Director of Public Prosecutions v V.S
[2013] VCC 1276
•5 August 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| V.S. |
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JUDGE: | Her Honour Judge Cannon | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 July 2013 | |
DATE OF SENTENCE: | 5 August 2013 | |
CASE MAY BE CITED AS: | DPP v. V.S. | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1276 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Sexual penetration of child under the age of 16 – Under care supervision and authority of uncle by marriage
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S. Ballek (Plea) Ms F. Martin (Sentence) | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr. L Gywnn (Plea) Ms C. Gwynn (Sentence) | Lethbridges |
HER HONOUR:
1 Mr Ballek for the prosecution opened the matter as follows. The offences represented by the charges on the indictment occurred over a two to three week period between 1 June 2000 and 31 December 2000. At the time of the offences the victim, A, was 16 years of age having been born on 28 May 1984. You were born 31 December 1958 and are now 54. You were 41 at the time of the offences.
2 During the period of offending the victim was under your care, supervision and authority. You are her uncle by marriage. When the victim was aged around eight or nine she went to live with her auntie and you. Previously she had been raised by her grandfather and had also been cared for at various times by other relatives in Brisbane and Melbourne.
3 She was born in Samoa, the youngest of four children but never met her mother and had no relationship with her father until after leaving school. She moved to Australia when she was three or four years old.
4 In 2000 the victim was living with you and her aunt. Her aunt had had a stroke and was convalescing in the family home. The victim was taken out of school after Year 9 so she could look after her auntie. Another auntie and two cousins were also living with you.
5 On 28 May 2000 the victim celebrated her 16th birthday at a restaurant with her family. Shortly after this night you began to sexually assault her. The charges cover eight separate incidents involving five acts of digital penetration, three acts of penile penetration and a number of uncharged indecent acts. All of the acts occurred in the family home. However, as the charges are representative I sentence you only in relation to the first instance of digital penetration and the first instance of penile penetration.
6 The first incident occurred not long after the victim's 16th birthday. One night she was asleep in bed when at about 3 a.m. she was awoken by you coming into the room. She remembered the time because her aunt worked nightshift at a factory and usually did not get home until about 4 a.m. You told her to be quiet and said that you loved her and would never let anything happen to her. You got into bed and touched her breasts on the outside of her top. You then moved your hands underneath her top and felt and squeezed her breasts directly. You told her that you loved her like a daughter. She was in shock and froze. You then moved your hands downwards and touched her vagina area on the outside of her tracksuit pants. You then put your hand inside her pants and touched her vagina directly. You put your finger inside her vagina and moved it in and out two or three times. This is the occasion for which I sentence you in respect of Charge 1. The victim described this as being painful and gross. You then took your finger out and got up and left the room without saying anything.
7 A few nights later you again went into the victim's bedroom at about 3 a.m. and lay next to her in her bed. You told her not to tell her aunt what was happening or she would give her a hiding. Her aunt had been violent towards her in the past so this made the victim very scared. You then started kissing the victim on the lips and put your tongue in her mouth. You then kissed her neck whilst touching her breasts on the outside first, then on the inside of her clothing. You kept telling her you loved her like a daughter which the victim found very confusing, not surprisingly. You then stopped touching her and left the room.
8 In relation to any uncharged conduct again I do not sentence you in relation to it but I sentence you on the basis that the charged occasions occurred in the context of uncharged conduct.
9 Two days after this episode, that is the one to which I have just referred, you again went into the victim's bedroom at about 3 a.m., got into her bed and began kissing her and touching her breasts. You then put your hand inside her pants and put your finger inside her vagina. You moved your finger inside and out a few times. You then took your finger out and pulled down the covers and moved her to the side of the bed. You pulled her pants and underwear down to her ankles. She began to panic and noticed that you had put your erect penis through the opening of your boxer shorts. You then put your penis into her vagina and moved it in and out. This gives rise to Charge 2, sexual penetration of a 16 or 17 year old child under your care, supervision and authority and this is the occasion for which is sentence you in respect of Charge 2.
