Director of Public Prosecutions v Trantow (a pseudonym)

[2019] VCC 1634

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER TRANTOW (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2019
DATE OF SENTENCE:	7 October 2019
CASE MAY BE CITED AS:	DPP v Trantow (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1634

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	Miss S. G. MacDougall	Office of Public Prosecutions
For the Accused	Ms A. Brennan	VLA

HIS HONOUR: 

1You may remain seated, Mr Trantow[1].  On 28 June 2019, a jury returned verdicts of guilty on Charges 4 to 8 on indictment H12216366.  Verdicts of not guilty were returned on Charges 1 to 3.  Charges 4 to 7 involved sexual crimes committed on a young child who was in effect your step-child.  I will refer to her as victim one.  Charge 8 involved a sexual crime committed on another step-child who I will refer to as victim two.  The victims were sisters.  Their mother formed a de facto relationship with you commencing in 1973 or 1974.  You moved with your partner and her four children including the two victims to a house in the small rural hamlet of Willow Grove in Gippsland.  You had yourself grown up in Willow Grove.

[1] Peter Trantow is pseudonym.

2Turning to the charges of which you were found guilty.  As noted, Charges 4, 5, 6 and 7 related to victim one.  Charge 4 alleged an indecent assault of a girl under the age of 16.  What you did was digitally penetrate the vagina of this young child with your finger.  Charge 4 was pleaded as a course of conduct offence.  The maximum term for that offence at the time was five years' imprisonment.  The circumstances of the digital penetrations were that you committed this abhorrent crime when you shared a bath with the victim, when you went with her when she was feeding her horse and when she was in her bed at night.

3The latter scenario often proceeded you penetrating her vagina with your penis which was charged as carnal knowledge of a child under the age of 10.  This penile penetration was Charge 5, also a course of conduct charge.  In respect of Charge 4, the digital penetration, I am satisfied beyond reasonable doubt that the jury accepted that when the victim was in the bath with you, you exploited the opportunity to sexually abuse her by digitally penetrating her exposed vagina.  On separate occasions when she went to feed her horse she had to get hay from the stack.  You lifted and again exploited the opportunity to move her underpants to one side and insert your finger into her vagina.  You acted as if this was part of a game.

4Most egregiously you would penetrate her vagina while she was in her bed.  At first this was in a room she shared with her siblings.  It continued when she moved or was moved to sleep in a kitchen area.  Another less frequent occurrence of digital penetration was when the victim's mother went with her older brother for regular medical treatment at The Royal Children's Hospital in Melbourne.  On these occasions, you took the child from her bed to your bed.  As mentioned on numerous occasions when she was in her bed or in your bed, you would first digitally penetrate her, then penetrate her with your penis.  Time frames for Charge 4 was 1 January 1976, to 28 February 1981.  For Charge 5 it was 1 January 1976 to 1 February 1980.  

5Victim one was born in February 1970. Thus for Charge 4 she was between the very young ages of just short of six years and just 28 days beyond her 11th birthday. Charge 5, an element of the offence is that the child was under 10. So, for that crime the victim was between the ages of just short of six years old and nine years old. Charge 5 was, as I have said, carnal knowledge of a child under the age of 10. The maximum term for that offence is 20 years' imprisonment. Sentencing you for these two course of conduct charges requires reference to s.5(2F) to the Sentencing Act which relevantly reads as follows:

'In sentencing an offender for incidence of the commission of an offence included in a course of conduct charge within the meaning of clause 4A, schedule one of the Criminal Procedure Act 2009, a court, (a), must impose a sentence that reflects the totality of the offending that constitutes the course of conduct and, (b), must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence. Note, if a jury finds a person guilty of a course of conduct charge, in making finds of fact relevant to sentencing, the sentencing judge determines the course of conduct in which the person engaged and by reference to which the person will be sentenced'.

6As the sentencing jurisprudence on course of conduct charges has developed, it seems clear I must have findings as best I can on the evidence of the regularity of the sexual crimes over the period of time set out in the charge itself.  There is no requirement to give precise numbers or even numerical estimates.  I have adopted this approach to each of the three course of conduct charges upon the indictment.  In respect of the digital penetrations in the bath, the victim said in answer to questions in her video recorded evidence that, 'This happened a lot of times, not just once'.

