Director of Public Prosecutions v Waters (a pseudonym)

[2020] VCC 292

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY WATERS (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	19 March 2020
DATE OF SENTENCE:	20 March 2020
CASE MAY BE CITED AS:	DPP v WATERS (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 292

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. MacDougall	Office of Public Prosecutions
For the Offender	Mr C Wareham	Victoria Legal Aid

HIS HONOUR:

1Gregory Michael Waters,[1] you have pleaded guilty to one charge of incest and five charges of indecent act with a child under the age of 16 years.  One of those indecent act charges is a rolled up count and I am aware of the principles involved in that.

[1] This is a pseudonym.

2You are now 62 years of age.  You pleaded guilty at the earliest reasonable opportunity and you must get the benefit of that.  I accept that there is a degree of remorse associated with this matter now and you must obviously get the utilitarian benefit of that plea of guilty.

3This is a situation where the offending was quite some time ago and the prosecution may have had difficulty getting convictions and, accordingly, that gives greater weight to your plea of guilty.

4You have no prior convictions, though you do have subsequent matters, which I will be referring to in a moment.

5The offending basically is against two children.  They were, at various times, in fact your stepchildren.  You met Hannah Myers’[2] mother in 1990 and formed a relationship.  You moved in with her and her mother in Drouin. She was 8 or 9.

[2] This is a pseudonym.

6In 1992 her mother went to hospital and during that period of time you got into bed with her.  She was panicking and did not know what to do.  You put your hand inside her pyjama pants and underwear.  You touched the outside of her vagina and then inside the lips of her vagina.  That lasted about 10 or
15 minutes and she did not know why it stopped.  She went to sleep afterwards but did not sleep in her mother's bed with you again.  That gives rise to
Charge 1 of incest.

7Whilst living in that same house you bought her an electric blanket.  She would get in trouble for leaving it on and you would come into her room at night to see if it was on or not.  On an occasion you did that you put your hand down her pants, and into her underwear, and also rubbed her breasts on the outside of her pyjama top.  She ignored it and tried to pretend it was not happening.  That is Charge 2.

8After a few years you and her mother bought a house together in Forrest Street[3]in Drouin and moved there when Hannah was in Year 6, around the age of 11.  On an occasion after moving in there she was having a bath by herself when you came home.  There was no lock on the bathroom door.  You came into the bathroom.  You then touched her vagina while she was in the bath.  You did not say anything to her while you touched her.  When it had finished she felt dirty and immediately had a shower.  That is Charge 3.

[3] This is a pseudonym

9There was a large mirror in that lounge room.  On one occasion she recalls coming into the lounge room and you were playing with your erect penis.  You did not say anything to her but looked back at her.  She said, 'Oh, Greggy’, in disgust, and you replied, 'What?'  You were wearing a blue or navy coloured dressing gown which was open, exposing your penis.  That is Charge 4.  That is a single charge, but when she was about 13 years of age her mother would regularly go out to play the pokies, leaving her at home with you.  When you were at home alone together you would frequently play with your erect penis in front of her while wearing that dressing gown.  They are uncharged acts but make it clear that none of these indecent acts occurred in isolation.

10When she was in Year 8 she and her mother had a fight and she went to live with an older sister.  She spoke to her sister about the argument and it was at that time she told her sister what you had done to her.  Soon after that you and her mother separated, and it was not until sometime later that the mother was told about what Hannah had told her sister.  She did not want to talk about it.  In the end Hannah made a statement to police in January of 2015.

11After that relationship with Hannah’s mother ceased you began a relationship with a Cherie Durret,[4] the mother of Deborah Durret,[5] in around about 1998.  Deborah lived with you and her mother throughout the relationship.  On an occasion in 2011, when she was eight or nine, she was home alone with you one day while her mother was visiting.  In the middle of the day, she was in her bedroom and you called out to her.  She went to your bedroom and found you lying naked on the bed.  You had an erect penis and were masturbating while looking at her.  You did not say anything to her.  She walked away and went back to her room.  That is part of a rolled up charge and it was obviously a relatively common occurrence.

