Director of Public Prosecutions v Vandenberg
[2014] VCC 813
•27 May 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 12-01674
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEFFREY PAUL VANDENBERG |
---
| JUDGE: | HER HONOUR JUDGE PATRICK |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 27 May 2014 |
| CASE MAY BE CITED AS: | DPP v Vandenberg |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 813 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public | Mr N. Hutton | |
| Prosecutions | ||
| For the Accused | Ms J. Kennedy |
HER HONOUR:
1Jeffrey Paul Vandenberg you have been found guilty by way of jury verdict on six charges of indecent act with or in the presence of a child under 16, being Charges 1, 3, 22, 23, 24 and 25. You have also been found guilty on nine charges of incest being Charges 2, 5, 6, 7, 8, 9, 10, 19, and 20. You have also been found guilty on two charges of rape, being Charges 4 and 21.
2The maximum penalty for indecent act with a child under 16 is ten years imprisonment. The maximum penalty for rape and incest is 25 years imprisonment.
3The prosecution sought an order for the taking of a forensic sample from you, the making of that order was consented to.
4The offences on which you have been found guilty occurred between 1 February 2004 and 31 July 2010. All of your offending, apart from the offending in Charges 24 and 25, concerned two children, the son and daughter of your former partner. For the purposes of these reasons for sentence, I will call your ex-partner's daughter Sophia and your ex-partner's son Jonathon.
5Your offending in Charges 24 and 25 was against a friend of those children. For the sake of these reasons for sentence, I will call her Angelina.
6Jonathon was born in February 1999. Sophia was born in October 2000. Angelina was born in October 1999. Between September 2004 and October 2005. Sophia, Jonathon and their mother lived with you at an address in country Victoria. Sophia was then four years old. During that period you touched her on what she described as her 'boobs' underneath her clothing. This incident is the subject of Charge 1, indecent act with a child under 16.
7You, the children, and their mother then moved to an address in metropolitan Melbourne. On an occasion between 1 January 2007 and 31 December 2007 you removed Sophia's pants and put her up on a baby change table that was in the lounge room. You then performed oral sex on Sophia while she was on the change table. She told you to stop what you were doing. You were licking the inside of her vagina and touching her breasts under her top. This incident gives rise to Charge 2 of incest and Charge 3 of committing an indecent act with a child under 16.
8On an occasion between 1 January 2007 and 16 December 2007, you were looking after the two children. You made the children take off their clothes and told Jonathon to have sex with Sophia. You made Jonathon penetrate Sophia's vagina with his penis. You were pushing Jonathon down. The children tried to get off the bed but you started choking Sophia. She hit her forehead and fell on the floor. You picked her up and threw her back on the bed. Jonathon penetrated Sophia again with his penis in her vagina as directed by you. After a few minutes Jonathon was allowed to leave the room and he went to his bedroom. This is the subject matter of Charge 4 of rape.
9After that you told Sophia to suck your penis and she did so for about two minutes. This is the subject matter of Charge 5 of incest.
10In 2008 and 2009 you were living with the children's mother and the children in country Victoria. You came into Sophia's room and told her to lie down and pushed her down on the bed. You then penetrated her vagina with your penis. She was saying "Please don't" and screaming. You covered her mouth with your hand. You stopped and told her to be quiet and called her an idiot. That incident gives rise to Charge 6 of incest.
11After that, and on the same occasion, you told Sophia to put your penis into her mouth. You put your penis in and out for about two minutes and then stopped, pushing her away, and putting your pants on. This is the subject matter of Charge 7 of incest.
12On another occasion while you were living at that house, you again made Sophia perform oral sex on you while she was kneeling on the floor. This occurred in the lounge room. This is the subject matter of Charge 8 of incest.
13On a further occasion at the same home Jonathon was at home with you while his mother was at work. Jonathon came into the room in which you were in bed. You were lying naked on the bed. You told Jonathon to suck your penis. He put his mouth on you penis and moved his head up and down as he was instructed by you. This continued for about 15 minutes. Jonathon said that he did this because he was fearful and did not want to get yelled out. He was also threatened that he would be grounded and not to get to see his friends if he told anyone. That is the subject matter of Charge 9 of incest.
14About a week later you were again looking after Jonathon. He came into your bedroom. You told him to bend over the bed and take his pants and jocks off, which he did. You took off your shorts and underwear. You then penetrated his anus with your penis, moving backwards and forwards. Jonathon was trying to get away but you grabbed him by the legs. You then removed your penis and said you wanted to sleep. This is the subject matter of Charge 10 of incest.
