Director of Public Prosecutions v Sinclair (a pseudonym)
[2016] VCC 957
•7 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOSEPH BRUCE SINCLAIR (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 June 2016 | |
DATE OF SENTENCE: | 7 July 2016 | |
CASE MAY BE CITED AS: | DPP v Sinclair (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 957 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Dr N. Rogers QC | Office of Public Prosecutions |
| For the Accused | Mr A. Swanwick | Alan Swanwick Solicitors |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol
to ensure there is no possibility of identification of the accused, victim and family or witnesses.
HER HONOUR:
1 Joseph Sinclair[1], you have pleaded guilty to five charges of incest. The maximum penalties for Charges 1 and 2 are 20 years’ imprisonment. The maximum penalties relevant to Charges 3 to 5 inclusive is 25 years’ imprisonment, reflective of a penalty increase from 1 September 1997.
[1] Joseph Sinclair is a pseudonym.
2
These crimes arise from offending which occurred between 1 July 1992 and
1 February 1999, involving the victim of your offending, Emily Sinclair[2], your biological daughter.
[2] Emily Sinclair is a pseudonym.
3 It is not necessary for me to recount in great detail the facts of this matter as they are on transcript, the matter having been opened, in some detail, by the learned prosecutor, consistent with the Prosecution Opening [Exhibit A]. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of your plea hearing. It is sufficient, for present purposes, to simply say the facts in this case, in my opinion, are most serious and disturbing.
4 I turn to a brief summary of the background to your offending.
5 You were born in 1956 and married in September 1981. There are five children of that marriage, which includes Emily. You were 28 years of age when Emily was born. From 1988, you moved your family around country Victoria seeking seasonal fruit-picking work and other employment. In 1989, the family moved to Toolamba (near Shepparton) and remained there until moving to Nagambie in 1991, staying there until 1994.
6 In 1994, the family moved to New South Wales, then in 1995, to an area near Mildura, and then to Nangiloc.
7 In 1996, you moved to New South Wales, living in various rural locations in that State before moving to Queensland, returning to New South Wales.
8 In about September 1998, you moved from New South Wales back to Victoria, briefly settling in a caravan park just outside Mildura, staying in this area until you moved to Merbein, before leaving abruptly and heading to South Australia in July 1999.
9
Turning to Charge 1 on the indictment. While living at Nagambie between
1 July 1992 and 20 April 1994, Emily shared a room with her younger sister, Caroline[3]. Their bedroom was next to the bedroom you shared with your wife.
[3] Caroline is a pseudonym.
10 On this occasion your wife was in the shower. It was night-time. Emily was then between 7 and 9 years of age.
11 Emily took you a cup of tea in bed. You were naked, as you always slept naked, and were sitting on the side of the bed. Emily was also naked and you began to fondle her and then inserted one or two fingers into her vagina for approximately ten minutes. Your wife came into the bedroom while your finger was still in Emily’s vagina. When you saw her you said “I wasn’t doing anything”. Your wife yelled something and left the bedroom.
12 Your wife never spoke to Emily about what had occurred in that bedroom, although when Emily was living in Nagambie, when between ages 7 and 9, her mother did ask her if you had touched her. Emily at that stage said no, as you had told her not to tell anyone. Emily recalled that her mother’s attitude towards her changed from that time, that her mother was not as nice to her anymore.
13 You and your family, which included Emily, then lived in various parts of New South Wales, before in 1995 returning to Victoria.
14 Turning to Charge 2. That offending occurred between 15 December 1995 and 15 March 1996 at Nangiloc, when Emily was 11 years of age. Emily had been told by one of her parents to go to the shed and clean out a van that the family used for transport. You were in the shed working. You had Emily lay in the rear of the van and inserted your fingers into her vagina for approximately ten minutes.
15 Your wife entered the shed and went to the back of the van. You were still penetrating Emily’s vagina with your fingers. Your wife slapped her daughter on the face with such force that it caused fluid to come from one of her ears. You told your wife off for slapping Emily. You then left the shed, your wife returned to the house and Emily resumed cleaning the van.
16 It is unfortunate to say the least that your wife, likely aware of your then offending, did not appropriately confront you about this.
17 You and your family, including Emily, left Nangiloc in approximately March 1996.
18 Turning to Charge 3. That offending occurred in the caravan park just outside Mildura between 1 August 1998 and November 1998, when Emily was 14 years of age. The family was living in a cabin at that caravan park. This offending occurred during the day, when your wife had gone out, and Emily’s siblings were playing in the yard of the caravan park. You locked the cabin door, drew the curtains, and penetrated Emily’s vagina with your penis.
19 When your wife returned, Emily’s siblings told their mother that the cabin had been locked up and they could not get in. Your wife spoke to you and you said you had to go to the office and had shut the cabin.
