Director of Public Prosecutions v Shaw (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

MASON SHAW (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2018
DATE OF SENTENCE:	19 April 2018
CASE MAY BE CITED AS:	DPP v Shaw (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 519

REASONS FOR SENTENCE
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Catchwords:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Miss S. MacDougall	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin & Brown Criminal Lawyers

HIS HONOUR:

Mason Shaw,[1] you have pleaded guilty to four charges of indecent act with a child under the age of 16 and to one charge of sexual penetration of a child under the age of 16. The charged offending occurred between the 1st day of January 2006 and the 21st day of July 2007. Your victim was the only daughter of your then partner, Natasha Gregory.[2]
[1] “Mason Shaw” is a pseudonym.
[2] “Natasha Gregory” is a pseudonym.
The maximum penalty for indecent act with a child under the age of 16 and for sexual penetration of a child under the age of 16, applicable to your offending, is a term of imprisonment of ten years.
The victim was born in July 1996. Her parents separated when she was very young and it appears that she has had little, if any, contact with her birth father. You met the victim's mother Natasha via social media at the start of 2004 and after chatting online for several months you met in person. The relationship quickly progressed and by April 2004, you and Natasha were a couple. At the time of the offending you maintained your separate home in Melbourne’s east while Natasha and the victim lived in the northern suburbs. Natasha was then employed as a registered nurse and worked shifts. At Natasha’s request, you regularly looked after the victim whilst Natasha was working. It was when you were ostensibly looking after the victim that the charged offending occurred.
Charge 1 describes an occasion when the victim was aged nine or ten and in Grade 4 at school. You picked the victim up from after school care and took her to your home. She was lying on your bed and you lay down next to her and started hugging her. She was uncomfortable with this, as you had not had that kind of contact before and so she turned away from you. You continued to hug her and you put your hand on to her left breast, squeezing and fondling her breast over her clothing. The victim tried to move your hand away, but you resisted. After a few minutes the victim, feeling uncomfortable, wiggled out from your embrace and left the room. This is Charge 1, indecent act with a child under the age of 16.
A month or two after the incident contained in Charge 1, the victim was again at your house whilst her mother Natasha was at work. You called the victim into your computer room and showed her a pornographic video on your computer. The video showed a woman performing oral sex on a man and then the man pushing his penis in between the breasts of the woman. You said something like, "We should try this out if you want dinner". You then encouraged the victim to choose one of the sexual acts to perform upon you. The victim chose to have your penis between her breasts, as she did not want your penis in her mouth. Once in your bedroom, the victim removed her top and you removed her bra before removing your own pants and underwear. You rubbed Vaseline on your penis and on the victim's breasts, pushed her back onto the bed and pushed her breasts together with your hands. You moved your penis up and down between her breasts before ejaculating on them. Later that night you bought the victim takeaway food as a "reward". This is Charge 2, indecent act with a child under 16.
On another occasion in 2006, the victim was lying on your bed at your house and you were in your underwear. You lay over the top of her and pushed your penis into her vaginal area in a humping motion. This is Charge 3, indecent with a child under 16.
When the victim was ten years old, she was at her home with you while her mother Natasha was again at work. It was the middle of the day and the victim asked you for a lift to someone's house. You indicated that if she wanted a lift she would need to suck your penis. You were sitting on the couch and you took your pants and underwear off. The victim kneeled in front of you and you instructed her to suck your penis and to go up and down with her mouth. The victim did as she was instructed, but stopped after three minutes as her jaw hurt and she felt weird. This is Charge 4, sexual penetration of a child under 16.
You got a bit angry and implored her to keep trying. The victim insisted that she did not want to do this and so you rubbed your penis between her breasts until you ejaculated. This is Charge 5, indecent act with a child under 16.
