Director of Public Prosecutions v Scott
[2021] VCC 2089
•13 December 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-02138
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT SCOTT |
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JUDGE: | HIS HONOUR JUDGE STUART | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2021 (plea) | |
DATE OF SENTENCE: | 13 December 2021 | |
CASE MAY BE CITED AS: | DPP v Scott | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2089 | |
EX TEMPORAE REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty - Indecent assault upon a girl - No prior criminal history – Delay - Offender sentenced as a serious sexual offender - COVID-19 pandemic.
Legislation Cited:
Cases Cited: R v Doran [2005] VSCA 271; Worboyes v R [2021] VSCA 169.
Sentence: Imprisonment for a period of 23 months and 14 days, with 10 months of that sentence to be suspended for a period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms K Hamill (plea) Ms A McVean (sentence) | |
| For the Accused | Mr G Davis (plea) Mr R Thyssen (sentence) |
HIS HONOUR:
1 Robert Scott, you have pleaded guilty to three charges of indecent assault. The maximum penalty for indecent assault at the time was five years imprisonment.
2
The circumstances surrounding your offending are set out in the amended prosecution opening on plea, which became Exhibit 1. The claimant,
Kim Elzaibak,[1] was your step-daughter. These offences were committed whilst you were in a de facto relationship with her mother.
[1] Consistent with the order made on 16 November 2020 at the Magistrates’ Court of Victoria in Melbourne, the complainant’s name has not been anonymised in these reasons, at the complaint’s request.
3 You were born in February 1932 and are now 89 years old. On 2 August 1965 you became a member of Victoria Police. You were placed at various stations, including Elwood from August 1969 as well as Beechworth. Your Beechworth posting commenced in August 1973 and concluded when you were discharged from the police force on medical grounds after some 10 years' service in December 1975.
4
The complainant, Mrs Elzaibak, was born in July 1969. Her mother is
Julia Fraser, and her father is Barry Fraser. Her parents separated towards the end of 1971 and in 1972, when she was three years old, her mother commenced a relationship with you. She had very little to do with her biological father, and so you became her first father figure in her life. Her half-sister Jill Scott was born in July 1973, and it was around that time that you transferred to Beechworth.
5 The family rented a house in Woolshed Road, where they lived until your discharge from the police force in 1975. The family then moved to Everton, a short distance from Beechworth, where you lived in the old station master's house whilst building a house and general store, which opened two years later, in 1977. In mid-1978 Julia Fraser, your partner, left the relationship. She had family members collect her daughters, Kim the complainant, and half-sister Jill, and took them for a week whilst she packed up their belongings. She and her daughters lived in Melbourne from then on.
6 At the time of the offending you were aged between 39 and 46 years old, and your victim aged between three and nine years old. She does not recall any sexual offending against her until you moved from Beechworth to Everton.
7 And so I turn to the circumstances of the offending. On an undetermined date during the relationship between you and the complainant's mother, she observed you with your penis exposed whilst urinating in the toilet. You then placed your penis in her mouth, and that is the subject of Charge 1, indecent assault. The evidence in relation to this offending arises from admissions made by you, which are set out below. This enlivens the principles articulated in R v Doran [2005] VSCA 271, there being admissions by you that establishes that charge.
8 The second charge occurred when the complainant was around five or six years old. She recalls it as being early morning and her mother was already getting ready for work. She and her sister Jill, who at the time was very young, were in the double bed. You were laying between them. A short time after her mother had left the house you turned the complainant onto her left side. You also rolled onto your side and got very close to her. Your penis was erect and you pushed it between her legs from behind, pushing it in and out for a period of time whilst you pressed down on top of her thigh to keep her legs close together. She did not feel any pain but was extremely uncomfortable. You suddenly stopped doing what you were doing. That is the subject of the second charge of indecent assault.
9 In the last incident the complainant was able to particularise occurred when the Everton store had opened. She at that stage was some seven to eight years old. On several occasions, usually the weekends, you would sit in the lounge and listen to Bing Crosbie and Elvis-type music. You had your step-daughter dress in a Hawaiian grass skirt with no other clothes and dance the hula in front of you whilst you watched. You then had her sit on your knee facing the room away from you whilst you put your arms around her and touched her vagina with your hand. That is a context circumstance.
