Director of Public Prosecutions v Trent (a Pseudonym)
[2018] VCC 1518
•12 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NED TRENT (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 September 2018 | |
DATE OF SENTENCE: | 12 October 2018 | |
CASE MAY BE CITED AS: | DPP v Trent (a Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1518 | |
REASONS FOR SENTENCE
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Subject: Criminal law – sentencing
Catchwords: Historical sexual abuse – unlawful and indecent assault of a girl under the age of 16 years – indecent assault – offender the biological father of the complainant – immediate custodial sentence imposed – 3 years' imprisonment and suspend 2 years of that term for 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms A. Hassan (Plea) Ms R. Fitzpatrick | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr G. Hughan | Victoria Legal Aid |
HER HONOUR:
1 Ned Trent[1], you have pleaded guilty to three charges on the indictment.
[1] A Pseudonym
2 Charge 1 is unlawful and indecent assault of a girl under the age of 16 and Charge 2 is indecent assault, a representative charge, that is representative of three occasions in which you rubbed your penis against your daughter's vagina.
3 The effect of the "representative charges" in sentencing has been explained by Nettle JA as he then was in DPP v EB:[2]
“… the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and, additionally, it enables the offence to be seen in its full circumstantial context. Thus a representative offence is likely to attract a greater sentence than an isolated offence.”
[2] [2008] VSCA 127, [15]; citing Batt JA in R v SBL [1999] 1 VR 706, 726 [70].
4 Charge 3, indecent assault and that concerns a discrete occasion, again, when you rubbed your penis against your daughter's vagina.
5 Mr Trent, you do not have any prior criminal history.
6 There is a subsequent appearance in the Magistrates' Court Frankston in March 2018. You pleaded guilty to assault and that concerned an assault against your second wife, from whom you are separated but with whom you live under the same roof. The assault involved you pushing your ex wife and she sustained a small laceration to her left elbow and right shoulder. Without conviction, you were fined $100.
7 I shall now proceed to sentence you in respect to the matters on the indictment on the basis of what was contained in the amended plea opening that was read into the transcript at the time of the plea hearing.
8 You are the biological father of the victim in this matter. She is now 49. She is the eldest of your three children and the only daughter of you and your former wife. There are two younger sons.
9 At the time of the offending, you were aged between 29 to 32. You are now aged 68. The offending occurred when the victim was aged eight years to 12 years.
10 The maximum penalty in respect to all the charges is five years' imprisonment.
11 The first charge relates to an occasion in 1977 when your daughter was then aged eight. She accompanied you to stay overnight at her maternal grandparents' home. The two of you were staying in a caravan at the rear of the house. In the middle of the night, you went over to the bed in which your daughter was then sleeping, took out your penis and rubbed it against her bare vagina. You kept rubbing up and down until you ejaculated.
12 You then got up and cleaned yourself. You told your daughter who had noticed a wet patch on her legs, not to worry, because as she was a bed wetter and that no one would suspect what had happened.
13 After that occasion, you began to treat her differently. Previously, you had been abusive towards her and afterwards you behaved in a nicer manner.
14 When she was around 12, whilst she was swimming in a pool at a family friend's home, you touched her breasts. That is an uncharged act.
15 When she was entering puberty, you began to take her on outings and gave her treats such as purchasing a puppy. You made her feel special and she looked forward to spending special time with you.
16 Charge 2, the representative charge, is representative of three occasions when you rubbed your penis on her bare vagina. She was around 12 years of age. On the first occasion, she had accompanied you whilst you were working as a bus driver on a shift. During a break in the shift, you took her to a seat at the rear of the bus, lay her down and rubbed your penis on her vagina.
17 Not long thereafter, there was another occasion again whilst she accompanied whilst working a shift as a bus driver. You pulled the bus up at an old bus stop and on that occasion you took out your penis and rubbed it between her legs. The third occasion occurred when she accompanied you to work. You had completed your shift and on returning home in your own panel van, you stopped that vehicle, took her to the back of the panel van, lay on top of her and rubbed your penis against her bare vagina until you ejaculated.
18 Charge 3 is the last occasion where a sexual assault took place and that occurred at your family home. On that occasion you were entertaining a friend. Your wife became concerned because she did not know where you and your daughter were. She found you together in the laundry. She saw her daughter up against the wall and you were touching her between her legs and rubbing your penis up and down against her vagina. On that occasion, the victim believed you ejaculated because she recalled feeling wet between her legs.
19 On seeing what you were doing, your wife told you to leave the house. She immediately sought crisis assistance. Your marriage ended. Your wife and three children spent time in a refuge and then lived with family members before finding suitable alternative accommodation.
