Director of Public Prosecutions v Torres( a pseudonym)

[2021] VCC 1136

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT LATROBE VALLEY

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOHN GORDON TORRES (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	10 August 2021
DATE OF SENTENCE:	12 August 2021
CASE MAY BE CITED AS:	DPP v Torres( a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1136

REASONS FOR SENTENCE

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Subject:

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Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr Z. Menon	Victoria Legal Aid

HIS HONOUR: 

1John Gordon Torres[1], you were convicted by a jury on 11 June of this year on one charge of incest.  That was a course of conduct charge and involved your daughter, Harriet[2], and the course of conduct was between 24 May 2010 and 23 May 2011.  It was a jury verdict so there is no discount for a plea of guilty.  In these circumstances, there is not a shred of remorse and you do not get the utilitarian benefit of that plea of guilty.  That benefit would have been significant indeed in these circumstances because it would have avoided the eloquently expressed consequences of running a trial to your victim daughter.

[1] A pseudonym.

[2] A pseudonym.

2You have no prior convictions of a sexual nature.  You have some for other matters which are relatively unrelated.  Because of the offence of which you have been convicted, you will be placed on the Sex Offenders Register and I advise that the reporting conditions will be for a period of 15 years.

3A brief summary of the offending is that the complainant is your natural daughter and you have two other children with her mother.  You were with the mother in an on again off again relationship, that you would occasionally come back and live with her, the complainant and the rest of the family for short periods of time.

4On multiple occasions was the expression used in the Crown opening, I will simply accept that as correct, I am not going to try and put a figure on it, it was over a period of 12 months and possible once a month or so, I will take it no further than that.  When she was eight years of age, you took part in acts of sexual penetration by introducing your fingers or finger into her vagina.  At that stage, you were living in Merbein.  The incidents were at night time when everyone else was in bed or asleep and she was always dressed.  You would come into the room sometimes to say goodnight, sometimes she would pretend to be asleep and you would go away.  A number of occasions you would tell her to be quiet.  You would touch her on the arms, legs or stomach and gradually touch lower and then put fingers inside her vagina.  After that happened, she would sometimes tell you to go away or sometimes she would fight back, sometimes you would leave and sometimes you did not.

5That is the evidence that a jury accepted and I will go into that in more detail in a moment.

6The offending has to be regarded as serious, calls for the application of general and specific deterrence as well as denunciation and appropriate punishment.  The only disposition open here is a gaol sentence and a very significant one. 
I would be prepared to accept in these circumstances that the risk of you reoffending is moderate in the sense that this was situational.  Your criminal history in terms of convictions does not reveal offending prior to or subsequent to this and I take those matters into account.  Whether you ultimately avail yourself of the opportunity to admit this offending and receive appropriate treatment in prison will ultimately be a matter for you.

7A trial was conducted and essentially your daughter was called a liar and I will read her victim impact statement into these sentencing remarks.  There is also a victim impact statement from your partner, the mother of the victim, who describes her sense of betrayal and difficulties and confirms the extreme distress and ongoing concerns that your conduct has brought upon your daughter.

8She said 'My name is Harriet.  I'm 19 years old, I did not have a father who helped raise me and build me up.  Instead, I had a father who abused me and tore me down, giving me nothing to help start my life and prepare me for the future I deserved.  What he has given me is anxiety, depression,
Post-Traumatic Stress Disorder and a childhood filled with so much trauma, it has affected my health.  The struggle to get out of bed each day is real. 
The achalasia I have had since I was nine years old causes swallowing difficulties that I will have for the rest of my life is real.'  Whether that is caused by this offending, my recollection from the trial is it is said to be unrelated but be that as it may.

9She went on to say in talking directly to you, 'I always thought I had no voice, I had no power.  I was defenceless and that no one would believe me.  Being so afraid of the thought of suicide seemed easier than speaking this nauseating truth.  That people only saw the side of you that you wanted them to see.  We both know the truth and we both know the real person who hides behind the lies and the manipulation to protect yourself when you should have protected me as your child before your own selfishness.  You are a real life monster, you have no power over me anymore.  I will become everything I needed from you as a child.  I am so grateful I have had my family who has loved me unconditionally and has always believed in me.  Though I long for a father, you are the father I wish I never had.  What you put me through was horrendous and then to make go through a trial and testify and live the horror has forced me to hold on to those traumatising memories for two and a half years longer than I would have had you had responsibility for your actions.  You have not once shown any remorse but in the end, the truth won.  My life has been on hold until 12 members of the jury found you guilty.  You are guilty.  I am no longer powerless.  You made me a victim but I am not that eight year old child anymore that has to fear you.  I survived that and I am here and I am stronger than you.  You have done irreversible damage to me.  You are the cause, I am the effect.  You think that you were hard done by for being found guilty of your crime, then you are mistaken.  You have dragged me through this with you. 
My damage is internal, unseen and I carry it with me every day.  I have become closed off, irritable, sad, tired, angry and empty, unable to sleep or be alone.  You cannot give me back everything you took from me.  I barely made it through school.  I am unable to work because even the smallest things trigger me.  You took away my worth, my privacy, my safety, my confidence, my childhood and my voice until today.'

10She then said 'And finally, the victims everywhere, you are believed, I believe you, I hope by speaking today that you never stop fighting.'

