Director of Public Prosecutions v Turner (a pseudonym)

[2024] VCC 813

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
(Not) Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

MATTHEW TURNER (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HARPER
WHERE HELD:	Melbourne
DATE OF HEARING:	20 May 2024
DATE OF SENTENCE:	5 June 2024
CASE MAY BE CITED AS:	DPP v Turner (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 813

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW    

Catchwords:              1 x sexual penetration of a child under 16 in 2010 (child under 12)

Legislation Cited:      Sentencing Act 1991, Sex Offenders Registration Act 2004

Cases Cited:Markovich v R (2010) 30 VR 589, DPP v Warner (a pseudonym) [2022] VCC 287, DPP v Thurmond (a pseudonym) [2024] VCC 470 and DPP v Hudson (a pseudonym) [2024] VCC 14

Sentence:                  4 years imprisonment, NPP 2 years 7 months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms. E. Dane	Ms. A. Hogan, Solicitor for Public Prosecutions
For the Accused	Ms. A. Roodenburg	Dribbin & Brown Criminal Law

HER HONOUR:

1Matthew Turner,[1] you have pleaded guilty to a single charge of sexual penetration of a child under 16 on 19 December 2010.  At the time your victim, your niece, was under the age of 12, being only 6 years old.

[1] A pseudonym.

2The maximum penalty for this offence at the time of your offending was 25 years imprisonment.

3Your offending was so serious and involved such a grave breach of trust that I must impose a period of immediate imprisonment.

Circumstances of the offending

4The circumstances of your offending were outlined in the Summary of Prosecution opening for Plea dated 16 April 2024.  This document reflects the agreed factual basis of your offending which I will summarise here.

5On Friday 17 December 2010 you and your young son arrived at your sister Joanne Holland’s[2] family home for a three night stay.  She lived with her partner and young children including your six year old niece, Carmen Holland.[3]

[2] A pseudonym.

[3] A pseudonym.

6Carmen’s father, Greg Holland,[4] recalls you offering to put Carmen to bed on Sunday 19 December 2010.  You went into Carmen’s bedroom to tuck her in whilst her parents remained in the living area of the house. You told her “good night, have sweet dreams.”

[4] A pseudonym.

7After you tucked her in, you told her to remove her pants and underwear. She complied.

8You then penetrated her vagina with your finger. Carmen recalls that you touched and played with her vagina for around 20 minutes. She said it felt sore and scratchy.

9You told her “You can’t tell your mum and dad about this, or they’ll get angry at you…this is just going to be our little secret.”

10Mr Holland went to check on you and Carmen in the bedroom as you had been gone for some 15 minutes.  He states that you were sitting on her bed with your hand under the quilt which you quickly pulled away when he entered the room.

11Mr Holland thought this was unusual, so he went closer to the bed to make sure everything was ok. He asked, “are you guys finished?” and you replied “we are almost done,” so he left the room.

12On Monday 20 December 2010, you took your son and Carmen’s brother on an outing in the city. Carmen stayed at home with her mother and her sister.

13Whilst watching TV, Carmen’s mother recalls her daughter saying, “Mummy, I don’t like it when Uncle Matthew touches me here.”

14At the same time, she lifted her dress, pulled her knickers down and pointed to her clitoris.

15Mrs Holland asked, “when did he touch you there?” and Carmen responded “when he was tucking me in.” She asked, “What did he do exactly?” Carmen demonstrated by pulling her knickers down and playing with her clitoris.

16Mrs Holland then asked, “Was this part of a game, like a tickling game?” and Carmen replied “No”. She asked, “What exactly did Matthew do with his hands?” and Carmen said, “He moved his fingers like this, like he was playing with slime” and she made a stroking motion in the air with her fingers.

17Mrs Holland asked “Did you say anything to Uncle Matthew? Did you say ‘no, don’t do that?’” Carmen replied “No, I didn’t want to hurt his feelings.”

18On Wednesday 22 December 2010, Carmen’s parents reported the matter through their GP.

19On Thursday 23 December 2010, Carmen attended at the Royal Children’s Hospital for a forensic examination. She provided a similar account to the doctor in the course of the medical examination to that provided to her mother, stating that you played with her fanny, that you used your hands to play with her vagina, under her underwear, and that you ‘treated it like slime’.

20The offending was reported to Epping Sexual Offences and Child Abuse Unit on 23 December 2010.

21On Thursday 31 March 2011, the Hollands advised police that they did not want a criminal investigation into the matter to avoid their daughter going through the stress of a court proceeding.

22You were asked to leave the house and they ceased to have contact with you once you returned to your home interstate.

