Director of Public Prosecutions v Sharp (a pseudonym)

[2021] VCC 829

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

HAROLD SHARP (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April & 7 June 2021
DATE OF SENTENCE:	18 June 2021
CASE MAY BE CITED AS:	DPP v Sharp (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 829

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Sentence – sexual penetration of a stepchild – plea of guilty
Legislation Cited:           Sentencing Act 1991 (Vic)

Sex Offender Registration Act 2004 (Vic)

Sentence:Four years and four months imprisonment with a non-parole period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms K. Westlake	Office of Public Prosecutions
For the Accused	Mr C. Pearson	Adrian Paull Criminal Lawyers

HIS HONOUR:

1Harold Sharp,[1] you have pleaded guilty to one charge of sexual penetration of a stepchild (Charge 1), for which the maximum penalty is a term of imprisonment of 25 years.  The standard sentence for the offence is a term of imprisonment of 10 years.

[1] A pseudonym.

2Tendered on your plea was a Summary of Prosecution Opening (Exhibit 1) setting out the agreed facts of your offending.

Circumstances of offending

3In brief, the circumstances of your offending are as follows.

4Your victim in this matter was Charlotte Williams.[2]  Charlotte was the biological daughter of your long-term partner Lisa.[3]  At the time of the offending you, your partner Lisa and Charlotte, together with Claire[4] (another daughter of Lisa from a previous relationship) and Taylor[5] (the biological son of you and Lisa), all lived together as a family unit at a home in Ballarat.  You were a parent to all three children and your offending occurred at this address.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

5On three occasions between 20 December 2018 and 31 August 2019, when your family was camping out in the lounge room and when Charlotte was sleeping next to you, she woke up to find you touching her buttocks with your hands inside her pants.  Charlotte described your hand as, 'Wiggling my butt and rubbing it, making me feel very uncomfortable'. Charlotte did not tell anyone about this touching as she thought it would stop.  These uncharged acts provide a context for your offending,  though you are not to be sentenced for them nor do they aggravate in any way the offending for which you are to be sentenced.

6On 31 December 2019, the family was at home.  Lisa’s mother, Lana, was also staying with you over the holiday period.  During the course of the day, you sat in the yard and drank a large quantity of beer and Jack Daniels and Coke.  You remained outside and did not join the family at mealtimes.  You sat with the family for the midnight countdown, then stayed up drinking after the family had gone to bed.  Charlotte went to sleep with Lisa in the bed that you and Lisa would usually share.  You indicated to Lisa that you were staying up and that you would go and sleep in Claire’s room if Charlotte was still in your bed when you were ready to retire.  

7You stayed up until at least 4:00 am before eventually getting into your bed where Charlotte was sleeping between you and Lisa.  You reached over to touch Lisa who did not react.  At about 6:30 am Charlotte awoke to your hands in her underwear, rubbing her buttocks and vagina.  You then penetrated her vagina with your finger.  Charlotte believes the penetration lasted for a couple of minutes.  The penetration ended when she hit you with a beanie and ran out of the room (Charge 1).

8Lisa awoke to Charlotte throwing the blanket off the bed and running from the bedroom.  She asked you what was happening, but she could not understand your answer.

9In the kitchen, Charlotte told her grandmother Lana that “Daddy touched me inappropriately.”  Lisa entered the kitchen to find the Charlotte, “in hysterics.”  When Lisa asked what was wrong, Charlotte again stated that you had “touched [her] inappropriately.”

10When Lisa returned to the bedroom to confront you, you said that you had mistaken Charlotte for Lisa.  Lisa told you to leave the house.  You then said that you “had to go and fix this.”

11You immediately left the house and walked to the Ballarat Police Station, where you told the surprised constable on Watch House duties that you had done “something I shouldn't have”, and that you needed to talk to someone about it. You were visibly distressed and emotional.  Shortly after you were interviewed and in that Record of Interview you confessed to the charged offending against Charlotte.  You have never sought to avoid responsibility for those acts, always intending to plead guilty.  However, issue was taken by you - at least initially – with the earlier uncharged sexual assaults and whether they should form part of the Prosecution Opening.  Those concerns resolved after a Judicial Case Conference.

Victim Impact Statements

12Exhibit 2 on the plea was a Victim Impact Statement from Lisa, your then partner and Charlotte’s mother.  She speaks of feeling “like a failure as a mother to my kids.”  She talks of the severe depression and anxiety which resulted from your offending, and of her need for medication.  She writes:

“I don't have any vision for the future as I have to take day at a time as each day is different.  I haven't had a normal day since.”

