Director of Public Prosecutions v Shearer (a pseudonym)
[2018] VCC 934
•20 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OWEN SHEARER (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE GAYNOR |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 20 June 2018 |
| CASE MAY BE CITED AS: | DPP v Shearer (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 934 |
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 M. Revell | Office of Public Prosecutions |
| For the Accused | Ms A. Scroop |
HER HONOUR:
1Owen Shearer[1], you have pleaded guilty before me to four charges of incest. The charge of incest carries a maximum penalty of 25 years' imprisonment.
[1] Owen Shearer is a pseudonym.
2The facts underlying your offending are contained in the very detailed prosecution opening which I annex to my sentencing remarks. However in brief terms you were in a relationship with Tahnee Keys[2], the mother of the complainant, Karina[3], for about 11 or 12 years. You have had four daughters with Tahnee Keys. Karina is the daughter of Tahnee and you are not her father, you were in the position of stepfather at the time that the offending occurred. At the time of this offending she was aged between 11 and 14 years.
[2] Tahnee Keys is a pseudonym.
[3] Karina is a pseudonym.
3The offending to which you have pleaded guilty primarily relates to four occasions in which you engaged in penile-vaginal sexual penetration without protection and where you ejaculated. On the first occasion which occurred between February 2012 and January 2014 when Karina was 11 or 12, she was asleep in her bedroom, you came in, you pulled down her pants, she kicked you and told you to "fuck off". You told her to "shut up" and she was scared.
You pulled down your boxer shorts and penetrated her vagina with your penis, which caused her pain. You then pulled up your boxer shorts and left.
4Charge 2 occurred in about mid-March to April 2014 when Karina was 13.
The day after moving into this house Karina was unable to sleep, heard footsteps and hid under the blanket and you came into her room. Again you pulled down her pyjama pants and your boxer shorts, grabbed her arms and penetrated her vagina with your penis. When you had finished, you hugged her and then left the room.
5Charge 3 occurred when the family was living in emergency accommodation in about mid-April 2014. About a week after moving into the house you came into Karina's bedroom during the night, stood there watching her, took off the blankets, took off her pants and underwear, pulled down your boxer shorts and penetrated her vagina with your penis until you ejaculated.
6On the fourth occasion, which was on 26 July 2015, when the family was living in a house in a regional town in Victoria, where they moved in about mid-April 2015 you went into the bedroom that Karina shared with her sister, Beth[4], you at about 4.00 in the morning of 26 July, went into that bedroom, removed Karina's blankets, took off her pants and underwear, touched her thigh and felt around her body, then took off your boxer shorts and penetrated her vagina with your penis. She told you "no", you held her down and jumped off the bed when a light came on in the nearby toilet.
[4] Beth is a pseudonym.
7Later that day, Karina stayed in bed until after lunch and was taken aside by her mother and asked what had happened. At about 4.30am Tahnee Keys got up to feed one of her daughters and went to check on Beth who had been unwell. The bedroom was dark but she noticed that your bed clothes were not tucked in, there seemed to be a mound in the bed. Then she left the room and heard a loud thud in the bedroom shared by Karina and Beth. When she returned to that room Ms Keys saw you standing between the two beds saying that you were giving Beth her Ventolin. However while she was following you down the hall Tahnee Keys noticed that Beth's Ventolin was still standing on the computer desk.
8Karina told her mother that you had been in bed with her and had sexually abused her and shortly after Ms Keys contacted police at Sale to report the matter. You were arrested on 27 July 2015. You acknowledged that Karina was your stepdaughter and said that you had gone on the previous Saturday night into her bedroom to check on your daughter, Beth, after hearing her cough and you then said you jumped into bed with Karina, pulled her knickers down and "rubbed my doodle on her vagina".
9You said you had never done anything like that before and that you were not certain if your penis had penetrated Karina's vagina. You denied that you had ever started grabbing Karina's bottom or sexually assaulted her before and denied previous assaults. You said you had only touched her once and provided a forensic sample at the request of police.
10Analysis of that forensic sample occurred - which was then compared with forensic sample taken from Karina's underpants. Semen was detected on those underpants and analysis of that against the sample taken from you supported the proposition that you are the likely source of the semen on the underpants.
11After your arrest you were remanded in custody firstly at the MRC and later at Port Phillip Prison. You then conducted a series of calls and letters to Tahnee Keys between 7 October 2015 and 30 July 2016, the details of which are contained in the prosecution opening. In short summary you spent quite a period of time writing to Tahnee Keys, urging that she take Karina down to retract everything she had said to police, urging her to tell Karina that she must go to a Magistrate and say she had lied and used a number of arguments upon Tahnee talking about how the family needed you, that it was all lies, that nothing was going to happen unless she did what you said. On two occasions you suggested that she hit Karina in order to make her retract her statement. You also included messages which were to be forwarded to Karina.
12This went on, as I have said, for some period of time. It comprised a series of calls, a series of letters and in fact included an exercise book which you sent to Tahnee Keys basically again setting out a series of reasons as to why
Ms Keys should get Karina to retract or recant, saying that Karina was lying or to simply disappear so that the charges could not continue.
13These proceedings have had a fairly drawn out history.
14There was first a filing hearing in this matter on 28 July on 2015. There was a committal mention in October which was adjourned on the defence application to obtain further instructions and for further charges to be considered. There were a series of committal mentions through the rest of late November and then early February. Then there was a committal hearing listed for 2 August 2016 which was adjourned by the prosecution because more evidence had come to light. Then on 6 December 2016 there was a committal hearing at the Sale Magistrates' Court. Witnesses were cross-examined and you were committed for trial.