20 On 25 January 2016, your daughter made a statement to police about your offending. On 30 April 2016, she participated in a pretext call. In that call, you apologised to her for your actions but blamed her mother, saying that she had done things to you that made you do the things that you did.
21 You were interviewed by police on 7 October 2016 and during the formal record of interview you admitted sexually offending against your daughter, although you could not specifically recall any of the charged incidents. On that occasion you also sought to blame your former wife for your actions, telling police that you did not even know if the complainant was your daughter, and that you did what you did to get back at your daughter's mother.
22 Your daughter read her Victim Impact Statement at the plea hearing. It discloses the significant harm that you have caused by your conduct. She says:
“My right to live a normal and safe childhood was taken from me and the effects are still being felt today. Being abused and betrayed by your parent is a hard thing to deal with. My innocence was taken from me.”
23 The effects of your offending will be long-lasting and will continue onto the indefinite future. Your daughter now has significant trust issues and in particular, she cannot trust males and feels very uncomfortable in their presence. She has been diagnosed with suffering from post-traumatic stress disorder and has symptoms of depression and anxiety for which she is receiving counselling.
24 She has carried a heavy burden over the years and has wrongly felt responsible for the breakdown of your marriage. The flow-on effects to her own family have been significant. Not only did she suffer the severe disruption of having to relocate as a child, she also disappointingly, had to deal with the broader family's reactions, some of whom thought she was making all of this up.
25 Mr Trent, your conduct constitutes a significant breach of trust. That your daughter was betrayed and abused by the one person who ought to have protected her (her father), has had a lasting impact upon her quality of life.
26 Your offending is deserving of stern punishment and on behalf of the community, I formally denounce your behaviour.
27
I have had regard to your personal history and background as set out by
Mr Hughan at the plea hearing. You are one of seven siblings. You have five sisters and a brother. Currently, you only have contact with two of your sisters, both of whom suffer Alzheimer's disease.
28 You married the victim’s mother when you were 19. She was 16 and pregnant, carrying the complainant. There are also two sons born of that marriage. After the marriage ended, you then divorced and you were remarried in 1983.
29 Your second marriage ended six years ago, although you still live separate and apart under the same roof with your former wife. She suffers from osteoporosis and lupus and is very frail. She is aged only 54. You are her primary carer. She is able to attend to all her personal activities of daily living but is unable to do any household chores such as cooking, cleaning, laundry and dishes.
30 There are also three sons born of that marriage who are aged 32, 28 and 22 respectively. You are estranged from your youngest son. Your eldest son was present at the plea hearings and is supportive.
31 You left school early, having not completed the equivalent of Year 9. Notwithstanding the lack of educational qualifications, you do have a solid work history. You have worked in various roles over the years, the last job being as a bus driver which role you undertook for 30 years until retirement on 7 May 2015. You are now in receipt of the age pension.
32 Your life is described as very solitary. You have no close friends and apart from caring for your wife, the main activity that you have been involved in has been a long term project of "doing up" your house.
33 I have taken into account all the matters put in mitigation on your behalf. I accept the pleas of guilty were entered at an early time and that there is significant utility in your plea. You saved all the witnesses from having to give evidence at the trial and in particular, you spared your daughter and former wife from the trauma of having to give evidence. You have avoided the cost and inconvenience of a trial. Your plea does demonstrate an acceptance of responsibility on your part and a willingness to facilitate the course of justice such that your sentence will now be discounted.
34 Insofar as remorse is concerned, I find that there is very little evidence of remorse. Indeed in the record of interview and also in the pretext conversation, you sought to deflect responsibility for your conduct by attributing that to something that your former wife was responsible for. You have never properly acknowledged the harm that you have caused to your daughter. Your expressed justification for your offending behaviour must be condemned. No person has the right to react in such a vindictive, cruel and inhumane way towards their child.
35 I have had regard to the contents of Martin Jackson's neuropsychological report. He notes mild to moderate difficulties in the areas of attention to visual detail, high level attention, complex new learning and memory and some executive skills. As a consequence, he says that those deficits are likely to have an impact on your ability to cope within the prison and therefore you will find any term of imprisonment more burdensome and I have had regard to those expressed opinions.
36 You are the primary carer to your current wife. There is no other family member to undertake that role and provide assistance which you do currently. I noted, however, that your eldest son does live in a suburb nearby.
37 I have been informed this morning that enquires have been made of the financial provider for your mortgage and they are not prepared to suspend mortgage payments if you were to be imprisoned and I have taken that into account.
38 The Crown Prosecutor accepted that your situation does qualify for the exceptional circumstances of hardship and it is agreed that that is a mitigating factor.
39 One other matter that must be taken into account is delay. The victim made her statement to police on 25 January 2016 and you were not interviewed until 7 October 2016 and then charges were not laid until 3 November 2017.