20 Turning to Charge 4. That offence occurred in Merbein, in December 1998, when Emily was 14 years of age. The family moved to this address after living at the caravan park. Emily shared a room in the house with her two sisters.
21 A few days after moving into the house, you sent your wife and your brother to Grafton, New South Wales, to collect items from the previous residence. They were gone for several days.
22 You made Emily stay in your bed at night when the others were asleep, ensuring she was out of your bedroom before everyone was up for work. You inserted your penis into her vagina, ejaculating inside her, and did not use a condom. Emily believed it was on this occasion she became pregnant to you.
23 I turn to Charge 5. In that same period in December 1998 while Emily’s mother and uncle were in New South Wales, you again had penile/vaginal intercourse with Emily and ejaculated inside her vagina. That occurred in your bedroom. You then watched her have a shower and watched as she tried to remove the evidence of your penetration from her vagina.
24 The prosecution also rely upon a number of sexual acts by you involving Emily, which are not the subject of the five charges before me. Specifically, while living at Nagambie between July 1992 and April 1994 (when Emily was 7 to 9 years of age), she described you coming into her bedroom at night. She was sleeping on the top bunk. You would have intercourse with her and ejaculate inside her. She said this occurred “dozens of times”.
25 When living at Nangiloc between December 1995 and December 1996 (when Emily was 11 years of age), you would regularly go into her bedroom at night and have sexual intercourse with her.
26 Between August 1995 and December 1995, when the family lived at Red Cliffs and Emily was between 10 and 11 years of age, you would regularly go into her bedroom during the night, have sex with her and then return to your bed.
27 Further, between December 1998 and July 1999, whilst living at Merbein, you would have sexual intercourse with Emily (after Charge 5) and also ejaculated inside her vagina, in both your room and her room.
28 Emily described your offending as “just becoming a way of life”.
29 You are, of course, not sentenced for those other occasions but they do, however, provide the context in which the offending that is charged occurred.
30 In approximately April 1999, your wife suspected Emily was pregnant and a local doctor confirmed the pregnancy. Termination was not possible because the pregnancy was too advanced.
31 On 14 July 1999, the Victorian Department of Human Services (“DHS”) and Victoria Police became involved as there was a notification Emily was 14 years of age, seven months’ pregnant and that the offender could be you.
32 When initially spoken to by DHS and Victoria Police in the presence of her mother, Emily told a story about her uncle (your brother) and that he must have sexually abused her while she was asleep. At that time, Emily denied you had touched her because she was scared. The latter does not surprise me, that is that she was scared, given that you had told her ‘not to tell’ and that when her mother saw you, relevant to Charge 2, it was Emily who was struck. It would not be surprising Emily felt she had little or no support and was scared to tell.
33 Emily did not return to school. A DHS worker spoke to you on a couple of occasions and made appointments for you to see the worker, but you did not keep those appointments.
34 Within a week of DHS and Victoria Police becoming involved, you packed up your family, and moved Emily from Merbein. Attempts were made by DHS and Victoria Police to then locate your family but were not successful. You moved to South Australia.
35 Emily’s parents would not let her see any doctors or have scans, concerned about the involvement of Health and Children Services, although that was further explained by Mr Swanwick. You were ‘putting the story around’ that your brother had molested Emily.
36 Emily gave birth to a child, Edward Sinclair[4], in South Australia, in September 1999. Your wife told medical staff that Emily had got drunk at a party and had sex with someone she did not know.
[4] Edward Sinclair is a pseudonym.
37 You are the biological father of Emily and grandfather of Edward. When Edward was born he was diagnosed with mental developmental delay, PKU disease and a heart condition, with the mental capacity of a person half his age. Emily has raised her child without any assistance from you. Edward is now 16 years of age.
38 Emily confronted you about what you had done to her around September 2002 in the presence of her partner. You denied ever abusing her.
39 Emily made a statement to South Australia Police in May 2014, regarding your sexual abuse of her over a lengthy period of time, and swabs were taken from Emily and her child, Edward.
40 You were first interviewed by South Australia Police on 29 May 2014. Testing confirmed the high probability you were the father of Edward. I note your counsel, Mr Swanwick, submitted it was only very recently (late last year), you had acknowledged you were the father of Edward.
41 You were arrested and charged by South Australia Police on 29 May 2014, bailed with a surety and conditions. You failed to answer that bail and a warrant was issued for your arrest by Murray Bridge Magistrates’ Court.
42 On 14 May 2015, Victoria Police attended a fruit orchard at Toolamba to arrest you, however, you could not be located. Several hours later you were located at those premises, with the assistance of a police officer and a dog from the Police Dog Squad. You were arrested, taken to Shepparton Police Station and a record of interview was conducted with you that same day.