15On an occasion between April and August 2009 you were looking after Sophia while her mother was at work. You came into her room and told her to take her clothes off. You were yelling at her. She tried to get away from you. She was on her bed naked. You took off your clothes and put them on the floor. You got on the bed with her and told her to touch your penis and suck your penis. She was told to lick your penis and move your penis inside her mouth, which she did. You were telling her to go faster, you ejaculated on her hand and mouth and she swallowed the ejaculate. That is the subject of Charge 19 of incest.
16Soon after this incident, you pushed Sophia onto her bed face down, and put your penis into her anus. Sophia said she felt like she had a fat stick coming into her anus and that you were really heavy. She said that you continued "humping" her for about five minutes. You told Sophia you were going to get a video camera and record her performing sexual acts. This incident gives rise to Charge 20 of incest.
17The relationship between you and the children's mother broke down and you and she separated but you continued to play a role in the care of the children. In 2010 you were again caring for Sophia when you made her take her pants off. She tried to get away. You punched her and pulled her hair. Jonathon was brought into the room. He was made to take off his clothes. You put one finger of your right hand into Sophia's vagina. You told her you would kill her if she told her mother what had occurred. This incident gives rise to Charge 21 of rape in respect of Sophia and Charge 22 of indecent act with or in the presence of a child under 16 in respect of Jonathon.
18In July 2010 Sophia was staying at your house with her brother and her friend Angelina. Sophia was in the laundry and you told her to take her pants off. She refused. You then removed her pants and sat her down on the floor and opened her legs. You looked at her vagina and said that it was getting big. This is the subject matter of Charge 23, indecent act with a child under 16.
19Again, in July 2010, Sophia and Angelina were staying with you. You were in the kitchen, you were checking the children's hair for lice. Angelina was sitting on a kitchen chair and you were sitting behind her. You touched her on the vagina on the outside of her pyjamas. She said this happened for about two or three minutes. That is the subject matter of Charge 24, indecent act with a child under 16.
20The following day Angelina was in the kitchen making a bottle for your baby son. You put your hands down the front of her T-shirt touching her breasts. She said that you said that you "Could fuck me right on the kitchen floor". That is the subject matter of Charge 25, indecent act with a child under 16.
21Victim impact statements were tendered from your former partner, Exhibit A, Sophia, Exhibit B, and Jonathon's current carer, Exhibit C. Your ex-partner in her victim impact statement describes the emotional trauma your offending, and the revelation of your offending, has caused for her and her children. It is particularly sad to read of the difficulties she has had in her relationship with her son, who no longer lives with her, and is very angry with her that she did not protect him. She says that she is unable to work as she had in the past, and that she is now extremely mistrusting of other people in respect of her children.
22In her victim impact statement, Sophia describes her difficulties in trusting men now. She said she is concerned that they will do the same things to her as you did. She describes the difficulties in her relationship with her mother because she thought she could not trust her. She also blamed her mother. The relationship between her and her mother seems to have been improving more recently.
23Sophia says that she has also had a very bad relationship with her older brother as a result of your offending. She describes the self-harm feelings that she has had and her feelings of blaming herself for the abuse and not speaking up earlier. She says that she has been seeing a counsellor but still gets flashbacks of what occurred. She says that the abuse that you perpetrated on her has taken away her innocence where sexuality is concerned.
24The victim impact statement from Jonathon's carer describes a child who is clearly suffering psychologically and socially from your actions.
25Your counsel tendered on your behalf a report from Mr Jeffrey Cummins, psychologist, dated 24 February 2014, Exhibit 1, and an independent health assessment report from Dr Ibrahim Husseini, dated 28 April 2014, Exhibit 2.
26Your counsel confirmed that you do not accept the jury's verdict and maintain your position that the allegations are fictitious and were made at the behest of your ex-partner. You intend to appeal against your conviction and sentence.
27In sentencing you, I have taken into account your personal circumstances as set out in Mr Cummins report and as described by your counsel. You had a stable and unremarkable upbringing in Queensland. Your mother is now deceased but your elderly father continues to live in Queensland. You have regular, ongoing phone contact with your father. You have contact with one of your brothers and your sister has been living with your father for a period of time.
