Director of Public Prosecutions v Smith (a Pseudonym)
[2020] VCC 589
•8 May 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW SMITH (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE LYON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 30 April 2020 |
| DATE OF SENTENCE: | 8 May 2020 |
| CASE MAY BE CITED AS: | DPP v Smith (A Pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 589 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited:
Cases Cited: DPP v Snow; Carter v R [2018] VSCA 88
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Hill | Office of Public Prosecutions |
| For the Accused | Ms A. Cannon | Slades & Parsons |
HIS HONOUR:
Andrew Smith,1 [1] you have pleaded guilty to one charge of sexual penetration of a lineal descendant (incest). The maximum penalty for this offence is 25 years' imprisonment.
[1] A Pseudonym.
The offence of incest is a category one offence for sentencing purposes. The significance in this case (using shorthand) is that I must sentence you to a period of imprisonment for your offending.2
In addition to that, for your conviction for this offence, you face registration under the Sex Offenders Registration Act for a period of 15 years.3
You have prior convictions but I do not consider them relevant to the sentencing task in this matter, except in that they provide support for submissions made by your counsel as to your drugtaking and heavy drinking from your late teens through your adult life up to and including to point of offending.4
The prosecution tendered a summary prosecution opening on plea as Exhibit A. A summary of your offending is as follows.5
You are 53 years old. You were 50 years old at the time of offending. The complainant Sarah6 [2] was aged 15 at the time of your offending. She is your biological daughter and the youngest of four children born of your relationship with Claudia Black.[3] Your relationship with Ms Black lasted for about 14 or 15 years until March 2016 when you separated.
[2] A Pseudonym.
[3] A Pseudonym.
Initially after the separation, Sarah and her sister Emma7 [4] lived with their mother. They moved to live with you in about May 2017.
[4] A Pseudonym.
In January 2018, when Sarah was still 15, she went to a friend’s 16th birthday party. Sarah drank an excessive amount of alcohol at the party and became very drunk. With the assistance of her sister Emma, you assisted Sarah from the party and put her to bed. According to your daily habit of excessive drinking, you were inebriated at this time. As your daughter lay on the bed, and at a point after her sister had left the room, you said, 'I want to fuck you'. Her pants were removed and you put your tongue in her vagina for about 25 – 30 seconds. Sarah then cringed or recoiled and you stopped and left the room.8
Shortly after that you returned and found Sarah talking to her sister. You acted as if nothing had happened. Notwithstanding your bravado, the sisters' mother came and took them both away. Sarah complained that you had committed oral sex on her.9
The following day in a series of text messages with your daughter you briefly denied any wrongdoing, then made a series of admissions. Those admissions continued over the following weeks. You wrote a seven-page letter addressed to your family in which you acknowledged your guilt for your actions.10
Sarah made a complaint to the police. It seems that she was assisted in this by her brother. Sometime after that on 28 February 2018 you were arrested and interviewed by police. You essentially made a no comment record of interview and became too upset to continue.11
You were interviewed again by police again on 7 September 2018. This time, you made comprehensive admissions to your offending.12
You were charged by summons on 3 May 2019. You entered a plea of guilty at the committal mention on 7 August 2019. I accept the plea of guilty was entered at the earliest time. The plea was to be heard in the circuit list for Bendigo in late 2019, but your counsel was ill. Thereafter it was listed for hearing in March 2020 but the outbreak of the coronavirus pandemic interrupted the hearing of all cases throughout regional Victoria.13
Objective Gravity and Moral Culpability
I turn now to consider your moral culpability and the objective gravity of the offending. 14 The crime of incest is abhorred by the community. Incest is a repugnant offence that strikes at the core of the family relationship and involves a fundamental breach of trust. Incest stands in total conflict with your responsibilities as a parent to protect and nurture your daughter. This was your own biological child that you abused. Instead of protecting your daughter, you did her serious harm. In the process, you rocked the family unit. It is apparent that your actions have had profound ripple effects on the rest of your family members also.