15The normal directions hearings then proceeded in the County Court.
The matter was adjourned on 14 February 2017 so that plea discussions could take place. There was another adjournment to that effect and then on 11 April 2017 the court was advised that the matter had resolved and a plea opening was filed. You were arraigned and pleaded guilty to charges of incest on
12 April 2017 and defence said that they would seek a neuro-psychologist's report. Then in May there was a notice from your then solicitor that he was ceasing to act and you appeared unrepresented at the Melbourne County Court for the plea hearing on 1 June 2017.
16The matter went on, you obtained new solicitors, there were further mentions throughout June and August 2017 and on 17 August you indicated there would be a change of plea application. As a result of that a number of neuro-psychologist reports were obtained both by the defence and prosecution. This went on throughout the last half of 2017. Ultimately after the prosecution had served its own neuro-psychologist's report on the defence, the change of plea application was withdrawn and you entered a plea in the Melbourne before this court on 14 June 2018.
17I am now going to turn to the victim impact statement. In particular I refer to the victim impact statement of Karina, which she very courageously read out in court. Clearly this offending has had a most serious effect upon her. It has caused a schism between herself and her mother. I received a victim impact statement from Tahnee Keys but was informed by defence that she continues to have contact with you and it would appear that there is some form of relationship between you still ongoing. One could absolutely understand that this would undermine Karina's sense of trust in her mother.
18However soon after this offending came to light, Karina moved out of her mother's care and went to live with her aunt, which was a major change as she left the area, lost most of her friends, had to restart her life as she moved from Sale to Maffra. School was difficult for her. She attended for three days and did not go back. School has played a very small part in her life ever since. She stated, "Whenever I went I'd have anxiety attacks and would remember something and leave in tears". Then there were difficulties after a few weeks with a cousin and Karina moved out to live with her father. She had not spoken to her father, at that stage, for 14 years so this was a major change. She stated:
"This whole situation has changed my life in many ways and still has left me with depression and anxiety from the trauma over the years. I have self-harmed and am left with scars because of the flashbacks and nightmares of these events. I have had sleeping problems and was on sleeping tablets because I would have nightmares about it. I've lost the majority of my friends because of this moving and lost my mother".
19Can I say to Karina, who is present in court today, that the effects that you have described are classic. You are not the only victim of sexual abuse who has suffered in this way just so you do not feel like it is in any way your fault, Karina. The court congratulates you on having the courage to come to both hearings and to read out your victim impact statement. Hopefully in some way this hearing will assist you. The experience of this court is the sorts of reactions that Karina has had, as I have said, are very common and can persist for some time and it is hoped, and Karina recognises, that she should receive as much assistance to overcome these problems as she can possibly get. It is a very difficult situation to be in.
20It was clear from the victim impact statement that Karina is a very bright girl who ordinarily would have a good future and should be able to obtain a good education and go on to carve out a happy life for herself but overcoming this sort of offending is not easy and hopefully, Karina, you will receive all the assistance that you need and move on to live the life that you deserve to have, All right? Thank you.
21I also received a victim impact statement from Tahnee Keys where, in fact, she talks about the fact that she had lost her daughter, whom she described as almost like her best friend, as a result of this offending. She said, "I still can't get my head around everything that has happened. I'm still numb".
She concluded:
"I just can't get past the fact that he has destroyed not only Karina's life but his children's lives and one day they're going to grow up and understand what he has done and they will carry that shame, the same as I am. I can't even console my own daughter 'cause she wants nothing to do with me".
22Therefore to conclude the results of this most serious offending have had a cataclysmic effect upon Karina, upon Tahnee Keys and upon your other daughters who will one day grow up to learn what you have done to their older sister.
23I now turn to your personal circumstances. You are 52 years of age, of Aboriginal descent, the second eldest of 11 children born to your parents. Those parents were together until the recent death of your mother. You have not reported to any of the neuro-psychologists who assessed you any drug, violence or alcohol abuse within your family. However when you were seven you were raped by your cousin. You told no-one about this until speaking to your mother in your 20's. You told neuro-psychologist, Dr Linda Borg, whose two reports dated 25 October 2017 and 13 June 2018 were tendered on your plea, that your behaviour then changed.
24You began regularly abusing alcohol by the age of ten. By the age of 14 you were drinking four bottles of spirits a day and you continued in this way with alcohol abuse until about the ages of 25 to 27. You smoked cannabis on a daily basis from the age of 11 to 12 years and you continued in this way until you were arrested in 2015. From the age of 19 you abused amphetamines and continued this until 2002. You were spending about $250 per week on your habit. In recent years and at the time of this offending you were engaging in regular ice use which was costing you up to $1000 per week. Over the years you have undergone two stints in residential rehabilitation.
25You completed school up to Year 11 and your employment then has essentially been sporadic farm and labouring work. You have 14 children from three relationships and you were in a relationship with Ms Keys for almost 15 years. At the age of 22 you were struck on the head with an iron bar and you were shot twice in your younger years although suffered no serious injury.
26You have a long criminal history dating back to 1984 which continued in a regular way until 2003 when you began your relationship with Ms Keys and you then underwent a period, it would seem, of stability and no offending until 2012 when your offending against Karina began. There are a large number of prior convictions for assaults, dishonesty and firearms charges.