10 The victim described this experience as feeling weird and painful. While you were penetrating her you asked her if she wanted to have your baby. You then said she could not have your baby because she would get a hiding and that everyone would find out. Just before ejaculating you took your penis out of her vagina and ejaculated into your hand. You then got off the victim and walked out of the room without saying anything.
11 Another three days later on a Sunday night the victim was asleep on a couch in the back lounge room. You were lying on a mattress on the floor next to the couch. The victim's aunt and one of her cousins was also lying asleep on the mattress. They had been watching TV together before falling asleep. At around 1 a.m. you reached over and put your hand under the victim's blanket. You then put your hand inside her pants and inserted your finger into her vagina. You moved your finger in and out of her vagina for about 20 minutes. Eventually you took your finger out of her vagina and went into the bathroom. The victim then got up and went to her bedroom.
12 A few days after this the victim went into her cousin's bedroom to hide from you after you had physically assaulted her earlier in the evening. At about 11.30 p.m. she was asleep on a mattress on the floor when you entered the bedroom. You lay next to her on the mattress and woke her by touching her breasts on the outside of her clothing. You then kissed her on the lips and neck while putting your hand down her pants and inserting your finger into her vagina. You moved your finger in and out whilst saying that you loved her like a daughter and that you would never hurt her. She later described feeling hurt and confused and looked away. You then got up and left the room.
13 A few nights after this at around 6.30 p.m. the victim was with her cousins in their bedroom. Her aunties were at bingo. You called out to the cousins to go into another room. Despite the victim asking them not to go they went into another room to play pool. Shortly after you came into the bedroom and closed the door. You made the victim sit down on a mattress next to you and began kissing her on the lips. You asked A if she loved you and told her that you loved her like a daughter and that you would never hurt her. While you were talking to her you moved your hands under her top and felt and squeezed her breasts. You told her you did not want her aunt to find out because she would give the victim a hiding. You then got up and left the room.
14 A few nights later at around 6 p.m. the victim was in the bathroom drying herself after having a shower. Her aunts were at bingo and her cousins were watching TV in the front room. You walked into the bathroom and began kissing A on her bare back and neck whilst feeling her breasts from behind. You then made her lie down on the edge of the bath, kissed her breasts and put your finger inside her vagina. You moved it in and out a few times before stopping and leaving the room to check on the cousins. A then wrapped herself in a towel, ran to her room and quickly started to get dressed. You then came into her bedroom and made her lie on the edge of the bed. You took off her underwear and moved her legs apart. You then put your erect penis through the opening of your boxer shorts and inserted it into her vagina. The victim looked away whilst you penetrated her for one to two minutes. She described this experience as painful. Whilst you were penetrating her you asked her if she wanted to have your baby. She did not reply. You asked her again and she nodded in order to placate you. You said that she could not have your baby as the family would find out. When you were about to ejaculate you withdrew your penis and ejaculated into your hand. You then left the room without saying anything.
15 The last occasion was a few nights later when the victim was in her bedroom listening to music and writing in her journal. At about 2.30 a.m. you came into her room and got into her bed. You asked her if she loved you and you told her that you loved her like a daughter, that you would never hurt her and not to say anything to anyone or she would get a hiding. You then started touching her breasts on the outside of her clothing and kissing her with your tongue and mouth. You then pulled her tracksuit pants and underwear down to her ankles, put your penis through the opening of your boxer shorts and penetrated her vagina with your penis. Whilst you were penetrating her you asked her again if she loved you and told her you would never hurt her. You then pulled your penis out, grabbed it with your hand and left the room.
16 A month or so later the victim moved out of your home and went to live with other family members interstate. The following year, that is 2001, the victim went to live with another aunt in Canberra. One night she told her aunt about you sexually assaulted her in the previous year. Over the next few years other family members became aware of the allegations.
17 On 13 July 2010 the victim went to the Epping Police Station and made a statement about the offending. You were interviewed by police at the Epping Police Station on 2 November 2010. You answered, "No comment", to the allegations. On 6 October 2012 you made a telephone call to the victim in which you apologised to her for what had happened. The victim's husband and aunt and uncle were also with the victim and listened on loudspeaker to the call.