43 You told police you did not recall Charge 1. Regarding Charge 2, you said “No. Doesn’t ring any bells”.
44 Regarding Charge 3, you said: “It doesn’t ring a bells.” “I did not, no. I do not recall it. I definitely do not recall it.”
45 When asked about Charge 4, you said “I do remember that one particular night that she was in my bed and I honestly don’t know what it led to, but I do recall having sex with her then”. You said Emily did not resist on that occasion, and that there was no force. You agreed you did not use a condom.
46 You denied Charge 5, sexual intercourse at Merbein.
47 You also told police that Emily never left your side from the day she could walk up until the day she was 12. That she would get into your bed and when you woke up she would still be in your bed. You would wake and find her lying across the top of you ‘all the time’.
48 You said you did not know who the father of Edward was and that it was never discussed. When informed of the DNA paternity results, you said you did not know what to say.
49 When it was put to you that you had sex with Emily numerous times, you said “I honestly don’t remember”, saying you had trouble remembering things.
50 You said you were very sorry it had happened. You denied Emily had ever come to you and said you were abusing her. You said Emily had also had sex with your brother.
51 It is difficult to adequately and appropriately describe the depravity of your offending against your daughter. To describe it as vile and repugnant is inadequate. It was an appalling breach of trust by you of Emily. It appears little, if any, support was provided to Emily by your wife during the time you sexually abused her, that purely being an observation by me and does not impact upon your sentence. It is not surprising, however that Emily felt ‘parentless’.
52 Emily was entitled to your care and to be nurtured. You abused your parental obligations towards her in the most repugnant of ways.
53 Your daughter was vulnerable and fragile and, by your offending, you showed complete contempt for her worth and integrity.
54 Your behaviour was abhorrent. I regard your moral culpability for your offending as high.
55 Given her young age your daughter was, in essence your prisoner, both psychologically and emotionally. You used her as a sexual object to satisfy your own deviant sexual urges. You had little care or regard for the potential that Emily could become pregnant to you, which she ultimately did. In that regard, I note the decision of R v Khem[5].
[5] [2008] VSCA 136
56 There is a Victim Impact Statement before me from Emily. I have read that statement. Emily has no doubt suffered considerably in the manner described by her in her statement, as a result of your offending. I shall return to pass some further remarks upon that later.
57 There are a number of aggravating features of your offending. The breach of trust that lies in a parent to care for and protect their children and the exploitation of the power and authority a parent has over that child. Further aggravating features in your case are the very young age of Emily when your offending began, that is, when she was between 7 and 9 years of age, and that your sexual penetration of her (digital and penile) occurred from a very young age.
58 You had also exercised a degree of control over Emily, making her sleep in your bed when your wife was away, having her wash her vagina in your presence to remove the presence of your penetration, and also directing her not to tell anyone of your sexual abuse of her.
59 You also, as I have said, failed to use a condom and that resulted in your daughter becoming pregnant when she was just 14 years of age, approximately. As described in R v Dalgleish[6], such is a ‘highly aggravating feature’.
[6] [2016] VSCA 148
60 A further aggravating feature was the length of time over which your sexual offending towards her occurred, approximately seven to eight years. I also accept the prosecution submission that your offences were premeditated.
61 I turn to a brief chronology and your plea of guilty to these charges.
62 You were first interviewed by South Australia Police on 29 May 2014, then later arrested in Victoria on 14 May 2015 at which time you were charged with sexual offences in Victoria against Emily.
63 On 8 September 2015 at a committal mention at Mildura Magistrates’ Court, resolution discussions took place with your then legal representatives.
64 On 13 October 2015, at Melbourne Magistrates’ Court, an adjournment was sought by new defence counsel and the Magistrate directed that the matter proceed by way of hand-up brief. There were then mentions in the County Court on 14 October 2015 and 18 November 2015.
65 On 14 December 2015 at the County Court, the matter resolved into a plea of guilty to one s.47A Crimes Act 1958 charge reflective of five occasions of offending (with a maximum penalty of 25 years' imprisonment to that charge). However, in January 2016, when drafting the Indictment it became clear that that charge was not sustainable. You subsequently agreed to plead guilty to five separate charges of incest (reflective of the five occasions), as summarised in Exhibit A. The progress of the charges was further elaborated upon in submissions by your counsel, Mr Swanwick, and also Dr Rogers, the latter appearing on behalf of the prosecution. In particular I was advised of the concession made by the prosecution relevant to sentencing on the five charges before me due to this initial proposed Indictment error.
66 I question the appropriateness of that concession relevant to sentencing. However, as a result of the concession, I have been constrained in imposing what I would otherwise regard as an appropriate sentence. This was discussed extensively with counsel, as the transcript will reveal.
