Director of Public Prosecutions v Sharpe (a pseudonym)

[2022] VCC 762

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

WESLEY SHARPE (A PSEUDONYM)

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	17 May 2022
DATE OF SENTENCE:	27 May 2022
CASE MAY BE CITED AS:	DPP v Sharpe (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 762

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — incest — sexual penetration of a stepchild — attempted sexual penetration of a stepchild — attempt to pervert the course of justice — course of conduct — plea of not guilty — directed acquittal — jury verdict — standard sentence offence — stepchild — interference with witness — withdraw complaint — vulnerable victim — breach of trust — moral culpability — religion — alcohol abuse — compromised cognitive functioning — risk of sexual recidivism — prospects of rehabilitation — no criminal history — prior good character — deportation — general deterrence — specific deterrence — denunciation — protection of the community — sex offender registration

Legislation Cited:      Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:Clarkson v The Queen (2011) 32 VR 361; Director of Public Prosecutions (Vic) v Dalgliesh [2016] VSCA 148

Sentence:                  Total effective sentence of 12 years with non-parole period of 9 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms P Thorp (for plea) Ms A McVean (for sentence)	Solicitor for the Office of Public Prosecutions
For the Accused	Mr J FitzGerald (for plea) Mr L Dean (for sentence)	Slades & Parsons Criminal Law

HER HONOUR:

1Wesley Sharpe,[1] you were indicted on two charges of incest, four charges of sexual penetration of a stepchild, one charge of attempted sexual penetration of a stepchild and one charge of attempting to pervert the course of justice.

[1] A pseudonym.

2You pleaded not guilty to all charges. I directed your acquittal on the two charges of incest (charges 1 and 3) and on one charge of sexual penetration of a stepchild (charge 5).

3You were convicted by jury verdict on all other charges and now fall to be sentenced on three charges of sexual penetration of a stepchild (charges 2, 4 and 6). Charges 2 and 4 are course of conduct charges. Charge 6 is a standard sentence offence. You also fall to be sentenced on one charge of attempted penetration of a stepchild (charge 7) and on one charge of attempt to pervert the course of justice (charge 8).

4The maximum penalties for these offences are 25 years’ imprisonment for the offence of sexual penetration of a stepchild; in respect of charge 6 the standard sentence for the offence is 10 years; 20 years’ imprisonment for the attempted sexual penetration of a stepchild; and 25 years’ imprisonment for the charge of attempting to pervert the course of justice.

5Sexual penetration of a stepchild is also a category 1 offence under the Sentencing Act 1991 (Vic) and a custodial sentence must be imposed unless a special reason exists. There was no submission made that a special reason existed and, indeed, it was accepted by your counsel that given the seriousness of your offending, a custodial sentence was inevitable.

6Your victim is your stepchild Hannah Bevan.[2] Hannah was aged between 11 and 13 when you offended against her. She is the daughter of your former partner, Naomi Cortez.[3]

[2] A pseudonym.

[3] A pseudonym.

7You began a relationship with Ms Cortez in 2012. Ms Cortez had three children, including Hannah from a previous relationship, and you and Ms Cortez went on to have three children together. You, Ms Cortez and the six children all lived together and all the children regarded you as their father and called you ‘Dad’.

8The circumstances of your offending against Hannah are as follows.

9You began sexually assaulting Hannah when she was 11 years old. After the sexual assaults began, you told Hannah not to tell her mother and told her not to tell anyone what was happening between you.

10The family owned a black four-wheel drive vehicle. You would take Hannah with you when you drove around. On several occasions when you were in the car alone together, you inserted your fingers into Hannah’s vagina (charge 2 — sexual penetration of a stepchild, course of conduct).

11On about five or six occasions when you were in the car with Hannah, you reclined your seat and told Hannah to suck your erect penis as you pushed her head down onto it (charge 4 — sexual penetration of a stepchild, course of conduct).

12Sometime in around 2017 or 2018, Hannah told her mother that you had touched her private parts. Ms Cortez confronted you and you apologised, asked for forgiveness, and said that you would not do it again.