18 As I have said the Crown relies on the first instance of each of the occasions of digital and penile penetration for the purposes of sentencing. I cannot and do not sentence you in respect of all of the other instances but I do sentence you in respect of Charges 1 and 2 in the knowledge that these were not isolated instances of offending and also in the knowledge that it is the entirety of your offending which has impacted on the victim.
19 Having said this I must also factor in that this poor young woman was not only sexually offended against by you but also by another uncle when she was nine years old. You did not know of this other offending. If you had it would have been an aggravating feature of your offending. However, you chose to sexually abuse a child who was in your care and who, no doubt, looked to you as a parent figure. Implicit in the commission of these offences is the fact that you have breached the trust that the victim placed in you.
20 Further, when you engaged in penile sexual penetration although not entirely uncaring as to the risk of pregnancy, which had a good deal to do with your fear of detection rather than concern for the victim's wellbeing, you still exposed the victim to this risk by taking a fairly crude approach to contraception. You also exposed her to the risk of sexually transmitted diseases, albeit that this was perhaps a limited risk because of the fact, as I understand it, that you had one sexual partner for many years. In these circumstances I allow for some weight in respect of the aggravated feature that you did not wear a condom when you chose to defile your niece.
21 I also take into account the vast age disparity between your niece and yourself in terms of the seriousness of your offending. I have considered the psychological report of Mr Candlish although he appears to have assessed you on the basis of two episodes of sexual wrongdoing which is not the case. He did have the police summary as part of the materials. It appears he may not have read this too thoroughly. In any event, his assessment of risk tends to accord with my findings.
22 There is no impairment of mental function which reduces your moral culpability which I find is high. Your offending is deserving of just punishment and must be denounced. Further, I must send a strong message that criminal conduct such as yours will not be tolerated in a bid to deter others from behaving as you have.
23 A victim impact statement was not prepared, however, your counsel accepted on your behalf that the prosecution could rely on various extracts from the depositions as reflecting the profound effects that your offending has had upon A. Again, I factor in that the victim has been affected by your actions and those of another uncle who sexual abused her. She said in her police statement that you and her other uncle have taken so much away from her. That you took away her childhood and her freedom. She said that she was always scared and felt dead and depressed with thoughts of killing herself from time to time. She said that she felt like running away but did not know where to go. She has experienced difficulties in her relationship with her husband and she has had big issues with trust and men. She still has flashbacks and nightmares. She said that it had taken her a long time to feel strong enough to go to the police which she was finally able to do in August 2010.
24 Whilst bearing in mind that the victim speaks of the combined effects of your offending and that of her other uncle, it cannot be doubted, Mr S, that your offending has had a significant impact on the life of your niece and I take this into account when sentencing you. I accept that you pleaded guilty to these matters at a fairly early stage, albeit not the earliest stage, and that in the circumstances your preparedness to do so signifies remorse. Your counsel submitted that your remorse was also evident from the phone call you made to the complainant in which you apologised, although I note this was at a time after you had been charged and may have had a degree of self-interest attached. I was told that the complainant accepted your apology.
25 In any event, I accept that you have since expressed deep remorse and some insight into the damage that you have done to your niece. You entered pleas of guilty having indicated that you intended to run a contested committal hearing, although, as I understand it, this was more a decision of your previous legal representatives and you were facing a greater number of charges at that stage. In the circumstances I allow for a significant discount in the sentence that you would otherwise receive as you have saved the witnesses, especially the victim, the trauma and time of giving evidence and you have saved the community the time and expense of running contested proceedings.
26 The offending endured for a fairly short space of time and I was told that it ceased because you decided to stop rather than because the complainant moved away, which happened fairly shortly after the last incident. It may be that there were other reasons for the complainant moving away but it would be rather surprising if your actions had nothing to do with this.
