Director of Public Prosecutions v Shawcross (a pseudonym)

[2017] VCC 1757

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RYAN SHAWCROSS (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	23 November 2017
CASE MAY BE CITED AS:	DPP v Shawcross (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1757

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Cairns
For the Accused	Mr A. Halphen

HIS HONOUR:

1Ryan Shawcross[1], you have pleaded guilty to a single charge of persistent sexual abuse of a child under 16 years of age. The offending occurred between January 2014 and May 2016.  During the course of the offending, you were aged between 27 and 29 years of age.  The victim in this matter is your daughter, to whom I shall refer to as N.

[1] A pseudonym

2During the relevant period of offending, she was aged between six and eight years of age.  N is your oldest and only daughter with your ex-de facto, to whom I shall refer to as S.  You also have two other children with S.  You and S had been in a de-facto relationship for 11 years before separating in May 2016, after she became aware of your offending.

3The circumstances of your offending are as follows.  It is contained in the summary of the prosecution opening for the plea, which was exhibited and will be retained on the court's file.

4You began to sexually abuse N when she was around six years of age.  You continued to abuse her for a period of over two years up to May 2016, when N was eight years of age.  As S worked, and still works, as a personal care assistant, she typically worked one night a week, Saturday or Sunday and from 2015 onwards, she would also occasionally do overnight shifts, whereby she would stay at a client's home and return home at around 8 pm the next day.

5When S was at work, the children were under your care.  The offending which makes up charge involves four particularised incidents which in turn involve two occasions of touching N's vagina and three occasions of you sexually penetrating N's vagina with your finger.  The particularised incidents took place in a context of uncharged acts, forming a persistent course of conduct of ongoing regular abuse, which occurred when S was at work as previously stated, out of the house or in another room in the house, when you took the opportunity to touch N inappropriately.

6The particularised incidents which were summarised were referred to as follows:  On the first occasion, N was six years of age.  Whilst she was in bed, you proceeded to give her a tummy rub, which progressed to you touching her on her vagina.  You later told her not to tell anyone.

7On the second occasion, N was in Grade 1, so was six or seven years of age.  S was at home, watching television in another room while you and N both were in N's bedroom in bed together.  You proceeded to give her a tummy rub, which prompted her to lift up her underwear, which you described as, "a sign."  You then inserted your hand down her underwear and began rubbing her vagina with your middle finger, penetrating her labia.  She was moving her body up and down whilst you were doing this and during this offending, you had an erection.  Eventually she told you, "no more, look, stop" and you stopped and left the room.  You interpreted this to mean that she, "had finished" or, "had had enough."

8On the third occasion, N was in Grade 1 also, so was around seven years of age.  It was a weekend and S was at work on this particular day.  N was at home with you.  She was in her mother's bedroom, lying on the bed and she recalled that you had told her to go there.  You came into the bedroom and lay on the bed with her.  You then placed your hand down her pyjama bottoms and then began rubbing her vagina.  N recalls that you were putting your fingers not at the whole part, but at the top part.  You admitted that you penetrated N's vagina, constituting sexual penetration.  Ultimately, N asked you to stop and you did.

9The fourth occasion took place on the evening of 15 May 2016.  You were driving your three children.  Your two other children were asleep, however, N was awake.  You stated in the interview to police that your intention was to kill yourself and the children by driving into a lake.

10Initially, you told N that you were all going swimming at “The Nook”.  She told you that it was dark and not to be silly.  You then told her that you were in fact going to drive "into The Nook" and she became frightened.  You later had a change of heart when you saw how frightened she was, and you instead took the children to McDonald's before returning home.

11Once at home, you put N into your bed before joining her under covers.  You then pulled down her leggings and underwear and began rubbing her vagina.  You asked her to get on top of you and she complied.  N recalls that at some stage, you were lying on your back and she was lying on her stomach and that you were both cuddling.  You then said to N, "Would you like to feel this?"  She said no.  You became upset before saying, "Let's get up."  You and N then went into the lounge room, where you again put your finger down her leggings and touched her vagina.  You then removed your finger and licked it.

12On the morning of 16 May 2016, S was helping N get ready for school when N told her about The Nook incident the night before.  She did not make any further disclosures however S immediately contacted police.