23On Saturday 14 December 2019, Carmen completed a VARE Statement with police. She completed another VARE Statement on Friday 16 April 2021.

24You attended an interstate police station by appointment on Wednesday 17 August 2022 where you participated in a recorded interview.

25In the interview you told police that:

a)    You attended Melbourne in December 2010 to stay with Carmen and her family;

b)    You put Carmen to bed;

c)    You held hands with Carmen under the blankets, confirming you had one hand under the blankets, your right hand;

d)    You recalled people going backwards and forwards past the bedroom door, including Greg Holland walking past;

e)    You recalled being in Carmen’s room for 20-25 minutes;

f)     You were unsure whether your hand touched her vagina or possibly touched her vagina;

g)    Kids generally don't lie about this sort of - this sort of stuff; and

h)    Surely if I was going to be molesting a kid, I'd be picking a kid that was asleep and not one that's awake.

Victim Impact Statements

26The impact of your offending has been immense, as was clear from the three very eloquent victim impact statements that were read to the court.

27Carmen Holland detailed the effect your offending had on her as a six-year-old, the anger and isolation she felt as a child and continues to feel as an adult.  Her family dynamics have been altered and her relationships strained.  She suffers anxiety, flashbacks and panic attacks. 

28Joanne Holland, Carmen’s mother, provided a statement in which she described the regret, betrayal and anger she feels that you committed the offence in her home, upon her daughter.  Ms Holland detailed the changes in her daughter since the offending and in her relationship with her, the ongoing concerns she holds for Carmen and the irreparable damage you have caused to the extended family.  She feels guilty that she allowed you into her home. 

29Greg Holland, Carmen’s father, recalled his daughter aged six, prior to the offending, sharply contrasting her then care-free nature to the ongoing hurt she has suffered as a consequence of your offending.  Mr Holland reflected on the damage to your wider family and described his anger at your betrayal and your breach of trust.  He regrets ever allowing you close to his daughter. 

30The effect of your offending is far reaching but I must of course be mindful not to let it overwhelm the sentencing exercise.

Offence gravity

31The features upon which one assesses the objective gravity of sexual offending against children are well established and include, but are not limited to:

a)Breach of trust;

b)Duration of offending;

c)Planning and premeditation;

d)Vulnerability of the child;

e)Age difference between the offender and the child;

f)The age of the child;

g)Conduct coercing silence; and

h)Harm to the child.

32In this case, your breach of trust was significant.  Carmen was your niece.  She was vulnerable in that she was only six years of age.  You were 42.  Her parents trusted you to put her to bed, in her own bed, in her own bedroom.  You breached that trust in the most abhorrent way.

33The offending was a single incident, lasting up to 20 minutes.  While you said you would put your niece to bed, I am not satisfied that there was any real planning or premeditation prior to this offending.  It was opportunistic offending and on the evidence before me, seemingly spontaneous.  Nevertheless, you isolated her from her parents, committed the offence and told her it was a secret.  You sought her silence.  As referenced above, the effect on Carmen has been significant and protracted.

34I note that given the timing of the offence, there is no standard sentence applicable to this case. I find your offending to fall below the mid-range of offences of this type, but not at the lowest end.

Moral culpability

35Your counsel, Ms Roodenburg, conceded that you moral culpability in relation to the offending is high.  You have no formal mental health diagnosis and no cognitive impairment. 

Plea of guilty

36Your plea of guilty was entered prior to any witnesses being called at committal.  You have saved the community the time and expense of running a trial and spared the complainant and other witnesses the ordeal of giving evidence.  As such, you have facilitated the administration of justice and you are entitled to a benefit for that.

37By your plea of guilty, you have also demonstrated some acceptance of responsibility for your offending, together with a degree of remorse.

Personal circumstances

38I turn now to your personal circumstances. 

39You are 55 years of age, having been born in December 1968.  You had a stable upbringing.  You have one elder sister, the mother of the complainant, with whom you now have no contact.  Your parents separated when you were 12 and you have two paternal half siblings. 

40Your mother resides in Victoria and your father lives interstate.  You maintain a good relationship with both of them, despite your offending.

41You completed secondary school, with some social difficulties, before completing an apprenticeship in horticulture.  You worked in nurseries for a number of years.

42You met your first wife and travelled overseas with her for a year, volunteering in a tourist village while you were there.

43You returned to Australia but relocated interstate and were a lecturer and researcher for some 20 years.   You have one son, born in 2001, with whom you are close, despite his living in another state.

44You separated from your wife in 2017 and relocated to a regional centre to work for a not-for-profit organisation.  In 2019 you commenced a relationship with your current partner, who also remains supportive of you.