10 On the charged occasion, Charge 3, you had the victim sitting facing towards you. Her legs were straddled either side of your legs, exposing her vagina. You touched her vagina and vaginal lips with your hands. The victim cannot recall precisely when this occurred, however she remembers it was when her mother and you were fighting a lot.
11 As stated, after the relationship between her mother and you ended she took the girls and moved to Melbourne. The complainant and her half-sister Jill went to stay with you for a week during the school holidays. When they returned the mother asked how the holiday was. Mrs Elzaibak started to say something then clammed up. After some reassurance she disclosed that you had masturbated in front of her, commenting “it made white stuff come out”. Mrs Fraser immediately sought legal advice as to how to keep her daughters away from you.
12 In 1979 you commenced proceedings in the Supreme Court seeking access to the children. As part of the court proceedings the complainant attended upon a psychologist, and she recalls telling the psychologist about things that you had done to her. Several affidavits were filed in those proceedings. A later search of the court file revealed two relevant affidavits in which the complainant's mother deposed to the complainant's disclosure of you having masturbated in front of her and you having “made sexual suggestions towards her”. She deposed that when she confronted you about these matters you had denied them and said that if anything the complainant had made sexual advances to you. That, of course, was a complete lie.
13 Further material revealed you referenced this conversation and you denied the allegation that you had masturbated in front of the victim or made suggestions to her, and that she had ever made sexual advances to you. You made reference to the victim having touched you in an inappropriate manner during a camping trip in 1978 “as a result of a childish frolic rather than a precocious manner”, suggesting the victim had “distorted the circumstances” when reporting the matter to her mother, because you had admonished her. And so started the web of lies that were to continue for many years to come.
14 Orders made in the Supreme Court on 7 August 1980 permitted you to have access to both the children once a month and for longer periods during school holidays, provided they had their own bedroom and they did not stay overnight with you without supervision.
15 The complainant's half-sister Jill recalls that when she was around 12 years old, in approximately 1985, the complainant disclosed to her that you had sexually abused the complainant.
16 You subsequently had spent some months in the United Kingdom from late 1981 to 1982, and then migrated there permanently with your mother in May 1985. In 1999 Jill Scott visited you. She discussed the complainant's allegations, saying that she knew about you and Kim, and she wanted to hear from you what had happened. You said that the complainant had been acting “inappropriately” in public and you had bought her a, ‘Where Do I Come From?' type book, which had contained instructions to touch the child in the area that you were reading about, being the genitals. And so the lies became more elaborate. Your daughter Jill was disgusted, telling you that no book would ever say to do that. She left your house shortly thereafter. Other than some brief telephone contact shortly after the visit, she did not speak to you again for some two years.
17 You then discussed the arguments you had had with Jill with your step-son, Stuart Cuffley. You said Jill had accused you of doing some “nasty and unthinkable” things to Kim. You also told Cuffley that you had bought a sex education book when Kim was around seven to eight years old, and taken it “literally”, touching her breasts and vagina when the book referred to those body parts, but that Kim was fully dressed. You told Mr Cuffley that you would only do this when you were drunk.
18 And so time moved on, and in January 2012 your daughter Jill visited you again in the United Kingdom. The two of you argued during the visit, and Jill cut the time she was staying at your house short. However, on the last night there was what she described as “a big talk”. You then admitted to her that one night Kim had watched you go to the toilet, and then you had put your penis in her mouth, which is a reference to, of course, Charge 1. Jill understood from you that you were saying you did this in order to punish or correct the complainant for having watched you go to the toilet.
19 You made a further admission of having touched her whilst at a social gathering with a police friend, who had confronted you about it. You said that you had acted inappropriately and said that you were really drunk at the time. And so the question of your drunkenness is raised as some sort of explanation for your offending.