13Exhibit 3 on the plea was a Victim Impact Statement from Charlotte’s biological father, Allen.[6]  Before the offending, he would tell Charlotte to behave as, in his words, you were as much a father to her as he was.  His immediate response on learning of the offending was to feel confused and angry and to experience an overwhelming sense that he had failed his daughter; failed to keep her safe.  He speaks now of his need to control his anger and of his close watching of his children and of being overprotective of them, all as a direct response to, and consequence of, your offending against Charlotte.

[6] A pseudonym.

14While such statements cannot be allowed to overwhelm the sentencing exercise, no one can be in any doubt as to the devastating and dramatic impact of your offending.

Personal Circumstances

15I turn now to your personal circumstances.

16You were born in January 1985 and are now 36 years of age and were 34 at the time of this offending.  You have no relevant prior matters.  You are the youngest of three children.  When you were 18 months old, your mother left the family home.  Your contact with your mother from then on was sporadic and always on her terms.  In short, she was never there for you.  It is clear, from the material in front of me, that you have been left with a lasting sense of abandonment which has impacted upon your personal development and which throughout your life you have sought to address by abusing both cannabis and alcohol.

17Your father did his best to take care of you and re-partnered when you were 11 or 12 years of age.  To begin with you resented his new partner as an intruder into your family unit, but you came to understand and accept his new relationship.  You described your father as a “strict and firm man”, who, although not nurturing, did his best for you and you still have a close relationship with him. Your father has continued to support you during this prosecution, for which you are very appreciative.

18Your family moved repeatedly during your childhood, which had an adverse impact upon your education.  You left school in Year 9 and left home shortly thereafter.  You met Lisa, the mother of your victim, when you were 27 years of age and living in New South Wales.  You then moved as a family to Victoria.  Your son Taylor, now aged 5, has been diagnosed with autism.  Despite earlier periods of unemployment, you have always worked to support your family.

19Over the years you have been a heavy cannabis user and a problematic abuser of alcohol, an attempt by you, so it seems, to address your chronic low self-esteem.  Prior to the offending, you had a period of unemployment where you again began to drink heavily.  However, you had recently found employment and Lisa describes the positive impact for your self-esteem of having a job and a purpose.  You appeared to cut back on your drinking. It remains unclear why on the day of the offending you drank to the degree that you did.

20In 2017 you sought help to try and address your substance abuse.  Since being charged with these matters you have lived with your father.  You have continued to work full-time, to enjoy weekend access with Taylor and you have continued to meet your financial child support obligations.  Since being remanded in April of this year you have been in a protection unit, but nonetheless completed programs.  In the words of your counsel, Mr Pearson, “you found the going tough but settled into the rigours of the prison regime.”

21Exhibit 5 DH was a report from Ian McKinnon, consultant psychologist, dated 27 March 2021.  Mr McKinnon noted your low self-esteem. He writes,

“In my opinion, some of the identifiable antecedents to Mr [Sharp’s] mental health problems include issues that date back to his formative years, including:  the breakdown of his family of origin, parental abandonment, an insecure maternal attachment, exposure to paternal substance abuse, difficulties associated with living with a large blended family and the ultimate demise of this family unit and learning difficulties that adversely affected his formal education and vocational pathways.”

22You reflected on your offending in interview with Mr McKinnon, telling him,

“I drank too much alcohol.  I still vaguely remember, but not much.  Even though I drank a lot, I take full responsibility for my actions … I punish myself every day now.  I feel disgusted with my actions. I lost the trust and love from her and multiple other people I've hurt by my actions… I just fucked up, real bad.  I'm still trying to fathom how it all happened … [Lisa] and I were only having sexual relations once in a blue moon. But that's no excuse for my actions.”

23Exhibit 7 on the adjourned plea was a court ordered report from Dr Michael Davis, consultant forensic and clinical psychologist at Forensicare, dated 20 May 2021.  Dr Davis confirms your personal history and that you appeared to be of below average intellectual functioning.

24You told Dr Davis,

“I'm the one who messed up… mainly because alcohol played a big factor, I abused her that day.”

25You also expressed deep regret for your actions and your awareness of the impact of your offending upon your victim.  In Dr Davis' opinion you are a diagnostically complex individual.  You meet the criterion of persistent depressive disorder – that means chronic (long lasting) depression, but usually not of sufficient magnitude for a major depressive episode.  Currently I understand your symptoms are being effectively managed by antidepressant medication.