40 Ms Hassan, on behalf of the prosecution, could not offer the court any explanation for the delay. I accept that you made appropriate admissions to police at the time of your formal record of interview and thereafter, you would have laboured under the prospect of having these charges laid for some considerable time and I have taken that into account.
41
In sentencing you, I must have regard to the serious offender provisions of the Sentencing Act. Upon being sentenced to terms of imprisonment on
Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charge 3. Therefore, I must regard protection of the community from you as the principal purpose of sentencing in respect to Charge 3. To achieve that purpose, the court may impose a disproportionate sentence to the sentence that would otherwise have been imposed.
42 Ms Hassan on behalf of the prosecution submitted that a disproportionate sentence is not required and I accept that I can adequately protect the community with the sentencing dispositions otherwise available.
43 However, I will direct that it be recorded in the records of the court that you have been sentenced as a serious sexual offender in respect to Charge 3.
44 Section 6E of the Sentencing Act directs that every term of imprisonment imposed in these circumstances must be served cumulatively unless the court orders otherwise and I propose to do so.
45 There will be some degree of cumulation between the charges.
46 Mr Hughan, on your behalf, sought a Community Correction Order. You have been assessed as to your suitability for such an order and found to be suitable.
47 However, having regard to the serious gravity of the offending, I consider that such an order would not satisfy the principal sentencing considerations that must be applied in the circumstances.
48 General deterrence and denunciation of such a premeditated breach of trust and abuse of your daughter are important. Specific deterrence is also an important factor.
49 The charges that you have pleaded to do reflect a broad spectrum of offending conduct. Having regard to the particular circumstances of your case, I consider that each charge is a serious example of the offence that has been charged.
50 The charges reflect a significant breach of trust by a biological father against his daughter. I consider that your moral culpability is high.
51
Your conduct on each occasion fell just short of penetration. You ejaculated over the complainant's vagina in respect to one occasion the subject of the representative charge in Charge 2 and on the occasion the subject of
Charge 3.
52 You used your daughter for your own sexual gratification and had no regard for the harm that may have been caused to her as a consequence. And as I have already stated, the effects of your behaviour have been devastating and have had a lasting effect upon her and her family members.
53 I must impose a sentence that is just in all the circumstances and which properly reflects the gravity of your offending, taking into account the matters that are personal to you as well as the mitigating factors that I have already highlighted and also having regard to applicable sentencing principles.
54 Your offending is a very serious example of this sort of offence. A term of five years was the maximum penalty at the time the offending occurred. The legislation through these charges sought to protect children from being exposed to, or being the subject of, sexual misconduct by an adult.
55 I have come to the conclusion that the offending conduct was serious. It exhibited a degree of premeditation on your behalf in as much as you would offend against your daughter on occasions where you effectively had isolated her from others and that occurred in the context of you taking her with you to work and on other occasions when you were alone with her, for instance, in the caravan at the maternal grandparents' property, and on the last occasion, you were emboldened to offend against her in your own home whilst there were other adults who were nearby.
56 You are to be sentenced on the basis that you were up until the time of the offence a person who was otherwise of good character with a sound work record. I have also had regard to the fact that there are no subsequent sexual offences alleged against you.
57 I have had regard to the sentencing discount for you having pleaded guilty and the utility of your pleas and the acknowledgement of your conduct being wrong. Further, I have had regard to the issue of hardship and despite all of that, I consider that the seriousness of this offending does warrant an imposition of a gaol term, some of which is to be served.
58 These are offences where the community expects that stern punishment ought be imposed. As the courts have said,
“A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate”[3],
[3] Per Marks, J in R v Sposito cited with approval by Hedigan, AJA in R v M.J [2000] vsca 66Hedigan AJA, cited Toomey, [18]
And
“Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their care”[4].
[4]DPP v Dalgleish (A Pseudonym) [2016] VSCA 148, (“Dalgliesh”), [43]
59 All in all, I consider that the only appropriate disposition is a term of imprisonment to be immediately served. The formal court orders will now be announced. Mr Trent, could you please stand?
60 Charge 1, you are convicted and sentenced to 18 months' imprisonment.
61 Charge 2, convicted and sentenced to two years' imprisonment.
62 Charge 3, convicted and sentenced to 18 months' imprisonment.
63
I make the following orders for cumulation. Charge 2 is the base sentence. I order that six months of the sentence that is imposed with respect to
Charges 1 and 3 are cumulative upon each other and on the sentence imposed on Charge 2, and that gives a total effective sentence of three years' imprisonment. I direct that you serve 12 months' imprisonment and that the balance of 24 months is suspended for a period of two years.
64 I am required by the Sentencing Act to explain what that means. You shall serve 12 months' imprisonment immediately and the balance of 24 months of the term of imprisonment will be suspended for a period of two years.