28You left school at 15 and completed a mechanics apprenticeship. You did some further training and have worked in various areas until 2005. You have been in receipt of a disability support pension since that time. You are unable to continue working because of your chronic health problems, including sleep apnoea. You have never been married. You have three adult children with whom you have no contact. You have had short-term relationships with the two mothers of these children.
29You have a history of a number of court appearances between 1979 and 1998 in Magistrates' Courts in Queensland, New South Wales and Victoria. Your offending includes dishonesty offences, driving offences and one offence involving violence. You have no prior court appearances for any sexual offence matters.
30Mr Cummins suggests that from your manner of speaking you are likely to be at least of high average intelligence. Mr Cummins did not diagnose you of having any form of mental health disorder although he says:
"He did present with an over flavour indicative of having a personality disorder, perhaps a borderline personality disorder (BPD), and/or a dependent personality disorder (DPD).".
31Mr Cummins describes you as being obsessed with your physical health concerns. Mr Cummins does say that it follows upon the jury verdict that you would be diagnosed as suffering from sexual deviance in the form of sexual attraction to children who are most probably both pre-pubescent and also post-pubescent.
32Mr Cummins considers that the issue of risk assessment is speculative at best because you maintain your innocence and could be in a state of extreme denial. Mr Cummins says:
"In my opinion the obvious risk factors in terms of sexual offending against children are his dependency on alcohol and his inability to explain why the various intimate relationships with age appropriate females have ended. Taking these factors into consideration it is my opinion, given that he has been found guilty of these charges, the risk of further offending would be assessed in the low/moderate category."
33Mr Cummins says further:
"In my opinion it is possible Mr Vandenberg is fully aware he did commit the offences of which he has now been found guilty and is simply in a state of extreme denial concerning his offending behaviour."
34Dr Husseini's report sets out your medical history and your current medications. Dr Husseini says:
"Given the presence of multiple co-morbidities he will be at a higher risk of health complication compared to general public. The natural course of his medical conditions suggests progressive deterioration in his overall level of health and well-being. Overall he has a moderate to severe level of disability."
35Dr Husseini suggested that, as you are suffering from multiple chronic medical conditions, you would require ongoing medical care. He says that your management should include proper control of your risk factors for cardiovascular disease and surveillance of potential complications for your diabetes. He says you ought to have knee replacement surgery on your left knee as the osteoarthritis in that knee has advanced more. He says you need proper pain management while waiting for knee surgery.
36Dr Husseini says you need to continue the use of your CPAP machine to reduce the risk of an hypoxic event during sleep which could be a result of your sleep apnoea. He says you need proper management of your osteoporosis and are not receiving appropriate treatment for that while on remand. He said you need treatment for your asthma but that corticosteroid treatment should be avoided, as that has already caused significant complications for you. He also suggests that you should have counselling and treatment for your depression. He also suggests that you need treatment for your testosterone deficiency and impotence.
37Your counsel said that during your time in custody, since you were remanded after the jury verdict on 1 August 2013, you have not been provided with a CPAP machine, despite your request. You have been told, in answer to inquiries, that any surgery on your knee is probably two years away. Your counsel submitted that time in custody would be more difficult for you because of those problems and your other chronic health problems, than incarceration would be for someone in good health.
38Your counsel also submitted that your time in custody would be more onerous because it is likely that you will continue to be in a protection unit due to the nature of your offending. Your counsel said that the main negative impact of this on you, apart from you being incarcerated with other sex offenders, is that visits to you have been extremely limited.
39Your counsel conceded that general deterrence and specific deterrence would be significant sentencing issues, although the risk of your re-offending would, as Mr Cummins had said, be somewhat speculative in the light of your continued assertions of innocence.
40Your counsel accepted that you will be sentenced as a serious sexual offender on remaining charges, once you were subject to a sentence of imprisonment on two charges. He accepted that community protection would loom large as a sentencing consideration and would take some degree of precedence.
41He submitted that the primacy of that sentencing consideration could be ameliorated somewhat, given Mr Cummins’ assessment of the risk of you re-offending as being low/moderate. Your counsel said that your instructions were that you would not participate in sex offender programs given your denial of this offending.
42The prosecutor also describes your distress at losing the care of your young son, who is the child of you and your ex-partner. You have been considerably involved in his care and you find the separation from him very distressing. Your counsel said that you were also very distressed at the likelihood of being in custody during the last years of your father's life.