13Hannah said that she would forgive you. It seems that you stopped your sexual abuse of Hannah until late 2019. It was one of Hannah’s sibling’s birthday and there was a party at the family home in the evening.

14On this night, you went into Hannah’s room when she was sleeping. You woke her up and told her to come with you to the front sitting room and wait there. You began kissing her on the lips and kissing her using your tongue. You left the room to check on the whereabouts of Ms Cortez, before returning and again kissing Hannah.

15You then told Hannah to go to the hallway cupboard. When you were in the hallway cupboard, you told her to lie down and then you penetrated her vagina with your penis (charge 6). You then grabbed the back of Hannah’s head and pushed her head towards your penis, but your penis did not go into her mouth (charge 7).

16The next day, Ms Cortez noticed that Hannah would not make eye contact with you. She was concerned and kept Hannah home from school. Hannah told her mother that you had had sex with her the previous night.

17The allegations were reported to police six days later. It was Ms Cortez’s evidence that she was unable to go to police promptly because of family commitments.

18Ms Cortez told you that you should apologise to Hannah and again you apologised for what you had done.

19You were arrested and eventually went into custody. It was Ms Cortez’s evidence that she began visiting you regularly and you implored her to help you. You told her that she was the only one who could change things and who could help you. You told Ms Cortez that Hannah should say her statement was all made up. Ms Cortez was under constant pressure from you, and also from your brother.

20Ms Cortez asked Hannah to change her statement. She also contacted a social worker from the Department of Health and Human Services (‘DHHS’) and told her that Hannah wanted to change her statement, and that Hannah had said that everything in her statement was untrue.

21On 30 December 2019, police attended at Hannah’s grandparents’ home and spoke with Hannah. Hannah told them that she had made up the allegations to protect her mother. She denied that her mother had asked her to change her statement. On 10 February 2020, Hannah told a social worker, ‘I made it all up except one time’.

22Police were suspicious that Hannah was being put under pressure to change her statement. Ms Cortez eventually admitted to having pressured Hannah on your behalf and at your direction.

Objective Seriousness and Moral Culpability

23There was no victim impact statement by Hannah. I am not surprised by this. From my observations of her giving evidence, she is a young person who struggles to express herself. She has also twice been subjected to pressure from her own mother to forgive you and not to proceed with her allegations.

24I find it unsurprising in these circumstances that Hannah, who is still only 16 years old, presented as someone in significant emotional turmoil, reticent and conflicted in her attitude to these proceedings.

25In any event, the consequences of childhood sexual abuse and the lasting damage it causes are well understood by the Courts. Harm, including future harm, is presumed when children are exposed to sexual abuse.[4]

[4] Clarkson v The Queen (2011) 32 VR 361.

26Your offending involves a very serious breach of trust. You were a father figure to Hannah and should have cared for her and protected her, instead of exploiting her for your own sexual gratification. When she complained to her mother, you promised that you would not reoffend, but you did so, and this aggravates your further offending against Hannah.

27Your offending was persistent and charges 2 and 4 involve multiple occasions of sexual penetration occurring in the family car, which must have been a degrading and humiliating experience for Hannah, as must have been your later offending which occurred in a cupboard.

28The objective seriousness of your offending is high, as is your moral culpability.

29In Director of Public Prosecutions (Vic) v Dalgliesh, the Court of Appeal observed, speaking of the crime of incest but equally apposite to the charge of sexual penetration of a stepchild,

Sentencing for incest must reflect society’s denunciation of the sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlines the seriousness with which the offence is regarded. …

Incest is a crime of violence and must be so regarded. General and specific deterrence and denunciation must be given their proper emphasis. The long-term harm done to the victim, now better understood, must be given due weight in the sentencing calculus. Sentences must be commensurate with the seriousness of the breach of parental responsibility involved.[5]

[5] [2016] VSCA 148, [126], [129].