Throughout the ensuing years you and your partner Natasha maintained your separate homes although spending most of your time together. In 2009 you moved into Natasha’s home and lived in a full de facto relationship. In 2016, the victim was diagnosed with depression and was referred to a counsellor. Following that referral, in January 2017, the victim and her mother went on a trip to Sydney. It was whilst on this trip on 20 January 2017, that the victim first disclosed your abuse of her to her mother. This prompted her mother, your partner of thirteen years, to confront you via text message. Although you did not admit the offending, neither did you deny it. I am told that you left the family home on that day and have had no contact with either Natasha or the victim since that day.
The matter was reported to police on 24 January 2017. You were interviewed by police on 6 February 2017. You answered "no comment" when the allegations were put to you as you were, of course, entitled to do. You were charged on 8 May 2017 with the first court appearance shortly thereafter. The matter resolved on the third committal mention on 8 September 2017 and I thus regard your plea as having been entered at the earliest opportunity.
Your victim provided a Victim Impact Statement on the plea which was Exhibit 2, wherein she eloquently wrote of how "When you're a child you usually only care about what type of toy you hope to get or if you could stay up late, however when I was nine years old I was worried about things no child should ever endure. This man who I was worried about was my former stepfather, Mason Shaw. This man has destroyed my childhood, my teenage years, and my early adulthood. Many years ago, he stole a piece of my soul and my identity and I lost many things because of the impacts of his assaults". She speaks of her post-traumatic stress, of how she “suffers from flashbacks, sleeplessness, insomnia, nightmares, difficulties in concentration and memory problems. These are things that she struggles with on a daily basis.” She writes, "I believe I will suffer flashbacks for the rest of my life". The victim states that she has been left with a lasting fear of intimacy, which has impacted upon her ability to form intimate mutual relationships because she simply does not know what love is. She writes, "As a young girl I believed what he did to me was considered love however as I grew up I realised that was far from the truth". The victim details her struggles with bulimia as a teenager because she was trying to change her body into something that could not be sexualised, and that her bulimia has gotten worse as an adult.
Your former partner, Natasha, provided a Victim Impact Statement which was Exhibit 3 on the plea, and in that she detailed how on 20 January 2017, her world fell apart, and it fell apart when the daughter she had carried inside her and that she had nurtured told her of your offending. Notwithstanding that you immediately left the house, she writes that her own sense of safety and security in her home had been shattered and was replaced by the emotions of anger and worse. As a mother, she is clearly left blaming herself for failing to protect her daughter from the man that she loved.
Now of course, Mr Shaw, the impact of your offending upon your victim is but one matter to which I must have regard, and that impact must never be permitted to overwhelm the sentencing process, but there can be no doubt that your offending has had a lasting impact, both upon the victim and upon her mother.
I turn to your personal circumstances.
You have no prior convictions and you have no outstanding matters. You were born in October 1965 and you are now 52 years of age. You were thus around 41 years of age at the time of the offending charged in the indictment. You grew up in Melbourne's east with your parents and your two sisters and you reported happy memories of your childhood. You were not exposed to domestic violence, child abuse or substance abuse. In short, you grew up in a happy, middle class family. Your father sold life insurance and your mother was a primary school teacher.
You lived at home until the age of 27 years, when you moved out to set up home with your first partner. That relationship lasted for ten years, but ended due to your lack of interest in either marriage or in having children. You were then single for less than a year before meeting your victim's mother online.
Your father, now aged 80, was diagnosed with dementia some fifteen years ago, and for the past two and a half years has been cared for in a residential facility. Your mother, who is now aged 79, was diagnosed with rheumatoid arthritis when she was in her thirties. The condition has become progressively worse and has impacted upon her mobility. You regularly visit your father and have been a significant support to your mother during her decline. I accept that your mother will feel the loss of your support that must inevitably follow from the loss of your liberty. Your two sisters, unsurprisingly, I am told, reacted strongly to news of your arrest in relation to this offending, severing all ties with you. I understand that one of your sisters has re-established some contact.
You attended primary school in Melbourne’s east where your performance was average. You did not experience any learning, social or behavioural difficulties. You attended a local high school before transferring to a technical school to pursue trade options, and you left after completing Year 10. It was at this time that you discovered your passion for motor vehicles, which was to be lifelong. This passion has found expression in your membership of a car enthusiasts club and your involvement in rally championships in both Victoria and in New South Wales.
