Director of Public Prosecutions v Thornber (a pseudonym)

[2020] VCC 1150

IN THE COUNTY COURT OF VICTORIA Revised
Unrestricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RILEY THORNBER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2020
DATE OF SENTENCE:	4 August 2020
CASE MAY BE CITED AS:	DPP v Thornber (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1150

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Three charges of sibling incest; Victim aged 5 at time of offending; Accused aged between 15 and 16; Serious example of offence; Significant impact on victim; Delay of 25 years; Plea of guilty; No previous or subsequent convictions; Exemplary rehabilitation qualified by limited insight; Community Correction Order in combination with wholly suspended term of imprisonment.

Legislation Cited:           Crimes Act 1958; Sentencing Act 1991.

Cases Cited:R v Boland (2007) 17 VR 300; Miller v The Queen [2011] VSCA 143; Sherritt v The Queen [2015] VSCA 1; Boulton v The Queen [2014] VSCA 342.

Sentence:18 month CCO with supervision, mental health and sex offender treatment combined with 12 month term of imprisonment, wholly suspended for 18 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher	Office of Public Prosecutions
For the Offender	Ms J. Kretzenbacher	C. Marshall & Associates

HIS HONOUR:

1Riley Thornber[1], on 29 July 2020 you pleaded guilty to three charges of incest. Each of those charges alleged that at Altona North between 31 January 1995 and 30 January 1996, you took part in an act of sexual penetration with your biological sister. The maximum penalty for each of these offences is five years imprisonment.

[1] A pseudonym.

2Mr Fisher, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the court a prosecution opening for plea[2] which set out the circumstances of your offending.  Ms Kretzenbacher, who appeared on your behalf, accepted that summary as accurate and that it could form the factual basis for sentence.

[2] Exhibit A.

3Drawing largely on that opening, your offending may be summarised as follows:

Background

4You were born in November 1979. Throughout 1995 you were 15 years old and turned 16 in November. You are 10 years older than your sister, Ms Rose Gurner[3], who was born in 1990 and was five years old throughout the charge period.  

[3] A pseudonym.

5At the relevant time, you both lived with your parents and brother at the family home in Altona North.

6Each offence took place in your parent’s bedroom and involved penile vaginal penetration.

Circumstances of offending

7The first occasion occurred on a Sunday, when your parents and brother were at church. You were home alone with your sister and you told her that you wanted to play a game called ‘Birdy Birdy’. Whilst she was in your parent’s bedroom you asked her to remove her clothing. You then removed your own clothes and told her to face some white drawers situated next to her. You moved her legs apart with your hands and then inserted your penis inside her vagina and moved it backwards and forwards. That act constitutes Charge 1 on the Indictment.

8Ms Gurner was scared and in pain when you did this to her, but said nothing because she was in fear. After a little time, you stopped and told her to get dressed. In describing this incident to police, Ms Gurner said that she ‘went blank’ and was too scared to do anything.

9The second occasion occurred at a time when your sister had been sleeping in your parent’s bedroom. She does not recall where her parents or brother were at the time.

10You were both lying on the floor next to the bed and neither of you were wearing clothes.  You told your sister that you wanted to play ‘Birdy Birdy’ again. As you sat on the floor with your back against the wall, you told her that she should sit on top of you. Again, she complied. You guided her on top of you so that your penis penetrated her vagina. That act constitutes Charge 2 on the Indictment.

11While your penis was inside her vagina, you held your sister around her waist, kissed her on the lips and put your tongue inside her mouth. After a short time, you pulled your penis out of her vagina.

12A few days later, your sister was in your bedroom which you shared with your brother, Brett[4]. Brett was present when she said, ‘Bhaiya likes to play Birdy Birdy’ (‘Bhaiya’ is Fijian Indian for ‘brother’). You told her to ‘Shhh’ and shook your head. Brett did not ask any questions about what had been said.

[4] A pseudonym.

13The third occasion occurred when your father was at work and your mother was outside, hanging washing on the line. Your sister remembers being in your parent’s bedroom, laying next to the bed. She recalls laying on top of her pants. You were naked and laying on top of her, with your penis inside her vagina, moving it backwards and forwards. That act constitutes Charge 3 on the Indictment. After a while, you withdrew your penis and ejaculated onto her pants.

