Director of Public Prosecutions v Warren (a pseudonym)
[2018] VCC 1572
•2 October 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLIVE WARREN (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 September 2018 | |
DATE OF SENTENCE: | 2 October 2018 | |
CASE MAY BE CITED AS: | DPP v Warren (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1572 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – SENTENCING
Catchwords: Indecent act with a child under the age of 16 – father and stepdaughter – recklessly cause injury – criminal damage – affray – persistent contravention of a family violence intervention order, multiple charges, and summary Charge 7, breach of bail conditions – immediate custodial sentence imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C Thomson | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr R Backwell | Greg Thomas Barrister and Solicitor |
HER HONOUR:
1 Clive Warren[1], you have pleaded guilty before me to one charge of indecent act with a child under 16, one charge of recklessly cause injury, one charge of criminal damage, one charge of affray, two charges of persistently contravene family violence intervention order, and one related summary charge, Charge 7, without reasonable excuse contravene a bail condition.
[1] Clive Warren is a pseudonym
2 The offending is serious and that is reflected in the maximum penalties that are prescribed by Parliament and they are as follows:
·Indecent act with a child under 16 – 10 years’ imprisonment
·Recklessly cause injury – five years’ imprisonment
·Criminal damage – 10 years’ imprisonment
·Affray – five years’ imprisonment
·Persistently contravene family violence intervention order – five years or 600 penalty units
·Contravene condition of bail without reasonable excuse – three months or 30 penalty units.
3 You are a man who comes before the court with no relevant prior convictions. You admitted a prior criminal history that relates to some driving offences only.
4 I shall now proceed to sentence you on the basis of the opening read into the transcript by the prosecutor at the plea hearing and is marked Exhibit 1.
5 You are a 33 year old man who formerly lived with your de facto partner, Ruvini Reymond[2], with whom you have four children ranging in ages from two to seven. Ruvini also has a nine year old daughter, Isobel[3], from a previous relationship. Isobel is the complainant in this matter.
[2] Ruvini Reymond is a pseudonym
[3] Isobel is a pseudonym
6 On Saturday, 6 May 2017, the family was at home. During the afternoon and into the evening, you consumed alcohol. At about 9.pm, the complainant and her siblings were on the couch in the sitting room watching television. You approached the complainant and tried to lift her off the couch. She tried to hold onto the couch but you pulled her away and carried her into her bedroom.
7 You told the complainant to take her pants off before you took off your pants. You put the complainant on her back on the bed. You lifted one of her legs into the air and licked her vagina. (Charge 1 - Indecent act with child under 16)
8 At the time Ruvini had been nursing your youngest child in the main bedroom and had come into the sitting room to check on the children. She found the three children in the sitting room on the couch and then went looking through the house for the complainant.
9 When she approached her daughter’s bedroom she observed that the door was ajar. She attempted to walk into the bedroom. You pushed her out into the hallway. She saw the complainant standing up holding her underwear crying. She asked her daughter what was wrong. Isobel explained that you had touched her “down there” and was pointing to her vaginal area.
10 Ruvini then confronted you in front of the other children. You became angry and abusive. You grabbed her and punched her in the back and arm, causing bruising and scratching on her neck and face. You also pulled her hair. (Charge 2 - Recklessly cause injury) She then pushed you causing you to fall over. She called out to the other children to run into the front room. You told Ruvini that you were very sorry for what you had done and asked for her forgiveness. She told you that she could not forgive you and could not believe what you had done.
11 You then approached the door of the bedroom in which both Ruvini and the other children were hiding. Ruvini instructed the children not to let you in. You started kicking the door, causing a hole, and then you were grabbed by Ruvini and pushed back from the door. You then went into the kitchen and started smashing plates while continuing to abuse Ruvini. (Charge 3 -Criminal damage)
12 You then left the house and picked up a large machete and began pacing up and down outside your home, holding the machete whilst shouting and screaming.
13 Michael McSweeny[4], an Uber driver, was dropping off a passenger, Ravi Turner[5], at the house directly opposite your place. As the passenger was getting out of the car, you approached him waving the machete aggressively. McSweeny and Turner heard you screaming. Turner jumped back in the car and told McSweeny to drive away before calling 000 (Charge 4 – Affray).
[4] Michael McSweeny is a pseudonym
[5] Ravi Turner is a pseudonym
14 Two other calls were made to 000 as you continued to scream whilst holding the machete in the street.
15 Multiple police attended and you were found nearby. There was a deep laceration to your right hand. Police arrested you in the driveway of an adjoining property and took you to hospital for treatment.
16 When spoken to your partner, Ruvini, disclosed to police that you had sexually assaulted her daughter.
17 Thereafter the complainant disclosed to police that you had licked her on her vagina.
18 Ruvini refused permission for the complainant to undergo a forensic medical examination at the Royal Children’s Hospital.
19 A police officer explained the procedure for an early evidence kit to Ruvini and the complainant. The complainant explained that she was still wearing the underwear that she had put back on after the offence occurred. She was requested and provided to police the clothing which was placed into an envelope. She then wiped her vagina with some gauze from the kit. The gauze was sealed and handed to police and the various items were sent to Victoria Police Forensic Services Department for analysis.
