Director of Public Prosecutions v Stable (a pseudonym)

[2018] VCC 783

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAYDEN STABLE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	30 May 2018
CASE MAY BE CITED AS:	DPP v Stable (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 783

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused	Mr H. Rattray	Theo Magazis & Associates

HIS HONOUR: 

1Jayden Stable[1], you have pleaded guilty to two charges of indecent assault on your biological daughter.  The offending occurred back in 1987.  When the crimes were carried out, they only carried a maximum penalty of five years' imprisonment and I have to take that into account.

[1] Name is a pseudonym.

2You are 68 years of age.  You pleaded guilty at a relatively early time though as the Crown have pointed out, there was some delay before you pleaded at a committal.  I accept on the material before me that you now at least have appropriate remorse and you must also of course get the utilitarian benefit of that plea of guilty. 

3You made admissions in a pretext call and admissions in an interview which assisted at your prosecution.  You have no prior convictions of any description and I am informed that you have no subsequent matters of any description either.  All those factors obviously go very much in your favour.

4Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

5The next matter is that because of the nature of the offending, you will be placed on the Sex Offenders Register and I advise you that the reporting conditions will be for 15 years.  

6Mr Rattray, would you accompany my associate to the dock for me please, just to give him that notice.

7MR RATTRAY:  Thanks.

8HIS HONOUR:  Yes, thanks for that, Mr Rattray.  A summary of the offending is that you at the time were 37 years of age.  The victim in this matter is your biological daughter.  She was born on 14 October 1974.  She is currently 43.  She was therefore 12 at the time of the offending.

9At the time you were residing at the area after separating from the victim's mother and remarrying.  Between March 87 and April 87, you attended the Moe area for the purpose of visiting your three children, all of whom have provided victim impact statements today.  You collected your victim and her two brothers from their home in Moe and took them out for the day.  You booked a motel or a hotel room in Morwell so you could spend the whole weekend with the children.  You took them out for dinner then went back to the motel, but the brothers claimed the pull-out beds which meant that the victim had to sleep with you in the double bed.  I accepted that for these sentencing purposes, that was not a prearranged concept on your part.

10But in any event, she was lying on the bed next to you with the covers over her and you were watching television.  At some stage, you reached over and started touching her breasts.  You were lying on your left side facing her and touching her with your right hand.  That gives rise to Charge 1 of indecent assault.  It was indicated earlier that would not have attracted a custodial sentence in total isolation but in this situation, I will impose a significantly lesser sentence for that than the other.

11After some time, the television was switched off and all the lights were turned off.  You then grabbed her right hand and placed it on your erect penis on the outside of your clothing.  You then placed your hand over the top of her hand and made her rub your penis up and down in a masturbation motion.  You then let go of her hand and put your hand back on her breasts and played with these - uncharged acts at the present time.

12A short while later, you put your hand under her clothing and underwear and began touching and rubbing her vagina from her clitoris down.  You then said "shush" to her and she left her hand on your penis.  You then penetrated her vagina by partially inserting one of your fingers into her vagina.  You continued to rub her vagina, removed your finger and reinserted it for approximately two to three minutes.

13Your daughter, believing that you were trying to have sex with her, said to you, "I don't have my period" and repeated herself two or three times.  You replied by saying "That's okay" and continued to touch her.  She then said to you, "I don't want to" and moved her hand away from your penis.  You then removed your hand from her genital area then essentially moved away from her.  She waited for you to fall asleep and then went and laid on the floor at the end of the bed on a quilt cover.  She got back into bed at some stage before you woke up. 

14In the morning she got out of bed and had a shower.  You told her that it was all right that she said no to you.  You dried her back with a towel and then left the bathroom where she had been.  You then dropped her and her brothers off at home some time later that day.

15As I said, I accepted this situation was situational and it is not what I sentence you for part of any ongoing conduct, but the fact of the matter remains that it was a father grossly interfering with his pubescent daughter.