After Year 10, you started and completed a motor mechanic apprenticeship. Over your career, you worked as a technician and mechanic for various employers and you completed a number of courses to further your career.
In 2001 you had to change direction as a result of a back injury sustained in the course of your employment. This injury has been chronic and has been managed by medication over the ensuing years. From that point, you were employed was a warranty claims officer at a car manufacturing company, thus still maintaining the link with vehicles. From 2012 to date, you have been employed at an insurance company. In short, you have a long and continuous history of employment.
There was tendered on the plea a report by Ms Pamela Matthews, forensic psychologist, dated 29 January 2018, and that was Exhibit 4DF. Ms Matthews had examined you on six occasions between June 2017 and January 2018, and on that later date, she conducted a clinical interview.
You reported no use of illicit drugs, and that you rarely drank alcohol and rarely engaged in gambling. You denied any addiction to pornography, stating that you had started watching pornography after you moved out of home at the age of 27 and reduced your usage after the age of 40. You stated that you would receive links from friends via email, but you would not search or download material yourself.
Other than your back injury sustained at work in 2001, you reported a diagnosis of chronic fatigue syndrome in the mid-1990s. You were able to manage the symptoms to some extent, but still experience frequent migraines. You have no prior engagement with mental health services prior to being charged with this offending, and since being charged you have attended four sessions with two different therapists.
You told Ms Matthews that you had been sexually abused by an older cousin when you were a child, around the ages of 12 to 13 years of age. You had not told your mother of this abuse until you had been charged with this offending as "You did not want to cause trouble in your family, did not want your family to break up, and at this time you thought you would get into trouble".
You reported that your own sexual abuse experiences resulted in you feeling out of control and powerless. You understood, however, that you had put your victim in the same position as that in which you had been placed, and you were able also to identify that she may not now be able to trust in relationships with others and may not have disclosed for many years what you had done to her, as she may not have wanted to break up the relationship that you had with her mother so as to avoid hurting her mother. In other words, you were able to identify how your victim's reaction to your offending may have echoed or mirrored your own reaction to the offending committed against you.
Thus it seems on the material in front of me that you have been able to demonstrate empathy for your victim and to express a remorse and a sorrow that Ms Matthews posited, and which I accept, was genuine. In addition, you are conscious of the impact of your offending upon your own family, how it has torn your own family apart and divided not only you from your sisters, but your younger sister from your mother because she, your mother, has provided you with a place to live and a refuge and emotional support. So the impact of this offending goes on and on.
During Ms Matthews' assessment, she administered the Risk for Sexual Violence Protocol and in short, stated that your risk of future offending in a similar manner is estimated to be low. In her diagnosis and opinion, Ms Matthews states that you "developmentally, present as an adult with a first time diagnosis of Autism Spectrum Disorder, Level 1. This aspect of your presentation would have negatively impacted upon your capacity to empathise with your victim at the time that you abused her and underlies the concretely transactional nature of your abuse of your victim.”
Ms Matthews continued that in her view, your abuse of the victim was not paraphilia, but was rather "Intrafamilial abuse which was opportunistic and perhaps reminiscent of his own sexual abuse His offending as estimated on a clinically structured risk instrument is low, with reported re-offence rates quoted as 13 per cent, reducing to 5 per cent after treatment."
As to the impact of any imprisonment upon you, Ms Matthews noted that, "Most of his fears seemed to be based on lack of knowledge and his anxiety has reduced with clarification". Ms Matthews had no concerns about your capacity to manage a custodial environment. Your parents are elderly and your mother, in particular, relies upon you for physical support with heavy tasks at home. It is clear that your mother will be negatively impacted upon your being sentenced to a period in custody, particularly now, given that her closest residing daughter no longer speaks to her because of your own behaviour and your mother offering you refuge. I did not understand Ms Matthews therein to be identifying exceptional familial hardship which would mitigate an otherwise appropriate sentence.