20 Although your relationship with Stuart Cuffley's mother had ended in 2012, the two of you still kept in touch. Your daughter Jill Scott told Stuart Cuffley of the arguments that they had had. Cuffley spoke to you about the arguments in or around March 2012, you became upset and told Cuffley that Julia Fraser had forced the complainant to perform oral sex on you. In later conversations you denied having made that admission. You maintained your earlier admissions about the sex education book, but in mid-2013 you told Mr Cuffley that the book had been an adult sex education book which you had simply given Kim to read, rather than reading it to her. You said a short time afterwards that you had noticed Kim acting in a sexualised manner, including coming downstairs naked, and that you “couldn't help [your]self”. When Mr Cuffley asked you whether you had fucked a seven year old, you said “I just couldn't say no” and mentioned the drinking problem. You also said, “what are you meant to do if you're having a wee in the toilet and they come along and grab your cock”. Again, a reference to Charge 1.
21 Your avoidance, your lies, your explanations, your excuses thus evolved. You still were not taking responsibility for this heinous behaviour that you had engaged in.
22 In August 2000 the complainant made a statement to Victoria Police, however no further investigative work appears to have been done by police at that time, evidently because you were located overseas. The investigation file was received by the current informant in July 2013, and investigative steps were undertaken, including obtaining statements from witnesses and liaising with United Kingdom authorities regarding locating and interviewing you.
23 The complainant was aware that you had moved to the United Kingdom, and she called you in Christmas of 1991, and told you that you were not to come near her family again. She had no further contact with you until some 15 years later, on 6 February 2016, when she conducted a pretext call to your mobile phone number. During the call you made admissions to having sexually offended against her, saying alcohol had a lot to do with it, and apologised. Amongst other things, you said that you had made the biggest mistake you had made in your life and that you had not done anything like that before. You said that Mrs Fraser had asked you to talk to her, because she started to ask questions that were above her age. You said that “one thing led to another and the body takes over, and I did these wicked, wicked things which I am ashamed of”. You repeated the assertion that you had given her an adult sex education book to read and that his big mistake was starting to explain yourself, and that you then “got carried away” and that the victim “knew the rest”. And finally that you could remember “a few times” there were instances of sexual offending, but that your memory was not as good as it used to be.
24 In November 2014 a police officer, Carolyn Willacy of the Cumbria police force was tasked to establish whether you would attend a police station voluntarily to be interviewed in relation to the allegations. When she told you why she was there, you displayed signs of distress and disclosed that you had a bad heart. You declined medical assistance and requested her to remain with you whilst you digested the information. Although she did not wish to discuss the allegations at that time, you spoke to her at length about the allegations. As you did so, she made some 10 pages of handwritten, contemporaneous notes, which you signed. These notes included the following disclosures made by you;
That the victim had removed your penis from your pants when you needed to go to the bathroom, but your hands were greasy from having worked on a car. Further that the conduct the subject of Charge 1 to the effect that whilst at Woolshed, the complaint had watched you urinating, you had turned around and shown your 'person' in her direction and said boo. She had opened her mouth, according to you, and “it went in [and you] pulled it straight out”. You said that your penis was not erect and that you were disgusted with yourself in relation to that incident. You further disclosed to police officer Willacy that you had given your victim a cuddle when she had jumped out from behind the lounge chair where she was hiding naked.
25 Victoria Police were not informed of this conversation until two years later, in December 2016, by which time other requests had been made to UK police to formally interview you. When formally interviewed by United Kingdom police in the presence of your solicitor on 10 January 2017, you made an interview which was largely “no comment”, and “I don't know”, claiming that you were being “treated at Carleton Clinic for memory”.
26 I have already stated the maximum penalties as being five years at the time. The maximum penalties have significantly increased, and in relation to Charge 1, a penetrative oral act would now attract a maximum penalty five times that five years, 25 years. And the other two charges would now attract a penalty three times the five years, i.e., 15 years. I mention the current maximum penalties, not because they are of any relevance in setting the sentences that I must impose upon you, but to demonstrate that there has been an accumulated wisdom of the gravity of the offending by Parliament, and by the courts, and the general community. I look solely to the maximum penalties as they were then in sentencing you.
