Director of Public Prosecutions v Shaw (a pseudonym)
[2019] VCC 1481
•11 September 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES SHAW (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 August 2019 | |
DATE OF SENTENCE: | 11 Septemer 2019 | |
CASE MAY BE CITED AS: | DPP v Shaw (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1481 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Indecent act with a child under 16, sexual penetration of child under 16, sexual assault of child under 16
Legislation Cited: Crimes Act 1958 as amended by Crimes (Sexual Offences) Act 1991; Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000; Crimes Act 1958, as amended by the Crimes (Amendment Sexual Offences) Act 2016
Cases Cited:DPP v Dalgleish (a pseudonym) [2017] HCA 41, Markovic v The Queen (2010) 200 A Crim R 510, Crouch (a pseudonym) v The Queen [2019] VSCA 30, R v Verdins (2007) 16 VR 269
Sentence: TES 5 years NPP 3 years and 2 months 6AAA
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Roodenburg | |
| For the Accused | Ms B Franjic (plea) | Tony Hargreaves |
HIS HONOUR:
1 James Shaw[1], on 8 August 2019 you pleaded guilty to the following charges:
[1] This is a pseudonym name.
Charge 1 – At Narre Warren between 1 October 2009 and 30 November 2009 you wilfully committed an indecent act with or in the presence of
Gloria Roan[2], a child under the age of 16 to whom you were not married, contrary to s47(1) Crimes Act 1958, as amended by Crimes (Sexual Offences) Act 1991;
[2] This is a pseudonym name.
Charge 2 – that at Narre Warren in Victoria between 27 March 2011 and 26 March 2014, you took part in an act of sexual penetration with
Beth Roan[3], a child aged under 16 years, in that you introduced your finger into her vagina, contrary to s45(1) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 2000;
Charge 3 – that at Narre Warren in Victoria, between 1 January 2018 and 30 April 2018, you intentionally sexually touched Keira Roan[4], a child under the age of 16, in circumstances where the touching was contrary to community standards of acceptable conduct, contrary to s49D(1) of the Crimes Act 1958, as amended by the Crimes (Amendment Sexual Offences) Act 2016.
[3] This is a pseudonem name.
[4] This is a pseudonym name.
2 Charges 2 and 3 are representative charges.
3 A summary of prosecution opening on plea was tendered, and marked Exhibit P1. It is an agreed summary.
4 You were aged between 31 and 39 years at the time of the offending.
5 You are the uncle of each of the victims, being married to the victims' mother’s sister. Your family, and that of the victims were close, you both having children of similar ages. All of the offending occurred at your home in Narre Warren, usually at family events or sleepovers.
6 Between 1 October 2009 and 30 November 2009, Gloria Roan attended your home for a family gathering. She was then aged between 10 and 11 years old. Gloria was alone in the lounge room with you. You put your hand on her vagina over her clothing and moved it up and down for a few seconds. You then put your hand down her pants and underwear so that you were touching her skin and you moved your fingers around her vagina. This conduct is the basis of Charge 1. Gloria stood still, staring at the television cabinet, until you stopped. She did not tell anyone about this offending until she told her boyfriend in about mid-2017. She later told her parents after her sister, Beth, had complained about you in June 2018.
7 Between 27 March 2011 and 26 March 2014, Beth Roan was staying the night at your house in Narre Warren. She was sleeping in the lounge room with her cousins, Jessica[5] and Lenora[6], your own daughters. You entered the lounge room and lay between Beth and Lenora. You touched Beth’s thigh under her clothes and then ran your fingers over her vagina, stomach and chest, before touching her vagina underneath her pyjama bottoms over the top of her underwear. You then moved your hands underneath her underwear and placed your fingers inside her vagina. You did this for a while before removing your fingers and leaving the room. This conduct forms the basis of Charge 2.
[5] This is a pseudonym name.
[6] This is a pseudonym name.
