Director of Public Prosecutions v Strickland (a pseudonym)
[2020] VCC 1304
•21 August 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUDSON STRICKLAND (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 August 2020 | |
DATE OF SENTENCE: | 21 August 2020 | |
CASE MAY BE CITED AS: | DPP v Strickland (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1304 | |
REASON FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Cameron | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr B. Tait | Tait Lawyers |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.
HER HONOUR:
1Hudson Strickland,[1] you have pleaded guilty to one charge of incest. The maximum penalty applicable to that offence is five years’ imprisonment.
[1]A pseudonym.
2Your offending occurred between 1 January 2005 and 31 December 2005 and involved the victim of your offending, Andrea Strickland,[2] your younger sister.
[2]A pseudonym.
3It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor consistent with Exhibit A. I proceed to sentence you on the basis of the summary and as discussed during the course of the plea hearing. Suffice to say your offending is very serious and disturbing.
4I turn to a summary of it.
5At the time you were 16 years of age and are now 31 years of age. Your victim, Ms Strickland, was 14 at the time of your offending, now 28.
6The prosecution in Exhibit A referred to a number of "uncharged acts", that is ‘other misconduct’ relied upon as background/context to the offending in Charge 1. Your offending was not isolated.
7When Ms Strickland was four and you six years of age, you lived in a house with your mother, your mother’s partner, and your three siblings. When living at that house, sexual activity between you and Ms Strickland began.
8On one occasion in 1995 you and Ms Strickland were in your bedroom. You told Ms Strickland to take her clothes off and you took your clothes off. You asked Ms Strickland to touch your penis and put it into her mouth, which she did. You told Ms Strickland to lie down, and when she did you urinated on her face. Ms Strickland did not tell her mother what you had done, as she did not want you to get into trouble.
9Between 1995 and 1999 you engaged in sexualised behaviour with Ms Strickland on a regular basis, including playing “doctors and nurses”, you both being naked and touching each other’s genitals.
10Ms Strickland stated that at times she said she did not want to play that game. However, you were older than her, and that you were a bully, so she always did what you said. The playing of that game usually occurred when your mother was at work, when older siblings were looking after the two of you.
11In approximately 1999 to 2000 you and Ms Strickland shared a bedroom. On one occasion you told Ms Strickland to take her clothes off, which she did, and you took yours off. You told her to touch your penis, which she did, and you made her draw on you with a blue pen. You wanted her to draw smiley faces over your body, including your bottom and near your penis. You then drew smiley faces on Ms Strickland’s body, including on her bottom.
12Later when the family was in the dining room your mother went to smack Ms Strickland on the bottom as a joke and pulled her pants down. She saw the blue smiley faces. Ms Strickland told her mother you had drawn the faces. Her mother laughed and thought it was funny. Ms Strickland was upset her mother had laughed.
13You and Ms Strickland shared a bedroom for a couple of years and, during that time, you had Ms Strickland touch your penis and you would touch her vagina. That occurred once a month or once every two months, and other times twice a week. Most of that behaviour occurred in your shared bedroom, a few times outside.
14I turn to the charge on the indictment, which is a ‘rolled-up’ charge (see R v Jones).[3]
[3][2004] VSCA 68.
15In 2005 you, Ms Strickland and the family moved house. You were then 16 and Ms Strickland 14. You both had your own bedrooms.
16On one day in 2005 you and Ms Strickland were home alone together, lying on a mattress watching television. You asked Ms Strickland to take her clothes off, which she did, and you also took your clothes off. You told Ms Strickland to come close, and when she did you pulled her head down onto your erect penis. You held the back of Ms Strickland’s head and put your penis into her mouth. You moved Ms Strickland’s head back and forth, Ms Strickland described that she “felt numb, I didn’t feel like I was really there”.
17You then inserted your penis into Ms Strickland’s vagina and ejaculated in her vagina. You said “Don’t worry, you haven’t had a period so you won’t get pregnant.”
18Ms Strickland was worried she would get pregnant. She knew what you had done to her was wrong, and I note so did you. She did not start to get her period until she was 16 years of age and was still suffering panic attacks at that time.