16I have before me the victim impact statements of the three of your children and their mother.  Those victim impact statements eloquently and strongly pointed out the dreadful, dreadful consequences of offending such as this.  I am not going to read from it in any detail at all.  They were read out very courageously and very powerfully just a couple of hours ago and you have heard them and the rest of your family know what is in them.  I simply say this, as your daughter pointed out:

"A father is supposed to be the one to show a child unconditional love, help build their self-worth and confidence, let them know that they're capable of great things and that no person has a right to hurt them.  He's supposed to protect his own child from harm and be the one to help mend soul-crushing pain.  [Jayden], you were my father and yet you made the decision to take all that away from me.  You took away my innocence, my trust, love, self-confidence and self-worth.  You also took away my right to grow up with a father that protected me and loved and nurtured me."

17Her mother points out the sense of guilt and shame that she suffers - wrongly, as is almost always the case in these situations, but that is the way they feel and that is what this sort of offending does to mothers. 

18Your two sons have pointed out again in very eloquent terms the damage that what you have done has had on them, to their lives, and you have basically destroyed a family structure which each of the people involved in would have been dependent upon.

19It is serious offending.  It obviously calls for the application of general deterrence.  In your situation, I would have thought specific deterrence probably is not all that important but from a community point of view, it also calls for denunciation. 

20The consequences of your actions are going to be lifelong and it has been said on a number of occasions that a sexually abused child is rarely a happy adult.  A custodial sentence of some sort is inevitable in my view.  I was shown comparative cases and pointed out from the outset that each of those, whilst in some ways comparative, involved offending over a longer period of time.  One did not involve penetration but in my view, they set the sort of range that is applicable to offending back from that period of time, bearing in mind that the maximum penalty was only five years.

21In determining the length of the sentence, I then turn to matters personal to you.  Tendered on your behalf were references and also a report from Ms Lechner, a psychologist.  It is clear from those references and it is clear from the other material before me that you are somebody who has essentially worked all your life.  You have no other convictions and it can be said that in that sense, this conduct was an aberration albeit an aberration with dreadful consequences.

22You clearly have at least subsequent to this offending been somebody who has been involved in community activity through church and obviously through other aspects of your local community.  The question that first arises is one of the delay involved in the matter.  Back in 1987, police were advised of the complaint within a month or so it occurring.  Your family as they then - probably still almost were - took the view they were not prepared to go with the process of making a complaint and going through the court process.  That is a totally understandable and protective attitude to take in regard to a as I said pubescent teenage girl.  The consequences of what would have happened to her at that age being put through that process is anybody's guess.

23But the fact remains that because of that, there has been a very significant delay in terms of you being dealt with.  I am not aware as to whether the allegations were made clear to you back at that time or not, but I have to sentence a different person.  I will quote from some authority in a moment.  It is pretty clear on the information before me that your rehabilitation has taken effect and there is no need for you to be on sex offenders programs or anything like that.  I accept from Ms Lechner's report that the risk of you reoffending will be low, and indeed your history would suggest that it would be low in any event.

24I do not need to go into her report in great detail.  It points out that you have suffered for a long period of time from a post-traumatic stress disorder which had undoubtedly been brought about by a very serious incident in a motor vehicle where you suffered from what I can gather were gross burns when a radiator exploded.  It was after that period of time that your conduct became erratic and I am not privy to all the details of that, I am just here to sentence you for one particular night.  But the fact of the matter remains that subsequent to that as you indicated to other people, you have done your best to get your life on track.

25Ms Lechner says that you have appropriate remorse and I have seen the materials that do support that.  She says you have shame for your actions and she puts it in the situation of your poor mental health at the time coupled with anxiety about a capacity for sexual functioning and the availability of your daughter in that situation caused you to act impulsively.  Impulsively it may be, and I described it as situational, but it was not something that occurred with one single touching.  It was one penetration, a withdrawal and then it happened again.  You do not get sentenced for two, it was all in the one incident but it was certainly a situation which you persisted and she had the courage to say she did not want to and it stopped at that point.