8 Approximately one to two months after this first occasion, Beth was again staying the night at your house in Narre Warren. On this occasion, she was sleeping on a mattress on the floor of Jessica’s room. You entered the room and lay down next to Beth. You then proceeded to run your hands over her legs and stomach over the outside of her underwear. You then placed your hands under her underwear and again placed your fingers inside her vagina. This caused Beth “quite a lot” of pain.
9 A few weeks after the second incident of sexual penetration of Beth, she again stayed the night at your house. On this occasion she was sleeping in Jessica’s bed, whilst Jessica slept on the floor. You entered the room and sat on the bed next to Beth. You began running your fingers under her pants and along her thighs. You then put your hands under Beth’s underwear and moved your hands and again penetrated her vagina. On this occasion the motion was rougher, faster, and went on longer than the other two occasions. It caused more pain than the other two occasions. You eventually stopped and walked out of the room. After this third occasion, Beth stopped staying the night at your house. Beth was aged between 10 and 12 years when you offended against her.
10 In early June 2018, Beth told her parents about your conduct and the matter was reported to police.
11 Between 1 January 2018 and 30 April 2018, Keira Roan was at your home in Narre Warren. She was 11 years old. She was standing next to you in the dining room when you put your arm around her and squeezed her breast. Keira walked away from you. This conduct forms the basis of charge 3.
12 On a second occasion, again between 1 January 2018 and 30 April 2018, Keira was sitting on the couch in the lounge room with you. She turned and kneeled up, with her stomach against the back of the couch. Whilst in that position, you placed your hand on her bottom and left it there for approximately 10 seconds. Keira’s allegations were reported to police on 12 June 2018.
13 You attended Dandenong Police Station on 25 June 2018 for an interview and you were then arrested. You were charged on 5 November 2018.
14 There were discussions between your counsel and the prosecutor in an endeavour to resolve the charges against you. A resolution occurred on the morning of the committal hearing, 1 April 2019. Prosecution witnesses were not required to give evidence.
15 The charges to which you have pleaded guilty each carry a maximum penalty of 10 years’ imprisonment.
16 Victim Impact Statements were provided to police by Gloria Roan, Beth Roan, Keira Roan, as well as their parents, John[7] and Mary Roan[8]. They were read in open Court by each of the victims.
[7] This is a pseudonym name.
[8] This is a pseudonym name.
17 It is clear that as a result of your offending conduct, each of the victims has suffered greatly. Your offending has also resulted in a division between what were once close families and the loss of relationship between the direct victims and their cousins, auntie and maternal grandparents.
18 Gloria Roan stated:
“I lost my best friend, my Nan. Because what has happened has destroyed my family. I also lost my Pop and my Auntie, but most of all I lost my two favourite cousins in the world, James's daughters.”
19 Beth Roan stated that because of your conduct she was not able to complete her VCE exams and receive an ATAR. Her hopes of studying at university have been set back by reason of your behaviour.
20 Keira has also been affected emotionally and states that she lost her “Nan and pop and auntie and cousins.” She feels that your family blame her for your predicament. In reality the only person responsible for your predicament is yourself.
21 The consequences of your offending did not end with the direct victims of your crimes. Their parents have been devastated by your betrayal of trust and you have caused the maternal grandparents to turn their backs on the victims. What was once a close, loving family has now been torn apart.
22 The children and their mother continue to receive psychological counselling as a result of your conduct.
Personal circumstances and background
23 You were born in July 1978 and you are now 41 years of age. You were raised in the Western District of Victoria. Your parents owned and operated a local newsagency for some 30 years.
24 Your father was an alcoholic which caused some difficulty in the marriage between your parents. They are now in their seventies and continue to live in the Western District. You enjoy a good relationship with them.
25 You have two older brothers and a younger brother. You remain on good terms with your siblings and share a particularly close relationship with your oldest and youngest brothers.
26 You completed Year 12. On completing your schooling, you commenced work on a full time basis with KFC, for whom you had been working on a part time basis since the age of fifteen. After a short period of time, you secured a position with the company’s management training program. At the age of 20 you moved to further your career with KFC. You rose to a management position within the company. You remained with KFC until the age of twenty-five.
