Director of Public Prosecutions v Thrussell (a pseudonym)

[2016] VCC 1808

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00489

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANDRE THRUSSELL (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	24 November 2016
CASE MAY BE CITED AS:	DPP v Thrussell (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1808

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	Mr A. Grant
For the acc	Mr H. Rattray

Pages 1 - 9

 

 

HER HONOUR: 

1Andre Thrussell[1], a jury has found you guilty of one charge of incest.  The facts underlying the offending are as follows: 

[1] Andre Thrussell is a pseudonym.

2Between 7 March 1989 and 6 March 1992, you and your daughter, Sandra Thrussell,[2] were staying at Gordon House in Malvern, a halfway house accommodation used by your wife and yourself at times when you had housing difficulties.  On this occasion, Ms Thrussell said that she was staying there with you alone for about a week.  She said that during that week you regularly had sexual intercourse with her in the room that you shared with her. 

[2] Sandra Thrussell is a pseudonym.

3On one particular occasion, you had sexual intercourse with her on a bottom bunk bed in the room after which she bled from her vagina causing "a big puddle of blood in the bed", (transcript 549).  Ms Thrussell said she was possibly 13 at the time and that she also stayed there with her family from the age of eight to about the age of 13, (transcript p.550). 

4She said that whilst staying there, you would "repeat the procedure" every few days.  She said that before sexually penetrating her, you forcefully removed her clothing while she struggled against you physically, then physically restrained her.  She said after this particular incident, cleaners came and took the bedding away. 

5You faced a number of charges relating to alleged sexual assaults of two your daughters, all of which you were acquitted apart from this one charge of incest. 

6I now turn to your personal circumstances. 

7You are aged 62.  You were born in South Australia.  Your mother was aged 19 at the time.  You never knew your father and grew up to the age five or six believing your mother was your sister.  For most of your life, you referred to your grandparents as Mum and Dad.  Your mother then married a man named Henry Thrussell[3] whose name you took and you lived with them. 

[3] Henry Thrussell is a pseudonym.

8The marriage was violent and difficult and in the two years it lasted, you all moved regularly.  It had ended by the time you were seven and your mother dropped you back to your grandparents and you thereafter saw little of her. 

9You left school aged 12 and went to work on a station where you were a general hand.  You drove regularly, obtaining a driver's licence at age 16 and a half, and you have had the occupation of truck driver ever since, driving regularly between Adelaide and Darwin since you were aged 17. 

10You met your wife Gretta[4] in 1975 in the aftermath of Cyclone Tracy and eight children were born of that marriage.  The family moved consistently, living in most states. 

11Through your counsel, you blamed your former wife for this as she would regularly leave you, on occasion taking the children and you would then be forced to go looking for her.  A reconciliation would take place and the pattern would be repeated.  This meant your work history was necessarily a fractured one.  You have worked in every state as a truck driver.  Your counsel submitted that I should essentially find you have a history of working and have a skill set. 

12You and your wife finally separated around Christmas in 2014.  You then lived briefly with two daughters and at the time of your arrest in 2015, were living with a friend in South Australia.  You have been held in custody since then, have been socially isolated, without visitors, although there has been some contact from your son, Max.[5] 

13In evidence, your daughter said you drank alcohol every day but your counsel informed me that although a regular drinker, you rarely drank to the point of intoxication.  You have a long-standing thyroid deficiency for which you receive medication and whilst in custody, were diagnosed with diabetes for which you are also medicated. 

14You were held at the MRC for 13 months, then sent to Hopkins.  You have done some assembly work whilst in custody.  You have a prior criminal history involving ten appearances before various courts of summary jurisdiction around Australia.  Seven of those appearances involved driving offences associated with drinking.

15In 1978, you were twice dealt with for assaults and fined.  One incident apparently involved a man who threatened your children.  The second involved a slap on the buttocks of your wife and you were fined.  In 1984, you were fined $40 for aggravated assault which your counsel said probably arose from an argument with your wife, and you were convicted for the possession of .22 ammunition. 

16Your prior criminal history is of some age and not in my view relevant to the sentencing exercise before me. 

17At the time of this offending, the maximum penalty for incest was 20 years' imprisonment.  Now, I note that the submission was that it was ten years but I have checked that.  I do not know if counsel have got - I have asked that counsel have a look at that, but ‑ ‑ ‑ 

18MR GRANT:  Yes, Your Honour.  I sent Your Honour's associate an email two days ago.  We both checked.  We both agree that the maximum penalty is

[4] Gretta is a pseudonym.