19About a week after that offending you approached Ms Strickland when she was in the kitchen and asked to do what you had done previously. Ms Strickland refused and said that she thought it was disgusting. There was no more sexual contact between you and Ms Strickland.
20As a result of the sexual abuse Ms Strickland suffered from you, she described anxiety and panic attacks since she was 12 years of age, that she experienced weekly nightmares and flashbacks about what you did to her. Your abuse of her had also affected her intimate relationships and she felt she had been isolated from her family when your offending was becoming known.
21This matter came to police attention after Ms Strickland told a friend when she was 17 about your sexual offending, and also disclosed your offending to her boyfriend when she was 18 years of age.
22In 2011 you were admitted to a psychiatric hospital after an attempted suicide. You told a family friend you had sexually abused Ms Strickland, and your sister found out about that disclosure. Your sister told Ms Strickland that she knew, and asked Ms Strickland why she had not told anyone. Ms Strickland stated at that time she was “completely traumatised” as she was not prepared for the information to come out to the rest of the family.
23Subsequently, a family meeting was held and, during that meeting, you acknowledged you had sexually abused Ms Strickland and apologised to everybody not, however, to Ms Strickland at that meeting.
24Ms Strickland described that “at the time everyone felt sorry for Hudson and they were more concerned about his welfare, opposed to my welfare for being the actual victim to his sexual abuse”.
25The family had a Facebook message group that included both you and Ms Strickland. In 2016 you sent a disturbing message to the group stating that Ms Strickland was a ‘slut’ and ‘a disappointment to her mother’. You also stated “they were all fucked up” and you said you had raped Ms Strickland.
26Ms Strickland reported your offending to police in March of 2019, and you were arrested and interviewed on 13 June 2019. In that interview you admitted you had sexually abused Ms Strickland when she was a child. When the specific allegations of incest were put to you, you answered “No comment.” It was of course your right to answer questions that way.
27You did, however, during the record of interview, state that the “sexual misconduct” started when you were around 10 years of age and Ms Strickland 8. You said your brother had also sexually assaulted you. You said it was “pretty much – it was trying to force her to have sex”, “like, playing”. “I don’t think I’d force her physically to an extreme extent, but we’d play games, so, like, manipulative mind games”, and “Just trying to exploit the situation to ... express my own sexual desires, I suppose”. You said “it probably happened ... over a few years, 10, 15 times” and that the abuse occurred mainly when your mother was working: “Yeah, I wouldn’t have been stupid with the times I chose”. By the end of your offending you fully knew it was wrong, and that was why you chose the times. I am sure you did.
28Aggravating features of your offending are the breach of trust involving your sister although I accept not the same category as parent/grandparent for example and child. You knew, of course, your offending against Ms Strickland, your sister, was wrong. Further you did not use a condom (R v Khem)[4] as I discussed with your counsel that includes the possibility of disease, if not pregnancy.
[4](2008) 186 A Crim R 465 (‘Khem’).
29A chronology was attached to Exhibit A. The offending occurred in 2005 and it was not until 13 June 2019 that you were arrested, interviewed, and charged. On 19 September 2019, the matter resolved and you indicated your intention to plead guilty to the charge on the Indictment.
30You have pleaded guilty to this charge, and you are entitled to have that fact taken into account in your favour, and I do so. You have, by your plea of guilty, spared the time and cost of a trial, and witnesses – in particular I refer to Ms Strickland – have been spared the ordeal of having to give evidence upon your trial. Your plea of guilty has utilitarian value, and I accept is indicative of remorse for your offending. I also accept that when interviewed by police, while you answered “no comment” to the specific allegations of incest, you nevertheless admitted your sexual offending of Ms Strickland. I therefore accept that, in addition to your plea of guilty being entered early to this charge (approximately three months after you were interviewed and charged), I also take into account you made admissions to your offending at an early stage, and such is also relevant in mitigation of sentence.
31There is a Victim Impact Statement from Ms Andrea Strickland. There is no doubt Ms Strickland has suffered considerably as a result of your offending, and I shall return to some remarks about that later in these sentencing remarks.
32Your counsel prepared a written outline of submissions for your plea hearing and addressed them during the course of it (Exhibit 1).