27 In 2002 you left KFC to pursue a career in stone masonry with your
father-in-law. You in fact married his daughter in 2002 having met her in 1997. You and your wife have two daughters, Jessica, born in 2005, and Lenora, born in 2008. Your wife and children remain supportive of you despite these offences.
28 Your father-in-law’s business closed operations in 2004. At that time you and your wife moved to Melbourne with your parents-in-law. You continued to learn the trade of stone masonry with your father-in-law until 2006 when you commenced working for a stone bench top manufacturer. You worked with them for approximately 13 years. You resigned your employment with that company in recent months in order to spend more time with your wife and children before the plea hearing.
29 The directors of that company provided a reference to the Court which speaks very highly of your employment with them. Significantly, the directors state that they are “more than willing” to re-employ you upon your release from prison.
30 You are the primary income earner in your family. Your wife has a part time job as a check out operator at a Coles supermarket. The income she receives from that employment, approximately $600 net per week, is not sufficient to meet the mortgage and basic living expenses.
31 Your family was reliant upon the income you earned and I accept that you played a very active role in caring for your family beyond the provision of an income. Your counsel submitted that “your contribution to your family extended well beyond a financial one.”
32 In July 2018, once the allegations were made to police, the Department of Human Services became involved in your family affairs. You were precluded from having unsupervised contact with your children as of 14 June 2018 and as part of an agreed case plan, you were not allowed to live inside the house. Since that time, you lived in a caravan on the property. Those conditions continued to apply up to the date of the plea hearing on 8 August when you were remanded in custody.
Alcohol abuse and dependence
33 You have had a troubled history of alcohol abuse and dependence. Your counsel has set out in the defence outline of submissions, Exhibit D1, your efforts in dealing with your alcoholism.
34 In 2016 you contacted SECADA alcohol and drug services in Dandenong seeking help for alcohol dependence. You attended numerous counselling sessions at SECADA. You later attended a drug and alcohol specialist
Dr Dean Membrey who started you on a pharmacological program to quell your urge to drink. During 2017 you undertook home detoxification and remained sober for several months thereafter. In early 2018, before these allegations came to light, you sought further professional assistance for your alcohol dependence. You saw Dr Tilakawardena, psychiatrist, in January 2018. He referred you to clinical psychologist, Dr Doulgeridis, and you attended approximately 15 sessions with her. Significantly, you undertook inpatient treatment for detoxification and treatment of alcohol dependence from
12 September 2018 to 26 September 2018. I am told, and am prepared to accept, that you have been completely abstinent from alcohol since September 2018. I have had regard to the reports of Dr Tilakawardena (Exhibit D3) and
Dr Doulgeridis (Exhibit D4).
35 Some of your attempts at treatment were made before your offending was reported to police in early June 2018, that is a matter to your credit. However, it was not until after you were interviewed by police for these matters that you were able to abstain from drinking following the residential rehabilitation program in September 2018.
36 A psychological assessment report of Mr Patrick Newton dated 25 July 2019 was tendered at the plea hearing and marked Exhibit D2. Mr Newton assessed you on 2 May 2019.
37 You told Mr Newton that your heavy drinking had caused significant problems between you and your wife. In particular, you told him that your drinking had adversely affected the closeness between you and your wife and that it had also impaired your sexual performance.
38 You told him of your lengthy history of alcohol abuse. You described your father, and two of your brothers as alcoholics who have severe drinking problems. It is apparent from the history obtained by Mr Newton that you too are an alcoholic.
39 You explained to Mr Newton that you suffered significant social anxiety from your childhood and that you formed the habit of drinking heavily at social functions to cope with the anxiety you experienced. Your drinking escalated to the point where you would consume approximately 20 standard drinks most days and up to twice that amount at special occasions and events. You reported that you suffered from abnormal liver function and that you had regular memory blackouts and other physical ailments in connection with your drinking. Despite that, you told Mr Newton that your drinking did not impair your work performance. You reported to Mr Newton that you have been completely abstinent from alcohol since completing the detoxification program and that it is your intention to remain abstinent into the future.