27There is no prior history of sexual offending. However you have two old charges of assaulting a female and in 1992 were sentenced to eight years imprisonment with a four year minimum for manslaughter. I was given a copy of that sentence and that was a situation where you stabbed your then de factor partner to death whilst you were seriously intoxicated. In 2003 and 2010 you were dealt with for contravening a domestic violence order although I was informed the 2010 hearing related back to old charges and you received three months for that offending.
28I have mentioned the large number of neuro-psychological reports that I have received - two reports from Dr Borg, I received an assessment from neuro-psychologist, Martin Jackson, dated 29 May 2017 and the neuro-psychological assessment of Warwick Brewer dated 14 March 2018 and whose conclusions were ultimately agreed to by Ms Borg. As I have said they were mostly prepared for the purpose of the change of plea application.
29There was a range of assessments; your overall IQ is between borderline and low average. It was essentially agreed that you had been adversely affected by a past injury but that primarily the acquired brain injury which you were said to have suffered related to your use of drugs and alcohol over the years.
30Defence counsel in particular relied upon the second report of Dr Borg in arguing that I should find that there was a lesser moral culpability on your part because of the cognitive difficulties you now suffer. It was stated by Ms Borg that the cognitive dysfunction that you suffer was "secondary to the combined impact of substance abuse, potential closed head injuries and psychiatric factors were longstanding and present when the behaviour occurred". She noted "however [that your] psychiatric status at the time [of offending] is difficult to determine psychiatrically".
31I have difficulty in accepting that submission. You spoke of being under the influence of ice at that time. I do not find that the cognitive dysfunction revealed by the reports could be said to be sufficiently linked to your offending. That is,
I do not find that your cognitive status led to your offending against Karina.
It is simply, it seems to me, perfectly obvious that you knew what you were doing, that you carried out this offending in a very deliberate and callous way over a period of years. You used considerable acumen and planning in writing the material you did to Ms Keys and potentially to Karina in order to get out of this situation. I simply cannot find that there is a link between any difficulties you might have and your offending against your stepdaughter.
32I do accept that as a result of the cognitive difficulties revealed by the reports that service of a term of imprisonment will be more difficult for you. Your counsel also informed me that whilst in gaol your mother died. You were unable to attend the funeral and your father has experienced a stroke and you are anxious about him. I was informed that you are quite isolated in gaol although it appears Ms Keys is having regular contact with you.
33I accept that the rigidity in thinking, the difficulty in controlling your responses, those sorts of things that were outlined in the report may make gaol a more difficult experience for you than the normal prisoner.
34It was submitted by defence that you had entered an early plea of guilty. I do not accept that application either. You were not cooperative with police. There was an extended period of time before this matter was able to be dealt with finally in court. You sought to change your plea and I simply do not accept that this was a plea that could, in any shape or form, be described as an early one.
35I do accept that you are entitled to the utilitarian discount that is attached.
I accept that I must find that through your plea of guilty you have saved the community the time and expense of a trial and more importantly saved Karina the traumatic experience of giving evidence in court. However I do not find that any remorse for this offending is anything other than limited. In making that finding I refer to your appalling post-offence conduct which was all about saving your skin and which urged disgraceful behaviour by Ms Keys towards Karina including hitting her. You brought considerable pressure to bear using every emotional means you could to have Ms Keys take illegal, unlawful actions and to bring pressure on Karina so that you were not brought to justice for your very serious offending against her.
36I also refer to Ms Borg's report. You have, at a number of times, talked about Karina, in fact, initiating the sexual relations between the two of you and you have persisted with this. For example, at paragraph 6 of her second report
Ms Borg stated:
"Mr Shearer was well able to define concepts as regret and shame. He stated that he was 'regretful for taking ice and not taking my medications. I'm regretful for not telling Tahnee this girl jumped into bed with me and was getting my penis out'".
37That does not have any ring of remorse to me and Ms Borg saw you on 4 June 2018 prior to writing this report. In my view you will always have trouble accepting what you did to your stepdaughter and will tend to blame her for it.
38The fact that you have no prior sexual offending in your criminal history, which was also submitted to me by defence counsel as being a mitigatory factor, is of course of far less importance in a case such as this. Persons who have committed serious sexual offending against children, the authorities make it clear, are far less able to rely on a previous clean criminal history than in other types of offending. I have noted, however, you have a history of offending in a most serious way against women.
39It was also submitted that I should take into account your difficult history. It was clear from the reports that you have suffered from depression for many years. You were placed on anti-depressant medication, which you ceased taking at the time of this offending and began using ice. It was noted that you had suffered from substance abuse for many years as a result of the offending against you by your cousin. This resulted in self-harm.
40As against this, however, you have reported a good personal family history. There were also, prior to your offending of Karina, years of non-offending by you. I do take into account that you have had a difficult history but for the reasons I have said this history has less application in this current case.
The offending against your stepdaughter was protracted and took place over several years.
41It was also submitted to me that I should take into account the totality principles. As of 29 September 2017, you were sentenced to nine months' imprisonment for attempted burglary, criminal damage, handling stolen goods, which offences were committed on 26 July 2015, right about the time of your last instance of offending against Karina. These matters, of course, were heard in the Magistrates' Court. The principle of totality is based on the fact that if all the cases had been heard together there might be some concurrency and that that opportunity of concurrency has been lost.
42However this offending is entirely different to that being dealt with by this court. It was most unlikely such charges would ever be heard together. In my view there has been a minimal loss of concurrency as a result of these offences being heard in the Magistrates' Court and this charge being heard here.
The nine months' imprisonment, given your prior criminal history seems entirely appropriate. I will to some, but to a very small extent, take this into account in sentencing you.