43Your counsel submitted that I should apply the principles of totality and proportionality and avoid a sentence which would be a crushing sentence on you, given that you are now 54 years old. Your counsel said that some charges would particularly lead themselves to concurrent sentences given that they occurred close in time to each other.
44The prosecutor accepted that you some moderation in sentence ought to be accorded to take into account the hardship that will result from you being in protection. He also accepted that there could be some, albeit limited, moderation as a result of your distress in being unable to see your young son.
45The prosecutor submitted that community protection ought to be the paramount sentencing consideration, bearing in mind the provisions of s.60 of the Sentencing Act 1991. He agreed that consideration needed to be given to totality in determining the appropriate sentences and degree of cumulation or concurrency.
46Jeffrey Vandenberg, your offending has been extremely serious, particularly your offending in relation to Sophia and Jonathon. You were in a parental role in relation to these children. You were supposed to be taking care of them and protecting them. You exploited the trust that they had in you and used your stronger will and physical strength to force them into perverted sexual activities to indulge your sexual desires. Your actions were a gross breach of trust.
47The offending in Charges 4, 21 and 22 where both children were together, involved the corruption of two children, and the disruption of their relationship of brother and sister. Your behaviour on those occasions, and others, was insulting and degrading towards these young children.
48As is reflected in the victim impact statements, your actions have entirely undermined your role as the partner of the children's mother, and have caused enormous harm to their family.
49The law seeks to protect young persons from harm. These children were all in a vulnerable position. They were young. Sophia and Jonathon were in their home or were in a place that ought to have been regarded as a home and a safe place, when you abused them. Your offending in relation to Angelina also occurred in your home and in a situation where she ought to have been able to trust you.
50Your actions in relation to Sophia were persisted with over many years. Your offending, particularly in relation to Sophia and Jonathon, was abhorrent and disgusting. Your evil conduct took away these children's innocence, which they were entitled to as young children. That is reflected in Sophia's victim impact statement. It is only to be hoped that, with future support and counselling, that the children and their family members will be able to make some way in recovering from these horrible offences.
51Your offending warrants condign punishment for the purposes or just punishment, public denunciation and general deterrence. Others must be deterred from abusing their position of trust in relation to children, to commit horrendous offences such as these.
52I consider that there is very little prospect of your rehabilitation. Whether you are in deep denial or not, it is the case that you did commit these offences, and you continue to assert that you did not. You have no remorse. You do not intend to engage in any treatment or counselling in relation to your attraction to sexual activity with children. I note what Mr Cummins has said about the risk of you re-offending. In view of the depraved nature of your offending over a considerable period of time and your continual denial of the offending I consider that there is a moderate to high risk of you re-offending if you are given the opportunity to be in close contact with vulnerable young people. I consider that community protection must be given significant weight in your sentence.
53You will be sentenced as a serious sexual offender in respect of a number of charges. Accordingly, I must regard the protection of the community as the principal purpose for the sentence to be imposed on those charges. I do not intend to impose a disproportionate sentence in relation to those charges because I do not consider it necessary in order to achieve that purpose.
54Sentences on charges where you are a serious sexual offender must be served cumulatively unless I otherwise direct. I accept your counsel's proposition that a current crushing sentence is to be avoided and, as conceded by the prosecutor, the principles of totality needs to be given effect in determining the appropriate sentences and degree of cumulation or concurrency.
55I have taken into account that you have no prior history of sexual offending. That consideration results in only a very limited moderation of sentence given the length of time over which your offending occurred, the repeated nature of your offending and the seriousness of your offending.
56
The most important consideration in mitigation of sentence is your health issues. I accept the description of your health issues as described by
Dr Husseini. I accept that you will have difficulty obtaining the level of medical care which will be desirable for your medical problems. Your difficulties in obtaining care and your anxiety about being able to obtain appropriate medical care will make your time in custody more difficult for you than would otherwise be the case.
57I also accept, and take into account, that your period of imprisonment will be more difficult because you are spending your time in protection. I have taken that into account in the sentences to be imposed. I have also taken into account that your concern about your separation from your young son and elderly father will make imprisonment more difficult for you.
58I have taken those concerns, as well as your health issues, and likelihood that you be kept in protective custody, into account in setting the non-parole period.
59Mr Vandenberg I will be making an order for the taking of a forensic sample from you pursuant to s.464ZF2 of the Crimes Act 1958. I make that order because of the seriousness of the circumstances of your offending, that the order is by consent and that the granting of the order is in the public interest. The order is justified for those reasons. I am required to inform you that you must cooperate with the authorities when they come to take the sample. If you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conducted.