33You do not have any criminal history that predates the commission of this offence; which is, I suppose, not surprising, given your age at the time, 16 years. You do, however, have subsequent Court appearances as an adult involving, I was told, driving offences.
34Specifically, I note no further sexual offending. Your most recent appearance before the court was in 2016. I disregard that offending for the purposes of sentencing you today.
35Addressing your offending, Mr Tait noted, as do I, you were a child at the time of the commission of your offending in Charge 1. He conceded the other ‘sexual misconduct’ referred to in Exhibit A was background to the charged offending.
36Mr Tait urged, when sentencing and assessing the gravity of your offending, that it was relevant that you were just a child, 16 years of age. That submission is correct in law. He urged your offending involved one charge of incest, compared to other cases where an offender had protracted periods of offending against a complainant. This submission however in my opinion must be assessed against the ‘context/background’ to this offending and that this is a ‘rolled up’ charge of 2 different types of penetration. I note however the applicability of the ‘one incident rule’ (Zhao v The Queen).[5]
[5][2018] VSCA 267 (‘Zhao’).
37Mr Tait urged it was not being alleged by the prosecution that there were any aggravating features of violence or physical force accompanying the offending. I disagree as I discussed with Mr Tait referable to the oral penetration.
38Mr Tait urged there was an absence of power imbalance that sometimes appears in cases such as this, by virtue of you being siblings and of your relatively similar ages (two years apart). I accept that to a degree, as I have already said, although note Ms Strickland’s description of you as a bully referable to ‘power imbalance’.
39It was further submitted, given your age at the time, you were not in a position of trust in respect of Ms Strickland. In my opinion you were, albeit not a case of care, supervision or authority.
40Mr Tait submitted you were not only a perpetrator but had in the past been a victim of sexual abuse from your older brother, Ronald Strickland.[6] Your counsel urged that should reduce your moral culpability for your offending before me.
[6]A pseudonym.
41I discussed this with Mr Tait and in particular cases referable to this and the lack of connection to this offending in the report of Dr Wright to which I shall shortly refer.
42I accept, from the material before me, you had told others of having been sexually abused by Ronald Strickland, making that disclosure prior to Ms Strickland reporting to the police, also referred to in your record of interview.
43It was submitted that your mental health had suffered greatly as a result of you not only being a victim of sexual abuse but also dealing with the guilt of your offending, which had resulted in a number of attempts at suicides.
44It was submitted that this offending occurred against the background of a severely dysfunctional upbringing, with an intricate web of sexual abuse drawn between nearly all of the five siblings, although I note instructions from Ms Strickland to the informant that she was never offended against by Ronald Strickland.
45I turn to your background and history. You are, as I have said, 31 years of age at sentence. Your parents separated when you were 3. Your mother commenced another relationship in 1991 and, in 1992 your mother, her partner, and the children began living together.
46You instructed that at the time of your offending involving Ms Strickland, your mother and her partner were separating, which you described as a very difficult time, and a “messy” separation.
47The five children were, you said, all home-schooled in your early years. You then attended High School to Year 11, describing your attendance rate in your final year of schooling as poor.
48Over the years you said you had battled substance addiction. You commenced using cannabis and Speed from the age of 15, then from 21 you used cannabis, alcohol, and began dabbling with Ice use. You recently recommenced cannabis use.
49Your counsel referred to a report of Dr Peter Wright, in which he described you as having in his opinion, diagnoses of autism spectrum disorder, substance abuse disorder, and complex post-traumatic disorder. I discussed Dr Wright’s conclusions with Mr Tait. He was not relying on the principles in R v Verdins & Ors[7] and that on the material before me was an appropriate concession.
[7](2007) 16 VR 269 (‘Verdins’).
50You have been engaged with support service First Step since being referred by your girlfriend in 2015. You continued to seek support from that long-term general practitioner, Dr Wright, for substance abuse and mental health.
51Prior to the COVID‑19 pandemic you had been working as a chef at the Caulfield Racecourse Hotel as a casual employee, however had been unable to keep that employment, and were now on Centrelink benefits.
52You said the court proceedings had exacerbated family fractures. You still speak with your mother and older sister, however, had limited contact with the remainder of your family. It appeared your father had been supportive of you during this process.