40 From what you told Mr Newton, you resorted to heavy drinking to alleviate your anxiety. You have not, until recently, sought any treatment to address your anxiety.
41 You told Mr Newton that you have no recollection of your offending to which you have pleaded guilty and that you were “entering a plea of guilty on the basis of… legal advice.”
42 Of significance, Mr Newton reports that you expressed no remorse for your conduct and no empathy for the effects of your behaviour upon your nieces. According to Mr Newton, your reflections on your conduct were confined to the consequences you had suffered or would be likely to suffer as a result of being prosecuted. This, in my opinion, demonstrates a remarkable lack of insight into the consequences of your offending.
43 Whilst you have previously been diagnosed as suffering a major depressive disorder and generalised anxiety Mr Newton notes that the depression was in remission at the time of his assessment. You were then taking anti-depressant medication and participating in effective counselling.
44 Mr Newton stated, at paragraph 48, “Mr Shaw’s offending arose in the context of persisting problems in the sexual relationship with his wife which were precipitated by his chronic abuse of alcohol (in a misguided effort to manage social anxiety). Lacking the skills to manage these problems effectively,
Mr Shaw turned to members of his own family constellation for sexual gratification.” He further stated: “His disinhibition with alcohol allowed him to overcome the behavioural strictures which would otherwise have prevented him from engaging in his offending conduct.” Mr Newton considered that the youth of the complainant’s and the power dynamic inherent in your relationship with them provided a context in which you could offend in a way that would not overwhelm your fragile sense of self-esteem and induce anxiety.
45 Mr Newton applied the static 99 R and the RSVP assessment tools to determine your risk of sexual recidivism. He considers that you pose at least a moderate risk of further sexual offending. Significant to this assessment are issues with regard to your psychological adjustment, the abuse of trust inherent in your offending, the chronic nature of your offending conduct, and your poor level of insight into your offending. At paragraph 45 of his report, Mr Newton stated: “Adding to these concerns are Mr Shaw’s resentment about his prosecution and the concomitant absence of victim empathy. While such feelings are not uncommon at this stage of proceedings, were they to continue in the longer term they would likely pose significant barriers to Mr Shaw’s capacity to benefit from the offence specific treatment which is typically the most important protective factor in cases such as these.”
46 Mr Newton considers that notwithstanding some progress you require significant further treatment, in particular specialist sex offender treatment, substance abuse related treatment and mental health treatment.
Nature and gravity of offending
47 Sexual offences against children are regarded as very serious crimes. Your offending was brazen and opportunistic. You breached the trust reposed in you as the uncle of each of the victims. The offending occurred at your home when the victims were visiting with their family or staying overnight. They and their parents had every right to expect that they would be safe in your home. At the time of the offending you were aged between 31 and 39 years and the three victims were aged between 10 and 12 years. This is a significant age difference. Your offending spanned a period in excess of nine years. The psychological reports tendered on your behalf do not show that you suffered from any mental illness or cognitive impairment that would reduce your moral culpability. In this case, I accept, as was submitted by the learned prosecutor, that your moral culpability is high.
48 I accept also the submission of the learned prosecutor that the breach of trust, the age disparity between you and your victims in these matters represent aggravating features of your conduct.
49 The prosecutor further submitted that the sexual penetration of a child is a violent act which contributes to the serious nature of the offending in respect to Charge 2. Reliance was placed on the DPP v Dalgleish (a pseudonym) [2017] HCA 41 at [57] in support of that proposition. There can be no doubting that proposition.
50 It was submitted that the objective gravity of the offending is significant for the following reasons:
a. This is serious offending against young children in the home of a trusted family member;
b. There are three victims who were offended against on separate occasions;
c. The nature of the acts involve the touching of each victim, with Charge 2 clearly being the most serious charge; and
d. Charges 2 and 3 are representative charges.
51 Ms Franjic, who appeared on your behalf during the plea hearing, properly conceded that your offending is serious. The matters put by the prosecution concerning the gravity of your offending were not disputed. I accept the submissions of the learned prosecutor concerning the objective gravity of your offending overall as significant.