20 Later analysis showed that there was a positive reaction for saliva and a positive result for your DNA.
21 You were deemed fit to be interviewed on 7 May 2017 but refused to participate in a formal record of interview.
22 An interim Family Violence Intervention Order was served upon you whilst you were remanded in custody.
23 A full order was granted at the Werribee Magistrates’ Court on 2 June 2017. The protected persons in the order included your partner, Ruvini, your three children of the relationship, Mick[6], Philippa[7] and Roland[8], and the complainant, Isobel.
[6] Mick is a pseudonym
[7] Philippa is a pseudonym
[8] Roland is a pseudonym
24 The conditions of the order are set out in paragraph 22 of the prosecution opening. One of the conditions was that you were not to go to or remain within 200 metres of the family home, or any other place where a protected person lives, works or attends school or childcare. Another condition was that you were not to contact or communicate with a protected person by any means.
25 Summary Charge 7 - Persistent breach of the intervention order and breach of bail.
26 On 24 August 2017, a child protection officer spoke to the complainant and her siblings at school. The officer was informed that you had been living at the home address contrary to the order. The children had been told not to open the front door when police or people from child protection attended, as they would be taken away from their mother and you.
27 On 24 August 2017, at approximately 4 pm, when police attended the address, they located you hiding in a cupboard in a rear bedroom. The complainant was also present at the address. It was confirmed that you had been living at the address since 7 August (Charge 5 - breach of intervention order).
28 When arrested on 24 August for breach of bail and contravene family violence intervention order, you provided your address as the family home, but otherwise made a “no comment” record of interview.
29 You were taken back into custody and have been remanded in custody since that date.
30 Charge 6, persistent breach of intervention order, relates to you being in telephone contact with Ruvini from prison.
31 Police ascertained that you were making calls from prison. You made at least 49 calls over a period of 28 days, being the charged period.
32 In relation to the offending no victim impact statements were filed.
33 In the opening it is asserted that you are reconciled with Ruvini; however, at the plea hearing, the court was informed that you have had no contact with Ruvini since 29 January 2018.
34 Mr Warren, your offending is serious. The charge of indecent assault on a child under the age of 16 represents a broad spectrum of conduct. The offending, involving taking your stepdaughter into her bedroom and getting her to remove her underwear and licking your stepdaughter’s vagina in the circumstances as described, represents a serious example of this serious offending.
35 I consider that it is at the upper end of the range of seriousness for this offence. The conduct on this occasion fell just short of penetration. Your stepdaughter was obviously visibly upset when she was telling her mother what had happened. It is a serious breach of trust imposed upon you as a step parent and the consequences that flow are unknown, but what we do know about children who are abused is that often for many years they carry the scars of such offending and it impacts upon their psychological wellbeing.
36 You are unable to provide any motivation for your offending.
37 Your counsel, Mr Backwell, confirmed that you had drunk heavily that day and that it was not your usual course to drink so heavily. You state that you have no actual recollection of these events which I find implausible and not consistent with your conduct after being confronted by your partner, Ruvini. Your reaction on being exposed by your partner, that is, your anger and the physical abuse that occurred thereafter of Ruvini, was totally inappropriate.
38 The court in sentencing you, must formally denounce your conduct. I must impose a sentence that is just in all the circumstances, and one which emphasises general and specific deterrence.
39 Mr Backwell on your behalf made submissions in relation to matters in mitigation which I accept.
40 It is accepted that you entered a plea of guilty at the earliest stage. A filing hearing took place in relation to most of the matters on 25 August 2017. Pleas were entered on the morning of the committal hearing that was listed on 8 May 2018 before cross-examination of any witnesses.
41 By your plea of guilty you have spared the witnesses, especially the complainant and your partner, Ruvini, the inconvenience and further trauma of having to come to court and give evidence on your trial. There is real utility in your plea. You have facilitated justice, and a sentencing discount applies accordingly.
42 Your plea of guilty does represent an acceptance of responsibility on your behalf and an acknowledgment that what you did to your stepdaughter was wrong. I accept that the plea is an indication of some remorse.
43 By way of background, you were born in New Zealand. Your mother is Samoan and your father is part-Samoan, part-Chinese. Your parents separated when you were three. You lived in Samoa with your mother and an older sister thereafter. You then moved back to New Zealand aged 17 and lived with your father until you were aged 21.
44 You met Ruvini in 2001 and came to Australia in 2010. There are four children born of that relationship.
45 You completed your secondary education in Samoa. You have a good work history, working as a farm labourer, a skilled labourer in factories, and as a delivery driver. Unfortunately at the time of your offending you had had your hours cut as a delivery driver, and you were experiencing some financial stress, and as a consequence you were drinking more heavily than you would have otherwise.