67 On 8 February 2016, you were arraigned and pleaded guilty to the charges on the current Indictment and you have been in custody since 14 May 2015.
68 You have pleaded guilty to these five charges and are entitled to have that fact taken into account in your favour, and I do so. The community has, by your plea, been spared the time and cost of a trial, and witnesses, in particular, your daughter, Emily, have been spared the ordeal of having to give evidence upon your trial.
69 Whilst you have now pleaded guilty to these charges, your history has been one of avoidance and denial of your offending in your records of interview with police and, since then, until recently. You are, however, entitled to a sentencing discount for your pleas of guilty and the stage at which they were entered (including your plea of guilty initially to the s.47A charge) and I have taken that into account when sentencing you.
70 Mr Swanwick submitted that there was a level of remorse in your not wanting Emily to have to give evidence at court, although he accepted evidence of your remorse was not compelling. I agree. He submitted you had taken some time to get to the point of expressing remorse.
71 I accept your plea of guilty is indicative of some remorse, although I have concerns whether you are truly remorseful for your offending. Measuring the veracity of remorse is a very difficult concept to evaluate. The length of time over which your offending occurred, the number of occasions on which it occurred, your instruction to Emily not to tell anyone about your offending, your denials of your offending until recently, your denial until recently of parentage of Edward and casting blame upon your brother, cause me to question the extent of your remorse and its genuineness.
72 You have admitted a number of prior court appearances between 1974 and 1994, in Queensland, your most recent appearance on 24 August 1994, in New South Wales. Much of your offending has involved dishonesty type offences. Penalties imposed have involved convictions, fines, a brief term of imprisonment in 1976 and, in 1994, a recognizance to be of good behaviour for 18 months.
73 The prosecution also referred to two subsequent court appearances in 2000 and 2011, relevant only to your rehabilitation prospects, but I note that none of your prior or subsequent offending involved sexual offending.
74 Your counsel, Mr Swanwick, prepared a written outline of submissions for your plea hearing and addressed them during the course of it, and I have read his written submissions.
75 Mr Swanwick conceded your offending was serious and he is undoubtedly correct. I was told that you maintain the support of your wife, despite these charges.
76 As I understood his submissions, based on your instructions, there were a number of differences between your description of your offending and that described by Emily in her statement. You described your offending as not involving a continuous sexual relationship with Emily and you also denied many of the details of the sexual relationship as alleged by her. You were not, however, according to Mr Swanwick denying the generality of the sexual relationship as described in the prosecution opening.
77 Mr Swanwick submitted that despite your disagreement with some of the descriptions of your offending by Emily, you had pleaded guilty to the charges not wishing Emily to have to be involved in a trial.
78 I was told you now accepted to a ‘high probability’ you were the father of Edward born of your incestuous relationship with Emily. Until recently you considered the possibility it was your brother who was the father of Edward. I was told it had taken you some time to accept that you were his biological father.
79 Mr Swanwick submitted it had also taken you some time to acknowledge the wrongfulness of your offending behaviour, conceding your history of avoidance when discussing it. I am, however, satisfied you knew at the time of your offending it was wrong in your instruction to Emily not to tell (Exhibit A, paragraph 8), and you had also been seen by your wife and spoken to by her.
80 Your statement that you told Emily not to tell anyone about your offending reflects your knowledge of the wrongfulness of it (Exhibit A, para 8).
81 Turning to your background and history, Mr Swanwick referred to a report by Mathew Staios, Consultant Psychologist, dated 24 June 2016.
82 Mr Staios set out your family background and history. You are 60 years of age at sentence, and the third of eight children. Both your parents are deceased.
83 You described your early childhood and adolescence as very unstable due to your father’s battle with alcoholism and his physical violence towards your mother, siblings and yourself.
84 You described an incident in which your father attacked his friend with an axe.
85 You also reported becoming aware your father was having sexual intercourse with two of your sisters.
86 You told Mr Staios that on a number of occasions in your teens you tried to flee the family home, however, due to your age you were returned home. You reported that when living in Dingo, you were targeted by a local police officer and raped over a four year period. You said you had sought assistance for that in Rockhampton, however, after making a statement to police, were severely beaten by them and warned never to speak of the events again. From your self-report of that assault, you said you sustained severe injuries to your body described by Mr Staios in his evidence before me as ‘bruising and bleeding’.
87 You said you went to Townsville in 1997 and there met your wife.
88 You described your marriage, to Mr Staios, in a positive light, describing your wife as loving and caring.
89 In his report, you also described your sexual relationship with your wife as healthy, satisfying and characterised your sexual relationship with her in a positive light, although self-reported that you struggled with intimacy and trust as a result of your own history of sexual and physical abuse.