27 This offending occurred in the 1970s. What the sentencing practices then were have been lost in time. I therefore do not have the benefit of what were the current sentencing practices then. Necessarily in those circumstances I must proceed with caution, not having the benefit of those sentencing practices and only having the guidance of Parliament's then maximum penalty of five years imprisonment.
28 By dent of your pleas of guilty to Charges 1 and 2 you are to be dealt with on Charge 3 as a serious sexual offender, where, as a result of the legislation, protection of the community becomes the paramount sentencing consideration.
29 I turn to the gravity of your offending. You, as step-father, were seen by her as her actual father. She was but a child. You offended against her in her own home, a place where she was entitled to be and to feel safe. You groomed her, over years, for your own sexual satisfaction. This offending did occur over years. It involved a gross breach of trust by you against her. You were responsible as an adult to protect her. You did the opposite.
30 The complainant Mrs Elzaibak courageously read her eight page victim impact statement, turning in the last paragraph to address you directly. I will extract some passages from that victim impact statement. In doing so I do not do appropriate service to the whole of that victim impact statement, but at least it will give others some understanding of the catastrophic consequences that your offending has had throughout her life that continues, and doubtless will continue, forever in her mind.
31 She started with this:
'When I was little girl you used to be my hero! A father figure, a Police Officer, a person who appeared strong and dedicated with protecting your family and the community.'
32 She continues:
'For someone living in the same household as you, a defenceless little girl, you were not the same person, because there was a deceitful darkness and selfishness that lived deep below the surface of your façade.
On that fateful day, the first time I recall you touching me, interfering with my little body for your own appalling, disgusting pleasure and desires, was the day my childhood was wrongfully stolen from me. It was something I could never reclaim.'
33 The profound effects that your offending has had through her adult life and her life as a mother herself is also revealed, when she continued:
'With each year we celebrated our daughter's birthday, watching her develop and grow, it was a constant reminder of what I had endured at each of those stages. It was battle that raged fiercely deep within me. There it was, the years of abuse, punching me in the face daily with such a powerful force whilst ripping at my heart, knowing of the reminders and the memories of what still lay ahead.'
34 Later she details her struggle in getting the investigation to be commenced or renewed, none of that it can be put at your feet. But it illustrates the inward strength that she utilised in order to get justice.
35 Later still she reflects on this process, saying:
'Throughout this process you have still managed to find ways to hurt me. When you fronted the Westminster Magistrates Court in London for the extradition hearing, and you'd heard that I was in attendance to witness that proceeding take place, you made me pay by stating "I deny all allegations", knowing full well that would hurt like hell.'
36 Whether you meant to do that or not in fact, I don't know.
37 Towards the end and the last page she reflects:
'You’ve had the pleasure of living most of your life carefree, well into your senior years, a luxury many of us could only wish for. Unfortunately, I will never have those same luxuries, because the past 49 out of my 52 years, has been consumed with managing the long term effects of the abuse you inflicted upon me, along with this investigation and judicial process.'
38 As I have said that victim impact statement reflects the catastrophic consequence of your acts on that little girl. They have been for her all pervasive, and are continuing. Even after more than four decades it is plain that your offending is still raw for your victim, Mrs Elzaibak.
39 And so I turn from those matters. I have had the benefit of excellent written and oral submissions made by prosecuting counsel Ms Hamill and by Mr Davis. Appropriate concessions were made by Ms Hamill during the course of her oral submissions as also contained in her written submissions.
40 Since being extradited you have been in custody, the details of which I will come to shortly. Whilst in custody consultant psychiatrist Dr Andrew Carroll has treated you. In his report which became Exhibit RS2 Dr Carroll notes:
'Mr Scott suffers with mild/moderate dementia. There is no evidence of any other mental disorder. He is on medication for dementia, and the diagnosis has been confirmed by formal tests.'
41 Later Dr Carroll continues:
'Mr Scott is physically frail and cognitively disabled; he lacks capacity for independent living and will require supported accommodation of some kind upon release, such as a residential aged care facility.'