13On 7 November 2016, S was at home with all three children.  N complained to her mother that she had a headache and asked if she could go and watch cartoons on her mother's phone in her bedroom, to which S agreed.  Later, S went to check on N about 20 to 30 minutes later and found her in bed under the covers, rubbing her vagina under her pants.  S asked, "Why are you touching your fanny", to which N responded that she liked it.

14S then asked N if anyone else had ever touched her down there. N was at first quiet, but later told her mother that you had touched her there.  She told S that it started when she was seven years old and happened when her mother was at work.  She told her that she had not told her sooner because you had told her that she would get into trouble if she did so.  S immediately notified police.

15On 18 November 2016, police conducted a record of interview in which you made several admissions.  You admitted offending against N for two years, from about the time that N was five or six years of age.  You described the offending whereby you would rub N's vagina and touch her clitoris area inside the outer labia.  You stated on occasions, N would request tummy rubs and you would tell her no, but on some occasions, you could not control yourself.

16You told police you believed N was starting to "enjoy it" and that sometimes when you were working your hand in slow motion, N would take hold of your hand and shake it faster.  You also told police you watched pornography, including fantasy adult, father daughter pornography.  You said you started watching this type of pornography prior to N’s birth, but that you still watched it.

17As can be noted from this summary, this particularisation shows the sexual abuse took place on at least three occasions during the relevant period, with four particular incidents in which you took part in, one or more of the following acts:  Wilfully committing an indecent act with N by touching her vagina and sexual penetration of N by introducing your finger into her vagina.

18A letter dated 25 October 2017 from the Gatehouse Centre for the Treatment and Assessment of Child Abuse at the Royal Children's Hospital was received by the court.  It was written by a social worker, Mr Austin, counter signed by senior clinician, Mr Trumbull and confirms that N commenced treatment on 2 March 2017 following a clinical assessment.  This was a weekly treatment and will continue into the foreseeable future.

19On 23 August 2017, N, who is still under ten years of age, completed a trauma symptom checklist for children which identify symptoms of post-traumatic stress.  N reported intrusive thoughts and memories, hyper arousal and other symptoms indicative of post-traumatic stress disorder.

20The authors opined that any suffering psychologically due to the offending.

"She reports distressing thoughts, feelings and memories associated with her experience of sexual abuse and is yet to feel a sense of containment or mastery over these feelings.  She reports general anxiety and sadness over which she has little control and which leave her alternatively subject to anger or so despondent that she's had thoughts of self-harm.  She will continue to require treatment."

21I take this letter effectively to be the victim impact statement of N.

22Such trauma is utterly consistent with the profound effect which sexual abuse inflicts on victims.  Every aspect of their social, emotional, psychological, academic, vocational life is impacted upon and such damage is often prolonged and requires much treatment and assistance to overcome it.  When inflicted on a child, such trauma must, by its very nature, produce future damage, the extent of which cannot be adequately described.

23S has also written a victim impact statement, which was produced and read to the court, and speaks also of the impact on N as well as on herself.  She says N struggles most days in all areas of her life.  She has low self-esteem with negative body image.  N has thoughts of self-harm, which she has attempted to enact before being dissuaded.  N is filled with sadness and anger and can be verbally and physically abusive towards her siblings and S.  She then feels confused and guilty about being angry and doing hurtful things to the people she loves.

24S is concerned naturally about N's ability to build trusting relationships.  N has fallen behind in her education, with many days off from school attendance because she feels unsafe.  Her trust has been undermined and while at school, hears your voice in her mind.  She suffers from terrible flashbacks, reliving the abuse and has trouble sleeping.  She wakes up often crying and screaming for help.

25There are many triggers for traumatic memories.  S's own feelings as a mother have been impacted.  She doubts her role and skill as a parent and is plagued by feelings of guilt.  She herself now battles with depression and often cannot comfort N by a simple hug because N is now hypersensitive to people's touch.

26I take these statements into account.

27You conduct has changed the lives of S, of N and probably your other children forever, and breached the most fundamental and sacrosanct of trust, that between a daughter and a father.  She was entitled to be protected, cherished and to feel safe in her own home, to have her innocence defended by you.