65 The consequence of that is, if following upon your release you commit an indictable offence, that is one punishable by imprisonment, either inside or outside Victoria within two years, you shall be brought back before the court and the partially suspended sentence may be restored in the absence of exceptional circumstances. And that would mean that you would be required to serve up to the two years' imprisonment.
66 Mr Hughan, do you want to get some instructions from your client because I have got to have his consent to the making of that order, that is partially suspending the sentence.
67 MR HUGHAN: Yes, Your Honour. I will just quickly check with him if Your Honour pleases. Yes, there is a resigned agreement to that proposition, of course, Your Honour.
68 HER HONOUR: All right. I note that that is consented to.
69 Pursuant to s.6AAA of the Sentencing Act 1991,but for you plea of guilty I would have sentenced you total effective sentence of four and a half years' imprisonment, to serve a period of three years.
70 I make the declaration in respect to Charge 3, you are sentenced as a serious sexual offender.
71 Each of the charges is a Class 2 offence and the reporting period under the Sex Offenders Registration Act 2004 (SORA) is mandatory and for life as you are to be sentenced for three Class 2 offences. My associate has prepared the notification of the requirements under the SORA legislation and Mr Hughan, I just ask again that you explain that to your client and get him to acknowledge once I have completed all my orders.
72 An application has been made for a forensic sample order to which you have consented. Having regard to the seriousness of the offending, I consider it is in the public interest to grant such an order and I do so.
73
I make the order pursuant to s.464ZF of the Crimes Act 1958 on the basis that it is by consent and also having regard to the serious nature of the offending, I consider that the order is in the public interest. What that means is,
Mr Trent, that you have to cooperate by allowing police to make a mouth scraping and they will provide you a little cotton bud to put inside your mouth. Provided you do that, that means the order will be complied with. If you do not comply with that request then reasonable force can be used to enable the forensic procedure to be conducted, including a blood test.
74 There is no other order sought, as I understand?
75 MS FITZPATRICK: No, Your Honour.
76
HER HONOUR: No. All right. I have signed that order and if you could just,
Mr Hughan, get the acknowledgement of the notification of the SORA requirements signed.
77 MR HUGHAN: Yes, Your Honour.
78 HER HONOUR: That will complete the matter. All right. So given that your client's now been taken into custody - - -
79 MR HUGHAN: Yes, Your Honour.
80 HER HONOUR: - - - I will ask that my associate provides to the authorities the neuropsychological reports if that is appropriate.
81 MR HUGHAN: That would be very appropriate. If Your Honour pleases.
82 HER HONOUR: And has he got any medication or anything like that?
83 MR HUGHAN: He has got a series of medications. He has got one prescription with him though. It sees from past experience that the medications do not necessarily make their way through to the prison system with him but - - -
84 HER HONOUR: All right. So perhaps we should put in a request that he be seen by a doctor.
85 MR HUGHAN: Yes, Your Honour.
86 HER HONOUR: Upon his reception.
87 MR HUGHAN: I think that does happen but it is certainly worth - - -
88 HER HONOUR: I will add that request in the order that that be done.
89 MR HUGHAN: Yes.
90 HER HONOUR: Do you know what the medications are that he is required to type?
91 MR HUGHAN: Your Honour, there is a list and I was looking for the list earlier today. Can I check with him please?
92 HER HONOUR: Yes, certainly. We will make a notes of those meds on the Return Of Prisoner order.
93 MR HUGHAN: Your Honour, the - - -
94 HER HONOUR: He takes the blood pressure tablet, does he not? Karvea?
95 MR HUGHAN: Yes. Yes, it is. It is a blood pressure tablet called ABISART.
96 HER HONOUR: A-B-I?
97 MR HUGHAN: A-B-I-S-A-R-T. It is also said here to be same as something called Karvea.
98 HER HONOUR: Yes, Karvea. That is what Mr Jackson noted.
99 MR HUGHAN: Yes.
100 HER HONOUR: Is that it? Some pain relief?
101 MR HUGHAN: That seems to be the only prescription medication as I understand it, Your Honour.
102 HER HONOUR: Right.
103 MR HUGHAN: The other matters such as pain relief, I think, are Panadol or those sorts of things.
104 HER HONOUR: Right.
105 MR HUGHAN: But that would be the main one that would be the concern in our - - -
106 HER HONOUR: All right. He has got the script for that?
107 MR HUGHAN: He has got the script for that.
108 HER HONOUR: All right. Yes, there does not seem to be anything else listed via Mr Jackson. All right. Thank you very much.
109 MR HUGHAN: As Your Honour pleases.
110 HER HONOUR: All right, we can now adjourn. Thank you.
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