11As I indicated during the course of the plea, that is almost a textbook explanation of why this crime of incest is treated so seriously by the courts. 
I am well aware of the decision of Dalgliesh and other matters, it is a course of conduct charge, so other cases are of limited assistance however, what I will do at this point is, as I have indicated, it is serious offending and I think that Vincent J when he was quoting Hedigan J and Marks J in the case of Toomey:

'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their case is degenerate.'

'The offence of incest 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 necessary 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.'

12This is a situation where in my view, every one of those matters comes into play and every one of those matters plays a part in the objective seriousness of this offence.

13As I said, a very significant gaol sentence is the only option open.  There is, in this set of circumstances, high moral culpability and very little that can be said for you.  It is a situation where your counsel, very sensibly made submissions on your behalf.  It is conceded that the matters in Bugmy do not arise here.  There is no causal link and matters in Verdins other than difficulty in gaol, you do not need Verdins for that in any event, are applicable either.

14I take into account that the sentence I impose may well be undergone in certain respects with COVID lockdowns and the like.  I am aware that where you will do the sentence at Hopkins, that is not such a problem but there is obviously the fear of getting COVID getting loose in the gaols to a confined person who is unable to do anything about it.  I accept on the material before me as presented by your counsel that you somewhat of an isolate person, that your time in gaol will be spent very much in an isolate way, you are not a person who easily socialises and gaol will clearly be more difficult for you than a person who did not have such personality.  I take those matters into account.

15Your counsel pointed out that you are now 38 years of age.  You were born in Western Victoria, raised by your mother and stepfather.  You believed him to be your biological father until he committed suicide when you were about aged 13.  Around about that period of time, you left home and went to Adelaide. 
You then attempted to have a relationship with your biological father over there but were rejected by him.  Your experiences as a child had been physical abuse at the hands of both your mother and your stepfather and I have no doubt that within that, there would have been a significant amount of psychological abuse.

16As your counsel described it as a 'Volatile and dysfunctional home environment.'  I take those matters into account.  It may well have left you in a position where you where you had very little idea on what appropriate parenting was.  But as I indicated to both counsel and I think there's agreement, it does not give rise to the matters related in Bugmy because of that lack of cause and effect.

17You had instability in your schooling and did not do well at school.  You were seriously injured in 2005 and I have read about that.  You have had jobs. 
You have worked at a food truck van and from time to time, you have been employed.  The circumstances are, as I have indicated, being in the relationship with the victim's mother and that was on again off again.  Three children were ultimately born from that.  You have a young son who you are the primary caregiver for and when these charges were laid, he was taken out of your care and put into home care.  I accept that your offending has brought that upon you and that has a significant effect on you.

18Insofar as your mental health is concerned, you have been diagnosed with PTSD back in 2017.  In custody, you were on various antidepressants. 
Ms Cidoni, in the psychological report that I have obviously taken into account, diagnoses you as presenting with borderline personality traits and presenting with a persistent depressive disorder.  As I already indicated, you do appear to have PTSD, but again, it is hard to see any linkage between that and the offending that took place here.  As I have said, your time in gaol will be somewhat in isolation.

19She has assessed you as a moderate risk of sexual recidivism.  As the Crown prosecutor has pointed out, that is going to largely depend upon whether you take advantage of the offers or the opportunity to rehabilitate yourself within prison.  That is a matter for you.  As I say, I think this is situational and moderate might even be a too strong a risk of actually reoffending but they are all matters that I will leave to the parole board in their discretion in due course.

20I accept your counsel's submission is it not a matter where I have to give community protection as the principal sentencing purpose.  You are not a serious sex offender and I accept his submissions insofar is that is concerned.

21There has been a delay in the time that the matter has taken to come on. 
You were obviously entitled to plead not guilty.  I have already read out from the victim the effect of that delay because of you not pleading guilty has had upon her.  I accept there has been COVID-19 related delays and you have gone through the process yourself of not knowing what your ultimate fate is going to be up until fairly recent times.

22Your counsel submits that upon completing it, you should be able to return to the community and return to life and recontinue to work.  As I said, they are all going to be matters between you and the Parole Board.

23I have looked at the various cases that were handed up.  It is clearly accepted with a situation where with course of conduct charges, there is little by range of a current practicing indications.  I am aware fully that a course of conduct charge is sort to be treated as one charge, it still has the same maximum penalty though it certainly means that the offending did not take place in isolation and you have to be sentenced for the totality of the offending.  Again, as I have indicated, I regarded it was clearly persistent or repetitive in terms of actual numbers, it is clearly more than two, but certainly not some of the levels that I have seen in previous instances.  It is always a bit dangerous relying on a child's memory of how frequently things occurred but as I said during the course of the plea discussions, it certainly was not a “two” off where is what the jury is required to find beyond reasonable doubt.

24In any event, taking all those matters into account, it is the first time that I understand that you have been imprisoned.  Taking into account the effect that will have upon you and I have taken into account those community matters and denunciation that such a crime must carry.  As I said, already once I think the matters described by Vincent J are, to use the vernacular, spot on, as to what has occurred here, all through your hands.

25Accordingly, on the charge that you have been found guilty of, you are sentenced to be imprisoned for a period of nine years.  I register a minimum term of six years before being eligible for parole and I direct that 131 days be reckoned as having been served under this sentence.

26Now there are no other orders I need to make, gentlemen?  No?  All right.  Thanks for that, Mr Menon, thanks, Mr O'Doherty.

27MR O'DOHERTY:  Thank you, Your Honour.

28MR MENON:  As Your Honour pleases.

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