45You again moved interstate in 2022, this time with your partner to support her daughter and young grandchild. 

46You have long been involved with various volunteer groups and have made an ongoing contribution to the community in this way.  I received a bundle of media articles detailing your efforts, together with a bundle of work certificates and qualifications.

47Since being charged, you have worked for yourself, having lost your job working with young people as a team leader.  Being charged also led to an intense emotional reaction, causing you to contemplate self-harm, however your symptoms remain of moderate intensity and do not warrant a formal diagnosis. 

48You suffer from arthritis.  You have in the past had a long-standing cannabis addiction but this has reduced to very infrequent use in the last five years.

49You were assessed by psychologist Dr Mathew Barth.  He states “While Mr. Turner’s inability to discuss the motivations for his offending makes it difficult to be definitive, the nature of his offending behaviour as described in the brief of evidence indicates that he experienced distorted sexual cognitions about the child complainant and a grossly inappropriate concept of sexual boundaries on his part.  At present, Mr. Turner’s insight into such matters is at a very formative level.  He requires participation in a comprehensive sex-offender treatment program to address these issues.”

Sentencing principles and factors

50Mr Turner, this was vile offending.  Carmen was your niece.  She was six years old.  She was in her own bed when you brazenly took advantage of her, with her parents in the home.

51You have one prior appearance for charges of possess and use a drug of dependence in 1990.  While this is consistent with your reported cannabis addiction, it has no bearing on the sentence I will impose on you today.

52Prior good character of course carries less weight in sexual offences against children that it otherwise might do, but I take it into account in a general sense.

53I consider specific deterrence to be relevant to you given your limited insight into the offending.  You are currently assessed as a low-moderate risk of sexual recidivism, however it is anticipated that this risk will further diminish as you undertake specific sex offender treatment.

54This treatment, together with your familial supports, bodes well for your rehabilitation.  You have continued to work and contribute to society since the offending which, in combination with the aforementioned factors, leads me to conclude that you have good prospects for rehabilitation.

55While your personal circumstances do not reach ‘hardship’ in the sense contemplated in Markovich v R (2010) 30 VR 589, I take into account your partner’s ill health and the obvious concern you will have for her during your imprisonment. You will further be isolated in custody as most of your family supports reside interstate. You are unlikely to receive any in-person visits.

56General deterrence is of paramount importance.  Members of the public must be deterred from offending against young children by the sentence I impose on you.  The community must see that there are real consequences for such appalling conduct.   Your actions must be denounced and there must be just punishment for your offending.

57The delay between the offending in December 2010 and the plea hearing in May 2024 is relevant to sentencing.  You were aware that the complainant had gone to police and these proceedings were no doubt within your contemplation.  You have however, had the chance to demonstrate efforts at rehabilitation, to make positive contributions to society and to demonstrate a capacity not to reoffend in the meantime.  I take the delay into account in these ways.

58Your counsel referred me to several cases said to be reflective of current sentencing practices relative to your offending.  I have considered DPP v Warner (a pseudonym) [2022] VCC 287, DPP v Thurmond (a pseudonym) [2024] VCC 470 and DPP v Hudson (a pseudonym) [2024] VCC 14, noting both the similarities and differences between these and the instant matter.

59Ms Roodenburg submitted that I should defer sentence to allow you to participate in a sex offender treatment program.  I do not consider a deferral to be an appropriate course.  I note that you have known about this plea for six months and have not engaged in any offender specific treatment to date. 

60In the alternative, your counsel submitted that a wholly suspended sentence ought be imposed.  I do not consider that this would meet the sentencing objectives.

61Ms Roodenburg also raised the possibility of a combination sentence or one that is partially suspended. 

62Ms Dane for the prosecution submitted that a head sentence and non-parole period was called for.  She made no submission as to a partially suspended sentence. 

63In all the circumstances of this case, I consider that an immediate term of imprisonment is required, being one that includes a non-parole period.

Disposition

64On charge 1, sexual penetration of a child under 16, you are sentenced to 4 years imprisonment.

65I direct that you serve a non-parole period of 2 years and 7 months before becoming eligible for release on parole.

66I declare that you have served 16 days of pre-sentence detention pursuant to s.18 of the Sentencing Act 1991.

67Having been sentenced for a single class 1 offence pursuant to s.34(1)(b)(i) of the Sex Offenders Registration Act 2004, you are to be placed on the Register for a period of 15 years.  You will be provided with an acknowledgement of registration in a moment.

68Pursuant to s.6AAA of the Sentencing Act 1991, had you not pleaded guilty, the sentence I would have imposed would have been     5 years imprisonment with a non-parole period of 3 years 6 months.