14A short time later, your sister put on her underwear and went outside to show her pants to her mother. She told her that, ‘Bhaiya peed on my pants’. Her mother responded, ‘He wouldn’t do anything like that. Go away’.

15In late January 1996, your aunt, uncle and cousins arrived in Australia from Fiji. They all moved into the family home. There was no further offending from that time.

16When your sister was 15 years old, she told her boyfriend what you had done to her. When she was 16, she told her then boyfriend Aiden Herz[5] who later became her husband. After discussing what happened, he convinced her to confront you about it.  Your sister telephoned you and asked, ‘Why did you have sex with me when I was five?’  You apologised to her and said you were young and stupid and then ended the call. Your sister felt confused about your response and about a week later moved out of the family home and went to live with her boyfriend. 

[5] A pseudonym.

17Soon afterwards, your parents contacted your sister and asked her to move back home. It was at this time that she first told them what you had done to her. They did not believe her.

18In 2009 and again in August 2018, your sister spoke to your mother about what had happened, before reporting the matter to police in September 2018.

19You were arrested and interviewed in respect of this matter on 29 June 2019. During that interview, you stated that you did not know what your sister was alleging, that your family home in Altona North was a happy home, that you once had a good relationship with your sister and that you knew nothing of the ‘Birdy Birdy’ game. As to the allegations, you made no comment.

Victim impact

20Turning to the impact this offending has had on your sister. Ms Gurner provided a powerful and eloquent statement as to the enduring damage wrought by the sexual abuse of a young person.

21She describes having her childhood taken away from her. When the abuse occurred she was of course too young to understand, but as she grew older she began to experience a range of crippling emotions – shame, anxiety, guilt and anger. She had to hide what had happened, feeling as if it was her fault. It infected her relationships with her peers and undermined her self-confidence.

22Her plight was compounded by the fact that she had many times tried since the age of 16 to persuade her parents of what had happened. She was disbelieved and accused of seeking attention.

23Looking back now she feels that what you did to her impacted her career choices and opportunities. It has intruded into her married life and the way that she parents her children. In all, her quality of life has been greatly diminished by what you did.

24It has been a very heavy burden to bear over these last 25 years. She hopes now, after this case is concluded, that she can begin to recover.

25You should understand that the impact this offending has had on your sister is a very important consideration to be taken into account in the formulation of sentence.

Procedural history

26It is important to set out something of the procedural history of this matter. Ms Gurner made a formal statement to police on 16 October 2018 describing the offending that took place in 1995 - 1996. You were arrested and interviewed on 29 June 2019. The charges appear to have been mistakenly filed in the summary stream in the Magistrates’ Court and listed for summary hearing on 31 October 2019. Once that problem was rectified, the matter came on for committal mention on 14 February 2020 at which time you waived your right to committal and indicated you would plead guilty. Your case was then listed for plea in this Court on 29 July 2020.

27The most important point to be taken from that history is the fact of the plea of guilty having been made at what was effectively the earliest possible opportunity. Placed in the context of the victim’s history of a lifetime of encountering denial and blame, your plea serves to finally recognise and vindicate her struggle. Your acceptance of responsibility means that she will no longer be disbelieved. It also means that she has not been put through the ordeal of a committal and trial and therefore facilitates the course of justice in a very tangible way. In those circumstances, your plea of guilty will attract a very substantial discount in the sentence that would otherwise be imposed.

Personal history

28Turning to your personal history. As I have indicated you were born in November 1979 and are now 40 years of age. It is important to bear in mind that you were between the ages of 15 and 16 when you committed these offences. You have no prior or subsequent criminal convictions.

29You are of Fijian/Indian heritage and you spent the first seven years of your life in Fiji. You were brought to Australia by your family in 1987 to undergo surgery at the Children’s Hospital in Sydney in relation to atrial septal defect congenital heart disease, known as a hole in the heart. You remained in hospital for about two months and your parents were advised that your life expectancy would be quite limited. Your physical development was impaired such that your growth was stunted and you continue to suffer various complications from your condition such as digestive problems and the misalignment of your jaw.