The criminal law prohibits sexual offending, and specifically, sexual offending against children, with the objective of upholding the fundamental right of every person to make decisions about their own sexual behaviour and to choose not to engage in sexual activity. It protects children from the harms which premature sexual activity causes, thereby protecting children from their own immaturity. The prohibition is intended to deter others who may consider engaging in sexual activity with a child.15
The absolute prohibition on sexual activity with a child under the age of 16 presumes that sexual activity which occurs before a child reaches an age at which they can give meaningful consent causes harm, which is long-lasting and serious and manifests itself in both physical and psychological forms. Therefore, the harm to your victim, your daughter, is presumed; irrespective of whether a child purportedly consented or appreciated the acts in full in a particular case. It is clear in this case that you did not have her consent or appreciation of your acts.16
I have considered the victim impact statement of Sarah’s mother, Claudia Black. This statement speaks of the turmoil which has dogged Sarah’s life since this incident. Her brother states that whilst Sarah would have spoken highly of you as a father before the incident, you destroyed the relationship and her life, and ripped the family apart. It is impossible to escape the conclusion that your conduct has caused much harm to your daughter.17
This is a matter to which I have regard, but I will not let it swamp the sentencing consideration. It nevertheless serves as a reminder that even in a single instance, where the conduct is not protracted, criminal offending on a family member can have devastating widespread and long-lasting effects.18
Although it appears that you have some contact with at least one or two of your children, it is impossible to tell if you will ever have a relationship with all of your children again. Whatever the result, you have changed the dynamic forever.19
The experience of cases in this Court is that lawyers will inevitably endeavour to plot the level of seriousness of offending for sentencing purposes. To the extent that it is necessary to do so, I conclude that your offending:20
first, was a single instance, taking less than a minute;·
second, involved no grooming or planning of your offending; rather it occurred opportunistically;·
third, there was no subsequent offending or asking the complainant to remain silent; and·
finally, there was an almost immediate acknowledgement of wrongdoing.·
Against this, your offending occurred in breach of the great trust your daughter placed in you stemming from her regard for you as a parent figure; you took advantage of her considerable vulnerability when she was drunk, and the consequences for Sarah have been long-standing and may will remain with her for much, if not all, of her life.21
Using the lawyers’ categories of seriousness, Ms Hill, who prosecuted this matter, submitted that the offending may be seen as low, but was probably towards the mid-range. I prefer not to put such labels on it, out of respect for Sarah and other young victims of such crimes. Rather, I acknowledge that the crime of incest is always, by its nature, a serious crime when viewed by the maximum penalty and the manner in which it is viewed by the community. I take into account the circumstances that I have outlined when I consider the sentence to be imposed in this instance. However lawyers may characterise your offending, it must not be forgotten that, to Sarah, your actions remains singular in her life and defining in the worst way.22
Your counsel explained that you were inebriated at the time of your offending, but it was put by way of circumstance and not as an excuse and, of course, whilst alcohol may in some cases loosen inhibition, it cannot lessen your moral culpability. Your moral culpability here is high. As I have already said, you not only breached your daughter’s trust, but you preyed on her vulnerability brought about by her intoxication. What you did was a low, disgusting and degrading act.23
Your criminal conduct must be met by the principal of deterrence – that is, a penalty must be imposed which serves as a warning and a deterrent to others. It must be met by denunciation. The community denounces your conduct as not just wrong but vile. Finally, in this case, as in almost all cases of incest, there must be a measure of protection of the community. This will be delivered by way of the punishment inflicted upon you to deter you from further offending, by imposing a period of parole and through the mandatory registration under the Sex Offenders Registration Act, the conditions of which you must comply with for 15 years.24
Personal Circumstances
I turn now to your personal circumstances. You are 53 years of age. You were born into a family of seven siblings. Your parents were hard-working and are both still alive. Your father drove you to court and attended the hearing in support of you. Your childhood and teen years were marked by the following events:25
first, at age eight, you witnessed your older brother being run over by a bus. Although he survived, you were described as being traumatised by this event. You became introspective and withdrawn;·
second, for many years, you and your older brother were sexually abused by your uncle. Although you have now been living with the uncle and working on his farm since being charged with these offences, it is apparent that the sexual abuse had a profound impact upon you. Your parents became aware of it when you were about 12 or 13. You seemed to stop spending time with your uncle after that, but the matter was never reported to the police;·
third, when you were aged 14, your father was imprisoned for arson. Your relationship with your father had always been problematic. Your brother characterised your father as angry and unstable when you were growing up;·