28Your repulsive and abhorrent behaviour undertaken for your own debauched sexual gratification strikes at the most fundamental relationship at the heart of family.  Committed brazenly in the home, sometimes while your partner was at home, and more often, cowardly when she was away and your daughter was vulnerable to your contumacious behaviour.

29The incidents which have been outlined form only the particularised incidents in a regular, ongoing abuse.  One of them, the incidents which follows the driving of the car, is particularly grave offending, following, as it does, on what must have been a terrifying ordeal with N, confronted with your pathetic intimation that you were about to drive her and her siblings into a lake.  You then return home, knowing how scared she must have been and you sexually abuse her.

30Other aspects of aggravation are your demand, which is inherently threatening from an adult to a child not to tell anyone.  Your removal of your finger from her vagina and licking it in front of her for her to see is further aggravation.

31In your interview, you described your conduct as having, at times, simply being an inability to control yourself, especially at times when N would ask for some comfort and tummy rubs, blaming your high libido and too much pornography watching, and in my view, placing some of the responsibility on your own child, even exhorting her, a young child to tell you, an adult, to stop.

32You admitted to inappropriate conduct with her for about two years, once or twice a week.  You told police you told her, "We've got to stop", as if she was somehow complicit in this behaviour, which she was not.

33I have regard to your circumstances and background.  I note that you have no prior convictions, except two Children's Court appearances, one for arson aged 16 and one for theft, both dealt with by way of a good behaviour bond.  Your appearance in 2016 post-dates the offences I am dealing with and consisted of persistent breaches of a family violence intervention order, which were based on texts that you sent to your ex-partner.

34I take into account your guilty plea, one which was entered at an early stage and which will therefore be accorded a discount of sentence by operation of law.  I accept your plea has a significant utilitarian value having avoided a trial, and in particular, having made evidence by N on your trial unnecessary.  I also accept that you have demonstrated by this plea and other expressions made to a number of family members and professionals, your regret and remorse for your conduct.

35You are now 31 years old and you are the oldest of two children born to your parents.  Your parents separated when you were aged about four and some conflict between them continued and intensified after your mother re-partnered some many years later.

36Mr Patrick Newton, an experienced clinical and forensic psychologist, provided a very comprehensive report dated 14 October 2017 of his assessment of you.  You reported to him a range of developmental problems.  You were described as a simple and unsophisticated thinker, challenged by learning disability with remedial literacy and limited capacity for abstract thought, with severe impairment in your verbal skills, but reasoning skills in the average range.

37Your studies ended in Year 10 effectively after behavioural outbursts, which included fire setting.  You commenced an apprenticeship as a plasterer, which you did not complete and since that time, your work history has been somewhat sporadic with stints as a labourer.  In 2015, in the midst of the offending period, your last job as a warehouse distribution centre, where you were employed I was told for some nine years, ended and you were given a redundancy package.  It was only after six months that you were again employed as a storeman, meaning you had more idle time in between.

38I should say, although during your plea it was asserted you had many years of stable employment as I have stated above, that is not reflected in paragraph 15 of Mr Newton's report, who was told by you that you were genuinely "let go" after a brief period when the standard of your work had been inadequate.  I am prepared to accept you have a reasonable work history.  In any event, at the time of the assessment, you were not in employment and were not seeking work.

39When aged 19, you met S while attempting a VCAL program, with which you did not persist.  You are on good terms with your mother and step-father.  Your biological father was a taxi driver and you lived with him earlier this year after sporadic contacts over the years.  You have of recent time, been living with your mother.

40There are three children with S and you finally separated from her in May 2016.  The relationship in the 2014 and 2015 period was strained, and you decided to end it.  However, you reconciled and S fell pregnant with your third child.  However, the relationship continued to deteriorate, with both of you occupying separate rooms.  Your redundancy was a contributing stressor, as well as substance abuse issues pertaining to cannabis use.

41Mr Newton elicited a sexual history which can be found at paragraph 16, which does not bear repeating, except to say it included unsavoury aspects from teenage years.  As to the relationship with S, you told him you had issues with her about parenting issues, including continuing to use drugs despite her desire that you should stop.  Your intimacy with her diminished, and over the last two years, you felt increasingly sexually frustrated.  You have had no contact with her or the children since the offending came to light.

