Director of Public Prosecutions v Simmons
[2014] VCC 1228
•16 July 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| TODD SIMMONS (Pseudonym) |
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JUDGE: | Her Honour Judge Wilmoth | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | Trial: 24, 25, 27 – 31 March, 1, 2 April 2014 | |
DATE OF SENTENCE: | 16 July 2014 | |
CASE MAY BE CITED AS: | DPP v. Simmons | |
MEDIUM NEUwTRAL CITATION: | [2014] VCC 1228 | |
REASONS FOR SENTENCE
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--Subject: Criminal law - sentence
Catchwords: Incest x 3 with natural daughter, aged between 8 and 14;
Sentence: 7 years imprisonment, non parole period 5 years
Note Pseudonyms used for Accused, complainants and mother of complainant-
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Resstal-Pires | OPP |
| For the Accused | Mr S. Moglia |
HER HONOUR:
1 Todd Simmons[1], you have been found guilty by a jury of three charges of incest with your natural daughter, Brooke[2], who is the older of your two daughters. You committed these offences between 2000 and 2007 when Brooke was aged between about eight years and 14 years. You were acquitted of a charge of committing an indecent act with her.
[1] Pseudonym
[2] Pseudonym
2 You have also pleaded guilty to another Indictment consisting of one charge of persistent sexual abuse of a child under 16 between February 2009 and June 2010.
3 The maximum penalty for each of these offences for which I am sentencing you is a term of imprisonment of 25 years.
4 I shall deal first with the charges of incest. As I said, between 2000 and 2007, you were living with your partner, Nicole Scott[3], and your two daughters and son. Charges 2 and 3 occurred when you inserted your finger into Brooke's vagina when she was in the spa. Charge 4 occurred in her bedroom when she had gone to bed and you came in and woke her and then sucked her breasts and placed your finger in her vagina.
[3] Pseudonym
5 There were a number of uncharged acts, in the sense that Brooke described these things as happening regularly. For example, you paid her a few dollars each time you committed the act in the spa and the money, when it accumulated, was enough for her to buy a CD, around $30.
6 Of course you are only to be sentenced for the charged acts, but reference to the other acts places the offending in context and indicates that you groomed her over a period of time.
7 The last uncharged act was an occasion when Brooke visited you in your room and you grabbed her and tried to tear off her clothes. She was very upset and you told her you were not going to hurt her and everything would be okay. She resisted and ran from the room.
8 The complainant in relation to the other Indictment, Laura Stokes[4], met you because her mother worked with your partner, and Laura used to visit your home with her mother. She was also friends with your daughters. At the time of the offending, she was aged 14 to 15 years.
[4] Pseudonym
9 In March 2008 you began working as a groundsman at the school Laura attended. She and other children, sometimes including your daughters and indeed Ms Scott as well, used to visit you in the machinery shed and have lunch there. After a time, she obtained your mobile phone number and you began texting each other during school hours while you were both in the school grounds. You began helping her with her homework and on one occasion, you put your hand on the top of her thigh.
10 During 2008 and 2009, you were seen in Laura's company on many occasions, both at the school and away from it, and the principal sent you a letter warning you not to fraternise with students, with particular reference to Laura. She also received a letter, telling her to stay away from you.
11 There were four occasions when you had sexual intercourse with Laura. At the relevant times, you were aged 39 and 40. She was aged 14 on the first three occasions. The first of these was about a week before the principal sent the letters and it occurred in the machinery shed. She went there in her school uniform and you asked her to remove her underwear, which she did, and then you had penile/vaginal intercourse with her.
12 The second time occurred when you sent a text message to Laura before school, asking her to come to your house. She did, and you had sex with her in your bedroom.
13 The third time, Laura was helping you and your family move house. You had sex with her in a bedroom while your two older children were packing the house contents.
14 The fourth occasion occurred in a tent when you took Laura fishing.
15 Apart from these instances, you had regular sexual contact with her, including regular penile/vaginal sexual intercourse over 17 months.
16 You were interviewed by the police on 5 July 2013 and made full admissions but you attempted to minimise the number of times this occurred, claiming it occurred four or five times over a couple of months.
17 You are now aged 42 and when arrested for these matters in July 2013, you left the family home and went to live with your brother. Your partner has maintained contact with you and regards herself as still being in a relationship with you. You were remanded in custody following the verdict and have now been in custody for 105 days.
18 Although you maintain you did not offend against your daughter, because you have pleaded in respect of Laura, I am able to make some assessment of your attitude to that offending and draw some conclusions as to what that indicates as regards to your prospects for rehabilitation.
19 Ms Pamela Matthews, the forensic psychologist who assessed you recently, stated in her report that you minimised or denied your behaviour towards Laura, and that is borne out by your answers in the record of interview. In telling Ms Matthews that Laura needed a father figure, you seem to be oblivious to the fact that the sexual relationship you had with Laura is not part of a father's role. Looked at in isolation, that lack of insight does not augur well for your rehabilitation.
20 Ms Matthews considers your behaviour to have been opportunistic, and although you do not meet the criteria for paedophilia, you transgressed the boundaries of acceptable behaviour in two very serious ways against your daughter and Laura.