53You have a daughter from an earlier relationship who lives in New South Wales with her mother. Your aim is to eventually relocate to be closer to your daughter.
54Turning to sentence, Mr Tait, whilst of course accepting the offence of incest was one which ordinarily attracted a term of imprisonment, it was submitted and urged immediate imprisonment was not warranted in your case.
55There were, Mr Tait urged, unique features of it. That it took place between siblings, and Ms Strickland and yourself were children at the time. The offending occurred in the absence of a significant breach of trust that would normally exist between an adult and a child. That there are no additional aggravating features of violence or physical force, although I note regarding oral penetration as previously stated. He also urged this was only one charge of incest, not multiple charges. I have previously referred to my assessment of that submission.
56It was urged that general deterrence, whilst relevant, had a less prevalent role when sentencing you, given your age at the time and that is so.
57That your subsequent offending history was devoid, he urged, of offending in a sexual manner. That you are now 31 and that a significant period of time had passed since the commission this offence. Delay however, in my opinion, is not unusual in this type of case.
58It was submitted you did not pose a risk of further offending in the community in this way. Whilst I do not have an ‘expert report' addressing your risk I note the absence of any other sexual offending and the situational nature of this offending, i.e. in the family. That is not to suggest that that is appropriate but just to distinguish it from other type of offending.
59Your counsel urged that the need to protect the community and specific deterrence was reduced in your case and I accept that is so.
60Your counsel also relied upon your early plea of guilty to this offending and I have previously referred to that.
61You had also, it was submitted, displayed remorse for your offending by your early plea, and that you had felt guilty for your offending for some time. I accept that is so except for your description of Ms Strickland as a ‘slut’ – a most unedifying comment.
62Mr Tait also submitted had this offending been reported to police at the time of it you would have been sentenced as a young offender, with rehabilitation a core focus in the sentencing exercise. That is correct.
63I received correspondence from Dr Peter Wright, General Practitioner, First Step Medical Centre, dated 15 January 2020. He has known you, as his patient, since May 2015. Since 2013, he had worked at First Step, St Kilda, in primary care services and opiate-substitution support to current and previous people experiencing addiction and mental health disorders.
64Since May 2015, Dr Wright referred to significant contact with you around your depressive symptoms, suicide attempts, and drug use.
65The severity of your suicidality made him view your depression in terms of a recurrent major depressive disorder. He stressed the importance of ongoing drug treatment. You had been largely compliant with that recommendation.
66You had intimated to him that your suicidal behaviour was driven by past guilt and distress from your disordered childhood also this offending.
67When speaking of your childhood, your consistent narrative over the five years with Dr Wright had been one of dysfunction, disruption, poorly defined and enforced boundaries, and of being sexually abused by Ronald Strickland.
68In the opinion of Dr Wright, the most relevant diagnoses were autism spectrum disorder, a long-standing diagnosis extending back to childhood, substance use disorder, and complex post-traumatic stress disorder.
69In his opinion, you had ongoing potential to develop insight into your past and present behaviour with the correct therapy. Dr Wright urged neuropsychiatric assessment might assist.
70
Also tendered at your plea hearing was a reference from Ross Clark, dated
6 August 2020. He has known you since 2010. You first met when working at a restaurant in King Street, Melbourne, then again worked together from September 2019. He said you regretted this ‘incident’ and wanted to close this chapter of your earlier life and continue with the honest life you now had.
71Apart from the birth of your daughter, he said you had not had much luck or happiness in life to date. He had seen you with your daughter on a regular basis and knew you wanted to be a great dad. Your daughter lived in New South Wales and your current situation prevented you from seeing her.
72He said you try hard to be a good and honest person every day. Mr Clark described you as a hard worker and talented chef. You were an integral part of his kitchen as a Sous Chef and he would remain your friend.
73The prosecution prepared a written outline of submissions relevant to sentence dated 11 August 2020 (Exhibit C). Addressing the gravity of your offending, prosecution counsel, Mr Cameron, stated correctly it is well-established that harm caused by sexual abuse of children is severe and long-lasting. In particular, “severe psychological repercussions presumed to be the result of incest” (R v Lomax[8] and DPP v Tewksbury (a pseudonym)[9]).
[8](1998) 1 VR 551.
