Director of Public Prosecutions v Sholl (a pseudonym)
[2020] VCC 1427
•11 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY SHOLL (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 July & 31 August 2020 | |
DATE OF SENTENCE: | 11 September 2020 | |
CASE MAY BE CITED AS: | DPP v SHOLL (A PSEUDONYM) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1427 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: indecent act with a child under 16 – incest – digital penetration of vagina - victim aged 11 years – step-daughter – two occasions of offending – pleas of guilty - offending opportunistic – breach of trust - high moral culpability - offender sought to minimise responsibility by passing blame on to victim – developing insight of the harm caused – reasonable prospects for rehabilitation.
Legislation Cited:
Cases Cited: DPP v G [2002] VSCA 6, Carter (a Pseudonym) v R [2018] VSCA 88
Sentence: total effective sentence of 5 years imprisonment with a non-parole period of 3 years. Sex offender registration. Reporting for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D O’Doherty | Solicitor for Public Prosecutions |
| For the Accused | Mr J Miller | SPA Lawyers |
HIS HONOUR:
1 Timothy Sholl[1], you have pleaded guilty to the following matters:
Charge 1 – that at Moe between 1 January 2013 and 31 July 2013, you wilfully committed an indecent act with or in the presence of a child under the age of 16 to whom you were not married. This is a representative charge.
Charge 2 – that at Moe between 1 January 2013 and 31 July 2013, you took part in an act of sexual penetration with a person under the age of 18 whom you knew to be a child of your de facto spouse, in that you introduced your fingers into the child’s vagina. This is also a representative charge.
[1] Timothy Sholl is a pseudonym.
Circumstances of offending
2 A Summary of Prosecution Opening was tendered and marked Exhibit P1.
3 At the time of your offending, you were aged 44 years and the victim aged eleven years. There was thus a 33 year age difference between you.
4 The victim is the daughter of your then de facto partner. Your relationship with the victim’s mother commenced in approximately 2008. At the time these offences were committed you were, in fact, the victim’s stepfather.
5 During the victim’s primary schooling you would often pick her up from school and take her home. This usually happened when the victim’s mother was working afternoon shifts.
6 On a Monday in early 2013, you picked up the victim from school and took her home. On returning home, you went to the garage to do some work and the victim went inside to change out of her school clothes. She then went into the bedroom you shared with her mother to watch some television.
7 You came into the house and entered the bedroom. You spoke to the victim about her school day before initiating play fighting with her.
8 The victim was lying on the bed under the covers. You lifted the covers, got into the bed and lay beside her.
9 As you were lying beside the victim you took her hand, lifted your tracksuit pants and underwear, and placed the victim’s hand onto your penis. You then guided the victim’s hand up and down your penis. While doing this your penis became erect. After approximately one minute, you placed your free hand inside the complainant’s leggings and underwear. You placed your finger into her vagina and you vigorously rubbed her clitoris. You continued rubbing the victim’s clitoris and guiding her hand up and down your penis for approximately 20 minutes. You stopped when there was a knock at the front door. You got out of bed and went to the front door. The victim also got out of the bed and went to her own bedroom.
10 There was no discussion between you and the victim during this incident.
11 On the Thursday of that week, you collected the victim from school and took her home. You went to work in your garage. The victim, after changing out of her school clothes, went to your bedroom, got under the covers and started watching television. A little later, you entered the bedroom, sat on the bed and engaged in general conversation with the victim before beginning to play fight with her.
12 Once again you lifted the covers and got into the bed. As you were laying beside the victim, you took her hand and placed it onto your penis guiding her hand up and down. After a while, you stopped guiding her hand and the victim kept masturbating your penis. At one point she stopped whilst you removed her leggings. You then placed her hand back onto your penis and she resumed masturbating you. Whilst she was doing that you placed your hand inside her underwear and put your finger inside her vagina and onto her clitoris and began rubbing it. You rubbed her clitoris for some 15 minutes whilst she masturbated your penis. You eventually ejaculated onto the victim’s hand. The victim, referring to your ejaculate, asked you what it was. You led the victim to the bathroom and made her wash her hands.