30I also regard your conduct in respect of the charge of attempting to pervert the course of justice as objectively serious and your moral culpability high. You were attempting to get a child to recant her statement and you were endeavouring to do so by using her own mother against her. The intervention of her mother on your behalf for a second time must have been confusing and distressing for Hannah. I find your conduct to be manipulative and profoundly selfish.

Personal Circumstances

31Turning now to your personal circumstances, you are presently 40 years old. You were born overseas, the eldest in a large family. Your family remains supportive of you and character references were tendered on your behalf from your parents, your brother, and your sister-in-law.

32Your family was not well off. Nevertheless, your childhood was happy and unremarkable. You attended school up to the age of 15. You moved to a different country when you were 18, where you met your first wife at the age of 19, with whom you have children. All of your children now live in Australia.

33You moved to Australia in 2009 and you met Ms Cortez in 2012.

34You have always been a hardworking man and in Australia you started your own business which had been a successful business before your incarceration.

35You reported to your counsel, Mr FitzGerald, that you had twice sustained head injuries in your youth. On this basis, and on the basis that Mr FitzGerald says that he has found it difficult at times to communicate with you, a Forensicare report was sought to investigate your cognitive abilities and your mental health.

36A report was prepared by Dr Michael Davis, a consultant forensic and clinical psychologist at Forensicare. This report is dated 8 March 2022. Dr Davis interviewed you and conducted a number of psychological tests.

37Dr Davis found you to be a deeply religious man who often explained yourself and your experiences in the context of your Christian faith. He found you to be experiencing depressed mood and anxiety, referrable to your situation in custody. You maintain your innocence and deny that you have committed these offences and Dr Davis consequently could not engage with you to discuss your offending beyond your denials.

38He found you to have abused alcohol since your late teens. You told him you experienced withdrawal symptoms when you were taken into custody, but that you were not provided with any medication to alleviate your symptoms. You told Dr Davis that you were using your time in custody productively and were sustained by your faith.

39Dr Davis gives the opinion that your offending was situational and impulsive rather than preferential and compulsive. That is, it is Dr Davis’ opinion that you do not have a preferential sexual interest in children, but rather, he states,

It is my opinion that [Mr Sharpe’s] offending behaviour … is best explained by reference to a regressed pattern of behaviour. This 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, particularly during times of stress. … In [Mr Sharpe’s] case while he categorically denies committing any of his sexual offences, his narrative does describe a number of stressors in his life and his relationship with his partner at the time … Accordingly, it is my opinion that [Mr Sharpe] does not have a sexual preference for pre-pubescent or pubescent females.

40Dr Davis opines that you are a low to moderate risk of sexual recidivism. He gives this opinion on the basis that your offending was, as he has described it, situational and occurring in the context of alcohol misuse and occurring in the family home. He gives the opinion that it is unlikely that you would start abusing females outside the family home in your 40s or older.

41Dr Davis found you to have compromised cognitive functioning, likely related to your history of chronic alcohol abuse. He was of the view that you would benefit from a comprehensive neuropsychological assessment in the future, and that you should be considered for the sex offender treatment program in custody.

Submissions of the Parties

42On your behalf, Mr FitzGerald submitted that I should accept the opinion of Dr Davis in respect of the future risk you pose, and he submitted that your prospects of rehabilitation are good. In making this submission, he relied also on your family support, your lack of a prior criminal history, and your prior good character as a hardworking and devout man. A character reference was also tendered from a bishop on your behalf.

43Mr FitzGerald relied on the current difficult circumstances in prison in the current restrictive conditions. He submitted that you are deeply distressed at your separation from your children.

44You are not a citizen of Australia and you face the prospect of deportation upon your release from custody. This will make your time in custody more onerous, as you will worry that you will face separation from your children and that you will lose your life here in Australia, where you have enjoyed some success and prosperity.

45Mr FitzGerald acknowledged that your offending was serious and warranted a term of imprisonment consisting of a head sentence and a non-parole period. He submitted a sentence involving an earlier release on parole is warranted to facilitate your rehabilitation.