7In cross-examination, she said, a question was asked of her, 'You can't say exactly how many times you say Peter touched your vagina in the bath?'  Her answer was, 'Lots of times'.  In respect to the other times and circumstances of digital penetration she said this in her video record of interview which became her evidence-in-chief.  At Question 27 she said:

'When I was little, my sisters and I shared a room.  He would come in at night and start to masturbate me and ask me did I like it.  He would insert his fingers inside me and he would climb into the bed with me and rape me.  This happened on lots of occasions, not just once.  I learnt to hide in the laundry.  I used to sleep - like I would hide so he couldn't find me and I'd sleep in the laundry because I was scared that he was going to come and do these things to me again and again.  When I went to - I had a pony.  He used to take me to get hay and he's always make me get up high and he would - his fingers would go in my knickers and he would insert his fingers inside me and he would pretend that he was playing with me but it wasn't playing'.

8As noted, I am not required nor is it possible to be precise as to the number of times these digital penetrations or penile penetrations occurred, nor can a numerical estimate be sensibly given or calculated.  By reference to the evidence the victim contained in her pre-recorded statement to the police, which became her evidence-in-chief and her cross-examination at the trial, including references to cross-examination at the committal, I conclude that the digital penetration in the bath, at the horse feeding, when in her bed at night, were sadly regularly occurrences.  Meaning that you, Mr Trantow, defiled this very young child many, many times over the five years.

9The evidence of the victim and her brother lead me to conclude that the digital penetrations or the instances of digital penetration when her mother and brother went to Melbourne for medical treatment was only a few times each year over the period or only a few times over the period.  as to Charge 5, the penile penetration of her vagina from the ages of six to nine, her evidence was, as I have just mentioned, that the penile penetrations followed the digital penetrations when she was in her bed or, less frequently, in your bed.

10In respect to the penile penetrations, when she said she was in her bed in the shared bedroom and later in the kitchen area and again by reference to her cross-examination and her evidence in her pre-recorded video taken by the police which became her evidence-in-chief, I find beyond reasonable doubt that this abhorrent behaviour occurred regularly and in total many, many times.  It became a dreadful but almost routine part of her life as a child when you were in the house and often when you were affected by alcohol.  I do accept that there were periods of time when you were working and away from the family home and that such periods extended into weeks.

11Thus within the whole time frame there were periods of respite for the victim from what was the sad routine when you were at home.  The victim gave evidence of two further and particular instances of sexual abuse that were charged separately from the course of conduct charges.  They were Charges 6 and 7 of digital penetration and the immediately following penile penetration.  The victim remembers these two crimes occurring on the night that the local football team, Hills End, won a premiership.  The period of time charged on the indictment was from 1 to 30 September 1981.  She was 11 years old at that time.  The law by then had been amended and the penile penetration offences were sexual penetration with a child under the age of 16.  The maximum term was 10 years' imprisonment.

12The digital penetration was pleaded as an indecent assault of a child under the age of 16 which had a maximum term of five years' imprisonment.  The victim recalled that you were affected by alcohol on this night.  I will return to the impact of these vile crimes on the victim and my assessment of the gravity of the offending but I turn now to Charge 8, also a course of conduct charge involving the sexual abuse of victim two.  Charge 8 was the sexual penetration of a child over the age of 10 or between the age of 10 and 16.  It involved the penile penetration of the vagina of victim two.  The time frame of the charge was January 1982 to 22 August 1987.  The maximum term for this offence was 10 years' imprisonment.

13Victim two was born in August 1971.  Thus she was during this period between the ages of 10 and 15.  I note that in her evidence victim two said she left the home well before she turned 15.  She thought that she was around 12.  I am satisfied beyond reasonable doubt that the jury accepted that you sexually penetrated the victim when she was living in the house at Willow Grove.  Her evidence was that you would take her from her bed to outside the house and penetrate her as she lay on the ground.  This behaviour also occurred when the family moved to Marlo to join you where you were working in the East Gippsland area. 