13 The victim first disclosed your offending to her boyfriend in 2017. She then disclosed your offending to her mother in February 2018. She made a statement to police on 25 September 2018.
14 I was told that you and the victim’s mother separated shortly after this offending was reported to police.
15 You participated in a recorded interview with police on 30 October 2018. During the interview you said that on two occasions the victim touched you on your penis and masturbated you.
16 You told police that the victim “forced it and didn’t seem to wanna take ‘no’ for an answer, so … [you] let her do it”. Furthermore, you said you touched the victim on her vagina on one occasion only, stating that the victim asked you to touch her vagina, by placing your hand onto her vagina. You told police “my judgment wasn’t very good at the time and I allowed her to do what she wanted to do”.
17 I have read a transcript of your interview with police. It is clear from the answers you gave police that you sought to blame the victim for the offending and minimise your own culpability. You told police that you tried to stop her but she was not going to take ‘no’ for an answer.
18 At another point in the interview, you sought to justify your behaviour by telling police that you thought that if she was going to engage in this sort of behaviour, then it was better that she did so with you than with someone else.
19 Your answers in the police interview that suggest the victim was the initiator of the behaviour is contrary to what is in the prosecution opening summary, which was not disputed by you. Furthermore, you have pleaded guilty to Charge 2, a representative charge, on the basis that you penetrated the victim’s vagina on two occasions. In sentencing you, I proceed on the basis of the matters set out in the unchallenged prosecution summary.
Victim Impact Statement
20 Mr O’Doherty, who appeared on behalf of the Director of Public Prosecutions, read to the Court the victim’s impact statement, Exhibit P2. I have had regard to her impact statement in sentencing you.
21 The victim stated that as a result of your offending, she has attended fortnightly counselling since 2017 and has been prescribed multiple medications to assist her with the psychological impact your crimes have had upon her. She has suffered depression and anxiety as a result of your offending behaviour.
22 The victim stated that over the last six years she has struggled to sleep and experiences nightmares about being touched and the sensation of someone standing in her room. Her ability to study and work was also affected.
23 The victim further stated that she did not feel comfortable or safe for the four years she was in the house with you following the offending.
24 Your crimes have also impacted on her relationships with her family and friends.
25 The consequences of your conduct on the victim have clearly been significant and long-lasting.
Background and personal circumstances
26 You were born in August 1968 in East Melbourne. You are now 52 years of age. You are the oldest of three children. Your two younger siblings live and work in Melbourne and you have a good relationship with them.
27 Your father died approximately three years ago. He worked as a nurseryman, mostly at the Footscray Market. Your mother, who died in 1995 of cancer, was a music teacher.
28 You were assessed by Mr David Ball, forensic psychologist, on 24 June 2020. His report is marked Exhibit D2.
29 You reported to Mr Ball a functional upbringing and reported no domestic violence, substance abuse, mental illness or criminality among family members during your formative years. You said that you and your sisters were typically shown appropriate affection and that appropriate boundaries had been set for you.
30 You attended school and completed Year 11. Whilst you had no difficulties with discipline, you repeated Year 9. You told Mr Ball that you initially struggled to attain literacy as a consequence of a hearing impairment. You no longer suffer from that impairment. You also reported having few friends at school and being bullied by other children because of your Italian heritage.
31 On leaving school you completed an apprenticeship in motor mechanics in 1992. In your early twenties you commenced your own mechanical repair business which you ran for a few years before returning to work with your former employer.
32 In approximately 1997, after you moved to live with your sister, you became involved in the brick cleaning industry. You remained in that industry to the present but since the COVID‑19 pandemic the availability of work has declined. You are now principally involved in servicing and maintaining equipment.
Psychological reports
33 You were assessed by Mr Ball in June this year. Your mental status examination was unremarkable. Mr Ball stated that you impressed as a man with the capacity generally to exercise good judgment and to plan and execute positive and self-sustaining behaviours. However, he was of the opinion that you presented with little insight into your offending behaviour and general psychological functioning.
