQ was 77 which is borderline and this is still within range.  You have mild alcoholic brain damage.  He says later on, 'As mentioned previously
Mr Sandilands reported that he was upset and angry and his mood is affected by all the issues related to the allegations in court'.

50He then talks about how your mother died and I take that into account.  He describes how you had been angry and thinking about killing yourself but you do not think about that anymore.  He said, 'He remains angry about these allegations and cannot understand what the motivation of his step-granddaughter or his stepson are.  He remains very angry towards them as they have ruined his life and work and in the community'.

51I think the fact of the matter is that you ruined her life, Mr Sandilands, not the other way around and accordingly you will be sentenced on that basis.  The prospects of your rehabilitation have to be reasonably good.  As I have said, I think the risk of you reoffending in this way is very low indeed, but when it comes down to it, taking all those matters of good character, et cetera, into account on your behalf, it must be a sentence which reflects the abhorrence of the community to this sort of offending.

52As Justice Hedigan said quoting Justice Marks in the case of R v Sposito put it:

'A society which fails to protect children of sexual abuse by adults, particularly those entrusted with their care, is degenerate.'

53This is analogous to incest, it is not incest obviously, but it is analogous to it.

'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.'

54That includes grandparents and it includes step grandparents in my view.

'It ought to be unnecessary to recount the morbid features of incest, the most prominent of 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 perverted 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.'

55As I said, His Honour there is talking about the actual crime of incest, which this is not, but you were in a position of a grandparent and you were put in a position of caring for your grandchild.  She was under your care and supervision and you essentially I suppose defiled her in the way that has been described.

56As I have said, a short gaol sentence in my view would be a totally inappropriate response to all this.  I am very aware of questions of totality.  I am very aware of your age and the need to avoid a crushing sentence.  I have endeavoured to take those matters into account but it still must be a sentence which reflects, as I have said, the community's abhorrence of this sort of offending and deters any other person who might be likeminded from doing so.

57Accordingly on Charge 1 you are sentenced to be imprisoned for a period of 42 months.  On Charge 2, 18 months.  I direct that six months of the sentence on Charge 2 be served cumulatively on the sentence on Charge 1 which gives an effective sentence of four years.

58I direct that you serve two and a half years before becoming eligible for parole. There is no pre-sentence detention here. Pursuant to s.6AAA of the Sentencing Act I say that but for your plea of guilty you would have been sentenced to be imprisoned for a period of six years with a minimum term of four.

59Are there any other orders I have to make?

60MS O'DOHERTY:  No, Your Honour.

61HIS HONOUR:  Do those figures add up to you, Mr Bowen?

62MR BOWEN:  No, Your Honour, just from the custody management issues but you have already raised those.

63HIS HONOUR:  No, they have heard what I have said.

64MR BOWEN:  Yes, Your Honour.

65HIS HONOUR:  He knew he was going and I am assuming he has got prescriptions and everything with him?

66MR BOWEN:  Yes, Your Honour.

67HIS HONOUR:  Thank you, you can take him now, thank you, gentlemen.

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