43A further matter was brought to my attention in relation to a statement that you made but the information I then received was that it related to a case which was a strong prosecution case in any event and whilst of some value, did not carry the weight as statements in other circumstances may have. I am referring to this in a fairly oblique way for obvious reasons. However it is a matter I will take into account.
44Whilst in gaol you have made progress. You have returned 20 negative urine screens. You have undertaken many courses, in particular involving yourself in Aboriginal cultural and art courses and I was given some examples of your artwork which is very good. You have undertaken three ice addiction programs, occupational health and safety programs, you have undergone a 12-hour substance abuse program. You have taken courses in kitchen operations, hygiene, using a calculator, food preparation, cleaning carpets and so forth and you work in the garden. That is good progress and is something
I certainly will take into account.
45However, in my view, your prospects of rehabilitation can only be guarded. There is a lack of remorse and insight about your offending. The psychological opinions are that you are a high risk of re-offending if you continue with your abuse of drugs and alcohol. I cannot say what your progress will be like in the outside world. It is an unknown quantity but I do view you as being a fairly high prospect of re-offending should those matters not be dealt with. You seem to have made a good start in gaol but it is impossible to say what your progress will be like once you are released from prison.
46Basically what I am saying to you, Mr Shearer, and I have had to say it in legal language, is that your offending is really serious. You do not seem to understand it or accept that you did it. You have been out of trouble for some time because of what seems to have been a good relationship with your partner, Tahnee. You have betrayed her trust, you have betrayed your stepdaughter's trust and at the age of, in your late 40's, early 50's you started using ice on a large level. I am impressed with the progress that you have made in gaol but no-one can say if that is going to continue once you are released and once you have not got the structure of gaol around you. The view of the
neuro-psychologists is if you do not get on top of your drugs and alcohol there is a good chance you will do that again. These are all matters that I have to take into account.
47The prosecution submitted that this offending was a serious example of serious offending and indeed this was conceded by your defence counsel. The conduct that you engaged in means that the court must primarily have regard to the principles of punishment, general deterrence, denunciation or criticism of what you did and protection of the community.
48There are some aggravating features attached to this offending. It occurred on multiple occasions over a period of years. You engaged in unprotected sex and ejaculation in relation to your 12 to 14 year old stepdaughter, which put her in grave danger of sexually transmitted disease or even worse, pregnancy. There was a great disparity in age between you. The authorities have made it clear that sentencing for incest needs to be higher than it has been previously and that the previous regard that judges had to have to current sentencing practices is not something that should overwhelm the sentencing process and that I must impose a sentence that is just in all the circumstances.
49It has been conceded, of course, that the only way I should deal with you is by way of a term of imprisonment to be immediately served. I do take into account your plea of guilty, your difficulty background abd to your progress in gaol. However, as I have said, you have got limited insight, little remorse and you have had a serious relapse into drug abuse at the time of this offending. Therefore I sentence you as follows. Could you stand up please, sir.
50On each of the charges you are sentenced to four years' imprisonment. I order that 18 months of the sentences imposed on Charges 2, 3 and 4 be served cumulatively to the sentence imposed on Charge 1. Giving a total effective sentence of eight years' imprisonment. I order that you serve a minimum term of five and a half years before becoming eligible for parole.
51I declare that you have served 791 days, that 791 days of this sentence have already been served. The sentence will begin from today which means there will be five days concurrency with the sentence currently undergone.
52Had you not pleaded guilty I would have sentenced to a term of imprisonment of ten years and order that you serve a minimum term of seven and a half years. Thank you.
53Do you understand what I saying, Mr Shearer? I know I used a lot of legal language but I tried to jump through halfway. You did a very terrible and serious thing to your step-daughter.
54OFFENDER: All right.
55HER HONOUR: It is a huge breach of trust. You have caused her great damage in her life, not as much damage if she had fallen pregnant to you, which she well could have done, all right? It is very serious offending and that is why you are getting the sentence you have. You can take Mr Shearer down.
56MS REVELL: Your Honour, sorry, may I please raise something with you?
57HER HONOUR: Pardon?
58MS REVELL: May I please raise something quickly with you?
59HER HONOUR: Is my maths all wrong?
60MS REVELL: Just in respect of declaring - as a sexual offender.
61HER HONOUR: He is a serious sexual offender for Charges 3 and 4 on the indictment. That's correct, isn't it?
62MS REVELL: Yes, Your Honour.
63HER HONOUR: Yes thank you. I forgot about that. You will be placed on the sex offender's registration for life. Sorry about that, I should have remembered that.
64MS REVELL: And just the disposal order.
65HER HONOUR: I've got all that. What have I done with it? I'll leave you to fill out who the judge was and all those sorts of things and the date made. There you are, thank you.
66Just while we're there, Karina, you back at school now?
67COMPLAINANT: No.
68HER HONOUR: How old are you now?
69COMPLAINANT: Seventeen.
70HER HONOUR: How far did you get before you dropped - to give it away?
71VOICE (from body of the court): Six months.
72COMPLAINANT: Yeah.
73VOICE: I tried but ‑ ‑ ‑
74HER HONOUR: How do you feel about it?
75COMPLAINANT: I want to go back to school but I can't.
76HER HONOUR: You just can't do it yet?
77VOICE: She needs to have like a free day kind of thing and then like a community school, if you know what I'm saying, like ‑ ‑ ‑
78HER HONOUR: Whereabouts - are you still in?
79VOICE: Ballarat.
80HER HONOUR: In Ballarat?
81VOICE: Yes.