21 Ms Matthews considers you are at moderate risk of reoffending which could be reduced by means of treatment but without it, there remain significant risk‑increasing factors, such as limited self-awareness and poor coping skills in regard to psychosocial stress. She considers you suffer from depression and anxiety and have done for a long time but you have largely masked these conditions by using drugs and alcohol, thereby coping in a dysfunctional manner.
22 On the other hand, you have the support of your partner and two of your children and extended family members and friends. You have a patchy record of employment but you are not isolated socially, despite experiencing difficulties mixing socially as Ms Matthews identified. That observation by her seems to be at odds with the assurances offered by your friends and family in letters written by them in your support that you are a socially outgoing person who enjoys the company of others and mixes easily. However, the letter from Ms Scott, your partner, discloses the complexity of your emotional difficulties and perhaps indicates that you have been able to mask these problems and appear to be coping.
23 You have no prior convictions and no previous court appearances, an indication that you are more likely to be amenable to rehabilitation. Ms Matthews stated that she had insufficient history as to your mental health to provide an opinion as to your likely improvement after your release but that psychological treatment and cessation of opiate analgesics which you were using until your incarceration are necessary.
24 Both complainants provided victim impact statements. Your daughter said in effect you have never been a proper father to her, failing to give her the attention a child needs, and you have acknowledged this and sought to explain it by reference to your longstanding depression and dysfunction. You have of course abused your role in a most heinous way, leaving her angry, hurt and confused. She has been profoundly affected, with her distress manifesting itself in anxiety and lack of trust. The court process increased her distress and she endured it without any family support, except that of her partner.
25 Laura stated that because of her disclosure, her father did not support her and she had to move out of the family home and ultimately her home town. She said she had been vulnerable and you took advantage of that, with the result that as a very young woman, she has had to endure the opprobrium of her family, friends and even the wider community. Her distress at the time of the offending led her to attempt suicide several times and she still suffers ongoing emotional problems.
26 Offending such as this is regarded with great abhorrence by the community and parliament has determined that very severe penalties are applicable. The law is designed to protect children and young people who are vulnerable and too young to make responsible decisions about sexual activity. Clearly, it is also intended to protect the integrity of families. You exploited the vulnerability of your daughter and Laura, both of whom suffered greatly from it, and it deserves stern punishment, partly to send a message to others that the courts will deal harshly with offenders who commit these crimes.
27 It was submitted by Mr Moglia who appeared on your behalf that because no force or violence was used and the context of the offending was one of consent by Laura and the grooming of your daughter, your criminality is not at the higher end of the range of seriousness. I accept that, although it must be weighed against the serious effects on the complainants and by the length of time over which you committed the offending, 17 months in the case of Laura and about seven years in the case of your daughter. She was a very young child when you began abusing her.
28 Mr Moglia also submitted that your time in custody will be made more difficult by reason of your depression and the panic attacks you suffer and the fact that you are being held in protection. You suffer from back pain and are not permitted access to the opiate analgesic medication, Tramadol, you formerly used before you were incarcerated. I note that Ms Matthews described depression as being one of the effects of that medication, together with alcohol and cannabis that you used to self-medicate.
29 There is also an element of hardship in that your partner is struggling to maintain the mortgage payments on your home. I take those matters into account, as well as a discount to which you are entitled for the plea of guilty in relation to the offending against Laura. It avoided the need for Laura and other witnesses to have to give evidence in a trial and has value to the criminal justice system in having saved the expense and inconvenience of a trial. It is also an indication of remorse which you also expressed to Ms Matthews, but in a guarded manner, and without accepting meaningful responsibility or displaying empathy for the victim.
30 Would you stand now, please, Mr Simmons. I sentence you to five years' imprisonment for each of the charges of incest and for the charge of persistent sexual abuse of a child. Charge 2, the first charge of incest, will be the base sentence for the purposes of cumulation. I order that eight months of each of the other sentences be served in cumulation upon the base sentence. That results in a total effective sentence of seven years. I order that you serve a minimum period of five years before being eligible for parole.
31 Because you are sentenced to prison for the first two charges of incest, you are to be sentenced for the rest of the charges as a serious sexual offender. The prosecution does not seek a disproportionate sentence as a consequence of this, but I shall cause it to be noted on the court record. My order as to cumulation has not been affected by the application of the serious sexual offender provisions.
32 It is mandatory that you be placed on the Sex Offenders Registry for life which will require you to report your details to the police every year after you are released.
33 If you had not pleaded guilty to the charge of persistent sexual abuse, I would have sentenced you to six years' imprisonment with a nonparole period of four years.
34 As I noted earlier, the pre‑sentence detention is 105 days, not including today. I declare that time already served and will note it on the court record.
35 The prosecution seeks an order under s.464 of the Crimes Act for the retention of the forensic sample obtained by the police. There is no opposition to that. Similarly, there is no opposition to the making of a disposal order for an item seized by the police, and I make both those orders.
36 Are there any other matters that counsel wish to raise?
37 MR HUME: No, Your Honour.
38 MS RESSTAL- PIRES: No, Your Honour.
39 HER HONOUR: Thank you.
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