42After this break up, you began a relationship with a female patient when you were admitted to a psychiatric ward at Sunbury Hospital, but that turbulent relationship also ended.  You are now in another relationship, with the two of you residing with your mother.

43The Sunbury Hospital admission was to deal with depressive symptoms as a result of your arrest on these matters.  You were discharged after a week with a prescription of anti-psychotic mood stabilisers, Seroquel and Escitalopram on an anti-depressant.

44Your compliance with these prescribed medications has been poor.  You had experience depression in the past at school and in the workplace.  I note that in the time you have consulted with Mr Newton's offsider, Dr Bath, you have necessitated some ongoing safety planning to ensure you are protected from impulsive acts of self-harm.  I will order that appropriate appraisal and dispositions are made by the correctional authorities in this regard.

45More importantly, this current major depressive disorder, now in partial remission due to medication, does enliven the fifth limb of Verdins and I do take this issue into account.

46You have reported a history of significantly problematic drinking and drug use.  Mr Newton considers you have a physical dependence to cannabis, which you began to smoke age 13.  You used speed at 15 and graduated to ice aged 17, which you have used "on a semi regular basis for fun" and these drugs induce a state of hyper-sexuality.  You told Mr Newton that a significant proportion of the abuse perpetrated against N had taken place when you had used methamphetamine, although not on every occasion.

47In my view, this is an aggravating feature.  After years of use and knowing its effect on you, particularly the inducement of a state of hyper-sexuality at a time of sexual frustration with your partner, your continued use of the drug and the abuse of your daughter in that state must have been well known to you.  In spite of which, you continued.

48Sexual excitement was also induced by your use of LSD and various synthetic drugs and psychoactive mushrooms.  You have continued to use cannabis daily, with no motivation to change this drug use.  You used hallucinogenics and stimulants after your arrest and you used cannabis immediately before you were interviewed with Mr Newton.

49Your explanation to him of your offending is noteworthy.  You told him at the time you were using large amounts of alcohol and other drugs, and had been viewing extensive amounts of pornography every day.  You said, "My daughter initiated the sexualised conduct between us because she seemed to like it."  You added that, "You told her it was wrong, but she's continued to initiate the behaviour" and you had, "Given into her requests because you find it hard to say no to people."

50This lack of insight on your part is breathtaking.  You suffer neither from mental retardation, nor intellectual impairment, thought disorders or symptoms of psychosis, and have a clear appreciation of right and wrong.  I agree with
Mr Newton's opinion that you were always aware of the wrongfulness of your conduct and could always appreciate its nature and likely consequences.  Your sexual adjustment is characterised by what he describes a psychosexual pathology and deviance.  You found the offending committed upon your daughter sexually gratifying.

51You were seen by Dr Bath for some treatment consultations between June and October 2017.  You found it hard to engage in treatment and program and progress has been quite slow.  Your insight is limited and you continued to attribute responsibility to your daughter for initiating sexual contact between the two of you, and you could not discuss the damage caused to children by sexual contact with an adult.

52When assessing your risk, Mr Newton concluded, you are at moderate to high risk of reoffending, somewhat higher than that of a typical sex offender in the community.  Mr Newton candidly and helpfully expresses the view that the requirements of sex offender registration, long term engagement with treatment and the deterrent aspect of sentencing should confer some further protective containment in your case.  He opines that your behaviour would clearly meet DSM-5 criteria for a paedophilic disorder, non-exclusive type and an unspecified paraphilic disorder.

53The most pressive rehabilitative need is for you to participate in specialist sex offender treatment to modify your behaviour and achieve other important reformative aims.  Dr Bath provided a supplementary report in support of the opinion in the report by Mr Newton.

54A letter from Dr Saunders dated 3 February 2017 was also tendered to show you were, at that time, a client of Western Psychological Services since 15 December 2016, but not as of that date of the letter received the full psychiatric and forensic evaluation.