[5] Max is a pseudonym.

20 years. 

19HER HONOUR:  Yes, thank you. 

20In 1997, that maximum penalty was increased to 25 years' imprisonment, reflecting the gravity with which this offending is regarded. 

21Defence counsel submitted your offending at the lower end of the mid-range of seriousness of this offending type.  He admitted that unless I was satisfied beyond reasonable doubt of Sandra Thrussell’s evidence that you had sexual intercourse every few days, I should find that this was an isolated act. 

22You referred to the "test" on the outline by Mr Justice Whelan at paragraph 114 in Blair (a pseudonym) v The Queen [2014] VSCA 175. You noted the evidence was also that she was "possibly 13" at the time of the offending. There was no evidence, he submitted, that you were drunk at the time or that you had failed to use a condom. There had been a considerable delay which, although admittedly of less mitigatory force in cases of this kind, he submitted, nevertheless had relevance.

23The prosecutor agreed this offending fell within the mid-range but he submitted at the higher end.  He submitted Ms Thrussells’ age was "somewhat aggravating" and that the circumstances of the offending meant that it was a rape.  That is, it occurred without any attempt to groom the complainant or in any way gain her consent and in the face of her clear resistance.  Further, your behaviour towards her, he said, was a discouragement to disclosure by her at the time.  He submitted that I should find no contraception was used. 

24In relation to the issue of the context of this offending, I am satisfied beyond reasonable doubt of Ms Thrussell’s evidence that every few days whilst staying at Gordon House on this occasion you had sexual intercourse with her. 

25Defence counsel's submission that the evidence of her brother, Nathan Thrussell,[6] that he was also present at Gordon House, that he and Sandra spent 90 per cent of their time together, that he knew of no sexual offending, does not in my view militate against such a finding.  Ms Thrussell was clear in her description saying you "repeated the procedure" every few days and that one incident was particularly vivid, being the charged incident she described involving bleeding from her vagina. 

[6] Nathan Thrussell is a pseudonym.

26In her evidence overall, she began by describing the Gordon House experience then singled out the particular incident the subject of the charge.  Given the mode of offending described where you simply overpowered your daughter before sexually penetrating her, these were unlikely to have been lengthy episodes.  She said they occurred every few days and estimated the time spent there as possibly a week or more.  So the duration and frequency of the sexual assaults were not such that Nathan must necessarily have been aware of them. 

27Nor do I accept that defence counsel’s submission as to what he termed the unspecified and undetailed nature of Sandra Thrussell’s allegations.  She said the offending occurred in a room which had a double bed at the door and a double bunk, she sleeping on the top one.  She was assaulted, insofar as the charge upon which you have been found guilty, on the lower bunk.

28You forcibly removed her clothes despite her struggles, physically restrained her and sexually penetrated her with your penis.  In my view, she gave clear and detailed evidence of regular sexual penetration by you in the same fashion, one standing out in her mind as "vivid" because of the injury to her vagina. 

29Insofar as her age is concerned, Ms Thrussell’s evidence that she was possibly 13 means in my view that I must sentence you on the basis that she could well have been that age, in other words, that she was a very young adolescent but not necessarily prepubescent. 

30As to alcohol, I accept I can only sentence you on the basis that you may well have been drinking but could not find you a drunk.  However, there is little mitigation inherent in that proposition. 

31The question of unprotected sex is a little difficult.  There is a dearth of evidence on this point.  In my view, the mode of the offending makes it most unlikely that a condom was used but to be perfectly fair, I do not believe I can find this aggravating feature has been proved beyond reasonable doubt.  However, neither can I be satisfied even on the balance of probabilities that one was used, so the issue simply becomes irrelevant to my sentencing exercise. 

32Since 1977 as I have said, the maximum penalty for incest has been 25 years, reflecting the gravity with which this offending is now regarded.  Between March 1989 and March 1992, it was 20 years and accordingly, you are to be sentenced with regard to that maximum.  However, even before the increase, the maximum was high, signifying the seriousness of such offending.

33Section 5(2) of the Sentencing Act also directs that I must have regard to current sentencing practices, the nature and gravity of the offence, the offender's culpability and responsibility for offending, the impact on the victim, whether a plea of guilty was entered and any aggravating features.  The question of current sentence practices is most important. 

34In the seminal sentencing decision of DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, the Court of Criminal Appeal discussed generally sentencing practices for the crime of incest, concluding at paragraph 31 that

"sentencing courts must by increments increase the sentences for mid-range incest offences so that the range of sentences is uplifted and substantially expanded.  The maximum penalty provides sentencing courts with ample latitude to fix sentences which properly reflect the degree of criminality involved."