26The difficulties of delay have been pointed out by Mr Justice Callaway in the case of R v MWH, and he went into some detail.  He said, "It is the effects of delay that are important for sentencing.  As in R v Law, the prisoner's age at the time of sentencing may mean that he is less likely to re-offend.  His health or life expectancy may make service of a sentence of imprisonment more onerous than usual."  I interpolate there is nothing here to suggest that.  "There may be considerations of fairness, especially where the delay is attributable to the prosecution" - but I do not think it is in this situation - "or there has been a significant period of uncertainty or curtailment of liberty after the offences came to light.  There may be practical considerations that require a marked degree of leniency to be extended.  The foregoing is by no means an exhaustive list and it omits the most important potential effect of delay, namely rehabilitation.  The person standing for sentence may have been rehabilitated in one or more ways.  He may have given up a form of substance abuse" - again, that does not apply to you - "or he may have reordered his life.  He may have changed morally so that, quite apart from being older, he would not be likely to re-offend.  He may have suffered genuine remorse in the sense of repentance, not just sorrow at being caught and fear of punishment.  So far as possible, a lengthy process of rehabilitation should not be halted or endangered by the sentence imposed."

27Clearly there are aspects of this situation that we are dealing with here today that fit within what Mr Justice Callaway said back at that point in time.  Balanced against that of course is what Mr Justice Vincent said in R v Toomey.  He said, referring to Toomey's situation - and Toomey did have multiple victims: 

"The situation, in this respect, can be seen to be similar to many encountered in the courts where there has been the sexual abuse of young persons.  Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years.  Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards." 

28I note from the comparative cases that were given to me that one was the same as this where it had been brought to the attention of authorities, nothing had occurred.  He then goes on to say: 

"Considered in this light, it is in my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.  Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through the sentences imposed on perpetrators.  They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children."

29He goes on:

" As Hedigan AJA adopting an earlier statement of Marks J in R v Sposito, put it in R v MJ:  'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.'"  Hedigan AJA then went on, "The offence of incest" - which this is and I accept and understand and that the penalty is different would be now - "is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim."

30That adequately summarises - and again, I am very conscious of the fact that you are not charged with incest - the consequences and the way in which offending such as this has to be viewed.  As I have already indicated, that has to be balanced against the fact that the crime at that point in time that you have been convicted of carried a maximum penalty of five years' imprisonment.

31The principles of Verdins are not applicable.  It is not suggested that they were.  Having given the matter consideration, it was not in dispute that a significant prison sentence had to be imposed.  It was simply a matter as to whether it could be wholly suspended.  In my view, in all the circumstances surrounding this, I could not justify wholly suspending such a sentence.

32Accordingly, on Charge 1, you are sentenced to be imprisoned for a period of three months.  As I have already indicated, I would not have done that if it was in isolation but that charge is to be - that sentence is to be concurrent with the sentence imposed on Charge 2 which is 18 months.  That gives a total effective sentence of 18 months.  I direct that 12 months of that 18 months be suspended for a period of two years, which means that there is an effective sentence to be served of six months.

33Pursuant to s.6AAA of the Crimes Act, I say that but for your plea of guilty, you would have been sentenced to be imprisoned for a period of 27 months with a minimum term of 12 months though that may have been done by way of part suspension as well. 

34All right, are there are other orders I have to make?

35MS WARREN:  No, Your Honour.

36HIS HONOUR:  All right.  I have imposed a partially suspended sentence on you, Mr Stable.  I must advise you that should you breach that sentence by offending in any way which carries a penalty of imprisonment, you will have to show exceptional circumstances why you would not have to do the balance.  All right.  Yes, remove the prisoner please.

37Yes thanks, Mr Rattray, thanks, Ms Warren.

38MS WARREN:  As Your Honour pleases.

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