14On these occasions you would take her from the tent and sexually penetrate her outside near the beach.  Further, on her evidence and which I accept that the jury accepted, that you sexually penetrated her on camping trips or deer hunting trips when you shared a sleeping bag with her.  Also, sexual penetrations occurred later when the family moved from the tent in Marlo to a house in Orbost.  Assessing carefully the video evidence taken from her by the police and played as her evidence-in-chief and her answers in cross-examination, the penile penetrations at Willow Grove were regular occurrences.

15During the time that the family lived in the tent at Marlo, the sexual penetrations that occurred were regular.  The occasions on the camping trips with the other families were very much from time to time when these camping trips were arranged.  The incidents at the house in Orbost were not as frequent as Willow Grove.  Overall, the incidences of penile penetration of victim two, amounting to the course of conduct were regular, especially in the early years of the time frame of those charges.  Again, there were times when the victim was living in Willow Grove and Marlo and Orbost that you were absent, working, sometimes for a number of weeks on end.

16Your regular sexual abuse of both victims has left both with significant psychological trauma, as evidenced by their victim impact statements.  Victim one wrote that when it first happened, 'I felt scared and frightened'.  She thought that these things were normal but she felt something was wrong but did not know how to stop it.  'I was so helpless, I was five years old'.  As it turned out her trauma affected her at school throughout her primary years and she did not learn to read and write.  There were difficulties because there was a male teacher at one point and she felt very much as though she could not trust any males.

17All of this made her feel so violated and hurt and angry with no ability to change the situation.  She says, 'Living a life without being able to read and write is really a difficult life.  It can be very humiliating'.  She said she was not able to sleep because 'I was waiting in fear for him to come every night into my bed'.  She says, 'It is impossible to find words to describe the emotions I had then and that I have now still'.  She says because of the abuse she cannot read and write, as I have mentioned.  She constantly thinks of suicide (indistinct words) attempted that.

18She has significant medical issues that arise because of the abuse and the medications that she takes, meaning that she cannot have a normal life.  The medications have had an effect of her gaining weight and caused her to be really sore such that now she is in a wheelchair.  She says the medication is for her mental health problems that she has, have all resulted, that is the mental health problems have arisen because of the abuse.  She says because of the abuse I find it very hard to have a relationship.  This makes my life really difficult and lonely.

19Victim two says that she cannot remember a time that she felt safe and she has no happy memories of childhood.  She remembers being really anxious about going to bed, 'knowing that Peter would come into my room at night'.  She says she would pretend to be asleep but he would sexually assault her out in the paddock.  She can still to this day feel the cold ground underneath her.  The impact on her also affected her learning.  She couldn't concentrate as she was exhausted without sleep because she was scared and worried about what would happen.

20She says that she was given alcohol to get her drunk.  She was taken away on hunting trips and he did whatever he wanted.  She felt that she was your slave and you were totally in control.  She turned to alcohol herself and became an alcoholic which left her with organ damage.  She has been diagnosed with schizophrenia, has post-traumatic stress disorder and has had a number of breakdowns in which she has been hospitalised many times.  She has serious health problems that she says relate back to her difficulties in childhood.  She concludes 'Life has been very hard.  I find it difficult to show love and affection which has impacted my relationships, especially with my children'.  I take into account, as I must, the impact on the victims but I assure you, Mr Trantow, they have not overwhelmed the sentencing considerations but have been dealt with in a judicial way. 

21As to the gravity of your offending, these crimes that you perpetrated on both victims were sustained and over a number of years.  You moved on from your abuse of victim one to violating victim two.  Each child was very young.  Victim one was barely at school age when you commenced your persistent violation.  With victim one you took opportunities when she was naked in the bath, clothed but alone, enjoying looking after a horse.  You exploited the times your partner was away looking after the brother who suffered from cerebral palsy and egregiously you violated her when she was entitled to feel safe in her bed.  The evidence of her moving to the laundry to sleep so as to get away from your abuse was particularly wrenching.