[9][2018] VSCA 38.
74Addressing the aggravating features of your offending Ms Strickland as 14 and you 16 years at the time of the offending. That you were the victim’s older brother, which the Crown urged represented some limited imbalance of power although not to the extent of a parent or grandparent, or other person with the care, supervision or authority over the victim. I agree as I have previously stated. Your charged offending had occurred in a single incident (Zhao).
75The prosecution submitted that your offending involved penile penetration of the victim’s mouth and vagina and, whilst you did not use extreme force or violence, you did hold the victim’s head and move it back and forth during the course of the oral penetration. I agree.
76You did not use a condom and ejaculated into the victim’s vagina (Khem).
77Your offending did not occur “out of the blue”, rather in the context of ongoing sexual activity between you and Ms Strickland for a decade prior, commencing when you were 6 and she 4 years of age.
78The prosecution accepted your offending fell into a different category for offences of incest that this Court usually deals with. That when assessing the nature and gravity of your offending and your moral culpability it must be taken into account that what was done was as a child (albeit a child on the cusp of adulthood) and not as an adult or a person or greater maturity. I agree.
79Addressing offences committed as a child, in Galuak v The Queen,[10] Priest JA stated:
“Decisions of this Court recognise that, where offences which have been committed whilst an offender is a child and are not prosecuted until years after the event, there is good reason to mitigate sentence, particularly where there has been significant rehabilitation and no further offending in the intervening period. Although such an offender falls to be sentenced as an adult, both common sense and fairness dictate that, in assessing the nature and gravity of the crime and the offender’s moral culpability, the Court must take into account that what was done was done as a child, and not as a more mature person. Moreover, even absent statutory sanction, general deterrence will ordinarily have a lesser role to play in the sentencing of children than in the case of adults.”
[10][2015] VSCA 300 [17].
80The prosecution submitted, taking into account all of those factors, that your offending fell towards the lower end of the category for this offending. I agree.
81Mr Cameron referred to the other ‘sexual misconduct’ which preceded this offending as providing context for this offence. Those acts, he urged, could be taken into account in sentencing only to the extent that they allowed proper regard to be had to the full circumstances in which your offending occurred (R v Rankin[11]). I agree.
[11][2001] VSCA 158.
82Turning to the Victim Impact Statement, the prosecution submitted it was clear there had been a very significant and ongoing negative impact upon Ms Strickland as a result of your offending. The impact of your offending was not reduced by the actions of others against her and I note specific denials by Ms Strickland of offending by Ronald Strickland.
83The prosecution accepted that you were co-operative and admitted your offending when interviewed by police, and that your plea of guilty had been entered at an early stage. I agree and have already referred to this earlier in these sentencing remarks.
84Regarding remorse, it was accepted by the prosecution you had demonstrated remorse, including through your admissions, your early plea of guilty, your statements at the time of an initial suicide attempt, and the statements you have made to Dr Wright. I accept that is so.
85The prosecution urged however your remorse was tempered by the messages you sent to the family group on Facebook in 2019, in which you described or referred to the victim as “a slut” and “a disappointment” to her mother. I agree.
86Addressing the delay of 15 years between this offending and the plea hearing, the delay was not attributable either to you or the prosecution. It was, however, relevant to your prospects of rehabilitation. I agree. The delay meant you are now being sentenced as an adult for offending you committed as a child. It was accepted your offending may have been dealt with in the Children’s Court and would not have attracted the application of general deterrence and would have rendered rehabilitation a central purpose of sentencing. I agree. I also note your subsequent offending does not involve sexual offending.
87Regarding your own sexual abuse, I was referred to R v AWF,[12] in which Ormiston JA observed:
“Clearly evidence of this kind [childhood sexual abuse] is relevant, certainly where there is no dispute as to the existence of the abuse and there is some expert evidence which would connect that abuse with the offender's subsequent misbehaviour. One should be careful, however, not to assume that abuse of that kind will automatically lead to some reduction of sentence. Otherwise there might be a plethora of unfortunate experiences put forward as the basis for similar reductions. In general it is not so much the cause that is important: rather it is the consequences which flow from those earlier events. If there is evidence to link them to a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious and for saying that specific or general deterrence (or both) should have a smaller part to play in the overall sentencing process, then that condition will have a greater relevance and significance.” (Emphasis added)
[12](2002) 2 VR 1, 4 [6] (‘AWF’).