The submissions of counsel on the plea were as follows.
Miss MacDougall for the prosecution submitted that sentencing purposes of just punishment, denunciation, general and specific deterrence and protection of the community were to the fore in my sentencing exercise. She reminded me that the offending spanned a period of eighteen months and thus, none of the offences could be seen as isolated. She submitted that while the offending was opportunistic, nonetheless the offending constituted a gross breach of trust. I agree. She pointed to the devastating impact of this offending upon your victim and to the lasting sense of betrayal that your actions have produced in your former partner, the victim's mother.
Mr Tiwana, on your behalf, in his realistic and succinct submissions conceded that a custodial sentence was the inevitable disposition. There was common ground as to the primary sentencing purposes.
Mr Tiwana submitted correctly that I must have regard to the principle of totality. He identified, as an example, that Charge 4 involving oral penile penetration did not include any ejaculation. Once your penis was removed, you ejaculated upon your victim's chest, Charge 5. These two offences arise out of the same incident and that factual nexus should be reflected in the respective penalties. I agree with that submission.
He submitted correctly that the most significant mitigating factor was your plea of guilty made at the earliest opportunity. This meant that your victim did not have to face the ordeal of giving evidence in a court setting and would have known that this was not expected of her at an early stage in the proceedings. Mr Tiwana rightly urged upon me the utilitarian benefit of such a plea, that is to say, the savings to the community in terms of the time and expense of a trial. But he also submitted, again rightly, that the early plea was indicative of your genuine remorse. I accept that submission; your plea is an indication of remorse.
Mr Tiwana detailed your personal and family history and the rupture that your offending has caused between your mother and her daughters, and further identified the domestic setting in terms of your mother's progressive and worsening condition and your father's dementia, where your absence will be most keenly felt and of which impact you will be keenly aware and which will weigh heavily upon you whilst you are in prison.
Mr Tiwana referred to your own experience of sexual abuse, but realistically accepted that there was no demonstrated link between that experience and this offending. In my view, any such link could be no more than a matter of the merest conjecture in light of the material available to me.
Mr Tiwana pointed to your demonstrated hardworking life, as evidence that you are someone who is well able to lead a law abiding life and that is the life to which you intend to return upon your eventual release.
He identified that you have received counselling post your offending, and that you have also returned to your church which has been a source of comfort to you and which will be a support for you, I have no doubt, during your term of imprisonment, but also upon your release. Two ministers, one I understand a life-long friend, provided references which I have read. Both speak of your remorse and your acceptance of responsibility for the offending and the support they will continue to offer you.
Mr Tiwana pointed to the assessment of you by Ms Matthews as being of a low risk of sexual reoffending and that such assessment, together with your antecedence, that is, the life that you have lived and the support that will be provided to you by your church, all indicated that your prospects of rehabilitation can be viewed as positive. Again, I agree with that assessment of your prospects.
For completeness, I note from the Summary of Prosecution Opening that there were many occasions of sexual abuse by you of the victim from 2006 until January 2017. Now those occasions, I stress, are not the subject matter of any charge on this indictment and you are not sentenced for them, can I make very clear. The only relevance of the uncharged acts is, as your counsel accepted, that it is not open to him to submit that I should have regard to the historic nature of the offending and the apparent delay between the end of the offending and your prosecution. So I stress that is the only relevance of that fact.

I turn now to the seriousness of the offending.
Mr Shaw, the charges to which you have pleaded guilty represent serious offending. As is clear by the maximum penalty imposed by Parliament, all sexual offending against children is very serious. The courts have stated time and time again that they will do everything within their power to protect children from those who would offend against them, in satisfaction of their own deviant desire. Your victim throughout this offending was aged nine and ten. You were in your early forties, an adult who had had experience of life and who had had adult relationships. Your victim was placed in your care, a trust and responsibility which you readily accepted, but which you then quite simply betrayed. That betrayal has had a grave and lasting impact.