30Your family settled in Dulwhich Hill in Sydney where your father obtained work as a labourer and you lived there for about eight and a half years. At primary school you had to learn English and had to endure taunts and bullying from other students because of your physical appearance and racist attitudes.

31In 1995, your family moved to Altona North here in Melbourne and you started year 8 at a local college. I was told you continued to encounter bullying and racism at your new school and struggled to do well. Nor was the environment at home a happy one, your father drank heavily and there was some family violence in the home.

32At about this time immigration officials came to your house and detained your father for a period of five days. He was then released, after which your family was sponsored by extended family and permitted to remain in Australia. You became an Australian citizen in 1997.

33By year 11 at school you found that you were better able to fit in at school and you went on to complete your VCE. Thereafter you undertook some study in Information Technology at TAFE and also completed a pre-apprenticeship as an electrician. You worked in IT for about five years until 2006 or so.

34Your health was never very good and fatigue and digestion issues meant that you found it difficult to sustain full time employment. Ultimately, you decided to complete a commercial cookery course at Victoria University. You have now worked consistently as a chef since 2013 in a variety of restaurants and cafes, most recently at a university club. Unfortunately, you have been stood down during the pandemic.

35You have, during this recent time been living with your parents. They have some health concerns, particularly your father who suffered a stroke, and you are able to assist them.

Psychological assessment and treatment

36You were assessed by Mr David Ball, forensic psychologist, for the purposes of this hearing. He found that you were living a quiet pro-social lifestyle. After conducting some testing he concluded that you are at low risk of sexual recidivism.

37He stated in his report of 13 July 2020:

The features associated with Mr Thornber’s lifestyle which increases his risk of recidivism are his socially isolated lifestyle and absence of an adult sex offender treatment program.  

The main protective factors that may be applied to Mr Thornber are the successful completion of a sex offender treatment program. He would greatly benefit from developing the understanding of the effects of sexual abuse upon his alleged victim.

During the course of Mr Thornber’s offending, he failed to satisfy any diagnostic criteria for paedophilic disorder by way of his age (15) at the time. 

At the time of writing, Mr Thornber presented as well clear of any paedophilic interests or disorder. He denied any recent unsolved or unreported offences. Similarly, he denied any current attraction to young girls or children.

Based on Mr Thornber’s history taking and clinical interview, he fails to satisfy any DSM diagnostic criteria for frank mental illness, substance use disorder, personality disorder, mood disorder or other pervasive syndrome.

38The reference to the benefit likely to flow from participation in a sex offender treatment program appears to be grounded in what Mr Ball described as your struggle to offer any meaningful insight into your offending. He quotes you in the following terms:

I can’t say or do much. (It’s) too long… 25 years ago… (I) can’t clearly remember… (I don’t have) much to say but wait for the punishment.

39Mr Ball referred you to a treating psychologist, Ms Kim Dowse, who also provided a report of 10 July 2020. She had three counselling sessions with you by the time she wrote her report. She states that at the start of those sessions you had no idea about the affects of the abuse on your sister. However, you apparently responded well to being challenged about your understanding of the impact of the offending, and further counselling will focus on victim empathy and the development of insight.

40Your mother wrote a reference confirming your parents support for you and the assistance you provide. She also indicates that she wishes to be supportive of her daughter – it is to be hoped that comes to pass.

41A reference from family friends and a letter of apology from you was also relied on. I will take those into account.

Submissions

42Your counsel, Ms Kretzenbacher, emphasised the fact that you were also a child when you committed these offences. Relying on a line of authority to which I will refer shortly, she submitted that there should be substantial mitigation of your penalty due to the different emphasis in sentencing purposes applicable to dealing with children. You have, she submitted, achieved significant rehabilitation in the 25 years since these offences and you have not reoffended.

43She also submitted that there appeared to be a number of destabilising factors affecting you at around the time you offended. They included family violence, the uncertainty created by your father’s immigration status and the bullying and racism you experienced at school.

44It was submitted that the unusual circumstances of this case justified the imposition of a Community Correction Order (‘CCO’) conditioned on you completing a sex offender treatment course.