88The prosecution submitted, in your case, there was no evidence before the court to enable me to draw a link between your sexual abuse and your acts against the victim. I agree.
89Addressing sex abuse of an offender and AWF, in GEM v The Queen,[13] the court stated:
“The weight properly to be given to childhood sexual abuse as a factor in sentencing ‘will vary greatly from case to case’, as Ormiston JA explained in R v AWF. Expert evidence, as to whether or not there is a nexus between the abuse and the offending, will usually be critical.”
[13][2010] VSCA 168 [54].
90The court noted that in AWF the court:
“confirms an objective link between the earlier abuse and ‘a condition or state of mind which is a proper basis for viewing the criminality of an offender as less serious…’.”
91There is no such evidence in this case involving you.
92Further, in Beevers v The Queen,[14] the court again noted the weight to be given to an offender’s childhood sexual abuse would vary from case to case.
[14][2016] VSCA 271 [35].
93The prosecution submitted you knew the sexual acts you were engaging in with Ms Strickland, specifically the charged offending was wrong, and such, in my opinion, is apparent from your record of interview.
94Addressing your mental health and reliance upon the diagnosis by Dr Wright of autism spectrum disorder, substance abuse disorder and complex post-traumatic stress disorder, the prosecution questioned, as do I, whether Dr Wright was appropriately qualified to make such a diagnosis. There was no other evidence before this Court supporting those diagnoses. The prosecution urged the principles in Verdins did not apply based on the report. I note Mr Tait was not relying on those principles as I've previously noted.
95The prosecution submitted when sentencing there was a need for general deterrence, denunciation and just punishment, usually applicable in this type of offending, however, in your case, the prosecution accepted your young age at the time of the offending and the somewhat situational nature of your offending reduced the weight to be afforded to such considerations but did not eliminate them. I agree.
96General deterrence, given that you were a child at the time of the offending, might be seen to carry limited weight, consistent with authority.
97Also, while specific deterrence and protection of the community are often key purposes for sentencing in cases of incest, the prosecution accepted such was reduced in your case given you were a child at the time and had not engaged in similar subsequent offending, and more generally your engagement in treatment through support services for substance abuse and mental health issues.
98In addressing the COVID-19 pandemic, the prosecution accepted, as do I, it provided a basis for some reduction of sentence.
99Current sentencing practices were relevant to sentence, however, the prosecution conceded, and I accept, it was one consideration against many that informed the instinctive synthesis when sentencing. Ultimately, I am obliged to impose a sentence just in all the circumstances and clearly articulate reasons for the sentence I have imposed.
100Turning to disposition, the prosecution submitted a term of imprisonment was within the range of an appropriate disposition however, it was open to me to suspend any such term imposed. To wholly or partially suspend a term of imprisonment, I must be satisfied it is desirable to do so in the circumstances.
101Given your age at the time of the offending, the provisions of the Sex Offenders Registration Act 2004 (SORA) are not automatically engaged. The prosecution did not make application for a discretionary registration pursuant to s11(2) and (3) of SORA, and I also do not propose to make the order in the circumstances of this case.
102Regarding your rehabilitation prospects, I consider them to be good, particularly as your subsequent offending does not involve any allegations of sexual offending.
103You have also, in the past, had employment and had addressed your drug use and mental health issues.
104I turn to the Victim Impact Statement of Ms Andrea Strickland, sworn February 2020.
105The statement is eloquent, and it is difficult to do justice to that statement in these brief sentencing remarks. I have, however, read Ms Strickland’s Impact Statement.
106Ms Strickland wrote that from about the age of 11 or 12 she started to get panic attacks as a result of your ongoing sexual abuse and bullying of her. She felt you treated her like dirt and made her feel worthless. She was confused by what you were doing to her, and unsure what it all meant.
107Through her teenage years she was belittled by you because of the anxiety she suffered, and her self-esteem was incredibly low. You manipulated everyone for all the help and attention that she needed.
108Ms Strickland described at least 18 panic attacks a year from the ages 11 to 18. She described embarrassment regarding her panic attacks over the years, not being able to tell people why she got them, because it was “just so disgusting”.