52 You did not provide instructions to your counsel as to why you committed these offences against your nieces.
53 Ms Franjic submitted that your alcohol abuse and dependency played a vital role in precipitating the offending and in facilitating the breakdown of your behavioural controls. I am not able to make a finding of the extent to which your alcohol abuse and dependency played a role in your offending given your lack of instructions. I do accept, however, particularly having regard to your history of alcohol abuse, that it did play some role. However, as Ms Franjic correctly submitted, intoxication is not a mitigating factor.
54 Ms Franjic relied upon a number of matters in mitigation of penalty. First, she relied upon your pleas of guilty entered at a “relatively early stage”, submitting that the pleas of guilty have significant utilitarian value which warrant a substantial reduction in penalty. It is correct that through your pleas of guilty you have spared the victims the ordeal of having to give evidence and spared the community the expense of a criminal trial. Your pleas of guilty were entered at the Magistrates' Court on the day of your committal hearing following a successful resolution of the charges against you. No evidence was called at that committal hearing. The prosecutor accepted that the utilitarian benefits of your pleas of guilty were significant. I agree.
Defence Submissions
55 The second matter relied upon by Ms Franjic was the fact that you are a person without any prior criminal convictions, nor subsequent convictions or findings of guilt. She submitted that those matters, together with the character references tendered on your behalf, indicate that you are of otherwise good character. That is so, but it is not insignificant that this offending spanned a period of some
9 years.
56 The third matter relied upon relates to your prospects for rehabilitation. It was submitted that your prospects are positive given:
a. Your lack of prior and subsequent offending;
b. Your outstanding work ethic and impressive work history;
c. Your strong and ongoing family support;
d. Your demonstrated motivation to engage in treatment to address your psychological issues and alcohol dependency, and your positive response to date to that treatment; and
e. The fact that even before these matters were disclosed to the police, you recognised the need to institute wholesale change in your life and the progress made to date represents a positive beginning as you seek to manage the problems that have beset your life.
57 With regard to your prospects of rehabilitation, in all the circumstances I consider them to be reasonable at this time and I have regard to them in the sentence that I will impose. I have regard to the matters outlined by Ms Franjic but weighing against your prosects is your lack of insight into your offending and your lack of empathy and remorse.
58 Ms Franjic also submitted that there was a sound evidentiary basis for the court’s application of propositions five and six in the R v Verdins (2007) 16 VR 269 She relied on the opinion of Dr Tilakawardena that your psychiatric conditions of major depressive disorder, generalised anxiety disorder and alcohol dependence, will make your period in custody more onerous, and also on the opinion of Dr Doulgeridis that if you are sentenced to a term of imprisonment you are likely to be extremely susceptible. Dr Doulgeridis was particularly concerned of the impact imprisonment will have on your already vulnerable mental health and your ability to manage you symptoms. The learned prosecutor did not take issue with the submission of Ms Franjic and I am prepared to make some allowance for those matters.
59 Ms Franjic also relied on the decision in Markovic v The Queen (2010) 200 A Crim R 510 at [20] where the Court stated: “ An offender’s anguish at being unable to care for a family member can properly be taken into account as a mitigating factor… ” It was submitted by Ms Franjic that you will experience intense anguish at being separated from, and unable to provide for your wife and daughters. Given your closeness to your wife and children, and the desperate financial position in which you will leave them during your incarceration, I have little doubt that you will experience significant anguish and I am prepared to take that matter into account in sentencing you.
60 I have also had regard to your character references. It is apparent that your referees hold you in high regard. They speak of your commitment to your wife and children and your solid work history. Your wife in particular expresses her shock at the offences you have committed. Despite that, she and your daughters remain highly supportive. Insofar as your referees state that you are remorseful for your conduct, I am not prepared to accept that aspect of their references for reasons earlier stated.
