Director of Public Prosecutions v Scrivener (a pseudonym)

[2017] VCC 1693

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES SCRIVENER (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 November 2017
CASE MAY BE CITED AS:	DPP v Scrivener (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1693

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 R. Hammill	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Victoria Legal Aid

HIS HONOUR:

1James Scrivener,[1] you have pleaded guilty to one charge, that between 1 January 1991 and 9 January 1993 you took part in an act of sexual penetration of a child under the age of ten years.

[1] “James Scrivener” is a pseudonym.

2The complainant in this matter is your natural daughter.  I note that your daughter was born in January 1983.  The maximum penalty for this offence is a term of imprisonment of 20 years.

3The circumstances of your offending are as follows.  You were married to the complainant's mother in 1982.  Your marriage had two children, the oldest being the complainant and a younger son.  I am told that the marriage was not a happy one and that there was a final separation in or around 1988 or 1989.  Pursuant to the settlement Family Court orders were in place governing contact arrangements that you had with your two children.  Essentially at the relevant time you had staying access every other weekend, when the children would come to stay with you in your unit.

4On an occasion when your daughter was under the age of ten and staying overnight at your unit, you called your daughter to come and sit with you on the couch and watch TV in the living room.  You then exposed your flaccid penis and encouraged your daughter to fondle it until it became erect.  This she did.  Once erect you then instructed your daughter to, "lick it like an ice-cream".  Again your daughter complied with this request.  You ejaculated into her mouth and then told her to keep it a secret.

5In early 2012 following an argument over family possessions your daughter reported this sexual assault to the police.  She made a partly completed statement in 2012 but found the process too traumatising.  She did not return to complete her statement until 2015.  You were interviewed in relation to this offending on 6 August 2015.  In that interview you made admissions to generalised sexual touching by you of your daughter but denied the allegation of sexual penetration.  There was a committal in November 2016 and you were committed to stand your trial on 16 August 2017.  The matter resolved with your guilty plea to the charge in respect of which you now fall to be sentenced.

6I turn to your personal circumstances.  You were born in June 1949, meaning that you are now 68 years of age.  You work as an interstate truck driver, a profession to which you returned after receiving an injury.  From this work you gain your affirmation.  You live alone in a unit in Geelong.

7Your parents separated when you were aged about four or five.  You were raised by your mother and your maternal aunt and your mother passed away in 2011.  Your mother re-partnered and your stepfather was on occasion physically and verbally abusive towards you.  In other regards your childhood was, in general, unremarkable.  You attended school in Melbourne up to Year 9 and then commenced work.  At 20 you began to drive trucks for a living.  I am told that you take great satisfaction from this employment.  You have no particular physical or mental health issues.

8On the plea there was tendered a report from Mr Jeffrey Cummins, clinical and forensic psychologist, dated 14 November 2017.  Mr Cummins, in his report, describes you as being obsessed with truck driving, and because of this you often sleep in the truck, "and I'm not often staying at the unit in Geelong".  You told Mr Cummins that in 1994[2] you were not directed to participate in any specific offence treatment and told him that you had never received treatment for your offending.  I am told that you sought assistance from a psychiatrist up on being charged with this offence and as a result you felt reassured that you were not attracted to under age females.  That is to say you had no entrenched deviant sexual desires.

[2] See para 14.

9Mr Cummins administered the two recognised actuarial models for risk assessment of future offending and on both the Static 99R and the RSVP models, in conjunction with Mr Cummins' own forensic opinion, you were assessed as being of low risk of re-offending against an under-age female or male.  In consequence, Mr Cummins does not assess you as requiring offence specific treatment.  He went on to observe your apparent frustration that this present charge was not filed against you years ago.  He added your assumption that you will now never have any further contact with your daughter or, for that matter, with your son.  Mr Cummins describes you as a serious and bluntly spoken interviewee.  On the plea it was accepted that you are perhaps not a wordsmith and so your few words should not be taken as indicative of an absence of remorse or an absence of victim empathy.