[4] This is a pseudonym.

[5] This is a pseudonym.

12On another occasion in 2001 she was again alone with you and she was playing in the backyard, outside your bedroom window, when she saw that you were lying on the bed masturbating.  She began to walk away but you called out to her to come inside.  After five minutes or so she went inside, hoping that you were dressed by then.  You heard her come inside, called her into the bedroom, and she stood next to the door without looking and said, 'What?'  You told her to come inside and she did.  You were standing in front of a full length mirror, masturbating.  You were looking at her in the reflection of the mirror.  She did not say anything and walked away.

13In 2002 she was in the dining room of the house watching Home and Away on television.  You told her to lie on her stomach on the couch and you would massage her back.  She remembers there was some reason for it but cannot remember what it was.  She said, 'No, thank you', but you insisted.  She lay on her stomach.  You pulled her pyjama top up to her neck before massaging her bare back.  After a short time she said she had had enough and it hurt, but you told her not to be silly and kept going.  When you reached her lower back you pulled her pyjama pants and underwear down.  She froze at that point and was afraid to move.  You started to massage her bottom, then pulled her underwear and pants down further and began massaging further down, over her buttocks, between her legs.  Your hands ended up between the bottom of her buttocks, her vagina area and upper thighs, inside her lowered underwear.  She cannot remember what happened next or how she ended up leaving the couch.  That is Charge 6 of indecent act.

14On another occasion later on, when she was nine or 10, she was watching television, and again it was a situation where you were masturbating in her presence and looking over at her.  You lowered your pants in that situation enough for you to hold your penis and she could see it.  She turned away to look at the television.  After about a minute you asked her if she knew what you were doing.  She said 'no' and went to her bedroom.

15In 2014 your then partner, a Sarah Jane Smith[6] – who I will refer to again in a moment – received a phone call from Hannah Myers and matters proceeded from there.

[6] This is a pseudonym.

16On the same day as Smith has spoken to Hannah Myers, she spoke to you about the allegation that you had abused Hannah and you denied it.

17The offending is clearly very serious, and I will refer to that again in a moment.  Of course the application of general and specific deterrence, as well as denunciation and appropriate punishment.

18Firstly, because of the nature of the offending you will be placed on the Sex Offenders Register and I advise you the reporting conditions will be for life.  That will be given to your counsel and you will be provided with one in gaol, in any event.

19Because of your prior history, which I will be referring to in a moment, you are to be sentenced as a serious sex offender.  I am aware that community protection becomes a principal sentencing purpose, that sentences are to be cumulative unless otherwise ordered, and that in this situation the Crown do not seek a disproportionate sentence.

20For reasons of totality there will obviously have to be very significant concurrency in this particular matter, and I will express it in terms of cumulation when I pass the actual sentence.

21You were charged in around 2016 with these matters and prior to that, in August of 2015, you had been sentenced to four years' imprisonment with a minimum term of two years for sexual offending against another stepchild.  The woman who spoke to Hannah Myers is the mother of that child and obviously I am not a party to those allegations as such, other than they were one of maintaining an unlawful relationship with a child, two charges of rape and six charges of indecent treatment of children between a child between 16 and 12.

22As I said you were given, for those matters, a term of imprisonment of four years with a minimum term of two.  As I understand it the rapes involved you ejaculating into the child's mouth, though you apparently maintain your denials for all those sorts of things when you speak to psychologists or other people in authority.

23As I indicated to your counsel, I am not going to revisit the sentence that was imposed insofar as those matters were concerned and my understanding is that the victim there was about eight or nine as well.  That seems to me to be an extraordinarily light sentence, but be that as it may, the reason that that assumes significance in your particular situation is because of reasons of totality, and I discussed this with your counsel in detail yesterday.

24You underwent that sentence in Queensland and you did not apply for parole.  I am told from the Bar table you did not apply for parole because it would have been too difficult in terms of being extradited to Victoria and then being returned again afterwards.  The fact of the matter is that you have now been in custody for some four and a half years and had these matters all been dealt with at the same time there clearly would have been a degree of concurrency.  They could not have been dealt with at the same time because of, obviously, the jurisdictional limitations.