82HER HONOUR: Check it out, there's a fair bit around Ballarat.
83VOICE: Yes. She wants to, kind of, spread her wings and fly away and just do her own thing so I've kind of let her do it but I ‑ ‑ ‑
84HER HONOUR: No, no I understand that.
85VOICE: Yeah, I've had to (indistinct) the house so she can come down with me. She's working at a local fast food restaurant so ‑ ‑ ‑
86HER HONOUR: That's good, you're working?
87COMPLAINANT: Yep.
88VOICE: (Indistinct) Friday and Saturday and Sunday.
89HER HONOUR: You'll get there in the end. How far did you get at school?
90COMPLAINANT: Um, I got - I didn't do Year 9. I did Year 10 and then caught up to Year 11.
91HER HONOUR: That's really good.
92VOICE: It's better than what she was doing anyway I ‑ ‑ ‑
93HER HONOUR: Yes, yes. That's really good.
94VOICE: ‑ ‑ ‑ was just trying to (indistinct) and you know ‑ ‑ ‑
95HER HONOUR: You strike me as a bright girl. You know, if you want an interesting job, unfortunately you have to go to back to school, and you will, you will one day but there's lots of way - there's ways you can do it.
96VOICE: I mean Year 11's good. That's - Year 11 is kind of - they accept that kind of - Year 10 and bang, it's nothing.
97HER HONOUR: No, I agree with that but I mean - and I am sure Dad will sort it out for you but there is a lot of ways of - you can go back as an adult student doing, you know - you obviously don't want to go back to high school with a whole lot of, you know, 15 year olds, but you can there's lots of other ways you can do it.
98VOICE: She's been looking at TAFE and all that kind of stuff because she can go back and do her Year 11 outside from the school, you know what I mean so ‑ ‑ ‑
99HER HONOUR: Absolutely. When you're ready.
100VOICE: That's what I mean.
101HER HONOUR: You look very unenthusiastic at the moment but when you're ready you'll do it, for sure. Yes, Madam Prosecutor?
102MS REVELL: Your Honour, I apologise. May I just raise a few - I've just recalculated this - for the sentence and 18 months on Charges 2, 3 and 4 to be served cumulatively with the four years imprisonment is eight years and six months.
103HER HONOUR: Is it?
104MS REVELL: Total effective sentence.
105HER HONOUR: Here it is. All right, I will re-sentence that one. So it should be eight years and six months.
106MS REVELL: Yes, Your Honour.
107HER HONOUR: All right. Sorry, Mr Shearer, as a result of your offending you must be placed on the Sex Offender Register for life. We are going to serve the papers on you and your counsel will explain what your obligations are on that order. Have a seat, Mr Shearer. I need to say that the maximum penalty, in fact, is eight years and six months with a minimum term of five years and six months.
108MS REVELL: And declaration of a serious sexual offender.
109HER HONOUR: I declare you to be a serious sexual offender for the purposes of sentencing in Charges 3 and 4 on the indictment. We will just stand down, thank you.
‑ ‑ ‑
ANNEXURE: PROSECUTION OPENING
IN THE COUNTY COURT OF VICTORIA Indictment No: F12715467.1
AT LATROBE VALLEY Court Reference:
CRIMINAL JURISDICTION
IN THE MATTER OF the Criminal Procedure Act 2009
| THE DIRECTOR OF PUBLIC PROSECUTIONS v. OWEN SHEARER |
SUMMARY OF CROWN OPENING ON PLEA
| Date of document: | 11 April 2017 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: JOHN CAIN Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | S.G.MacDougall Solicitor’s code: 7539 Telephone : (03) 9603 7666 Direct: (03) 9603 7 Reference: Mr A. Lew |
Background
- The Accused, Owen SHEARER, was born on 8 April 1966. At the time of the alleged offending he was aged between 46 and 49 years. He and Tahnee KEYS met when they were both living in Geelong. When they met, Tahnee KEYS had three children of her own, including Karina.
- The Accused and Tahnee KEYS began a de facto relationship which continued for about 11 or 12 years until 2015. During the relationship, they had four daughters together. The family moved around various regional Victorian towns.
KARINA
- The first Complainant, Karina, was born in February 2001. She was about 5 years old when the Accused and Tahnee KEYS began their relationship. At the time of the alleged offending, she was aged between 11 and 14 years old.
- The family moved to a new town in late 2009 and left on 28 January 2014. It was a three-bedroom house. Two of the daughters shared one room and two shared another.
- Between 1 February 2012 and 31 January 2014, when Karina was 11 or 12 years old, the Accused had sexual intercourse with her. Karina was asleep in her bedroom when the Accused came in. She awoke when she felt the blanket move. The Accused pulled down her pants and she kicked him and told him to “Fuck off.” He told her to shut up, and she was scared. He pulled down his boxer shorts and penetrated her vagina with his penis. (Charge 1 – incest) The penetration caused Karina pain and discomfort. The Accused pulled up his boxer shorts and left the room.
- After leaving this town, the family stayed for about a month with Tahnee KEYS’s sister in another town. Soon after, they moved to yet another country down. They stayed in temporary accommodation for about two weeks before moving to a farmhouse in about mid-March 2014. They stayed in the farmhouse for about a month. Whilst living there, Karina had her own room.
- The day after the family moved into the farmhouse, Karina couldn’t sleep. She heard footsteps and hid under the blankets. The Accused came into Karina’s room. He pulled down her pyjama shorts and his own boxer shorts. He grabbed her arms, then put his hands on the bed and penetrated her vagina with his penis. (Charge 2 – incest) When he had finished, he got up before leaning over the bed and hugging her. Then he left the room.