10As for the particular drivers of your offending, that is to say what made you do it, Mr Cummins was not able to identify.  He did conclude that it was his opinion that you were probably very embarrassed and ashamed concerning your offending and that you are in fact so embarrassed and ashamed that you have already put the offending behind you and are now attempting to move on with your life.  Whilst Mr Cummins is of the view that your level of insight into your offending appears to be limited, your comments in this regard may have reflected a level of shame, embarrassment and regret.

11Mr Scrivener, offending such as this represents not merely a monstrous breach of trust but is also a fundamental betrayal of the duty owed by a father to his daughter.  Your daughter appeared in court on the plea this morning and was manifestly distraught.  Whilst there has been no victim impact statement from her, I proceed on the basis that there have been long lasting effects of your offending.  When such matters come before the courts those who fall to be sentenced can expect to lose their liberty, that is to say to go to prison.  As courts have stated time and time again, a society that does not protect its children is a failed society.  This principle has equal application whether the offending is recent or whether the offending comes from many years ago.

12Therefore principles of general deterrence, denunciation and just punishment come to the fore.  However, Mr Scrivener, in your case I find that there is an accumulation of matters which, taken together, in my view, permit me to take the exceptional course of passing a sentence of imprisonment upon you which would not result in your immediate loss of liberty.  That is to say a suspended term of imprisonment.  I turn now briefly to these accumulated matters. 

13Firstly, the history of the complaint.  At some point in 1993 and therefore after the offending to which you have this morning pleaded guilty, your daughter began to act out.  Her behaviour was noticed by her mother and she was asked about it.  Your daughter stated that, "Dad had been doing bad things".  At the same time her behaviour was noted by her school and discussions then took place between the school principal and your former wife, the complainant's mother.  As a result police were contacted and your daughter was interviewed.  In the interview your daughter made no complaint of any wrongdoing by you against her.  You, however, were interviewed and in that interview made admissions to having your daughter touch your penis and genitals when you were showering together.

14On the basis of those admissions three charges of committing an indecent act with a child were brought against you and you were dealt with for them in the Williamstown Magistrates' Court in April 1994.  You were sentenced to a term of imprisonment of three months to be served by way of an intensive Corrections order.  The allegation contained in this current charge was not put to you in your record of interview, nor was it at that time known to the prosecution authorities.  I make very clear, lest there be any doubt, that no blame can be attached to your daughter for failing to disclose this matter at that time.  It is well known that those who are victims of abuse, particularly when it takes place within the family, are often conflicted as to their emotions and their responses, and it is recognised that it may take many years before these victims have the emotional strength and courage to make such disclosure.

15However, I do accept that you may have a sense of grievance that these matters were not raised and dealt with at that time.  This offending is broadly contemporaneous with the early offending for which you were dealt with in 1994.  At some point in 1998 your daughter's mother, your former wife, read a diary that your daughter had written and in that diary were passages referring to her, your daughter, performing oral sex on someone else apart from a boy who was named in that diary.  Your daughter had told a friend prior to your mother's discovery, that is to say reading the entries in the diary, that you had abused her by putting your penis into her mouth.  Your daughter's mother and the friend spoke to each other and as a result of these disclosures the police were contacted.  When spoken to by the police in 1998 your daughter made clear that she did not wish to discuss these allegations and then emphasised that the entry that she had made in her diary had been a fabrication.  Again, can I make it clear that whilst no blame can attach to your daughter, it is clear that another opportunity to prosecute you for this offending went by, and again I accept that you may have a sense of grievance in that regard.

16As I identified earlier, following on from a row between you and your daughter, a partial statement was made by your daughter to police in 2012.  It was the completion of that statement in 2015 that set in train the prosecution of the charge for which you now fall to be sentenced.  Can I again stress that no blame is to attach to your daughter for her reluctance and/or inability to make a full complaint of the extent of the abuse that you have perpetrated upon her until later in her life.  However, the history that I have outlined brings with it certain consequences which, in my view, redound to your benefit and enable my sentencing discretion to be exercised so as not to confine you to prison.

17Firstly, delay.  Some 25 or so years have passed since the offending.  This has enabled you to demonstrate your rehabilitation.  You have committed no further offending of a comparable nature.  Indeed, you have committed no further offending at all and have gone on to live a respected and hard working life.  The effect of delay in your case means that your prospects for rehabilitation are no longer prospects regarding the future, but have been proven in terms of the life that you have lived since you offended against your daughter.  Of course the other side to that proposition is that you have had a life free from the opprobrium that these accusations bring with them.