25Whilst the offending is of a similar nature in respect of all three matters, it is important to note that the offending against Hannah occurred back in 1992, the offending against Deborah, around about 2002, and the subsequent offending around about 2014.  The offending against Hannah went over a period of some four years.  With each of these children you commenced while they were clearly pre-pubescent.  You have been described as paedophilic.  Insofar as Hannah was concerned the abuse of her was from when she was pre-pubescent to, clearly, when she was post-pubescent.  The most important times in a girl's life were destroyed by you, Mr Waters.

26I have before me victim impact statements from Deborah, and from Hannah, and those two victim impact statements eloquently describe the consequences of such offending.  Deborah Durret says she has in fact spent time in a psychiatric ward because of all this.  She said that she has a distorted self-image, that she feels disgusted and wrong.  She has deep feelings of shame and guilt that has manifested into anxiety and depression and self-destructive behaviours like self-harm and substance abuse.  She has been getting psychological and psychiatric help for a long time.

27So far as Hannah was concerned she said that, essentially, it ruined her childhood.  She describes, as is so often the case, the almost impossibility of conducting intimate relationships.  She has a fear of working with men and she has the same sense of shame and guilt as described by Deborah, and as described by virtually all of the victims that we see in this court for this sort of offending.

28She also said that:

'My biggest regret is that I wish I could have come forward sooner and have been able to stop other events after me.  I live with that guilt every day.  It haunts me that he went on to offend after me.  It took almost 20 years to get my own head around what had actually happened and to deal with the gravity of it all.  The trauma of knowing that he went on to offend after me still burns to this day and it's something that I'll never truly get over'.

29That is the damage that this sort of offending causes and I - best, in this situation to just simply quote the words of Justice Vincent in The Queen v Toomey.  He said - and this is talking about Toomey, who was a Christian brother, as I recall:

'The situation, in this respect, can be seen to be similar to many encountered in the courts where there has been the sexual abuse of young persons.  Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years.  Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.  Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour through the sentences imposed on perpetrators.  They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children'.

30He then went on to quote Justice Hedigan.  He said:

'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate.

'The offence of incest is particularly erosive of human relations and casts doubt on the assumption that parents are natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which will include the exploitation by the stronger will of the adult of the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim, and the community, and the irreparable fundamental damage to the victim'.

31I had a lengthy discussion with your counsel yesterday about the relative seriousness of these offences.  Whilst the indecent acts clearly are not as serious as the actual charge of incest, as reflected by the maximum penalties, it is a situation where, certainly with Hannah, this went on for years.  The domination that that child was subjected to, the sexual abuse and all the consequences of it, are clearly apparent.  It is very serious offending and accordingly appropriate sentences must be imposed.  I am also well-aware of recent authority in this regard – particularly in regard to Dalgleish and the cases that have flowed from that.

32On your behalf your counsel provided a report from a forensic psychologist,
Mr Candlish.  That goes through your history, and you have reached an age now where I do not know that the history is going to make much difference to anything, but you were essentially an adopted child.  You were able to get through school reasonably well.  You denied ever having been suspended or expelled from school.  You were not sexually abused as a child.  There was some physical abuse, but not much.

33Upon leaving school you apparently were with the Australian Ballet School for three years, where you remained, and then went to the Australian Ballet Company, where you remained for six years.  You injured your back, which ended that, and not long after that you have had various work.  You have only been unemployed for a period of several weeks up until your incarceration in Queensland, as I understand it, and you worked for electricity companies, moving scaffolding and rigging, and that type of occupation.  You have been in a number of relationships and your reporting to the psychologist seems to vary considerably about how many of them, but what is apparent here is that you have been in three long-term relationships with women and you have sexually abused their pre-pubescent children.