22Your abuse of trust in all its dimensions significantly adds to my assessment of the gravity of your crimes.  The two victims were entitled themselves to trust that you would nurture and indeed protect them, not exploit all manner of circumstances to abuse them.  Your partner was entitled to trust that you would act as a decent parent, especially when she was away or when you took victim two camping.  She was entitled to feel that her children were safe whether you had been drinking or not.

23When you became her partner, she had her young children.  Thus you assumed an important role within this family.  You comprehensively abused that trust.  The community too entrust adults and parents to nurture and protect children and by that sustain the important foundational values of family life.  Your conduct diminishes those values and degrades the community.  A society that does not protect vulnerable children is the lesser for it.  On any assessment, these were very serious examples of this type of offending.

24There is nothing that can or was said to diminish your moral culpability.  You were the adult.  You knew what you were doing was wrong, yet you kept going and going, putting your perverse sexual gratification ahead of any consideration of these young children.  So, now, Mr Trantow is the time that you must meet your just deserts for these grievous crimes.  As to your personal circumstances, you are now 71 years old.  Your crimes were committed when you were between the ages of 27 to 38.  You were born and raised in Willow Grove, one of four children.  Your upbringing was unremarkable.  You went to the local school but did not gain full literacy or numeracy which has remained the case to this day.

25You have a solid work history, at first mainly in Gippsland in fencing and roadworks.  This progressed to other roadworks projects in Victoria.  You moved to New South Wales in 1996 and continued the same sort of work.  Your hard labouring work has taken a toll on your physical health.  You were forced into retirement in 2002 with a back injury.  You have been on a permanent disability payment since then.  You were briefly married in the early 1970s before forming a long-term relationship with the victim's mother in 1973 or 1974.  You remained with her until she died in 1998.  As mentioned you have had long term back problems which involve nerve impingements.

26You have had neurosurgical reviews.  The treatment is now chronic pain management.  You have had cardiovascular and respiratory problems.  You have emphysema, atrial fibrillation and I was told had a heart attack in 2017.  You also have a disorder called polycythaemia rubra vera which involves the overproduction of red blood cells.  All those illness and problems have been to date managed by your general practitioner with appropriate referrals to specialists.  You will have increased anxiety in prison due to your physical health problems.  Also your back pain is an ongoing problem and I do not overlook the difficulties of such an ailment in prison.  Thus I have factored in that prison will be onerous upon you.

27Access to specialist review may be harder to obtain in prison than if you were in the community.  You have been on remand now for some 101 days.  There are no reports of any particular problems arising thus far.  This is another example of crimes committed on children who are unable to bring it to the attention of the authorities for many decades.  The recent royal commission exposed that this is a common feature of sexual abuse in institutional settings.  In the experience of the courts, this is also common with sexual abuse within families.  Thus you are now much older and the inevitable prison sentence will be in the later years of your life.

28You did enjoy years of freedom from the consequences of your crimes committed in your 20s and 30s.  The sentence that I impose will take a significant portion of your remaining life.  I have not lost sight of that.  However, as the authorities make clear, inadequate sentences cannot be imposed simply on the basis that the offender is older and likely to spend a significant portion of the remaining years in custody.  This issue is not as acute as it might be in other cases that are now coming before the courts.  You are 71 and not well into your 80s which is the case with a growing number of historical sexual offenders who fall to be sentenced.  That said you have health problems that I have spoken about. 

29You pleaded not guilty and had a trial as is your right.  Indeed you were acquitted of three other charges involving another complainant.  There is no extra punishment at all because you ran a trial.  However, with respect to the victims one and two, you do not have the usually significant mitigatory benefit that flows from a finding of remorse and the taking of responsibility that attaches to a plea of guilty.  The crimes will lead to you being declared a serious sexual offender.  Thus protection of the community must be the primary sentencing consideration for those charges.