- In about mid-April 2014, the family moved to emergency accommodation. A daughter was born whilst they were living there. The family lived there for about a year before moving. Karina was enrolled at a local college.
- About a week after the family moved into the new house, the Accused came into Karina’s bedroom during the night. He stood there watching her. Then he removed her blankets and took off her pants and underwear. He pulled down his boxer shorts and penetrated her vagina with his penis until he ejaculated. (Charge 3 – incest)
- The family moved to again in about mid-April 2015.
- In July 2015, the family was still living in this same house. Karina and Beth shared a bedroom, where each of them had a single bed. Two of the other daughters shared another room. The Accused and Tahnee KEYS slept on a double mattress in the lounge room, and two other daughers slept in the room with them.
- On Saturday 25 July 2015, Beth went to bed first because she was suffering from asthma. Tahnee KEYS woke up shortly before midnight. The Accused went into the lounge room and lay down on the mattress next to Tahnee KEYS.
- At about 4a.m. on Sunday 26 July 2015, the Accused went into Karina and Beth’s bedroom. He removed Karina’s blankets and then took off her pants and underwear. He touched her thigh and felt around her body. Then he took off his boxer shorts and penetrated her vagina with his penis. She told him, “No” and he held her down before penetrating her vagina with his penis. (Charge 4 – incest). He jumped off the bed when a light came on in the nearby toilet.
- Tahnee KEYS next woke up when the baby was due for a feed. It was about 4-30 a.m.. She went to check on Beth, but Beth was breathing quietly. The bedroom was dark, but Tahnee KEYS noticed that Karina’s bedclothes were not tucked in and there seemed to be a mound in her bed. She left the room, then heard a loud thud in Karina and Beth’s room. Returning to their room, Tahnee KEYS saw the Accused standing between the two beds. He said that he was giving Beth her “huffapuffa,” which was what the family called her Ventolin. Following the Accused down the hall, Tahnee KEYS noticed that Beth’s Ventolin was still sitting on the computer desk.
Complaint
- Karina stayed in bed until just after lunch the next day. Tahnee KEYS took her aside and asked her what had happened. Karina told her mother that the Accused had been in bed with her and had sexually abused her. Shortly after their conversation, Tahnee KEYS contacted police to report the matter.
ARREST AND RECORD OF INTERVIEW
- The Accused was arrested on Monday 27 July 2015. That morning he was interviewed by police in relation to the allegations of sexual offending. The interview was digitally recorded.
- He acknowledged that Karina was his step-daughter. He told police that the previous Saturday night he had gone into her bedroom to check on his daughter Beth after hearing her cough. He propped Beth up on pillows, and a few minutes later he jumped into bed with Karina, who shared the bedroom with Beth. He told police that after getting into the bed with Karina, “I … pulled her knickers down and … I rubbed my doodle on her vagina.”
The Prosecution relies upon this account as an admission to Charge 4.
- The Accused said that Tahnee KEYS, the girls’ mother, had come to the door of the bedroom and he had jumped up from the bed. He said that he had never done anything like that before, and that he wasn’t sure if his penis had penetrated Karina’s vagina.
- The Accused denied the occasion where he was alleged to have started grabbing Karina’s bottom or sexually assaulting her. He denied sexually assaulting Karina at various residences. He said that he had only touched Karina once, and denied an earlier incident on 26 July 2015.
- The Accused provided a forensic sample at the request of police.
FORENSIC EVIDENCE – KARINA
- Karina was medically examined by Dr Sylvia WELGEMOED, forensic paediatrician, within 24 hours of the incident on 26 July 2015. Dr WELGEMOED collected forensic samples from Karina’s vagina, together with a buccal swab. On examination, Dr WELGEMOED noted objective evidence of recent genital trauma.
- Police seized the underwear that Karina had been wearing following the incident on 26 July 2015.
- Forensic biologist Dr Ece EKEN examined Karina’s underpants, together with forensic samples collected from Karina and the Accused. Dr EKEN detected semen on the gusset of Karina’s underpants. DNA analysis of the semen against the reference sample taken from the Accused supported the proposition that the Accused was the likely source of the semen found on the underpants.
POST OFFENCE CONDUCT
- After his arrest the Accused was remanded in custody firstly at Metropolitan Remand Centre and later at Port Phillip Prison.
- On 18 September 2015 at 5:54 p.m., when the Accused was on remand at Metropolitan Remand Centre in Ravenhall, he telephoned Tahnee KEYS. The telephone call was recorded. During that call he encouraged Tahnee KEYS to take steps to have the charges against him dropped.
Particulars
“You need to tell Karina to go and fuckin’ take that off, see if I can come home… That what you’ve gotta do … That’s the only way it’s gunna stop” – HUB p.707
“The best thing to do, honey, if you can’t get her to go down, when it comes up to go to court, fuck off somewhere and they’ll have to chuck it out… You know, if you don’t turn up at court, there’s no case… if you’re not there to make a case, it can’t go through so they’ve gotta chuck it out … when it all gets thrown out, everything stops, go back to normal” – HUB pp.709-710
- On 10 October 2015 at 6:22 p.m., whilst the Accused was remanded at Port Phillip Prison in Truganina, he telephoned Tahnee KEYS. The telephone call was recorded. During the call, he encouraged Tahnee KEYS to take steps to have the charges against him dropped.