109The worst panic attack she had was when she was 20. Her partner at the time had to call an ambulance because she collapsed.
110That panic attack occurred about three months after your first attempted suicide. She was traumatised and had never felt so alone and isolated in her life. All the attention, she said, was on you, because you were the one who attempted suicide.
111When you first attempted suicide you told everyone what you had done to her, yet not one person helped her. That worsened the wound she had buried deep inside her. It also affected the relationship with her partner at that time. She also had to take time off work.
112On the occasions when you attempted suicide, she said everyone kept expecting her to forgive you, so that you would not feel the burden anymore. That made her feel disgusting and worthless. That she was expected to forgive you and sweep everything under the carpet.
113She felt she was made to feel indirectly guilty if she was to ever go to the police, as a result of your continuous suicide attempts.
114She had to seek counselling, after a number of mental anxiety breakdowns. She felt no one cared if she needed help, and she blamed you.
115The flashbacks she had of your offending had “poisoned her life”. She could not shake them off. It continued to impact adversely on her relationship with her husband.
116Your offending had left her battling through life. Keeping a full-time job was one of the hardest things for her to do. She kept having to return to counselling and even lived overseas for three years to avoid dealing with your manipulative ways.
117She was currently studying for a degree, however, had not been able to concentrate because her anxiety was so bad.
118Your offending had ruined her relationship with her mother, her father and her sister. They did not talk to her in the same way because of you. She believed she would never have a normal relationship with them again, because they were continuously thinking that you were the victim.
119She felt like someone had died. She did not have a brother any more (you), “he’s gone” she said. The good things that happened in her childhood were tarnished by the horrible memories left by you. She did not have a family because of you. She did not have a childhood because of you. She would never be able to feel normal, and she would never forgive you for any of it.
120Important is the notion of social rehabilitation when sentencing which has been referred in a number of cases including DPP v Toomey[15] citing DPP v DJK.[16]
[15][2006] VSCA 90.
[16][2003] VSCA 109 [17-18].
121The impact of your offending upon a victim is a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am, however, conscious that I must not allow the effects upon a victim to swamp the sentencing process.
122I turn to sentence. In all the circumstances of this case, and that the imposition of a suspended sentence is available to me, I consider a term of imprisonment is appropriate to reflect all sentencing considerations with that sentence to be wholly suspended.
123So listen carefully. Are you still with me, Mr Strickland?
124OFFENDER: Yes, Your Honour.
125HER HONOUR: On Charge 1, you are convicted and sentenced to two years’ imprisonment. It is to be wholly suspended for a period of three years from today’s date.
126Now, you have got to be very careful, Mr Strickland. For the next three years, if you commit any offences punishable by imprisonment - you may not get imprisonment but potentially punishable by imprisonment, it can be driving offences, it does not have to be sexual, then you will breach this order and you will be re-sentenced and there needs to be exceptional circumstances which I suggest to you is a very high bar to pass for that two year sentence to not be activated. In other words it is highly likely you will go to jail for two years. You have got to be careful, it does not have to be sex offending. It might be driving whilst disqualified, it might be theft of something from a shop, a pen or anything. Any offence that is potentially punishable by imprisonment, even if you do not get imprisonment you will breach that order. So in the next three years you have got to be careful. You breach it, two years, and the test to not do two years is so high you are just not going to make it. Do you understand what this means?
127OFFENDER: Yes, Your Honour.
128HER HONOUR: You do not have a choice. I am not asking if you consent to it, that is your sentence. Your counsel urged it, I have agreed to it and I have given my reasons why, I hope satisfactorily throughout these reasons. You need to be careful.
129Pursuant to s6AAA of the Sentencing Act 1991, had you pleaded not guilty to this charge and been found guilty of it, I would have sentenced you to a term of imprisonment of three years six months with a non-parole period of two years. In other words no suspended sentence, you would have gone in.
130Pursuant to s18(4) of the Sentencing Act 1991, I declare that you have not spent any days in custody by way of pre-sentence detention for this offending, should I need to revisit this sentence in the future which, of course, I hope I do not, but if I do it means you have breached my order.