90 There were five children of your marriage, Emily being the eldest of the three daughters.
91 Discussing your offending with Mr Staios, you said you began molesting Emily from the age of 12 on a frequent basis (at least twice a week). I note, however, the charges before me relate to offending by you when Emily was 7 to 9 years of age, somewhat less than 12.
92 When questioned by Mr Staios about the motivations for your offending with your daughter, you became distressed and attempted to avoid ‘in-depth’ questioning.
93 You told Mr Staios you believed your brother was also engaged in a sexual relationship with Emily, although Emily had denied any such sexual involvement.
94 You reported you did not attend school and were illiterate. Your employment history involved working in unskilled occupations. You have been on a disability payment for a period of approximately 26 years, it seems, due to a heart condition.
95 You did not disclose a history of illicit substance or alcohol use.
96 Turning to your psychiatric and psychological history, based on your self-report, you described to Mr Staios a history of poor psychological health and functioning dating back to your early childhood. You displayed a consistent pattern of avoidance when faced with challenging situations in your life. You said you did not try to address your history of maladjustment through psychotherapy due to your mistrust of professional authority figures.
97 Upon questioning regarding the current charges, Mr Staios noted you became highly distressed when asked to elaborate on the motivation for, and frequency of your sexual offending against Emily. He did not receive any answers from you in that regard.
98 Based on his interview and testing, you met the criteria for a diagnosis of a Major Depressive Disorder and Avoidant Personality Disorder.
99 He assessed you as ‘high risk’ of sexual recidivism (paragraphs 30–32 of his report).
100 He stated your exposure to high levels of maladjustment during your formative years “likely” led to the formation of distorted self-image and cognitive processes which impacted on your ability to form wholesome and emotionally fulfilling relationships. As a result of your childhood, you adopted a core belief that children were sex objects. He also gave evidence that he could not explore with you why Emily was ‘chosen’ by you and not your other daughters, due to your non-responsiveness to questioning.
101 Mr Staios concluded you were unable to satisfy your emotional and sexual needs with age-appropriate peers and in that context you targeted your daughter. You sought out a distorted sense of security and intimacy through forming a bond with your daughter.
102 I note Mr Swanwick was not relying on the principles in R v Verdins & Ors[7] relevant to your diagnoses in mitigation of sentence. That was an appropriate concession. In that regard, in particular, I note the decision of DPP v O’Neill[8] and the non-applicability of Verdins principles to personality disorders (paragraph 71). I am, as I have said, satisfied you were aware also of the wrongfulness of your actions despite your avoidant personality.
[7] [2007] 16 VR 269
[8] [2015] VSCA 325
103 I do, however, accept consistent with general sentencing principles that, at your age and with your depression, you will find imprisonment more difficult than others.
104 In the opinion of Mr Staios, your level of insight into factors associated with your offending was severely reduced. Ultimately, however, he was of the opinion there could be long-term intervention targeting your history of trauma and psychological maladjustment to assist your rehabilitation prospects.
105 Mr Staios also gave evidence before me and confirmed the contents of his report.
106 He said he believed you developed a “highly avoidant personality structure” as a result of your childhood experiences and presented as a person who deviated away from intense emotional matters, which affected your ability to have empathy and compassion. You retreated to avoid any emotionally challenging situation.
107 He said you avoided answering many of his questions regarding your offending and your relationship with Emily, giving only brief responses, although admitting the nature of your relationship with her was sexual. Mr Staios concluded your abuse of Emily had been normalised by you over time.
108 He was unable to say why you targeted Emily specially and not your other daughters.
109 Mr Staios described your distress, as observed by him, as “partial remorse”. With psychotherapy, he believed you were capable of further levels of remorse. Your remorse, he said, was difficult to interpret.
110 He confirmed your assessment as a high risk of sexual recidivism.
111 He was cross-examined by Dr Rogers. Mr Staios agreed your self-report to him of your offending against Emily occurring from age 12 was “clearly not true”.
112 He stated you ‘shut down’ when questioned by him regarding Emily’s accusations.
113 Mr Staios agreed that his assessment, apart from the documents referred to in his report (pages 1 and 2), was based on your self-report.
114 When concluding you had a Major Depressive Disorder, Mr Staios referred to the five factors upon which he had so concluded, however, agreed that four of the five factors were not specifically referred to within his report.
115
Mr Staios agreed that there was some inconsistency between a conclusion that you were unable to satisfy your emotional and sexual needs with
age-appropriate peers and your description in paragraph 10 of your sexual relationship with your wife, described by you as ‘healthy and satisfying’.