34 He said you were not able to offer any meaningful insight into your behaviour. You professed only a vague recollection of the offending behaviour and stated “I don’t know. She’s basically got onto me. I did try to stop. I don’t know what happened, a brain snap”. You were not able to offer any further explanation for your behaviour.
35 Mr Ball carried out a risk assessment using the Static-2002R assessment tool. Under the sub-heading “Stable Factors”, you were placed in the low risk category for sexual reoffence relative to other male sex offenders.
36 Under the heading “Dynamic Risk Factors”, Mr Ball stated that the feature associated with your lifestyle which increases your risk of recidivism is the absence of an adult sex offender treatment program. Further, he stated the main protective factor that may be applied to you is the successful completion of a sex offender treatment program. You have not completed such a program at this time. Mr Ball did not quantify the extent to which that risk was increased.
37 Mr Ball went on to state that during the course of your offending, you would have satisfied the diagnostic criteria for paedophilic disorder. However, he was of the view that you no longer satisfy those diagnostic criteria given your denial of any recent offending and any current attraction to young girls or children.
38 I have derived very little assistance from the report of Mr Ball. I am not aware of the basis for your score of zero in the ‘stable factors’ category, nor what findings, if any, were made in relation to the ‘dynamic risk’ factor considerations outlined in his report. Mr Ball acknowledged that the risk for sexual recidivism is a function of both stable and dynamic factors.
39 When the plea was first listed before me, your counsel, Mr Miller, sought an adjournment to obtain a report from your treating psychologist, Kim Dowse. You were referred to Ms Dowse by Mr Ball. A report from her dated 7 August 2020 was tendered and marked Exhibit D3 when the plea hearing resumed on 31 August. It is a one page report with little by way of useful information or explanation. You had, by the time the report was written, seen her on four occasions.
40 You maintained to Ms Dowse that the victim made sexual overtures towards you and you reacted sexually. Ms Dowse reported, based on what you had told her, that you were highly regretful of abusing the victim, that you were well aware it should never have happened and you should have exercised greater control. You further spoke of your concern for the victim’s mental health and the effect that your behaviour had on the family after the abuse was disclosed. Whilst you now fully understand that the victim was not capable of giving her consent, you told Ms Dowse that at the time of the offending you were not clear on the issue of consent. As I commented to your counsel, without evidence, I am not prepared to accept that you were not clear as to whether your 11 year old step-daughter was able to give lawful consent. I reject your assertion that you were uncertain as to the issue of consent.
Submissions
41 Mr Miller relied on your pleas of guilty being entered at the earliest possible time, and upon your prior good character. Although you have a prior conviction in 1991, given its age and nature, I accept that is not relevant to this sentencing.
42 In relation to Charge 1, the indecent act with a child under the age of 16, Mr Miller accepted that the offending fell in the mid-range level of seriousness.
43 In relation to Charge 2, Mr Miller submitted that your offending fell towards the lower end of the spectrum of seriousness.
44 He relied on the fact that your offending occurred over a limited period of time, namely within a week, and that it was opportunistic in nature and that there was no evidence to suggest pre-planning. He further submitted that the penetration which occurred was made out because of the legal definition being penetration “to any extent” of the vagina, which includes the external genitalia.
45 Mr Miller also relied on the absence of a number of circumstances of aggravation including there being no penile penetration, and no exposing of the victim to the risk of sexually transmitted disease or pregnancy. Further, he submitted there was no physical force or violence used against the victim and that the offending did not take place in circumstances that added to the degradation or humiliation of the victim.
46 Mr O’Doherty submitted that your offending is serious and involved a significant power imbalance between you and the victim, as well as a breach of parental trust. Further, as was apparent from the victim’s impact statement, the offending has caused long term harm to the victim.
47 He also relied on the fact that whilst you admit that your conduct was wrong, you nevertheless continued to attribute blame to the victim for its occurrence. This was also apparent, he submitted, in the two psychological reports tendered on your behalf.
48 Mr O’Doherty submitted that the only appropriate sentencing outcome is that of a term of imprisonment with a non-parole period. Mr Miller, properly, did not dispute that sentencing submission.