46Ms Thorp, who appeared to prosecute, took me through the relevant legislative provisions involved in sentencing you. You stand to be sentenced as a serious sexual offender from charge 6 if sentences of imprisonment are imposed on charges 2 and 4. Charge 6 is a standard sentence offence, and I must take the standard sentence of 10 years into account in sentencing you.

47Ms Thorp submitted that your offending involved a gross breach of trust. She submitted that you are without remorse. She submitted that the principles of general and specific deterrence, denunciation and protection of the community were all engaged in sentencing you and that the only available disposition was a term of imprisonment involving a head sentence and a non-parole period. She submitted that because a standard sentence offence was involved, a non-parole period of at least 60% of the total effective sentence was required unless it was in the interests of justice not to impose a non-parole period of this magnitude.

Conclusions

48The sexual abuse of children by those entrusted with their care is very serious offending. The sentence I impose must denounce your conduct in clear and unequivocal terms. It must also act as a deterrent to those who would behave as you did, by sending a clear message that such behaviour will not be tolerated and will be sternly punished. The sentencing principle of specific deterrence is also engaged here, given the persistent nature of your offending, and given that you continued to offend against Hannah after she complained and you promised that you would not do it again.

49I accept the conclusion of Dr Davis that you are a low to medium risk of reoffending and I accept that on the basis that he provides in his report. I am therefore prepared to find your prospects of rehabilitation are good, even though you are without remorse and insight into what you have done.

50I take into account the difficult conditions in prison. I take into account in your case that the prospect of deportation makes your time in custody more onerous and may destroy your opportunity to continue your life with your children in this country.

51Charge 6, the offence of sexual penetration of a stepchild, is a standard sentence offence. The standard sentence is 10 years’ imprisonment. A standard sentence is not the same thing as a mandatory sentence, nor is the standard sentence the primary sentencing consideration or the starting point from which to add or subtract time. It is but one matter that I must take into account in the instinctive synthesis, and I do so. I also take into account the maximum penalties for all the offences.

52Taking into account all the matters I am required to consider under the Sentencing Act 1991 (Vic) and matters personal to you, the sentence I impose on charge 6 will be less than the standard sentence.

53You fall to be sentenced as a serious sexual offender on charges 6 and 7 and the Court is therefore required to consider protection of the community as the principal purpose for which sentence is imposed, although the prosecution did not seek a disproportionate sentence. The Court is also required to impose cumulative sentences unless otherwise ordered. The principle of totality is not displaced by the application of the serious sexual offender provisions.

54Taking into account all these various considerations, I intend to sentence you as follows. Mr Sharpe, you can remain seated in the circumstances.

Sentence

55On charge 2, you are convicted and sentenced to seven years’ imprisonment.

56On charge 4, you are convicted and sentenced to eight years’ imprisonment.

57On charge 6, you are convicted and sentenced to five years’ imprisonment.

58On charge 7, you are convicted and sentenced to three years’ imprisonment.

59On charge 8, you are convicted and sentenced to three years’ imprisonment.

60Charge 4 is the base charge. I make the following orders for cumulation upon the base charge and upon each other: two years on charge 2, one year on charge 6 and one year on charge 8. That makes a total effective sentence of 12 years’ imprisonment.

61Section 11A of the Sentencing Act 1991 (Vic) directs that unless it is in the interests of justice not to do so, the Court must fix a non-parole period of at least 60% of the total term of imprisonment. In your case, I am sentencing you to a non-parole period of nine years.

62You are sentenced as a serious sexual offender on charges 6 and 7, and I direct that that be entered into the records of the Court.

Sex Offender Legislation

63You will be subject to the Sex Offenders Registration Act 2004 (Vic) and the period of reporting is life, having been found guilty of the equivalent of two schedule 1 offences.

Pre-Sentence Detention

64Pursuant to s 8 of the Sentencing Act 1991 (Vic), 940 days is to be declared as pre-sentence detention.

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