116 Mr Staios also agreed that there was some partial inconsistency between your inability to satisfy your control and sexual needs with age appropriate peers, and paragraph 7 in his report in which you characterised your marriage in a positive way, describing your wife as loving and caring.
117 Mr Staios, in that regard, agreed that there was nothing in the facts relevant to Charges 1-5 which spoke of intimacy or emotional satisfaction, rather as physical acts.
118 Mr Staios confirmed he could not ascertain your motivation for offending against Emily, however, agreed it could have been that she was targeted because she was vulnerable. He agreed there were a range of possible reasons why your offending occurred.
119 Mr Staios agreed the distress you exhibited at interview could be from a number of factors, and when you said you were feeling depressed and worthless, it could be because of the position you now find yourself in.
120 Mr Swanwick submitted that some mitigation of your sentence was warranted to reflect your dysfunctional/disadvantaged background and also your own sexual abuse when a child, referring in particular to paragraphs 4 and 5 of his written submissions. I discussed that at length with him and referred in discussion to a number of authorities in the Court of Appeal relevant to these issues, specifically R v AWF[9], Gem v The Queen[10] and DPP v Terrick & Ors[11]. It is clear that submissions regarding disadvantage/dysfunctional background and an offender’s own sexual abuse must be assessed carefully by the Court if relied upon in mitigation of sentence.
[9] (2000) 2 VR 1
[10] (2010) VSCA 168
[11] (2009) VSCA 220
121
After the luncheon adjournment the prosecutor, Dr Rogers, elaborated upon the prosecution attitude to these principles and relevance to your sentence.
Dr Rogers submitted there was ‘some’ nexus between your maladaptive childhood and your offending, however, there was also evidence you targeted Emily because you did not have a satisfactory relationship with your wife. I agree. ‘Objectively speaking’ Dr Rogers submitted this was very serious offending by you over a significant period of time and involving a significant breach of trust. I agree.
122 I am, as I have said previously, satisfied you knew your offending was wrong at the time of it.
123 In my opinion, a careful consideration of the relevant principles and the evidence does not warrant any significant or any mitigation of your sentence.
124 Dr Rogers also addressed me regarding you now being sentenced on five charges of incest and not the single s.47A charge. Mr Swanwick had expressed concern that you not receive a lengthier period of imprisonment for the five charges than you would for a single charge pursuant to s.47A, and I discussed this in some length with both he and Dr Rogers.
125 The prosecution submitted the term of imprisonment to be imposed for the five charges before me should not exceed that expected for a sentence on a single s.47A charge. I understood that sentencing submission to have been the prosecution concession prior to you pleading guilty to the five charges before me.
126 In order to reflect that apparent ‘agreement’, and yet being aware of the decision of Dalgleish when sentencing for charges of incest, that creates some artificiality particularly when sentencing on Charges 3, 4 and 5 as a serious sexual offender (ss.6C, D and E Sentencing Act 1991), and also being mindful of R v HMcL[12], and the need to not 'compress sentences' involving serious sexual offenders. I note the prosecution were not urging a disproportionate sentence, and I consider I am also able to sentence without the need to impose such.
[12] (2000) 174 ALR 1
127 Ultimately, however, the concessions have resulted in a sentence that I have imposed, which reflects what I think is an artificiality relevant to cumulation.
128 I turn to Mr Swanwick’s submission on sentence. He acknowledged correctly that the predominant purposes of sentences for charges of incest were denunciation, deterrence and protection of the community and conceding the seriousness of sexual offending against a child. He is correct in all those assessments, and such has been most recently stated and with a careful analysis of all relevant sentencing principles in the decision of Dalgleish, which I discussed with both counsel.
129 Mr Swanwick submitted your prospects of rehabilitation were ‘reasonable’. I however, have real concerns regarding those prospects for reasons which include your persistent denial (until recently) of your offending, your subsequent failure to discuss your offending and motivation for it, and the assessment of you by Mr Staios as a ‘high risk’ of sexual re-offending.
130 Mr Swanwick referred to your age at sentence, 60, and your health (Exhibit 1, paragraph 12(iii) of his submissions).
131 I am conscious of your age at sentence of 60 years and health, and am aware that you will be significantly older at the completion of your non-parole period.
132 In R v Whyte[13], Winneke P, whilst noting that a sentencing judge must be astute to pay due attention to the age of an accused stated:
“[they] must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished.”
His Honour referred to R v Yates and R v Crowley & Garner[14].
[13] (2004) 7 VR 397 at [29]
[14] (1991) 55 A Crim R 201
133 His Honour further stated:
“In such cases, the court said that it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of an offender’s age, there was a need to grant some measure of life after release. Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight.”
134 In R v Iles[15] the court referred to R v Cumberbatch[16] that “an offender’s age does not militate against the imposition of a significant period of imprisonment in the appropriate case”. I note the advanced age of the appellant in Iles.