26Echoing Mr McKinnon, Dr Davis estimated your childhood experiences to have had a profound effect upon your development.  He writes,

“It is my opinion that Mr [Sharp’s] difficulties with depressed mood and anxious distress have occurred on a foundation of a damaged personality structure that has been complicated by early onset and chronic substance misuse.  Indeed, his narrative suggests very insecure childhood attachments and a poor sense of identity.”

27Further you have prominent avoidant, borderline and, to a lesser extent, dependent personality features, which personality traits make you particularly prone to developing reactive symptoms of depressed mood and anxiety.

28As for your offending, Dr Davis writes,

“It is my opinion that Mr [Sharp’s] offending behaviour places him towards the situational end of the continuum [of sexual offending against children] and reflects a regressed pattern of offence behaviour.  The regressed pattern involves an offender with low self-esteem and poor coping skills who turns to children as a sexual substitute for their preferred peer sexual partner.  Incest offenders are often characterised in this way, particularly when there is little in the way of a current sexual relationship with their adult partner.  Alcohol intoxication likely played a role in Mr [Sharp’s] sexual offending against his stepdaughter by lowering his inhibitions to the point that the regressed pattern of behaviour more readily occurred.”

29Significantly, Dr Davis concludes that you are unlikely, “to have a preferential sexual interest in pre-pubescent or young pubescent children.”  That means that is not where your sexual interest lies.  You currently present a low to moderate risk of sexual re-offending.  You would benefit from treatment targeting your chronic symptoms of depressed mood and anxiety, alcohol and drug dependency and sex offender treatment.  As for your insight into your offending, you focused almost exclusively on the role of alcohol abuse.  But Dr Davis is quite clear that while alcohol played an important role in your offending, it is not the reason that it occurred.  In other words, Mr Sharp, in treatment you would have to look behind the alcohol.

Submissions of Counsel

30I turn briefly to the submissions of counsel.

31Ms Piggott, learned counsel on behalf of the Director, submitted correctly that general deterrence and denunciation had a prominent role to play in the sentencing exercise.  Your offending was below the mid-range of seriousness for offending of this kind.

32The objective gravity of your offending could only be met by an immediate term of imprisonment with a non-parole period.

33She accepted your plea was entered at an early, but not the earliest, opportunity.

34While your offending was of short duration, it consisted of an assault upon your victim while she was asleep in the apparent safety of her parents' bed.  The effect of your actions upon your victim was one of immediate distress, and with lasting impact as the Victim Impact Statements make clear.

35Ms Piggott accepted that your actions in immediately presenting yourself at the police station demonstrated a genuine and immediate remorse rarely encountered in these courts.

36On your behalf Mr Pearson, of counsel, conceded that your offending required an immediate term of imprisonment with a head sentence and a non-parole period.  In mitigation of your sentence he relied upon the following:

(a)   Your offending was absent of many of those aggravating features so often encountered in these courts,  in that:

·your offending was of short duration;

·your offending was situational; 

·your offending was not premeditated;

·there was no use or threat of physical violence; and

·nor did you place your victim at risk of sexually transmitted disease.

(b)   Mr Pearson further relied upon your plea of guilty:

·as evidence of your willingness to facilitate justice which was of particular value to the Court with our backlog in the time of COVID;

·your plea of guilty as bringing with it the utilitarian benefit of saving the community the time and cost of the trial and also, most importantly, of saving your victim from the trauma of having to give evidence against a parent about deeply intimate and personal matters; and

·your plea of guilty as evidence of remorse

(c)   Mr Pearson also relied upon your remorse separately from your plea – as evidenced by your immediate presentation at the police station, your distress at that time, your admissions in the Record of Interview and your remorse as reported by you to both Mr McKinnon and Dr Davis.

(d)   Your prospects of rehabilitation for which there are grounds for optimism, he submitted, having regard to your limited criminal history, your continued family support, that is of your father, your employment opportunities and your preparedness and readiness to engage in treatment.

(e)   Lastly, he urged upon me your assessed low to moderate risk of re-offending.

Objective Gravity

37Mr Sharp, offending against children will always be viewed by the courts as serious offending.  There has been a growing recognition by the courts of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived.  Children who have been sexually offended against have had their innocence and their sense of self stolen from them.  They blame themselves for acts committed against them by adults, but for which they are completely without blame.  They struggle to engage in healthy relationships.  They struggle to find their place in the world. Crimes against children are quite simply crimes against our common future and our common humanity.  The courts have said time and time again that they will do everything within their power to protect children.