42 Psychologist Carla Lechner has prepared a report, which became Exhibit RS1. She comprehensively sets out your personal history, which I do not intend to repeat. She notes that after some initial employment you joined the army in July 1948 until July 1957. During that period of time you saw active combat during the course of what became known as the Malayan Emergency in Malaysia. As is common knowledge, that conflict was a bitter one, involving jungle fighting and guerrilla tactics being used against the international forces sent to Malaysia by both Australia and the United Kingdom.
43 After leaving the army in 1957 you had a taxi truck business and worked as a barman. And next you joined the Victoria Police, as I have already observed, in August of 1965 to December 1975. You then suffered a back injury and as a result left the Victoria Police. Consequential to that back injury, you were only able to work on a part-time basis in odd jobs, as you described.
44 And in 1985 you moved to England with your mother. You worked in a part-time capacity at a hardware store which you supplemented your police pension. Whilst in England you married for a fourth time, which ended after about 17 years, and since then have been living on your own.
45 Medical reports detail your deteriorating health, as evidenced by your high blood pressure and the fact that a pacemaker has been implanted. You have been in prison hospital suffering from a fall, and you reported to Ms Lechner experiencing dizzy spells. In her view, your reporting of a range of symptoms of depression at a clinical level were of sufficient severity to warrant a diagnosis of adjustment disorder with depression.
46 In terms of your exposure to trauma whilst on active duty in Malaysia where you witnessed some very gruesome deaths and also were shot upon, you stated to her 'the psychological effects come back at times'. You believed in your reporting to Ms Lechner that the post traumatic symptoms contributed to your heavy drinking. Ms Lechner refers to a report of a Ms Carrigan, a community mental health nurse, of 2 May 2019 indicating cognitive decline when compared with two years previously. And that you had been diagnosed with mixed type dementia, consistent with the view of the psychiatrist Dr Carroll.
47 You reported to Ms Lechner 'I'm totally ashamed of myself. I'm disgusted with myself'. And so after decades of denial, obfuscation, evasion, excuses, you have finally come to a realisation of the gravity of your offending against your step-daughter.
48 In relation to your history of alcohol abuse, you stated to Ms Lechner that you were drinking heavily 'in the army, and in the police…I was very close to becoming an alcoholic…when this happened (indecent of indecent assault) I said to myself I have to stop drinking…I gave booze away 41 years ago…I had two small glasses of beer thereafter, and that's it'.
49 I am inclined to accept that some part of the explanation for your gross offending was because of your drinking, not that this is any way excuses your conduct, but gives some small explanation to it.
50 On various tests you were assessed as being in the low category of risk of reoffending, an assessment that I accept.
51 Finally, for my purposes, and hopefully for the benefit of Mrs Elzaibak, Ms Lechner wrote in the summary and opinion section, among other things, the following:
'In respect of his offending Mr Scott stated that he could not remember all of the alleged offences, but he accepts the complainant's account and takes responsibility for his actions. He stated that he does not understand his behaviour and finds it disgusting. He expressed shame and regret as well as appropriate victim empathy.'
52 And so decades on you have finally come full circle, and accepted responsibility for your heinous, and as you describe it, disgusting behaviour. That is to your credit.
53 You come before me with no prior convictions, nor any subsequent matters. You are entitled to draw upon your otherwise blameless life to your credit. By dent of your age, 89 years old, your frailty and the absence of any prior offending, specific deterrence, deterring you from further offending, is of no relevance at all, and as much was conceded by prosecuting counsel Ms Hamill, entirely appropriately.
54 By dent of the fact that you have mild to moderate dementia it has also been appropriately conceded by Ms Hamill that you are a less suitable vehicle for general deterrence, that is, deterring others, denunciation of your conduct and just punishment for your conduct. And therefore the sentences that I impose must be moderated in that regard. It is not wholly appropriate to hold you up as a vehicle to others for general deterrence, to discourage others. But, of course, still general deterrence, just punishment and denunciation is, after moderation, sentencing principles that I must and do have regard to.
55 Initially I considered your moral culpability for this offending to be complete. During the course of the plea I have taken a different view, that by dent of your post traumatic stress disorder, your use of alcohol, your moral culpability is not complete, but nevertheless is approaching the high level of moral culpability for what you have done. The fact that for more than four decades you have been abstinent of alcohol does give some credibility to your account that during the course of this offending you were drinking excessively, and that to some small degree that explains, but does not in any way excuse, your conduct.