Particulars
“You’ve got to convince her … to say she told a lie and I’ll be home…” – HUB p.478
“You tell her if she don’t – tell her if she don’t tell ‘em – if she don’t tell ‘em that she’s lying you’re gunna fuckin’ punch her … I love you, baby. You’re the boss and fuckin’ you’re the mother. You tell her what to do.” – HUB pp.479-480
- The following extracts of additional telephone calls made by the Accused to Tahnee KEYS are relied upon as tendency evidence in support of Charges 8 and 9.
A. Calls from Metropolitan Remand Centre
10 September 2015 at 4:29 p.m.
“Only way back is if … if you drop them charges” – HUB p.661
“You gotta go down & drop the charges” – HUB p.668
“You tell the investigator and say she lied and – and you want the charges dropped … That’s what ya gotta do if ya want me home” – HUB p.668
10 September 2015 at 6:04 p.m.
“You tell her to go down and tell them that she – she lied … otherwise you won’t see me for fuckin’ five or six years..” – HUB pp. 678-679
“You’re my rock. I love you… try and get me home, hon, please. Tell Karina to stop telling fuckin’ lies and go down there and tell them cunts down there at the police station” - HUB p.687
17 September 2015 at 5:56 p.m.
“.. you better sort this out. I wanna come home because they’re very serious charges, hon..” – HUB p.693
25 September 2015 at 5:47 p.m.
“Well, tell Karina to go and pull the charges” – HUB p.721
“… on Monday there’s the other court date, you know … There’s a mention on Monday down at Sale courthouse for me … do somethin’ before then, otherwise you won’t see me for 6 months to 2 years. OK? .. That’ll be when the next one come … And that’s the one you’ve gotta piss off and do the … no witnesses and there’s no case” - HUB pp.725-726
28 September 2015 at 2:07 p.m.
“… tell your daughter to stop telling lies… You get her to go down there and pull them fuckin’ charges off, hon…” – HUB pp.732-733
B. Calls from Port Phillip Prison
9 October 2015 at 2:50 p.m.
“… What’s happening? Didn’t you get the charges dropped? … You go and see the magistrates … you tell ‘em in there you want the charges dropped because it’s all fuckin’ made up and the magistrate will throw ‘em out… if you want me home – go straighaway.” – HUB pp.444-445
Ms KEYS: “I want you home, man, and I can’t have that”
ACCUSED: “You can if you get your daughter to go down there and tell them that she lied… If she tells them that she lied they got no choice but to let me go home. They just chuck everything out and the orders and everything will go out the window … That would put me straight home with you, hon… and if you get Karina to say, ‘Listen I told lies about me dad,’ they will just chuck it out. They can’t make it – she can’t get into trouble or anything.” – HUB pp.454-455
9 October 2015 at 7:15 pm.
“..all you’ve got to do is take the girl down and tell ‘em she told a fuckin’ lie … it’s a simple thing to do is get you daughter, take her down and tell ‘em she told lies and I’ll be home. It’s fuckin’ that simple. A simple fuckin’ thing … Get your daughter, go down, see your solicitor. You go and see your magistrate and then the cunt will chuck it out.” – HUB pp.461-462.
- Between 7 October 2015 and 30 January 2016, the Accused was on remand at Port Phillip Prison in Truganina. He wrote a number of letters to Tahnee KEYS. In one letter he addressed Karina trying to persuade her to act to have the charges against him removed.
Particulars
“..Please “D” I love you Sweetie – don’t do this to your old father – I love all of you with my heart and soul – please let me come home … Just look at your poor Mother – she loves your dad – you can hear her crying a lot – have you got any compashion (sic) for your mum. Your mum will do anything for her children especially you – so show mum you do love her and give her something she really wants. And bub you know what that is – she wants her husband back and her little family back – don’t you think you owe it to her... I love you “D” my big girl … And please think of your old mother – she needs her husband…” - Letter 12 HUB pp.886-887
- In his correspondence, as he had done at home, the Accused often referred to Karina as “D.” The following extracts of other correspondence sent by the Accused to Tahnee KEYS are relied upon as tendency evidence in support of Charge 10.
A. Correspondence from Metropolitan Remand Centre
“… They just won’t let me see the two big girls cause of charges. I thought they’d be gone by now and I’d be home with my family??? Whats goen (sic) on hone – I thought you wanted me home?” – HUB p.254
“.. Please Babe, you’d better hurry, before the 28th September – this is the mention to get hearing, and it will take 6 month to 2 years to get hearing for trial – if they got enough evidence – so please talk to D again – to go down get Solicitor to get you chKarinas hearing with [magistrate] before it’s too late. Well you said you love me – I wonder how much – we’ll soon find out won’t we?” – HUB p.255
“Baby if you want me home you know what you have to do, please baby” – HUB p.256
“… you can say anything you want both you and “D” you can’t get into trouble … if you want the charges dropped they can’t force you to keep them there … it’s really up to you and that’s yourself and “D” – you can tell them to get fucked and there is nothing they can do.” – HUB p. 257
B. Content of exercise book and three letters delivered to Tahnee KEYS
Early in September 2015, the Accused arranged for an acquaintance to deliver an exercise book to Tahnee KEYS, together with three letters. That material included the following extracts.