30Also because you are a serious sexual offender and you fall to be sentenced for five offences in total, the principles of totality, cumulation and concurrence must be applied differently to you than others who are not serious offenders. Parliament's intent is expressed in the provisions of s.6E of the Sentencing Act, that sentences of imprisonment are to be cumulative on each other unless I otherwise order or direct.  The tension between these statutory provisions and the common law principles of totality have been recognised by the High Court and the Court of Appeal. 

31What was said in McL v The Queen in the High Court and Gregory v The Queen in Victoria, in particular at paragraph 74 has guided me in respect of ensuring Parliament's intent is not ignored or undermined, while still ensuring a proportionate overall sentence.  This is particularly the case here as the two sentences, six and seven, are offences that are similar, if not exactly the same as those that are part of the course of conduct charges.  So, Charges 6 and 7 are not to be considered of course as part of the course of conduct but they are close in time.  Thus I will order significant concurrency.  Indeed Charges 6 and 7 are penetrations that occurred as part of one incident.  I have taken the approach authorised by cases such as Zhou in determining the issue of concurrency and cumulation for serious sexual offenders where the incidents occur one upon the other.

32The separate crimes involving victim two must be marked by appropriate amount of cumulation, both because she is a separate victim and because of the provisions of the serious offender sections of the Act.  However, I propose to order some concurrency so as to ensure the sentence that I impose does not become a crushing one.  I have already mentioned that these offences were committed many years ago.  The sentences that may have been imposed as or around that time is a factor that I have considered.  Of note is that the maximum term for the serious charge, Charge 5, carnal knowledge of a child under the age of 10 is 20 years and not very different from the current maximum term applying to equivalent crimes and which has been applicable to equivalent crimes for some years.

33The crime has always, that is sexual penetration of a child under the age of 10, sexual penetration of a child between the ages of 10 and 16, has always been seen as grave and abhorrent.  So too the other offences of indecent assault which were the digital penetrations that you were found guilty of.  The point made on this topic by the Court of Appeal in Stalio v The Queen was recently dealt with in Hague v The Queen.  In 2019, the accused man Hague was found guilty of a murder that he committed in 1995.  The court and the sentencing judge well appreciated that sentences for murder had increased in the intervening years.  Notwithstanding the capacity to discern a different sentencing regime for murder, the Court of Appeal found the sentencing judge had not erred by imposing a sentence that seemed more in tune with modern sentences for murder.

34The Court of Appeal concluded at paragraph 252:

'The sentencing practices that apply to offending of this kind at the time of the offence is relevant to the extent it can be ascertained.  Like the judge, our own assessment is that current sentencing practices for murder reveals that longer terms of imprisonment are now imposed when compared with comparable offending in the mid-1990s.  The applicant was entitled to some moderation in sentence on that account.  However, just as current sentencing practices cannot control the sentencing discretion in a particular case and does not cap and collar the sentence, past practices cannot have a greater or more controlling effect'.

35The court then referred to a High Court decision of the Director of Public Prosecution v Dalgliesh.  Thus while mindful that these offences occurred in the late-1970s and early 1980s, when the maximum terms were lower than equivalent current offences, no evidence was put forward of sentencing practices at that time.  I myself am not able to discern any particular patterns of sentencing for carnal knowledge of a child under the age of 10 or for sexual penetration under the age of 16 or for any of the indecent assault charges.  I have of course taken into account as the main guidepost, the maximum terms for each offence at the time.  I have moderated this sentence in the same way that the Court of Appeal authorised in Hague.  I have not ignored the general principles of Dalgliesh that appropriate but necessarily stern sentences must be imposed on child sex offenders without allowing any aspect of the sentencing task such as current sentencing practices or historic sentencing practices to dominate my instinctive analysis of all the circumstances.

36As has been too often repeated by our appellate courts, sexual abuse of young children is a scourge.  Abuse of vulnerable children attacks proper community values as well as acutely damaging the particular victims.  Sentencing courts must resolutely denounce such abhorrent criminality by the imposition of stern punishment.  The message of deterrence must be reinforced again by lengthy terms of imprisonment.  The community must be protected by incapacitating perpetrators while rehabilitation is not overlooked.  In cases such as this consideration of rehabilitation must yield to these other sentencing considerations.