34There is no Verdins involved here.  There is no mental illness, nothing along those lines.  Your situation is that Mr Candlish describes you as being a 'very low-risk' for being charged or convicted of another sexual offence.  I find that opinion astonishing.  It would seem to me that when one looks at the test that was applied in regard to this matter, that after you offended against Ms Durret, and already offended against Ms Myers some 10 years earlier in the way I have described, you would have come up as a very low-risk of reoffending again.  That flies totally in the face of what happened in Queensland.  I do not buy into these risk assessments.  I think the simplest bet is that you have done it before, there is a real chance you will do it again.  They have turned into an industry, as far as I am concerned, and whilst I take it into account as a matter that is put before me, I have seen too many of these cross-examined in various forms of custodial situations and they are of little assistance when judging an individual person.  They simply relate to statistics, from what I can gather.

35In any event, I do not know what the prospects of your rehabilitation are.  Because of your age I tend to think that it is unlikely this would occur again.  On the material before me it seems that they have always been in a situation where you have been in a relationship with the mother, so it is not as if it is a predatory scenario of trying to attract individual children from all over the place.  If you do not get into a relationship I do not suppose it is going to happen, but in any event that would be a matter for others in a few years' time to decide whether that is the case or not.

36You have now, as I said, been in custody for over four years, undergoing that sentence in Queensland, and I obviously have to take that into account.

37Totality is a difficult concept at times.  I accept from your counsel's submissions you will be isolated in gaol.  You have no visitors, no phone calls.  I would have thought that is a direct consequence of what you do when you are in a relationship, but you do not have any family.  That is another matter.  As I understand it your parents, or adoptive parents, are both dead.  You have a sister who you have very little contact with, and you will – as I say, I accept your counsel's submission that you will do it in isolation.  Undoubtedly, you will be taken to Ararat.  I take into account, in a general way, the fact that that is a protection prison.  A lot of judges these days do not do so.

38I have taken into account all the matters contained in Mr Candlish's report.

39When you were in gaol in Queensland you attended courses run by the gaol to reduce the risk of reoffending.  It seems pretty clear that you have engaged in those courses but were never challenged about your actual offending.  You seem to become evasive and purport not to recollect what it actually was.  Again, I have got doubts about all that.  Whether the Victoria Parole Board will release you without undergoing a sex offenders program I do not know – that is not a matter for me – but I do take that into account that they will not be releasing you on parole until they are satisfied that the risk is at least minimal, and that may involve such a course, but again, that would be speculative of me to take it any further.

40So, we have a situation of serious offending with the subsequent offending, which does not aggravate the previous offending but causes me great concern about rehabilitation, and we have two very damaged young women.  In those circumstances the sentence must reflect the seriousness of what you did but I am limited, to an extent, by the prospects of totality, and I have already been through that.

41Accordingly, the sentence is as follows.

42Charge 1, four years;

43Charge 2, nine months;

44Charge 3, 18 months;

45Charge 4, 12 months;

46Charge 5, the rolled up count, 18 months;

47Charge 6, 12 months.

48I direct that three months of the sentence imposed on Charge 2, six months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, nine months of the sentence imposed on Charge 5 and six months of the sentence imposed on Charge 6 be served cumulatively upon each other, and upon the sentence imposed on Charge 1.

49That gives a total effective sentence of six and a half years.  I direct that you serve a minimum term of four years and three months before becoming eligible for parole.  As I indicated, that will be a matter for the Parole Board in a few years' time, not me.

50I direct that 216 days be reckoned as having been served under this sentence.

51In all the circumstances I say that pursuant to s.6AAA - which is a bit unrealistic because of the totality argument that is involved here - but for your pleas of guilty to these charges I would have sentenced you to be imprisoned for a period of 10 years with a minimum term of seven.  Any other orders I have to make?

52MISS MacDOUGALL:  No, Your Honour.  Thank you, there's nothing further.

53MR CHRISTIN:  As Your Honour pleases.

54HIS HONOUR:  No?  All right.  You want to talk to him?  I'll leave the Bench.

55MR CHRISTIN:  Sorry?

56HIS HONOUR:  Do you need to talk to him for a minute or ‑ ‑ ‑ 

57MR CHRISTIN:  I'll book a video conference next week, Your Honour.

58HIS HONOUR:  All right.  Thanks.

- - -