Sentencing Considerations
49 Sexual crimes against children are rightly to be considered as abhorrent. This is reflected in the maximum penalties imposed by the legislature. The offences frequently involve the exploitation of the weaker will of a child by the stronger willed adult, the physical and psychological subordination of the child, and long-term emotional damage.
50 Committing an indecent act with a child under the age of 16 is a serious offence. The maximum penalty for this offence is 10 years' imprisonment.
51 The offence of incest carries a maximum penalty of 25 years' imprisonment. With the exception of life imprisonment, this is the highest maximum penalty on the criminal calendar and reflects the community’s repugnance of sexual offences against children. Sexual offending against children is erosive of family relationships and often involves the serious breach of trust reposed in the offender by vulnerable victims.
52 In DPP v G[2] Winneke P stated:
‘This Court has, in recent years, had cause to remark on the prevalence of the crime of incest in the community, its capacity to erode decency of family life and the trust and confidence of its young victims. It is a crime which obliges the Court to punish it with principles of general deterrence, denunciation and protection of young persons at the forefront of sentencing purposes ... The insidious effects of the crime of incest upon its victims should be recognised by those who are privileged to exercise parental care and the community is entitled to expect that those who exercise such care, will not abuse the trust and confidence reposed in them by those in their charge. Parents — and those in loco parentis — who fail to exercise the restraint which the community expects of them, and who give in to their own sexual gratification, must expect to be severely and appropriately punished.
[2] [2002] VSCA 6, [9]
53 I do not consider that his Honour’s comments, made in 2002, are any less relevant today.
Nature and Gravity of Offences
54 You were the victim’s step-father and were in a position of trust. You had parental responsibility for the victim. You breached that trust for no other reason, it would seem, than your own sexual gratification. The victim was young, just 11 years of age, and there was a significant age and power imbalance between you.
55 The victim of your offending has suffered significant, long term harm by reason of your behaviour.
56 Charge 1 is a representative charge. On the first occasion you caused the victim to masturbate you for some twenty minutes and only stopped when there was a knock on the door. Although you stated in your interview that you ejaculated on this first occasion, no complaint of that having occurred is made in the prosecution opening on the plea. On the second occasion, some three days after the first incident, the victim masturbated you for some fifteen minutes at which point you ejaculated onto the victim’s hand. She did not know what your ejaculate was.
57 Charge 2 is also a representative charge. As the victim was masturbating you, on each of the two occasions, you placed your finger into her vagina and rubbed her clitoris. On the first occasion, for some 20 minutes and on the second occasion for some 15 minutes.
58 I accept that there was no additional physical force or violence used in your offending other than that inherent in the commission of both crimes. There were no additional features of degradation or humiliation, again other than those inherent in the commission of the offences. It was not suggested, for example, that the victim at the time was crying or physically resisting, although I must say, at this point, that I reject your various statements that suggest that your victim was the initiator or somehow bears responsibility for what occurred. She does not. You initiated the conduct. You were an adult. She was an 11 year old child.
59 Whilst your conduct on each occasion you offended against your step-daughter was protracted, I have regard to it having occurred on two occasions only during the years you were involved with the victim’s mother. I was told that your relationship started in 2008 and ended once the matters were reported to police in September 2018.
60 I accept that your behaviour is correctly to be regarded as opportunistic, as opposed to conduct that was planned. Nevertheless, I regard your moral culpability as high.
61 You took advantage of the victim who was innocently watching television alone in the room you shared with her mother. Your partner, the mother of the victim, was at work and no doubt placed her trust in you to look after her daughter, your step-daughter. You deliberately got on to the bed and under the covers and lay beside the victim. You had time to stop and think about the wrongfulness of your behaviour. You repeated your conduct a few days later when a similar opportunity arose. Although you again had time to reflect on your behaviour, you were not deterred by the enormity of what you did on the first occasion.
62 When regard is had to where the gravity of your conduct falls on the scale seriousness for the two offences, and whilst recognising the imprecision of labels, I consider that your conduct on Charge 1 falls at the ‘mid-range’ level of seriousness. In so finding I have regard to all of the circumstances already mentioned and particularly to the nature of what you did, namely causing the victim to touch your penis and masturbate you. This was no mere touching. It involved coercing the victim to perform a sexual act upon you, for an extended period of time.