35Those sentences the court said had been "inappropriately compressed" by sentences for worse category offending (see paragraph 130).  The court's review of sentencing for incest found that most sentences for incest with a dependent child under 18 were around three years' and four years' imprisonment. 

36At paragraph 128, the court stated,

"The sentencing practice which has developed is not a proportionate response to the objective gravity of the offence, nor does it sufficiently reflect the moral culpability of the offender.  Sentences for incest offenders of mid-range seriousness must be adjusted upwards."

37Incest was described by Their Honours most correctly, in my opinion, as an inherent crime of violence, always involving physical subordination even where there were no overt features of physical abuse, with long-term harm to the victims, (see paragraph 85).

38At paragraph 64, the court stated, "current sentencing does not reflect the objective gravity of such offending or the moral culpability of the offender." 

39I agree with the classification of your offending as mid-range, and in my view, it falls at the upper hand of that range.  Your treatment of your daughter amounted to a brutal sexual assault involving patent violence.  You simply grabbed her, tore off her clothes, held her down while she struggled and penetrated her so violently that you injured her vagina and she bled copiously. 

40You treated her as an object of immediate sexual gratification.  She was a young girl just coming into adolescence and you were the sole parent having care of her at the time.  The context of this offending was against a background of similar regular offending while you stayed with her at Gordon House for a week, possibly longer.  This was a breach of trust of a particularly gross kind and I regard your moral culpability as high.  You have shown no response, denying the offending and subjecting your daughter in the process to cross-examination at both committal and trial. 

41Despite the informant's efforts, no victim impact statement has been forthcoming.  However, Dalgliesh makes it clear that incest is recognised as having particularly harmful long-term effects on its victims and it would be impossible to imagine that your callous treatment of your daughter on that occasion has not resulted in ongoing psychological damage, although I can make no finding more specific than that. 

42Your lack of relevant prior criminal history is of much lesser mitigatory weight because of the nature of your offending as is the issue of delay.  Unfortunately, incest is prevalent in our community and so increases the demands on the sentencing court to have particular regard to general deterrence.  The lapse of time without further such offending means specific deterrence is of little moment.  However, just punishment certainly is.  The sentence I impose will have regard to that factor and to express generally community abhorrence at this type of offending. 

43In all the circumstances that I have outlined, I therefore sentence you as follows.  Stand up please, sir.

44You are sentenced to six years' imprisonment.  I order that you serve a minimum term of four years before becoming eligible for parole.  What is the pre-sentence detention?

45MR GRANT:  Five hundred and ninety-five days, Your Honour.

46HER HONOUR:  I declare that 595 days of that sentence have already been served by way of pre-sentence detention.  Have a seat, thank you.  Is there anything else that I need to deal with?

47MR GRANT:  Your Honour, there is sexual offences registration, and the period is 15 years, Your Honour.

48HER HONOUR:  Yes, you will be placed on the Sex Offenders Register for a period of 15 years.  Your counsel will explain to you your obligations in relation to that.  Anything else?

49MR GRANT:  And there is an application for a 464 forensic sample, Your Honour.

50HER HONOUR:  Yes, I will grant that as well.  Thank you.

51MR GRANT:  Your Honour, can I - so I am grateful for Your Honour picking up that error I made in relation to the maximum penalty.

52HER HONOUR:  Yes.  All right.

53MR GRANT:  I apologise for that. 

54HER HONOUR:  No, that is all right.  Thank you.

55MR RATTRAY:  I do too, Your Honour.  I should have picked it up and I made a point of it.  I apologise.

56HER HONOUR:  No, that is all right.  Thank you.  We will just print out the Sex Offenders Register. 

57MR RATTRAY:  I also apologise for not being robed.  My robes are locked in another court. 

58HER HONOUR:  Yes, thank you.  Do you have the four - do we have the 4ZF application?

59MR GRANT:  I think we provided them to Your Honour.

60HER HONOUR:  You have too.  Yes, I am sorry.  It is here.  Could you stand up please, Mr Thrussell?  I have ordered that police take an intimate sample from you which will be a scraping from the mouth.  I need to advise you that should you resist, police may use reasonable force in order to obtain that sample.  Have a seat.  Thank you.  All right.  Thank you very much.  What is the date today?  The twenty - 24th.  Thank you very much.  You can have a seat, Mr Thrussell.  Thank you.  Thank you, we will stand down.

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