27 In your favour you have good family support which was evident from those in attendance at the plea hearing and the character references tendered on your behalf. Your wife, who has been seriously ill for a number of years, still supports you and until your remand you were living with her and your two adult sons. I accept that apart from this offending you are of otherwise good character. You have no prior convictions and no subsequent matters and it appears that you have been a well-respected member of your church and your community. You have made significant contributions to both of these over many years.
28 It does appear that your family supports have not shied away from the fact that you have behaved abominably towards the victim which means that the support which they will give you is accompanied by appropriate insight. It always means that the victim has not been further victimised by being shunned by your supporters which is often the case in these sorts of situations. The shame of it is, that that family did not give the victim meaningful support earlier which would have enabled her to go to the police at any earlier stage.
29 You have a solid work history having been employed for the past 30 years. I take into account in your favour the reference from your current employer from whom you have worked for the past seven years. You started with his timber company as a truck driver and have progressed to the role of despatch manager. He attests to your fine work ethic and the kindness and support you have given him. He is aware of the charges that you have pleaded guilty to and despite this he says that he would not hesitate in re-hiring you upon your release from gaol. I have also factored in his character reference in finding that you are of otherwise good character.
30 You are a strong support for your family both financially and emotionally which means that your time in gaol will weigh heavily upon you. These are matters which I take into account in your favour. In particular your wife, who is in poor health, is very dependent upon you and your separation from her is a hardship which I take into account. Further, this is to be your first time in gaol which will, no doubt, have a salutary effect upon you. You suffer from Type 2 diabetes which is a condition you have had since you were 15. You also suffer from gout. These are currently controlled by medication.
31 I also take into account that there has been some delay in the finalisation of this matter from the time that you were first interviewed by police which has resulted in anxiety for you in having the matter hanging over your head but it is also the case that you have used the time productively and that you have not further offended. Indeed there are no subsequent matters since you committed the offences for which I sentence you which accounts for some 13 years.
32 Given all of the positive matters to which I have previously referred I find that your prospects of rehabilitation are very good and that I need not place a great deal of weight upon specific deterrence. However, as I have said, I must place strong weight on general deterrence and denounce your offending conduct.
33 The Crown submitted that a sentencing range of between four and five years with a non parole period of between two and a half and three years is appropriate in your case. This was said to be in accordance with current sentencing practice, although Mr Ballek said that the cases he looked at in relation to this offence usually involved teacher/pupil situations. Mr Gwynn, on your behalf, submitted the Crown range was too high and pointed to the fact that there was only a six month gap in the non-parole range. He submitted that the range did not adequately reflect all relevant mitigatory matters. He submitted that the cases in this area usually involved teacher/pupil relationships where the abuse had continued for a significant period.
34 Having taken into account all relevant matters I have come to the view that the Crown range is justified in all of the circumstances of your case. However, given the mitigating features I will impose a sentence in the middle of the range submitted as being appropriate. Would you please stand up, Mr S.
35 In respect of both charges you are convicted. In relation to Charge 1 you are sentenced to two years imprisonment. In relation to Charge 2 you are sentenced to three and a half years imprisonment. I direct that one year of the sentence on Charge 1 be served cumulatively with the sentence on Charge 2 producing a total effective sentence of four and a half years and I direct that you serve two years eight months before becoming eligible for parole. If not for your plea of guilty I would have sentenced you to five and a half years with a non parole period of three years and eight months. I declare that you have already served 11 days in custody which will be reckoned as already served in relation to this sentence. Take a seat please, Mr S.
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36 Is there anything, counsel, arising out of that?
37 MS MARTIN: No Your Honour.
38 MS GWYNN: Can I just ask you to repeat the s.6AAA? I just wasn't writing fast enough, Your Honour.
39 HER HONOUR: Yes, five and a half years with a non parole period of three years and eight months.
40 MS GWYNN: Thank you.
41 HER HONOUR: If not for the plea of guilty.
42 MS GWYNN: Thank you, Your Honour.
43 HER HONOUR: Yes, you may remove Mr S, thank you. Yes, we'll now adjourn.
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