60
You are being sentenced in respect of a number of offences, which mean that you will be required to report under the Sex Offenders Registration Regulations 2004, for the rest of your life, and otherwise to comply with those requirements. You are now going to be given some documentation which sets out those requirements. You will be asked to sign a form to say that you have received that documentation. The form that you are signing does not say that you agree with it, but says that you have received the Sex Offenders Registration Regulations 2004 documentation. I would ask
Ms Kennedy to go with my associate and obtain Mr Vandenberg's signature, thank you.
61Jeffrey Paul Vandenberg please stand. You can remain seated if standing is difficult for you.
62MR VANDENBERG: Yes it is Your Honour (indistinct).
63HER HONOUR: All right, then remain seated then. On Charge 1, indecent assault, you are convicted and sentenced to six months imprisonment.
64On Charge 2 you are convicted and sentenced to three years and six months imprisonment.
65On Charge 3 you are convicted and sentenced to twelve months imprisonment.
66On Charge 4 you are convicted and sentenced to five years imprisonment.
67On Charge 5 you are convicted and sentenced to three years and nine months imprisonment.
68On Charge 6 you are convicted and sentenced to four years imprisonment.
69On Charge 7 you are convicted and sentenced to three years and nine months imprisonment.
70On Charge 8 you are convicted and sentenced to three years and nine months imprisonment.
71On Charge 9 you are convicted and sentenced to three years and nine months imprisonment.
72On Charge 10 you are convicted and sentenced to four years imprisonment.
73On Charge 19 you are convicted and sentenced to three years and ten months imprisonment.
74On Charge 20 you are convicted and sentenced to four years imprisonment.
75On Charge 21 you are convicted and sentenced to four years imprisonment.
76On Charge 22 you are convicted and sentenced to 18 months imprisonment.
77On Charge 23 you are convicted and sentenced to 18 months imprisonment.
78On Charge 24 you are convicted and sentenced to eight months imprisonment.
79On Charge 25 you are convicted and sentenced to 12 months imprisonment.
80The sentence on Charge 4 is the base sentence. One month of the sentence on Charge 1, six months of each of the sentences on Charges 2 and 25, 12 months of each of the sentences on Charges 6, 10, 20 and 21, nine months of each of the sentences on Charges 8 and 9, ten months of the sentence on Charge 19, three months of the sentence on Charge 23 and two months of the sentence on Charge 24, are to be served cumulatively on each other and on the sentence on Charge 4.
81Twelve months of the sentence on Charge 3, 45 months of the sentence on Charge 5, 45 months of the sentence imposed on Charge 7, 18 months of the sentence imposed on Charge 22, are to be served concurrently on each other and upon the sentence imposed on Charge 4, which is the base sentence. So, the concurrent sentences are 3, 5, 7, and 22. Sentences in respect of those charges are to be served concurrently upon each other and upon the sentence on Charge 4.
82The total effective sentence is 154 months imprisonment, which is 12 years and 10 months imprisonment. I fix nine years as the period you are required to serve before being eligible for release on parole.
83You are sentenced on Charges 3, 4, 5, 6, 7, 8, 9, 10, 19, 20, 21, 22, 23, 24 and 25, as a serious sexual offender. You have been sentenced in respect of 11 Class 1 offences for the purposes of the Sex Offenders Registration Act 2014. Those are offences in respect of Charges 2, 4, 5, 6, 7, 8, 9, 10, 19, 20 and 21. The remaining offences are Class 2 Offences. You are required to comply with the reporting and other requirements of that legislation for the period of your life. You have been provided with a document which sets out your obligations.
84I declare that you have served 299 days of this sentence by way of pre-sentence detention to be deducted administratively.
85Thank you. Counsel is there anything that you need repeated?
86MR HUTTON: No Your Honour, Your Honour has (indistinct).
87HER HONOUR: And have you been able to check the addition in the calculation?
88MR KENNEDY: Yes Your Honour, it's correct on my workings.
89MR HUTTON: Yes, it's correct Your Honour.
90HER HONOUR: Thank you very much. I do hope, as I have said, that the families will be able to make some recovery from these offences. I wish them all the best with that. Mr Vandenberg, I hope that your time in custody is less difficult than it might otherwise be, but I have taken those difficulties into account in sentencing you. The prisoner can be taken down now, thank you.
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