18However, you already served a term of imprisonment within the community for comparable, although less grave, offending against your daughter from the same period of time.  Had this offending surfaced in 1994, whilst the disposition would have been more serious, it becomes, in my view, a matter of speculation as to how you would have been then sentenced by the court.  Authority would require me to have regard both to current sentencing practices for offending of this nature, but also to sentencing practices that were extant at the time, and it is always a very difficult exercise to try and identify how matters of this nature would have been dealt with in the past.  Nonetheless it is clear that you have been deprived of the opportunity of having all these matters dealt with many years ago.

19I turn to your risk assessment.  Mr Cummins has assessed you as being at a low risk of re-offending.  This is a professional opinion which I have found to be of great assistance.  Therefore notwithstanding that by virtue of your earlier conviction you fall to be sentenced as a serious sexual offender, I am of the view that the community does not require protection from you.  I have, of course, considered the need for community protection, as statute requires me to do.  I am comforted, in my view, by the fact that the prosecution does not seek a disproportionate sentence in the circumstances of your particular case.  You will, of course, be sentenced as a serious sexual offender.

20Your Plea of Guilty

21As accepted again very fairly by the learned prosecutor, Mr Hammill, in the course of the plea, your plea of guilty entitles you to significant benefit in terms of a sentencing discount.  Firstly, of course, you have spared your daughter the trauma of having to give evidence, and by giving that evidence, having to relive the abuse committed on her by you.  Now, whilst such an impact upon complainants and victims goes hand in hand with the adversarial process in our system, the courts will always give significant discount to those who by their plea of guilty remove the need for the victims to relive the trauma by giving evidence afresh.

22But secondly, in my view, the benefit to be afforded to you for your plea is beyond the merely utilitarian, that is to say beyond the benefit that comes with having saved the court's time, expense, money and the like.  Your plea, in my view, is indicative of significant remorse.  Whilst you may not have the language to express your genuine remorse, your actions have, in my view, done the talking for you.  I give you the benefit of your plea, notwithstanding that matters resolved after the committal.  There is, in my view, a compelling and overriding public policy interest in resolution of such matters.

23The Prosecution Concession

24In the course of the hearing learned counsel, Mr Hammill, for the prosecution, identified to me that a suspended sentence was an available option, although in accordance with authority, he remained dutifully silent as to the appropriateness of such a disposition.  Appreciating Mr Hammill's assistance and his discretion, I am comforted in the exercise of my sentencing discretion by the prosecution's silence.

25Mr Scrivener, in sentencing you I must have regard to a range of different factors.  I must give effect to principles of both general deterrence and specific deterrence.  That is to say I must deter others from behaving as you have done and I must deter you from repeating such behaviour.  I must also express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation.  I take into account the effect that your crime has had upon your daughter and I must have regard to current sentencing practices as determined and described by the Court of Appeal for the kind of offence that you have committed.

26In short, my task is to try to balance your personal circumstances, as I find them, with the circumstances of your offending, as I find them.  Clearly in your case principles of general deterrence and denunciation and just punishment are primary sentencing considerations in this case.  However, having regard to all of the matters advanced on the plea, as stated above, I have come to the conclusion that there is an accumulation of factors which, taken together, permit me to take the exceptional course of passing a sentence of imprisonment upon you which would not result in your immediate loss of liberty.  That is to say a suspended term of imprisonment.  If you would stand up, please, Mr Scrivener.

27On Charge 1, taking part in an act of sexual penetration with a child under the age of ten years, I sentence you to a term of imprisonment of 18 months, which is wholly suspended for a period of two years. You are sentenced as a serious sexual offender, pursuant to s.6 of the Sentencing Act 1991, and pursuant to s.6F of that Act I direct that this be entered into the records of the court.

28Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty you would have been sentenced to a term of imprisonment of 12 months. Pursuant to s.34(1)(c)(ii) of the Sex Offenders Registration Act 2004, you are now a registrable offender for the remainder of your life. That is to say you must comply with the reporting obligations under Part 3 of the Sex Offender Registration Act for the rest of your life.