56 You have served in the armed forces for a period of some 10 years. You have seen active overseas service during that period in the army. You have further served for some 10 years in Victoria Police. These are significant services that you have afforded to the community. And you are entitled to draw upon those matters also to your credit.
57 Once in Australia after negotiations this matter was appropriately resolved. You have pleaded guilty and it is accepted that those pleas of guilty are to be treated as early pleas of guilty by the prosecution. I also accept that those pleas of guilty evidence further remorse for what you have done. Pleas of guilty have always been accepted, not only in terms of potential for demonstration of the mitigating factor of remorse and insight, but also for their utility. The Court of Appeal in the recent case of Worboyes have articulated the utility to be afforded to pleas of guilty during this pandemic. This year I have only presided over two trials, whereas in the past the trials would have been before me essentially back to back. This illustrates the serious consequences that the pandemic has had in effecting the administration of justice. The utility of pleas of guilty cannot therefore be underestimated.
58 As conceded again by Ms Hamill for the prosecution, this matter has been hanging over your head since your interview in the United Kingdom in 2014. There have been significant delays, through no fault of yours, and dare I say, of the complainant either, quite the opposite. That also is an extra-curial punishment that I must take into account in your favour. As well, since your extradition to Australia, you have been in custody with the COVID-19 restrictions affecting you as a prisoner, with the restrictions that have been put in place in prison facilities. This has caused you, of course, the stress and concern that I also take into account.
59 I consider that prison for you is more burdensome than for others in the prison system. You, at the age of 89, are now in Victoria isolated with concerns for your future, there being lingering doubts about your ability to return to England, your home, for decades. It is plain that upon your release you will have need for supported accommodation. There are thus many uncertainties about your future of concern to you and therefore I also must moderate the sentence that I impose upon you.
60 There are 16 days of lost presentence detention. Counting the period from 3 December 2020 when you went into custody as a result of your extradition from the United Kingdom to your placement in New South Wales under quarantine, and coming into the borders of Victoria on 19 December 2020. Those 16 days cannot be counted as presentence detention, and therefore I have decided to adjust the sentence to the base sentence on Charge 1 by reducing the sentence on that charge by 16 days, thus Charge 1 will have a sentence that has an odd period of time.
61 In sentencing you I must also take into account the need for totality, that is, a sentence and sentences which in total are, in my view, appropriate.
62 Taking all these matters into account, on Charge 1 I sentence you to be imprisoned for a period of 19 months and 14 days. On Charge 2 I sentence you to be imprisoned for a period of six months. I direct that two months of that sentence be served cumulatively upon the sentence on Charge 1. On Charge 3 I sentence you also to be sentenced to six months imprisonment, and because you are on that charge a serious sexual offender, it is necessary for me to order concurrency in order to achieve the appropriate sentence, and I therefore, on that charge, order that four months of that period of six months be served concurrently. This produces a total effective sentence of 23 months and 14 days. I direct that 10 months of that 23 months and 14 days be suspended for a period of two years. I declare that but for your pleas of guilty I would have imposed a gaol period three and a half years and set a minimum non-parole period of two years.
63 I declare that pre-sentence detention is 359 days. I declare that you are a sex offender and that you be registered as such for life.
64 Are there any other matters Ms McVean?
65 MS McVEAN: Nothing further Your Honour. As the court pleases.
66 HIS HONOUR: If there are any errors of any particular note, you can tell me now or send an email in due course when I revise my sentencing reasons.
67 MS McVEAN: Certainly Your Honour.
68 HIS HONOUR: Mr Thyssen, is there any further from you?
69 MR THYSSEN: No Your Honour.
70 HIS HONOUR: Now, that notice has to be sent to the prison in relation to the declaration that he is to be registered as a sex offender for life. Finally, Mrs Elzaibak, please just be seated. I thank you for the way in which you have conducted yourself, it has made it easier for me, and I am grateful. 10.30 tomorrow please Mr Rouse.
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