Extracts from exercise book
“… if you get her by herself and say Bub please tell the truth about whats going on - with the charges you put on your dad … if you love your dad and Mum tell the truth so he can come home to his babies and his wife …” – HUB pp.300-301
“Ya better hurry and get me home before its to late sweety – I really mean that” – HUB p.310 (in margin)
“I still want to marry you when I turn 50 if you would allow it, cause you are my soul mate. Tell “D” she can stop lying…” – HUB p.313
“Can you please talk to our “D” … Do you love me do you hurt for me, do you miss me do you feel toren (sic) inside like I am. If you love me like you say you do do somethin about it and stop these lies. Baby I miss my little family real hard. Don’t you think it’s not fair on you – cause you need me beside you all the time – I miss that hone…” – HUB p.323
“I’m innocent and I know you know that. Well do something about it.” – HUB p.343
“… get those charges dropped so that I can come home honey I need my family back. Tell D to tell the truth – tell her don’t do this … do something for her own mother and father – Hone I really love you and my family.” – HUB p.347
“Please Baby. Tell my little babies that dad won’t be home for father’s day. It’s up to Mum and D if you’s want to see your daddy again.” – HUB p.354
Extracts from the three letters
“Please Hone – for the sake of our love and children stop this. Only you can do this.” – Letter 1 HUB p.359
“… Sit your girls down – I mean sit them down - … say if you don’t tell me the truth I will send both of you to live some where else and it won’t be with Nan or Pop. Just get the truth Hone – because they are destroying lives Hone. Me and you had a real happy life until now. Love and trust you Darlyn (sic). You are my world. Please help me …” – Letter 2 HUB p.365
“Honey I thought I taught you how to read some one who lies and feel and sense bad omen’s (sic). Babe you are my Sole (sic) mate – we think the same – everything we do is nearly the same. Bub you’ve got to stop this..” – Letter 3 HUB 385
C. Correspondence from Port Phillip Prison
“… Ask Solicitor – to see Majestrate (sic) in Court Chambers with Majestraite (sic) to have chambers hearing. This way Court case won’t go ahead – Babe this had to be done if you want me home …” - Letter 3 HUB p.766
“Please be my wife and do the right thing baby.” – Letter 5 HUB p.779
“Get me home your so vonurable (sic) around people – shut everyone out – otherwise they’re gonna hurt you and my baby’s (sic) please listen..” – Letter 5 HUB p.780
“Bub if you love your Husband so much stand up for what is yours…” – Letter 6 HUB p.784
“… There’s nothing no-one can do if “D” tells them she lied – you can’t get into trouble” – Letter 6 HUB p.790
“…do fucken something about it punch fuck out “D” – you’ll get your answer one way or nother. Some times you got to be cruel to be kind. Honey why hang onto me if you don’t want me home.” – Letter 6 HUB p.791
“If you loved me – I would have been home” – Letter 6 HUB p.792
“I was hoping not to miss baby’s B’day – but that’s up to you and “D”” – Letter 8 HUB p.797
“… if these charges go away – when I come home – we’ll be moveing (sic) from that area…” – Letter 8 HUB 812
“Can you – go drop charges – because they are made up hone – please baby I love you” – Letter 8 HUB pp.814-815
“I should have been home bye (sic) now – if you would have went down and dropped the charges cause you know these are lies …” – Letter 8 HUB p.826
“Baby, why do you cry when I speak to you – if you don’t want to cry you know what you have to do – Tell “D” you’ve had enough – and you want your husband back home…” – Letter 8 HUB p.829
“Just go down to the Court house and get some advice from Solicitor get Aboriginal Legal Aid to look into getting charges drop (sic) because you want me home and that charges where (sic) lies. They got to drop, then I can come home.” – Letter 8 HUB p.832
[Biblical quote]: “A false witness will not go unpunished, and whoever pours out lies will perish” – Letter 9 HUB p.837
“This is cruel honey – please hurry and get me home” – Letter 9 HUB p.843
“Get off your Arse and go do things for your Husband…” – Letter 10 HUB p.852
“If you want me home, get off your Ass…” – Letter 10 HUB p.854
“… you need me home – make it happen hone – and we’ll get out of there…” – Letter 10 HUB p.861
“…you love me don’t ya? Well get off your Arse an do something about it – get me home.” – Letter 10 HUB p.865
“… you have to get there now to try and stop this like I said get a lawyer and ask them can you talk to Majestrait (sic) before court or after court in he or she Chambers and get “D” to tell them she made it up. Then the Court case won’t go through.” – Letter 12 HUB p.886
“I was told if you see solicitor to get Chamber hearing with Majestrait (sic) – get D to say that she lied and made this up cause of peer pressure – they will throw the case out.” – Letter 12 HUB p.889
- Between 7 October 2015 and 30 January 2016, whilst the Accused was on remand at Port Phillip Prison in Truganina, he wrote a number of letters to Tahnee KEYS. Letter 2 included the following extracts:
“Please, if ya want to make it through life with somebody else – you’d better look into your “D” a little more – because every man you get, she will fuck them..” – Letter 2 HUB p.759
“You have no idea do ya Tahnee – she’ll fuck your boyfriend.” – Letter 2 HUB p.761
The Prosecution intends to rely upon these statements as evidence of incriminating conduct amounting to implied admissions to the incest charges (Charges 1 to 4 inclusive)
- Letter 8 includes an extract in which the Accused describes “the first time” sexual penetration took place and is relevant to Charge 1:
“Hone the first time D backed onto me – I couldn’t feel nothing – just the wet warmth and the bumping against my belly and hips … like my dick was like it was in a cup of warm water – I couldn’t feel anything else – no walls nothing – that’s how big her mick was…” – Letter 8 HUB pp.816-817
The Prosecution intends to rely upon this statement as evidence of incriminating conduct amounting to an admission that incest took place on more than one occasion.
.S.G.MacDOUGALL
Prosecutor
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