29If you wait there, you can take a seat, Mr Scrivener, there will be a document for you to sign. You can take a seat, Mr Scrivener and I will have something to say once the document is produced. Mr Hammill, I have been greatly assisted by your assistance. When looking at the Act I assumed that I had it right at s.34(1)(c)(ii).

30MR HAMMILL:  I do not know about the Roman but, yes.

31HIS HONOUR:  You do not know about the numeral or the Roman bit?

32MR HAMMILL:  The Roman numeral.

33HIS HONOUR:  All right.  As both counsel have probably realised, I was concerned to craft the sentence and cover all bases.  I was also, in the reading of it, very concerned to ensure anonymity.

34MR HAMMILL:  Indeed.

35HIS HONOUR:  That was why I was really describing matters in terms of family relationships.

36MR HAMMILL:  Yes, Your Honour.

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HIS HONOUR:  I shall return to it and ensure it is sufficiently anonymised.  It seems to me this is a sentence that is not fit for publication but if you,

Mr Hammill, or more importantly, or as importantly, your instructor wishes to have a copy of my sentencing remarks, please get your instructor just to contact my associate.

38MR HAMMILL:  Yes.

39HIS HONOUR:  And I will give one, and if it is unrevised I will make very clear, or my associate will in due course.

40MS SWINEY:  As Your Honour pleases.

41HIS HONOUR:  And the same goes for you, Ms Swiney.

42MS SWINEY:  Yes, Your Honour.

43MR HAMMILL:  And Your Honour will, through Your Honour's staff, return the forensic sample order, I understand.

44HIS HONOUR:  That was signed by me this morning.

45MR HAMMILL:  Yes.  I do not know whether we got it back.  I have spoken at length with the complainant, Your Honour.  She is visibly and understandably distraught.  These were matters that were always, in some way, were always going to be as they are for her.

46HIS HONOUR:  Yes.

47MR HAMMILL:  And we are grateful that Your Honour has listened to what has been said and made the observations that Your Honour has made.

48HIS HONOUR:  Yes.  Clearly the victim has a part in the process, can I make very clear?  Although, as I say that I say no more.  I can only express the hope that there can be some healing in the future.  Ms Swiney, if you want to go with my associate.

49MS SWINEY:  Yes, Your Honour.

50HIS HONOUR: So, Mr Scrivener, what is happening now? That is all right. You do not need to stand. You have been taken a document which is, in short form, saying that you recognise that you have been told that you are now subject to the provisions of the Sex Offenders Registration Act and the obligations that come with it. So your signature will be taken, a copy will be made for the court and the court will keep the original. A copy will be made for your legal representatives and it is important, as I know your counsel will make clear to you, the obligations that come under the Act are once a year you have to go down to your local police station, a nominated police station, and give them details of your address, your occupation, vehicles, if you contribute in any social media platforms, your usernames, your passwords and the like and Ms Swiney will take you through the obligations.

51Failure to meet those obligations is a criminal offence.  They are always prosecuted unless you have very, very good reason need you will come back in front of me and be dealt with for the offending.  I see you shake your head.  I hope that your confidence is well founded but listen to Ms Swiney when she, after I have risen, takes you through the obligations, all right.

52Mr Hammill, do you and your instructor want a copy?

53MR HAMMILL:  I am sorry, Your Honour.

54HIS HONOUR:  Do you and your instructor want a copy?

55MR HAMMILL:  No, Your Honour.

56HIS HONOUR:  No.  Twelve pages.  Three copies are being made so we are going to have the noise of the photocopier.

57MR HAMMILL:  That is not too bad.

58HIS HONOUR:  Mr Scrivener, you can come out of the dock and sit in the body of the court, to the right side of the court.  Mr Hammill and Ms Swiney, many times when I sat at the Bar table - sorry, you do not need to get up, Mr Hammill, I would hear judges thank counsel for their assistance and I wondered always if it was merely just a pro forma.  Now I sit at this Bench I appreciate the value of it and I thank you both and your instructor, Mr Hammill, for enabling this case to be dealt with in this way.

59MR HAMMILL:  Thank you, Your Honour.

60MS SWINEY:  As Your Honour pleases.

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