fourth, you attended high school in Ballarat from years 7 – 11 as a boarder. From age 14, you were sexually abused by one of the brothers at the school for a period of about six months. You felt powerless to stop it. The abuse stopped when you moved dormitories. You did not ever report it as criminal offending, although the brother was convicted and imprisoned for sexual offending against other children; and·
finally, at the beginning of your year 12, you were involved in a serious motorcycle accident and suffered a broken pelvis, fractured skull, temporal compression and perforated eardrum. You spent nine weeks in hospital and were diagnosed as suffering from an acquired brain injury.·
Against this background, you finished school but did not pass year 12, so you were unable to enter university to fulfil your lifelong dream of becoming a vet. Instead, over the years you took up a range of unskilled positions until 2004.26
In 1992, you met and commenced a relationship with Sarah’s mother, Claudia Black. Ms Black did not work throughout the relationship, and you felt the pressure of providing for your family. As I said, you had four children together, including Sarah and her sister Emma.27
From 2004 until your separation in 2017, you spent long periods of time away from your family whilst you worked laying pipes. You have undoubtedly worked hard for many years to provide for your family.28
I mentioned earlier that you have a number of older prior convictions. In my view, these matters are not relevant to the question of specific deterrence in this case. Rather, those earlier matters provide some confirmation of your long history through your adult life of heavy drinking and some drug taking. You have not consumed drugs for some time. You stopped drinking alcohol when you were charged with this offending; you have not returned to it and you intend to abstain from alcohol consumption upon your release from prison.29
After you were charged with this offending, you moved to work and live on your uncle’s farm. As I said earlier, paradoxically, this is the same uncle who sexually abused you and your brother as children. You will return to live and work on your uncle’s farm upon your release from custody. In an effort to make amends for his offending in the past, it appears he will leave the farm to you when he dies.30
You have continued to support your family financially in the period up to your recent remand into custody. I was told that you have paid in advance the child support for the sisters through to the end of their schooling and past their 18th birthdays, and you have made a 12-month advance payment on the mortgage over the home.31
You have undertaken 38 sessions of cognitive behavioural therapy in order to understand and gain insight into your psychological pathology. You have also undertaken specific sex offender counselling and therapy. It is necessary to address both in turn.32
The sessions of cognitive behavioural therapy addressed your suicidal ideation, anxiety, obsessive thoughts, rumination and negative self-talk arising from your offending against your daughter. Ms Addinsall, psychologist, reports your symptoms stabilised following the disclosure of long-term sexual abuse as a child and adolescent in relation to yourself. She concluded that you presented with depression, anxiety, adjustment difficulties and post-traumatic stress disorder.33
Ms Addinsall reported that your mental health has stabilised significantly, you abstain from alcohol use, you have developed positive coping behaviours and gained awareness into your relationship and behaviour patterns.34
Ms Addinsall reported that you presented as being in deep shock and particularly remorseful and ashamed of your behaviour in relation to the sexual assault. I accept Ms Addinsall’s report of your expression of remorse as she has seen you regularly over a two-year period.35
Ms Addinsall concludes that you have demonstrated that you can sustain the changes made to mental health and behaviour over time.36
Forensic counsellor Geoffrey Burrows saw you on 10 occasions between 24 July 2019 and 27 March 2020 (although his report was dated 2 March 2020) for sex offender treatment. Mr Burrows reported that whilst you initially expressed remorse for your offending, you held a distorted view that the victim of sexual abuse may experience feelings of affection and emotional closeness to the abuser. This was based on your own experience of sexual abuse as a child.37
Mr Burrows concluded that you have made some good progress restructuring your distorted beliefs and enhancing your victim empathy. You demonstrated a more accurate understanding of the impact of child sexual abuse and the destructive nature of its long-term impact. This insight made you sad to recognise that your daughter may blame herself for your actions and you are deeply upset with yourself for betraying her trust.38
The treatment put in place some solid relapse prevention plans. Nevertheless, while Mr Burrows considers you have positively engaged in treatment and made some good progress, you still require long-term treatment to comprehensively address your entrenched interpersonal and sexual issues.39
Finally in this respect, you were assessed by psychologist Patrick Newton on 18 June and 31 July 2019. Mr Newton concluded that you meet the criteria for adjustment disorder with depressed mood; substance use disorder in remission for over four years, and moderate alcohol use disorder now in remission.40
Mr Newton also identified the need to address the cognitive distortion which he considers facilitated your offending against your daughter. Likewise, Mr Newton concluded that further treatment will be necessary to consolidate the change in your views.41
Overall, Mr Newton considered your risk of reoffending as falling in the moderate risk range but with effective treatment of the issues identified, the risk of further offending should trend towards a low risk range over the medium term.42