[15] [2009] VSCA 197
[16] (2004) 8 VR 9
135 In R v RLP[17] in a joint judgment of Neave, Redlich JJA and Hollingworth AJA, several propositions were therein stated when considering an offender’s advanced years and ill health:
[17] (2009) VSCA 271
1.The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.
136 It is clear from the authorities, that age (and ill health) should not be permitted to unduly influence a sentencing process such that it would result in the imposition of an unacceptably inappropriate disposition (R v Smith[18]).
[18] (1987) 44 SASR 587
137 I turn to Dr Rogers’ written outline of the prosecution submissions on sentence. She referred to the offences before me having high maximum penalties and representing serious crimes. Again, I note the difference in maximums between Charges 1 and 2 and Charges 3, 4, 5. However, I agree the maximums are high.
138 Turning to your plea of guilty, the prosecution accepted you were entitled to a discount in sentencing for that and the timing of it. I agree. The prosecution, however, submitted your plea was indicative of only limited remorse given your denials in the record of interview and your limited acceptance of the number of occasions such offending occurred. I also agree.
139 The prosecutor referred to your offending against your daughter commencing when Emily was a very young age, representing extremely serious examples of incest. They are.
140 Dr Rogers submitted delay in complaining and coming to court was irrelevant when assessing the gravity of your offending. I agree. However, I did not understand Mr Swanwick to be urging to the contrary.
141 Turning to the gravity of your offending, Dr Rogers referred to R v VZ[19] and the abhorrent nature of the crime of incest. This sentiment has been repeated many times, in many cases, and cases have been summarised extensively, most recently in Dalgleish. There can be no doubt that incest is a serious offence.
[19] (1998) 7 VR 693
142 I accept the prosecution submission that Charge 4, relevant to the birth of Edward was particularly serious. It showed your irresponsibility and callous attitude towards your daughter, Emily. Unfortunately her son has many physical and mental health issues.
143 Consistent with the prosecution opening, I accept it is the law that “premature sexual activity is presumed to cause ‘long term and serious harm, both physical and psychological’ to the child” (see Clarkson v R[20]).
[20] (2011) 32 VR 361 [33]
144 Turning to your rehabilitation prospects, as I have previously stated, I have grave concerns. It is clear from the material before me that you are a high risk of sexual recidivism and you lack insight into your offending, albeit being aware at the time that it was wrong. Your rehabilitation will be difficult and ultimately, if you are going to be rehabilitated, it will only be after long-term therapy. When sentencing you, however, I must seek to maximise your chances of rehabilitation as they may be.
145 Dr Rogers submitted sentencing principles of general deterrence, specific deterrence, denunciation, protection of the community and just punishment were relevant sentencing considerations when sentencing you. They are.
146 Dr Rogers submitted that you should be sentenced to a substantial term of imprisonment. Mr Swanwick agreed such would be appropriate in your case.
147 I turn to the victim of your offending, Emily. Emily has no doubt suffered considerably as a result of your offending. Her statement is eloquent and it is difficult to do justice to her statement in these brief sentencing remarks. In her statement she described that the birth of her daughter had reminded her of your sexual abuse of her and, to protect her daughter, she avoided you and the family. She described your obligation to protect children, and that she felt parentless as not only did you sexually abuse her, but that her mother failed to protect her.
148 She described giving birth to Edward when she was 14 and that he has severe disabilities requiring ongoing medical treatment throughout his life. Emily did not have a normal childhood life, as she was caring for her son, Edward. He is, I have no doubt, a constant reminder to her of your offending.
149 Emily did not trust people easily. Since reporting your abuse, she had been attending ongoing psychological treatment, she had difficulty sleeping, had nightmares, flashbacks and night sweats and she was on medication to assist.
150 The only family support she has comes from her husband and her four children. Emily described times of difficulty in her relationship with her husband when she had flashbacks of your sexual abuse of her.
151 Relevant also when sentencing is the notion of social rehabilitation.
152 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[21], in which Vincent J referred to the social rehabilitation citing DPP v DJK[22] (again allowing for differences in those factual circumstances to those in your case): His Honour said:
“… each of the victims, including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically [scar] him and in a tangible way, has affected many aspects of [his] behaviour". With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[21] [2006] VSCA 90
[22] (2003) VSCA 109, paras 17 & 18
153 There is no doubt the effects upon Emily have been both profound and ongoing.
154 The effects upon a victim are a relevant sentencing consideration (s.5 Sentencing Act 1991). But I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
155 As well as matters personal to you, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. This has been stated repeatedly by the courts in cases not only of incest, but also cases involving sexual offending against children generally. In PG v R[23], the Court of Appeal stated:
[23] (2013) VSCA 9
“There are many obligations of parenthood. Those persons who have relevant expertise will also have a greater claim than judges to give detailed consideration to these; but about one obligation there can be no doubt. Parents must refrain from the knowing infliction of unnecessary harm upon their children. The appellant was criminally in breach of this fundamental duty. The gravity of his offending is of particular importance in deciding upon the appropriate sentence.