131The prosecution made application for a forensic sample pursuant to s.464ZF Crimes Act 1958. That was not opposed by counsel on your behalf, and I make the order in the terms sought. You will need to report to a relevant police station as described in the documentation that will be provided to you via your solicitor just at the end of this hearing. So there is a list of police stations you can go to and if you do not go to them they will find you. It does not mean you have got to go and if you do not go it does not happen, I have made the order.
132OFFENDER: Yes, Your Honour.
133
HER HONOUR: Were there any other orders that you were seeking,
Mr Cameron, that I have missed?
134MR CAMERON: No, Your Honour, no other orders.
135HER HONOUR: Right, now is there anything - I am not asking whether you like the sentence, I am just asking is there anything that anyone wanted me to repeat in relation to the sentence? Back to you first, Mr Cameron?
136MR CAMERON: No, Your Honour, it is clear from the prosecution perspective.
137HER HONOUR: All right and it will be a saliva sample from the mouth and attached to this document, Mr Tait, for your benefit are a list of relevant police stations. He had better find one and makes sure he gets to it and do it asap.
138MR TAIT: Yes, Your Honour.
139OFFENDER: Yes, Your Honour.
140HER HONOUR: I note that was not opposed. Got that. And it is also in my opinion, not opposed. I did not ask you, Mr Tait, is there anything that you are unclear about?
141MR TAIT: No, Your Honour.
142HER HONOUR: I notice that your bail address was Beaconsfield, that is yours, Mr Strickland. The 464 refers going to Ballarat police station, four weeks.
143MR TAIT: What's the closest police station to you?
144OFFENDER: Pakenham or Berwick, I'm not sure where it was.
145MR TAIT: The closest police station, Your Honour, is probably Pakenham or Berwick according to Mr Strickland.
146HER HONOUR: There's no facility at Berwick so you can forget that. Pakenham, there's a Pakenham one.
147MR TAIT: Pakenham would be the most suitable then.
148HER HONOUR: There's a Narre Warren one, is that any closer?
149OFFENDER: Yes, Your Honour.
150MR TAIT: Yes, Your Honour.
151HER HONOUR: Which one's closer? I don't know where you live? Narre Warren?
152MR TAIT: Yes, Narre Warren is closer, Your Honour.
153HER HONOUR: If you can follow me, Mr Cameron, it currently says the officer in charge of Ballarat police station, that would need to be amended to in charge of the Narre Warren police - is Narre Warren 24 hours? Yes, Narre Warren.
154MR CAMERON: I was just confirming that Narre Warren is a 24-hour police station, Your Honour.
155HER HONOUR: So we need to change Ballarat police station, do we, to Narre Warren?
156MR CAMERON: Yes, Your Honour. Would Your Honour - - -
157HER HONOUR: Can you make sure your instructor prepares that?
158MR CAMERON: Yes, Your Honour.
159HER HONOUR: And there's an address for that, Narre Warren, 8 Coventry Road Narre Warren 3805 being the postcode so that will be signed, Mr Tait.
160MR CAMERON: Yes, Your Honour.
161HER HONOUR: I'll do that as soon as I receive it from the Crown so it might not get there immediately, they will have to redo that document nominating Narre Warren as opposed to Ballarat, do you follow?
162MR CAMERON: Yes, Your Honour.
163HER HONOUR: So Mr Strickland, you would need to wait for that. How long will that take for your instructor to sort that out so we can get some timeframe on this, Mr Cameron?
164MR CAMERON: Your Honour, I can't imagine it would take any more than five or 10 minutes so it could be to Your Honour's associate very shortly.
165HER HONOUR: All right, perhaps you'd better wait at Mr Tait's office seeing you're there, Mr Strickland. This will be done as quickly as we can, Mr Tait, so that it refers to Narre Warren and it will be a scraping from the mouth, it is not a blood sample.
166Is he alright to stay in your office for a little while, Mr Tait? I know he had some issues - - -
167MR TAIT: Yes, Your Honour.
168HER HONOUR: All right. That will happen. So no further questions from anybody before I disconnect the link?
169COUNSEL: No, Your Honour.
170HER HONOUR: Be careful, Mr Strickland, don't come back. Thank you, I will leave.
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