Other Sentencing Considerations
61 As was submitted by both counsel, community protection, general deterrence, just punishment and denunciation of your conduct are important sentencing objectives in cases of this nature. Contrary to the submissions of your counsel I consider that some weight must also attach to deterring you from further offending. The need to deter you from committing further offences arises from your lack of insight into your offending; your lack of remorse; and your lack of empathy for the impact your offending has had upon your victims. I have also had regard to the fact that Mr Newton considers you to be “at least a moderate risk of further sexual offending.”
62 Charges 2 and 3 are representative charges. Consistent with what was stated in Crouch (a pseudonym) v The Queen [2019] VSCA 30, at [36] you fall to be sentenced for the offending the subject of the representative charges but not for the represented instances of offending. The represented instances of offending are not aggravating circumstances of the offending the subject of a representative charge.
63 As the Court of Appeal stated:
“The fact that a charge is a representative charge “enables the court to consider the offending the subject of that charge in its wider context. This includes the courts assessment of the nature and gravity of that offending, the offenders moral culpability for that offending and the impact of that offending on the victim.”
64 I have had regard to each of the considerations set out in paragraph 36 of Crouch.
65 In sentencing you I have also had regard to current sentencing practice as a factor to be taken into account, as required by s. 5 of the Sentencing Act. I do note however, that the circumstances in which these types of offences occur vary widely.
66 I consider that a stern sentence is required to meet the sentencing objectives that have just been discussed, particularly that of manifesting the Court’s denunciation of your crimes and deterring others who are minded to commit similar crimes against children.
67 Because of the sentence I intend to impose, you fall to be sentenced as a serious sexual offender under the provisions of the Sentencing Act. I must therefore regard the protection of the community as the primary purpose for which the sentence is to be imposed. The fact that you are to be sentenced as a serious sexual offender will be entered into the record of the Court.
Mr Shaw, would you please stand.
68 On Charge 1 – you are convicted and sentenced to a term of imprisonment of 14 months.
On Charge 2 – you are convicted and sentenced to a term of imprisonment of 4 years 2 months.
On Charge 3 – you are convicted and sentenced to a term of imprisonment of 6 months.
69 Having regard to the principle of totality, I order that 7 months of the sentence on Count 1, and 3 months of the sentence on Count 3 be served cumulatively on each other and cumulatively on Charge 2 which is the base sentence. This makes a total effective sentence of 5 years. I order that you serve a period of 3 years and 2 months before being eligible for parole.
70 I declare a period of pre-sentence detention of 34 days to be reckoned as already served.
71 But for your pleas of guilty the sentence I would have imposed is 6 years with a non-parole period of 4 years' imprisonment.
72 Further, by reason of the offences you have committed you are subject to the Sex Offenders Registration Act. Mandatory registration applies and you must comply with the reporting obligations for life. I am required to provide you with certain documents which you must sign, acknowledging that you have received those documents from me. You should understand that if you do not sign on to the register upon your release then there will be serious consequences for you.
73 I will also make a forensic sample order as sought given the seriousness of the circumstances of the offending and the fact that the order was by consent. Pursuant to s.464ZF(2) of the Crimes Act 1958, Mr Shaw you are to undergo a forensic procedure for the taking of a scraping from the mouth and/or a blood sample in accordance with s.30A of Part 3 of the Crimes Act until a sample of sufficient sample is obtained for placement on the database. I must inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
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HIS HONOUR: Do those figures add up?
MS ROODENBURG: They do Your Honour. Could I just clarify as well in relation to the serious sexual offender declaration that that is only on Charge 3?
HIS HONOUR: That's so.
MS ROODENBURG: Thank you Your Honour.
HIS HONOUR: Mr Shaw, you may be seated for the moment. Mr Shaw, I'll hand this document down to you. You will see on the final page that you are required to sign it where indicated. That is an acknowledgement that you have received the document, okay. Madam Prosecutor, did you want to look at those before they are handed - - -
MS ROODENBURG: No Your Honour.
HIS HONOUR: Thank you. Thank you, Mr Shaw may now be removed. Thank you for your assistance Ms Roodenburg.
MS ROODENBURG: Thank you Your Honour.
HIS HONOUR: We'll adjourn the court now please.
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