Mr Newton concludes that, assuming you receive the treatment you require, your prognosis for rehabilitation would be considered good. This is provided that you engage in long-term treatment in the interim.43
I received character references from your father, siblings, one of your daughters and your son. All speak of a different side to you, apart from the offending. The reference from your son is searingly honest for the damage you have done to your relationship with the family and with him. It shows that even those that love you cannot fully put aside the damage you have caused.44
Ms Cannon, who appeared on your behalf, submitted the following factors should mitigate your sentence:45
early plea of guilty;·
expression of genuine remorse;·
extensive treatment and rehabilitation efforts;·
Verdins limbs 5 & 6, or alternatively hardship in prison;·
delay between date of offending and sentencing;·
prospects of rehabilitation;·
limited priors and no subsequent offending;·
stable accommodation and work upon release from prison; and ·
medium to low risk of reoffending.·
Ms Cannon also made a submission asking that I recognise the discretion of mercy and apply it in this case.46
With the exception of the submission as to the application of Verdins, and also as to delay, I generally accept the submissions made on your behalf. It is necessary to say something more about the mercy discretion also.47
There is nothing specific in Patrick Newton’s report which addresses limbs 5 and 6 of Verdins with the specificity required if it is to be used to mitigate this sentence to be imposed upon you. Time and time again, the Court of Appeal has reinforced the need for some rigour before sentencing judges apply the limbs of Verdins to mitigate an offender’s sentence.48
I consider that you have used the period between offending/disclosure and sentencing to take remarkably proactive steps towards achieving insight and rehabilitation. This can only be to your credit. I do not consider that there has been delay which would otherwise entitle you to mitigation.49
Next, I have read the recent decision of DPP v Snow. In that case, the Court of Appeal referred at [83] and [84] to two ways identified by Professor Fox in which mercy can operate in sentencing. The first most common way was where, as a discretionary feature, mercy is activated in determining what weight is to be attributed to an established mitigating factor in arriving at the ultimate sentence.50
The second way is to be used only in exceptional circumstances and that was identified by Professor Fox as “the true privilege of mercy”. Ms Cannon did not seek for me to exercise mercy in this manner.51
Finally, Ms Cannon submitted that your initial reception into prison would be made more difficult for the fact that you must go into 14 days isolation because of the COVID-19 lockdown. Thereafter, you will not be able to receive visits, your movements will be restricted, you will not be able to undertake work and your opportunity to commence educational programs and offender specific treatment will be severely limited. I accept that the pandemic will make your initial time in custody (assuming the restrictions last only a little time longer) more difficult in what will already be a confronting time for your first time in jail. I accept these matters should play some limited part in mitigating the sentence I impose upon you.52
Ms Hill on behalf of the Crown submitted that this was an example of serious offending on a vulnerable, drunk child victim. Nevertheless, the Crown submitted that it was not pre planned, but was opportunistic.53
Both the Crown and defence agreed that a custodial sentence with a non-parole period is appropriate.54
In the course of submissions I was referred to Court of Appeal case of Carter v R [2018] VSCA 88 at [75]. In addition, I have had regard to a number of other Victorian Supreme Court of Appeal cases, to the County Court of Victoria sentences and to the Judicial College of Victoria sentencing manual. Whilst I may have regard to current sentencing practices, they must not dictate or overly influence the sentence to be imposed in this case.55
In the end, the sentence I impose must principally reflect the objective factors which I have already outlined – deterrence, denunciation, just punishment and, at least to some extent, the protection of the community. It must reflect the opprobrium of the community.56
I consider however that it is appropriate to moderate the non-parole period in order to give you the opportunity for release at a time relatively earlier than the norm. This moderation is appropriate in light of the extensive work that you have undertaken to demonstrate insight into offending, to modify your behaviour and to commence your rehabilitation. If you are granted the opportunity of parole, you will have the benefit of a structure and support to assist your reintegration back into the community and your object of achieving your rehabilitation.57
So, Mr Smith, on the charge of incest, you are convicted and sentenced to five years' imprisonment.58
I order a non-parole period of two years and six months before you are eligible for release on parole.59
I declare the period of eight days pre-sentence detention reckoned as already served.60
I order your registration under the Sex Offenders Registration Act for a period of 15 years. There are a number of complex and widespread obligations with which you must comply. I am quite sure your lawyer, Mr Brand, and your counsel, Ms Cannon, will speak to you about your obligations and provide you with the paperwork.61
The 6AAA declaration is but for your plea of guilty, I would have sentenced you to a period of imprisonment of 6.5 years with 4.5 years to serve.62
Ms Hill, are there any other orders that need to be made?63
MS HILL:No, Your Honour.64
HIS HONOUR: All right. Thank you, Ms Cannon. I will exit the meeting. Ms Phillips will cut you all and leave you on the line, Ms Cannon.65
MS CANNON: Thank you, Your Honour.66
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