37I note that you have been of good behaviour for a significant part of your life post these offences and prior to them.  In that regard, I have taken into account that your rehabilitation is likely assured but nonetheless your rehabilitation must yield to these other sentencing considerations.  In the end, there is not a lot that can be said in mitigation but what was put forward by your counsel has been well considered and not merely been overwhelmed because the crimes you committed were so dreadful. 

38Doing the best I can in respect of these matters, I impose the following sentences.  Can you please stand.  On Charge 4, which is the indecent assault of a child under the age of 16, on victim one, you are sentenced to two years and nine months.  On Charge 5, for carnal knowledge of a child under the age of 10, involving victim one, you are sentenced to nine years' imprisonment. 

39On Charge 6, the indecent assault of a girl under the age of 16, the single offence following the football final, you are sentenced to one year imprisonment.  In respect of Charge 7, the penile penetration on victim one, on the same night, you are sentenced to three years' imprisonment.  On Charge 8, the sexual penetration of the second victim when she was between the ages of 10 and 16, you are sentenced to six years' imprisonment. 

40I order that one year of Charge 4, one year of Charge 7 and three years and six months of Charge 8 be cumulative upon each other and upon Charge 9. If my mathematics is correct that is a total sentence of 14 years and six months and I order that you serve 10 years before being eligible for parole.  You have already served 101 days in custody.  This figure having been reckoned, I will declare that it is part of the sentence that I have just imposed.  I will ensure that this declaration is entered into the records of the court, thus meaning that the authorities will be left in no doubt that you have already served 101 days of the sentence I have just imposed.

41In respect of Charges 6, 7 and 8, you are declared a serious sexual offender and I will ensure that this declaration is entered in the records of the court.  In respect of each of these offences, by reason of the provisions of the Sex Offenders Registration Act, it is mandatory that you are required to register as a sex offender and that you must remain on that register for life. 

42Is there anything - there was an order that Mr Trantow give a sample, forensic sample and I intend to make the order that he provide a forensic sample.  The application is made pursuant to s.464ZF of the Act.

43MISS MacDOUGALL:  ZF, Your Honour.

44HIS HONOUR:  And I make that - that application having been made, I grant it due to the seriousness of the circumstances and because the granting of the order is in the public interest.  Mr Trantow that means that at a particular time the authorities will come to get a scraping from your mouth so that your DNA can be extracted from that and placed on the database.  At the time that the authorities come to get that, if you do not cooperate, they may use reasonable force to ensure that the procedure is conducted.  The way through it is just to cooperate.

45I need to sign some document and indeed so too do you.  The document that you need to sign is that I have provided to you that you acknowledge that I have provided to you a notice of reporting obligations pursuant to the Sex Offender Registration Act.  So, I sign a document saying I have given you a document and you sign a document to say that you have got it.  The real importance is the document itself which sets out a range of requirements and obligations upon you to register and what occurs if you fail to comply.  Your lawyers will explain that in more detail.  You can take a seat.  Ms Brennan, this document that
Mr Trantow must sign is here and if your instructor can take that back down the court and have him sign.  Thank you.

46MS BRENNAN:  Thank you.

47HIS HONOUR:  While that is occurring, did the maths add up?  Was the maths accurate?

48MS BRENNAN:  Did the maths add up?  I have just handed over - my junior is nodding furiously.

49HIS HONOUR:  Yes.  Miss MacDougall.

50MISS MacDOUGALL:  Your Honour, I made it 14 years and six months head sentence with 10 years non-parole.

51HIS HONOUR:  Yes.  Thank you.  I have before me an acknowledgement
Mr Trantow has received his notification of reporting obligations and notification of the reporting period.  That document will be forwarded to the Chief Commissioner of Police.  Thank you.  Is there anything further required?  I thank counsel for their very considerable assistance, in particular in respect of the course of conduct matters which they were very helpful with.  I will just stand down.  Mr Trantow can be taken from the court.  I will stand down.  They will take a moment for perhaps both victims to be able to leave the court.  So, if the - those that are helping them just take their time, there is no rush.

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