Your offending was protracted. Your offending has been described by Ms Matthews and by Miss MacDougall as ‘opportunistic’; I accept that description insofar as it refers to the context in which you were provided with the opportunity to offend. However, your offending was not spontaneous, but rather your offending represents in my view, a deliberate, incremental, slow seduction and corruption of a young child who was in your care. By your actions, you taught the victim that her body was something to be bartered and traded for food, for lifts in your car and for favours, which favours being the incidence of a care that should have been provided by you with love and without demand. Such commoditisation of intimacy, suggesting that intimacy is something to be bought and sold, when practiced upon a child of tender years who is in your care is quite simply depraved.
The explanation for your offending is that you acted as you did because you wanted to, driven by your own sexual gratification. In Charge 2, you cynically co-opted your victim into your deviance, by making her choose as to which particular degradation she would be subjected. She preferred to construct a receptacle for your penis with her childish breasts, rather than have your penis in her mouth, but such compliance with your desires on that occasion only bought her time, before she was in fact orally penetrated by you, as the offending in Charge 4 makes clear. I find that Charges 2, 4 and 5 are serious examples of this offending.
Mr Shaw, in sentencing you, I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is, to deter others from behaving as you did. I must consider specific deterrence, that is, to deter you from repeating such offending and I must consider the need to protect the community. In this regard, I accept that you are unlikely to come in front of the court again and thus the need for specific deterrence and the need for protection of the community is in my view diminished, but not entirely eliminated. I must express the community's denunciation of your conduct. I have to take into account the effect of your crimes upon your victim. I must have regard to current sentencing practices and I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty. I must try in short, to balance your personal circumstances with the circumstances of your offending.
Clearly principles of general deterrence and denunciation are the primary sentencing considerations in this case. I give full effect to all of the mitigatory factors to which I have been referred and which have been so ably put in front of me by your counsel, Mr Tiwana. For the avoidance of doubt, I have particular regard to:
(1) Your plea of guilty and to that plea attaches not only the utilitarian benefit, but also a recognition that by your plea, your victim did not have to give evidence.
(2) The remorse that you have expressed, both by your plea and otherwise.
(3) Your assessed low risk of reoffending.
(4) Your positive prospects for rehabilitation.
(5) That this will be your first time in custody and during your time in custody, the knowledge of the stress and familial difficulties that your absence will cause.
(6) The principle of totality.
So I have regard to all of those factors, in addition to everything else. But nonetheless, the Court of Appeal has made clear that offending against children can only be met by substantial and significant terms of imprisonment.
I sentence you as follows.
On Charge 1, indecent act with a child under the age of 16 years, six months imprisonment.
On Charge 2, indecent act with a child under 16 years, three years imprisonment.
On Charge 3, indecent act with a child under 16 years, fifteen months imprisonment.
On Charge 4, sexual penetration of a child under 16 years, three years and nine months imprisonment.
On Charge 5, indecent act with a child under 16 years, eighteen months imprisonment.
I order that three months of the sentence on Charge 1, eighteen months of the sentence on Charge 2, six months on the sentence in Charge 3 and six months of the sentence on Charge 5 should run cumulatively to each other and cumulatively to the sentence imposed upon Count 4.
This makes a total effective sentence of six years and six months. I fix in your case a non-parole period of four years and six months imprisonment.
On Charges 3, 4 and 5, you are sentenced as a serious sexual offender pursuant to s.6 of the 1991 Sentencing Act. Pursuant to s.6F of the 1991 Act, I direct that this be entered into the records of the court.
Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, you would have been sentenced to a term of imprisonment of eight years and three months and I would have fixed a non-parole period of seven years.
Pursuant to s.34 of the Sex Offender Registration Act 2004, you are now a registrable offender for the remainder of your life. You must comply with reporting obligations under Part 3 of the Sex Offender Registration Act for the rest of your life.
I also make the forensic order pursuant to s.464ZF of the Crimes Act sought by the prosecution.

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[2018] VCC 519

19 April 2018