This is not the occasion", the court went on, "to attempt to allocate degrees of seriousness to the crimes a parent might commit against his or her child. It is enough to observe that the sexual penetration by the parent of that child is a total repudiation of not only the high obligation of trust which ought necessarily to adhere to the relationship between the two, but also of the respect which every person, but especially a parent, owes to the psychological integrity of everyone else, especially his or her children.”
Again, I refer to the recent decision of Dalgleish.
156 There is also the need for specific deterrence when sentencing you, given the length of time over which your offending occurred. I note you have a significant number of prior court appearances, however, given the nature of them (i.e. not sexual) I disregard them for the purposes of sentencing for the offences that are before me. Your subsequent offending is not relevant to sentence other than, in some marginal way, to your rehabilitation prospects, but I note again, your subsequent offending was not for sexual offending.
157 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending, and I note you are currently assessed as a high risk of sexual recidivism. I am concerned about the need to protect the members of the community from you.
158 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
159 The very magnitude of your crime demands a sentence of some substance. I, therefore, sentence you as follows.
160 On Charge 1, you are convicted and sentenced to 6 years' imprisonment.
161 On Charge 2, you are convicted and sentenced to 6 years' imprisonment.
162 On Charge 3, you are convicted and sentenced to 8 years' imprisonment.
163 On Charge 4, you are convicted and sentenced to 9 years' imprisonment.
164 On Charge 5, you are convicted and sentenced to 8 years' imprisonment.
165 Charge 4 is the base sentence and I direct the following in relation to cumulation.
166 I direct that 1 year of Charge 1 be served cumulatively upon Charge 4.
167 I direct that 1 year of Charge 2 be served cumulatively upon Charge 4, and because now I am sentencing you as a serious sexual offender, I sentence this way.
168 I direct that 6 years of Charge 3 be served concurrently and 2 years cumulatively upon Charge 4.
169 I direct that 6 years of Charge 5 be served concurrently and 2 years cumulatively upon Charge 4.
170 For clarity, the orders for cumulation are upon each other and upon the base sentence.
171 That results in a total effective sentence of 15 years' imprisonment and I direct that you serve a period of 12 years before you are eligible for parole.
172 I repeat that the orders I have made for cumulation are somewhat artificial and arguably inconsistent with s.6 Sentencing Act and HMcL, however, reflect the particular circumstances and resolution of this matter to the five charges of incest and not to the single charge pursuant s.47A Crimes Act 1958, which apparently formed part of the plea negotiations between the parties.
173 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these five charges of incest following jury verdict, ie: after pleading not guilty, I would have sentenced you to 20 years' gaol and ordered a non-parole period of 17 years.
174 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 420 days in custody (up to and including yesterday, 6 July 2016) by way of pre-sentence detention, and I direct that be entered into the records of the court.
175 I also direct that you have been sentenced as a serious sexual offender on Charges 3 to 5 inclusive on the indictment .
176 Turning to the Sex Offenders Registration Act, the offences of incest are Class 1 offences. As such, you are therefore a registrable offender and subject to the mandatory registration under that Act and for life. Mr Swanwick agreed such applied to you.
177 Following this sentencing, my associate is going to approach you and ask you to sign, acknowledging receipt of documents that tell you about the Sex Offender Registration Act. You are not being asked if you want to be on the Register, I have determined that you will be, rather you are simply acknowledging receipt of the paperwork.
178 The prosecution also made application for a forensic sample. This was not opposed by counsel on your behalf. I make the order in the terms sought based on the seriousness of your offending and your prior criminal history, although the latter was not sexually related. It will be for a saliva sample, and I must advise you the authorities may use reasonable force in order to obtain that sample.
All right. PSD right?
179 DR ROGERS: That's correct, Your Honour.
180 MR SWANWICK: Yes, Your Honour.
181 HER HONOUR: Anyone want help with the maths? You got it? Right. Excellent. Ms Jackson, do you want to go down the back with those papers and - yes, I have to sign it.
182 MR SWANWICK: Your Honour, given my client's illiteracy, if I might just approach the dock while the document is being handed to him?
183 HER HONOUR: Yes, when Ms Jackson goes down. Yes, all right, anything further? No. Yes, thank you counsel, you are both excused.
184 MR SWANWICK: If Your Honour pleases.
185 HER HONOUR: Thank you.
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