45Mr Fisher acknowledged that your counsel’s emphasis on you being a child at the time of the offending was well placed. He submitted, however, that this remained very serious offending having regard to Ms Gurner’s very young age, the significant power imbalance, the fact that Ms Gurner was abused in her own home in her parent’s bedroom and that the sexual penetration was unprotected.

46It was further submitted that you still lacked insight into the effects of your offending and in that sense your rehabilitation remained a work in progress.

47The prosecutor argued that a CCO would not adequately reflect the seriousness of this offending. It was submitted that terms of imprisonment should be imposed albeit that it would be open to suspend those terms in the unusual circumstances of this offending.

Analysis

48Turning to my analysis of these submissions.

49This is undoubtedly a serious example of sibling incest. There are two features in particular which make that so.

50The first is that Ms Gurner was so very young when she was subjected to this abuse. As a five year old she needed to be protected and cared for, not abused.

51The second feature is the age difference of 10 years. As her older brother, you must have had a powerful influence over the victim. She was completely innocent and trusting of you and yet you exploited that innocence for your own selfish purposes.

52Mr Fisher submitted that Ms Gurner’s victim impact statement was a measured, articulate and powerful description of the impact of this offending. I agree. The enduring damage you have inflicted on your sister is a measure of just how serious and abhorrent this kind of offending is.

53The fact remains however that you were a child of 15 or 16 when you abused your sister. Ms Kretzenbacher relied on three authorities which deal with offences committed by children but prosecuted many years later in support of her submissions. They were R v Boland[6], Miller v The Queen[7] and Sherritt v The Queen[8].

[6] (2007) 17 VR 300, (‘Boland’).

[7][2011] VSCA 143, (‘Miller’).

[8][2015] VSCA 1, (‘Sherritt’).

54The principle to be taken from these authorities is, with respect, concisely stated by Nettle JA, as he then was, at [16] of Boland:

Decisions of this Court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending.  Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity.  Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years. 

55Miller is another example of the application of that principle. Likewise, Sherritt which involved sexual abuse of a sister who was nine years younger than the offender, and five years of age at the start of the offending. That case was decided after Boulton v The Queen[9] and the application of the principles explained in that decision resulted in the Court of Appeal imposing a CCO.

[9][2014] VSCA 342.

56Having regard to that line of authority, I accept that here, to adapt what Nettle JA said in Boland, common sense and fairness dictate that your moral culpability, the need for denunciation and the need for general deterrence are lessened because you were a child when you committed these offences. Moreover specific deterrence, it would seem, is irrelevant.

57That said, although your rehabilitation has been exemplary I do not think it is yet complete. Mr Ball thought that you struggled to articulate any meaningful insight into your actions and saw fit to refer you to Ms Dowse for treatment. The work you have done with your psychologist is to your credit, but there is more to do.

58In carefully considering the submissions of your counsel and the prosecutor, I have concluded that there is merit in aspects of both positions. Balancing those aspects as best I can, you will be sentenced to a combination of the following.

59First, the imposition of a CCO conditioned upon you being supervised, continuing to receive psychological treatment and undergoing sex offender treatment which will enhance your rehabilitation and in the longer term ensure protection of the community.

60Second, because this is such a serious example of sibling incest, a term of imprisonment should also be imposed, albeit wholly suspended, to mark the community’s abhorrence of the sexual abuse of such a young and vulnerable child. It seems to me that is important even though the need for denunciation is lessened for the reasons I have discussed.

Sentence

61Accordingly, taking into account all relevant matters, you will be sentenced as follows:

62On Charges 1 and 2 on the Indictment, you will be convicted and sentenced to undertake a CCO for a period of 18 months.

63The special conditions of that order will be that first, you undertake a sex offender treatment program as directed by the Office of Corrections. Second, that you be subject to supervision from a Community Correction Officer. Third, that you undergo psychological assessment and treatment.

64On Charge 3, you will be convicted and sentenced to a term of 12 months’ imprisonment. I will further order that term of imprisonment be wholly suspended for a period of 18 months.

65I note there is no declaration to be made under s 18 of the Sentencing Act 1991 (‘the Act’).

66I will make a declaration under s 6AAA of the Act that but for your plea of guilty, you would have been sentenced to a term of imprisonment of 3 years with a non-parole period of 18 months. I will cause that declaration to be noted in the records of the Court.