63 With regard to the charge of incest, I consider that the gravity of your conduct falls just below the mid-range level of seriousness for the crime of incest. I am of this opinion principally because there was no additional force or violence beyond that inherent in committing the offence; your conduct did not involve additional degradation and humiliation of the victim; and there were no threats or requests that the victim not tell anyone about what had occurred. Further, whilst each incident was of protracted duration, which adds to its seriousness, it did not extend beyond two separate occasions occurring within the one week.
Deterrence, Denunciation, Protection of the Community
64 I consider that the sentencing considerations of general deterrence, denunciation and protection of the community to be the principal considerations in sentencing you. Those others in the community who are minded to offend sexually against children should understand that if they do so they will be met with stern punishment. The sentence to be imposed must also manifest the Court’s denunciation of such appalling conduct.
65 I am prepared to moderate the need for specific deterrence given the fact that you have no relevant prior convictions and what I consider will be the deterrent effect of this, your first sentence of imprisonment.
Pleas of Guilty and Remorse
66 Your pleas of guilty were entered at the earliest opportunity. They have spared the victim, her mother and other witnesses the ordeal of having to give evidence. They have spared the court and community the time and cost of a trial. This consideration takes on added force in the current circumstances of the Covid-19 pandemic whereby any trial in this matter would not have occurred for a significant period of time. Your pleas have facilitated the course of justice. They entitle you to a real measure of leniency.
67 In Carter (a Pseudonym) v R[3] the Court stated:
“In incest cases, an accused who pleads guilty is entitled to more than just the usual utilitarian benefits. Importantly, added benefits mitigating the sentence flow from avoiding the victim, and other affected persons such as a parent or other close relative, from having to undergo the extreme stresses of a trial.”
[3] [2018] VSCA 88, at [75]
68 Your pleas demonstrate some acceptance of responsibility for your offending but this consideration is significantly moderated by the fact that even as recent as August of this year you maintained to Ms Dowse that the victim had made sexual overtures towards you to which you reacted sexually. This was consistent with what you told police in your recorded interview and what you told Mr Ball. However, your account to those persons is inconsistent with the victim’s account set out in the prosecution opening which, as I have already mentioned, you did not challenge.
69 You further told Ms Dowse that the victim’s statement to police did not reflect accurately, the situation. However, by contrast, you told Mr Ball that you only have a vague recollection of your offending behaviour.
70 In my opinion you have sought to minimise your responsibility by passing much of the blame on to the victim. This is not a full acceptance of your responsibility. I add to this concern your comment to Ms Dowse that at the time of the incidents you were not clear that the victim was incapable of giving her consent. I do not accept that truthfully reflects your state of knowledge and view the comment as you again seeking to minimise your responsibility for your conduct.
71 Perhaps the only encouraging matter to emerge from Ms Dowse’s report was what may be your developing insight of the harm that your behaviour has caused the victim. You told Ms Dowse that the offending should never have happened; that you should have exercised greater control; and you expressed a concern for the psychological effect upon the victim and the effect on her family.
72 As to the issue of your remorse, Mr Miller relied on your pleas of guilty as reflecting “to some degree” your remorse. He also relied on comments you made to Ms Dowse that you were regretful for your abuse of the victim and you were concerned for her psychological well-being.
73 In the circumstances of you continuing to blame the victim, and in the absence of evidence, I am not able to make a finding to the necessary standard that you are genuinely remorseful for your behaviour.
Rehabilitation
74 Mr Ball considered you a low risk of re-offending compared to other male sex offenders when regard is had to stable risk factors. Ms Dowse suggested that there is a low risk of you re-offending. I have already commented upon my reservations with regard to Mr Ball’s opinion. Likewise, I also have reservations with respect to Ms Dowse’s opinion. She asserted that you are at low risk of reoffending given your understanding of your actions and the negative impact they have had on your life. It does not appear that she utilised any of the accepted tools for assessing the risk of sexual recidivism. She simply accepted you at your word, it would seem.