38Your family had gathered together to celebrate New Year.  Rather than celebrate with them you kept yourself apart, drinking alcohol throughout the whole of the day and into the night.  No attempts by your partner, Lisa, could persuade you to leave the comfort of the bottle.  Your partner and your daughter had retired and were asleep when you climbed into the same bed, even though you had earlier indicated you would sleep elsewhere.  With your partner Lisa but inches away, you penetrated the vagina of your victim.  You were her parent, she called you “Daddy”, and yet you offended against her in the very heart of the home, the bed where she slept with her mother and where she had every right to feel safe and secure.  Mr Sharp, it was a complete physical and emotional violation of your victim.  It was a brazen and shocking breach of the trust placed in you both by your partner and by Charlotte.  Sexual offending against a child within a family context is quite simply a betrayal of parental love.  It tears families apart with lasting impact – as again, the Victim Impact Statements in this matter make only too clear.  Alcohol, I have no doubt, played some part in your offending, but as you well know, Mr Sharp, that cannot be an excuse.  

39Mr Sharp, sentencing is not about revenge.  Sentencing is not about retribution.  Sentencing cannot give back to victims that which they feel they have lost or has been taken from them.  In sentencing you I must have regard to a range of different factors.  I must give effect to principles of both general and specific deterrence.  That means I must consider the need to deter others from behaving as you did and I must consider the need to deter you from any repeat of such behaviour.  I must express the community's denunciation of your conduct.  That is to say we as a community will not tolerate this.  I must consider the need to protect the community from you.  I should promote, if possible, your rehabilitation.  I must take into account the impact of your offending upon your victim. I must try to balance your personal circumstances with the circumstances of your offending.

40I must also take into account the fact the sexual penetration of a step-child is a standard sentence offence and have regard to the standard sentence of 10 years and current sentencing practices under that sentencing regime.  I am required by law to pass no greater sentence than is necessary in all the circumstances of the case as I find them to be.

41I have had regard to all of the matters urged upon me by Mr Pearson, learned counsel on your behalf, and to the fair concessions made by Ms Piggott, learned counsel for the Director.

42Clearly general deterrence, denunciation and just punishment are primary sentencing purposes.  However, in your case there are, I find, factors warranting significant mitigation, that means significant reduction, of the sentence which would otherwise be appropriate to pass upon you.  These include:

·My finding that your offending, although serious, was absent the aggravating features so often found in offending of this kind and as identified by Mr Pearson in his submissions to me; and

·Your plea of guilty which I regard as having been entered at the earliest opportunity, with all the benefit to you that such an early plea brings and which I accept stands as an indication of your remorse.

43Further and in addition I find you to be - and to have been - truly remorseful for your offending. This finding is evidenced by:

·your immediate presentation to your local police station to tell them of what you had done, things of which they were not aware and indeed things of which they might not have become aware;

·your manifest distress at the time; and

·your comments and observations made consistently to Mr McKinnon and to Dr Davis.

44Your remorse, I find, was not only immediate but remains deeply and genuinely held.  I am satisfied that your remorse is of an exceptional degree which must be reflected in the sentence that I impose upon you.

45I further find that whilst your insight into your offending needs to move beyond the focus upon alcohol, you are unlikely to offend again and thus there is little need in your case for specific deterrence.  Your remorse will drive you to engage in treatment and to do everything you can to avoid any repetition of your offending.

46I view your prospects for rehabilitation with some considerable optimism,  having regard to the above matters, to your ongoing family support and to the assessed risk of re-offending.

47And the above findings permit me to pass a sentence upon you well below standard sentence for this offence.

Sentence

48On the charge of sexual penetration of a step-child, you are sentenced to a term of imprisonment of four years and four months.

49I direct you must serve a period of three years before you are eligible for parole.

50I declare pursuant to s 6AAA of the Sentencing Act 1991 that had you not pleaded guilty you would have been sentenced to a term of imprisonment of seven years and four months, with a non-parole period of five years and three months.

51Pursuant to s18(4) of the Sentencing Act 1991, I direct that you have served 72 days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.

52Pursuant to the provisions of the Sex Offender Registration Act 2004,  you are now a registrable offender subject to the reporting conditions of the Act.  And the period of reporting is 15 years.