55Another letter dated 9 July 2016 from Dr Karen Arukna, consultant psychologist, was also tendered.  It is clear from that letter that you had significantly misrepresented your situation in that assessment.  I place little weight on it.

56I do to take account the cooperation by way of an admissions against interest in your record of interview.  I accept that in the terms of particularisation of two incidents, they are contained in answers given by you in that interview.  You admitted to the period of the offending, N's age and the frequency of the abuse.  These answers are to your credit and I will have regard to this assistance for the course of justice.

57Your attendance at treatment pursuant to a mental health plan under
Dr Saunders and the voluntary counselling by Dr Bath are also to your credit.  In my view, your prospects for rehabilitation must be guarded.  Despite family support, a current relationship and a lack of relevant priors, your psychosexual assessment, these index offending and your limited intellectual capacity outweigh the protective factors.

58Although you demonstrated some degree of empathy and remorse, your deficits in your ability to understand the basic elements of the interventions, your poor concentration and insight and learning problems do not all go well for your future.

59These latter aspects are not aggravating of the sentence, but are to confirm your poor prospects.  Nevertheless, I agree that you have at least not demonstrated hostility or unwillingness to receive treatment, which is a positive sign.  I also agree, there are some aspects which draw this offending into the middle range of offending, but by dint of some features, it is in the high end of that range.

60It is true there has been no exposure to pregnancy or sexually transmitted diseases, and that full penetration was not achieved.  It is also true that the injunction to not tell was not accompanied by violence of clear threat.  However, N's age, the relationship, the gross breach of trust, the frequency and duration of the involvement of the abominable plan to drive into a body of water lifts the objective seriousness of this offending well into the highest level of that range.

61The offences are penetrative offences and of an incestuous nature of high moral culpability, requiring the imposition of condign just punishment to express the condemnation, and denunciation of your behaviour are attributed aspect for the damage which has occurred, specific deterrence relevant to your psychosexual state, and most significantly, general deterrence to address and deter all who are minded to offend in such a manner, in order to protect the community from such predatory conduct and particularly the most vulnerable, children. 

62I have read the authorities which were referred to me during your plea submissions in order to ascertain current sentencing principles.  My starting point must be the maximum penalty available, and that is 25 years' imprisonment.  I have also looked at a number of other cases which deal with different but somewhat similar types of offending, particularly those past the High Court case of Dalgliesh which was referred to.

63Dalgliesh dealt with incest and the High Court concluded that current sentencing practices were inadequate as to that offence and that such practice should only be one of the elements that is taken into consideration.  Such practice was said to not be a proportionate response to the objective gravity of the offence, or to be sufficiently reflective of the moral culpability of the offender.

64The mid-range sentences should, the court said, as a consequence, be adjusted upwards.  I have regard to this gradual uplift in seeking to impose a proportionate sentence.

65Stand up please.

66On the count of persistent sexual abuse of a child under 16, you are convicted and sentenced to 11 years' imprisonment.  I order a non-parole period of seven years.

67Under s.464ZF ‑ ‑ ‑

68OFFENDER:  I am sorry, Mum.

69HIS HONOUR:  ‑ ‑ ‑ I order that you undertake a forensic procedure for the scraping of the mouth in order to obtain a sufficient standard for placement on the database.  At the time that that request is made, if you do not consent to the taking of a mouth scraping, an authorised member of the police force is authorised to take a blood sample from you and to use reasonable force to do so.

70As a consequence of this sentence, you are subject to the provisions of the Sex Offender Legislation, and for purposes of that Act, you are to be registered for life as a sex offender, with the obligations that follow upon that registration.

71Are there any other ancillary orders that I need to make?

72MS CAIRNS:  No, Your Honour.  That PSD of 28 days should be declared.

73HIS HONOUR:  Yes.  But for your plea, I would have sentenced you to 13 years with a non-parole period of eight and a half years.

74I note for the records of the court that you have spent 28 days by way of pre-sentence detention, and that number will be taken into administratively consideration in relation to your sentence.

75MR HALPHEN:  As Your Honour pleases.

76HIS HONOUR:  I note that the prisoner's family is in court.  Whoever wants to speak to him may do so.  I will remain in court.  If you would do so briefly before being taken away please.

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