75 Both psychologists consider you need to participate in a sex offender treatment program. Mr Ball considered that without it the risk of recidivism is increased.
76 I consider that your prospects for rehabilitation are reasonable provided you receive the treatment both psychologists say you need. I have regard to the following factors:
· Your very limited history of offending;
· The lack of relevant prior convictions;
· Your very good work history;
· Your otherwise good character;
· Your good family background;
· The fact that you have no history of drug or alcohol abuse and no psychological or psychiatric health issues;
· Your good and close relationship with your sisters; and
· The fact that you will be placed on the sex offender’s register and thus you will be subject to the reporting obligations for life.
77 I should note however that as at the time of your last plea hearing you had not told your sisters about your offending and so it is not clear that your relationship with them will continue as it has in the past.
Prison Hardship
78 In sentencing you I have regard to the restrictions currently in place in Victorian gaols as a result of the Covid-19 pandemic. I understand that there are no visits permitted by friends and family. Contact with them is available only via telephone and in some instances, by electronic devices, such as iPads. The opportunities to engage in therapeutic and educational courses is much reduced. Furthermore, the opportunity for time out of cells is also reduced. Your first two weeks in custody, as I understand it, will be spent in quarantine. It is not known how long the restrictions will be in place but I am prepared to make some allowance in your sentence for the added burden caused by the Covid restrictions.
Current Sentencing Practice
79 I am required by section 5(2)(b) of the Sentencing Act 1991 to have regard to current sentencing practice. In so doing I have had regard to the many cases referred to in the Judicial College of Victoria’s Sentencing Manual. Whilst no case is ‘on all fours’ with yours, I have nevertheless derived assistance in understanding the range of sentences for cases involving crimes of incest and indecent act with a child under 16 years, and where your offending lies on the spectrum of seriousness. I keep in mind that current sentencing practise is only one of the many factors I must consider in formulating the appropriate sentence.
Sentence
80 Having regard to all of the circumstances of your case, and to the helpful submissions of both counsel, I impose the following sentences. Mr Sholl, will you please stand?
On Charge 1 you are convicted and sentenced to 16 months' imprisonment.
On Charge 2 you are convicted and sentenced to 4 years and 6 months’ imprisonment.
81 It is appropriate to order some cumulation given the different conduct involved in each offence. In so doing I have had regard to the totality principle. I direct that 6 months of the sentence imposed on Charge 1 be served cumulatively on the sentence imposed on Charge 2.
82 This makes a total effective sentence of 5 years imprisonment. I direct that you serve a minimum term of 3 years before becoming eligible for release on parole.
83 Pursuant to s 6AAA Sentencing Act, had you not pleaded guilty to the charges the sentence I would have imposed otherwise is one of 7 years' imprisonment with a non-parole period of 5 years.
84 You have been sentenced to class 1 and class 2 offences under the Sex Offenders Registration Act 2004. Accordingly, you are a registrable offender and your reporting obligations are for life.
85 Mr Sholl, I must inform you that you must register on the Sex Offenders' Register, and I will have handed to you shortly documentation which sets out the requirements under the Sex Offender's Registration Act and the consequences if you fail to observe those requirements. I will also hand to you a document which you must sign, acknowledging that you have received the relevant documentation.
86 Mr Miller, would you like to attend your client in the dock as he reads and signs the documents? Thank you.
87 MR MILLER: Yes, Your Honour.
88 HIS HONOUR: Whilst that is being done, Mr O'Doherty, was there any pre-sentence detention in this matter?
89 MR O'DOHERTY: No.
90 HIS HONOUR: Mr Miller, do you accept there is no pre-sentence detention?
91 MR MILLER: There is no pre-sentence detention.
92 HIS HONOUR: Thank you very much. Mr O'Doherty, are there any other matters to which I need to address?
93 MR O'DOHERTY: No.
94 HIS HONOUR: Mr Miller?
95 MR MILLER: No, Your Honour.
96 HIS HONOUR: No? Well once again, gentlemen, thank you for your very helpful submissions.
97 Please adjourn the court.
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