46 I have had regard to the report of Ms Gina Cidoni, consultant psychologist. She assessed you on 24 June 2017.
47 Ms Cidoni considers that you have borderline cognitive functioning at 71, where 97 per cent of your age-related peers would do better. Her opinion is you have a considerably lowered capacity to think about intended actions, to consider consequences, and to exercise restraint.
48 Notwithstanding her expressed opinion, I consider that you did fully understood that what you to your stepdaughter on this occasion, was totally inappropriate behaviour.
49 There is no apparent history of any trauma or mental health history, or any substance-abuse issues.
50 Ms Cidoni postulates that your cognitive impairment places you at risk of emotional and behavioural deterioration in the current prison environment.
51 There is, however, no evidence before the court that you have suffered in any practical sense following your incarceration.
52 Since you have been in jail you have used your time productively. You have been able to complete an “Alcohol and Me” program, and have also completed Occupational Health and Safety and Food-Handling courses.
53 You have undertaken some positions of responsibility, working as a billet and in the bakery.
54 You have had very limited visitor contact in gaol. An aunt has visited you on two occasions. Because of the Family Violence Intervention Orders, you have had no visits with your partner Ruvini. The relationship with your partner was described as a normal one, with hardly any arguments or jealousy issues, and previously you enjoyed a good family life which makes this offending all the more perplexing.
55 The circumstances of the criminal damage and the affray charges are also somewhat perplexing and bizarre. It was inappropriate behaviour on your behalf.
56 In terms of Charge 6 – persistent contravention of the Family Violence Intervention Order, the calls that you made from the gaol were in technical breach of the orders that had been served upon you. It is accepted that there was nothing threatening in those calls, and that in those calls you expressed your love to your partner and her children. You now acknowledge that it was in breach of the court orders.
57 You are a New Zealand citizen by birth, and you are aware that, in the event of a term of imprisonment exceeding 12 months being imposed, you face the real risk of deportation. Therefore you will have to undergo sentence knowing that the life you intended to make here in Australia may no longer be possible and I have taken that loss of opportunity into account.
58 Ruvini has made application in the family division of the Children’s Court seeking permission to travel back to New Zealand with the children on a permanent basis. You propose to consent to the orders being made to enable that to occur.
59 Your father and sister still reside in New Zealand. You remain unsure as to whether or not they are aware of your present predicament.
60 Mr Backwell acknowledged that the gravity of the offending is serious, especially the charge relating to your stepdaughter. He agreed that an immediate custodial sentence was warranted.
61 Mr Thomson, on behalf of the prosecution, submitted that the appropriate disposition was an immediate custodial sentence, having regard to the number and seriousness of the offences. In all the circumstances in order to reflect just punishment, condemnation of your behaviour and to provide for the protection of the community I consider that a gaol term is warranted.
62 I will now announce the formal court orders. Before doing so I accept that you do have good rehabilitation prospects having regard to your behaviour following your remand on these matters.
63 The formal court orders are as follows:
64 Charge 1, indecent act with a child under 16 – convicted and sentenced to four years’ imprisonment.
65 Charge 2, recklessly cause injury – convicted and sentenced to six months’ imprisonment.
66 Charge 3, criminal damage – convicted and sentenced to one month’s imprisonment.
67 Charge 4, affray – convicted and sentenced to three months’ imprisonment.
68 Charge 5, persistent contravention of a family violence intervention order – convicted and sentenced to six months’ imprisonment.
69 Charge 6, persistent contravention of a family violence intervention order – convicted and sentenced to six months’ imprisonment.
70 Summary Charge 7, breach of bail conditions – convicted and sentenced to one month imprisonment.
71 I make the following orders for cumulation. Charge 1 is the base sentence. That is four years. I order that three months in respect of Charge 2, and one month of the sentences imposed for Charge 5 and 6 be cumulative upon each other and cumulative upon the sentence imposed on Charge 1. I order that the sentence imposed on Summary Charge 7, be wholly cumulative upon the sentence imposed, making a total effective sentence of four years and six months and I fix an non-parole period of three years.
72 I make the following declaration pursuant to s6AAA. But for your plea of guilty I would have imposed a term of imprisonment of six years, to serve four years.
73 I make the following declaration of pre-sentence detention – I declare that you have spent 474 days in custody, and direct that that fact be entered into the records of the court.
74 Because you have committed a Class 2 offence, namely indecent act with a child under 16, for the purposes of the Sex Offenders Registration Act 2004 you are therefore subject to mandatory registration with a reporting period of eight years. Shortly my Associate with Mr Thomas will approach you with the relevant notification under the Sex Offenders Registration Act legislation with the request that you acknowledge the notice. There are no ancillary orders sought?
75
MR DONAGHY: There was a disposal order handed up at the plea,
Your Honour.
76 HER HONOUR: Was there a disposal order?
77 MR DONAGHY: Yes, Your Honour.
78 HER HONOUR: I make the disposal order sought, thank you.
79 Mr Thomas, if you could accompany my associate?
80 MR THOMAS: Yes, Your Honour.
81 HER HONOUR: My sentencing remarks will be anonymised so as to protect the identity of the complainants and the other children in the matter. We can adjourn.
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