Director of Public Prosecutions v Watt
[2010] VCC 1348
•14 September 2010
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHAUN WATT (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 September 2010 | |
CASE MAY BE CITED AS: | DPP v Watt | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 1348 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr R. Gibson | |
| For the Accused | Mr M. Dempsey |
HER HONOUR:
1 Shaun Rowan Watt, you have pleaded guilty before me to seven charges of incest. The maximum penalty for that offence is 25 years' imprisonment.
2 You have also pleaded guilty to one charge of attempted incest, and the maximum penalty for that offence is 20 years' imprisonment.
3 You further pleaded guilty to one count of committing an indecent act with a child under 16, and the maximum penalty for that offence is ten years' imprisonment.
4 The victims of this offending were your two daughters. The charges of incest, except for one, and the charge of indecent act relate to your older daughter. One charge of incest relates to your younger daughter.
5 Your offending against your older daughter commenced when she was 12 years of age and continued over a period of approximately four years. The offence against your younger daughter had occurred earlier and your offending in fact covered a period of some six years from December 2002 to December 2008. All the offending occurred in the family home.
6 The facts of the matter were opened by the prosecution and a summary of the opening was tendered as Exhibit A on the plea, and your offending occurred in the following context:
7 You and your wife were married in 1985 in New South Wales. The union produced eight children, the oldest of whom is 25 and the youngest six. You moved to Victoria in February 2002 and you lived first at Bunyip[1], and then you moved to Longwarry[2] where you lived until 5 December 2003, where the offence against your younger daughter occurred. You then moved to Maryknoll[3]. The marriage was going through considerable difficulties in the latter years and in April 2008 you left the family in Maryknoll to go to Newcastle[4] to stay with your sister.
[1] Bunyip is substituted for another rural location in Victoria
[2] Longwarry is substituted for another rural location in Victoria
[3] Maryknoll is substituted for another rural location in Victoria
[4] Newcastle is substituted for another city location outside of Victoria
8 You returned to Maryknoll in July 2008 and remained at the family home until September 2008 when you again returned to Newcastle. In November 2008 two of your sons were involved in a motor vehicle accident and you returned to the family home between 19 and 26 November 2008, and then on 2 December 2009 you again returned to the family home with the intention of remaining and attempting to repair your marriage.
9 When you returned to the home on the morning of 2 December 2009, you went into the bedroom of your oldest daughter, the complainant in relation to Charges 1 to 6 in this matter, and said "Good morning." She pulled the blankets up around her and you said to her, "You're just being a 16 year old girl." Your daughter did not reply. She waited until you and your wife left the house. She then left the home and did not return.
10 At 9 pm on that day she rang Triple 0 and said she did not wish to return home. Police collected her and she disclosed to them that she had been sexually assaulted by you two years before and it had never been reported to the police. Your daughter then made two videotaped statements to police; one on 4 December 2009 and a further one on 2 January 2010, and disclosed that you had sexually assaulted her on five separate occasions by inserting your penis into her vagina.
11 She also stated in those interviews that you had inserted your tongue into her vagina on six or seven separate occasions, and you had also inserted your fingers into her vagina. These assaults occurred between 1 January 2005 and 1 January 2008 at the family home in Maryknoll, while the offence in relation to your younger daughter occurred at the family home in Longwarry between 1 December 2002 and 5 December 2003 and involved you inserting your finger into her vagina.
12 The first occasion of sexual assault on your older daughter, the subject of Charge 1, occurred when you went into her bedroom where she was asleep. You woke her up, cuddled her, touched her face and chest and her legs. You threatened her that she must not tell anyone. You then attempted to insert your penis into her vagina. The complainant has indicated that she was scared and in pain and her movements prevented you from inserting your penis into her. She suffered ongoing pain and inflammation and developed blisters around her vagina which she treated with Savlon cream.
13 On another occasion, which is the subject of Charge 2 on the indictment, you were sleeping in the lounge room. You asked your daughter to come into the lounge room to speak to you. You laid her on her mattress, pulled her pants down and inserted your penis into her vagina. The complainant stated in her victim impact statement that caused her pain as she was still suffering the effects of your earlier attempt.
14 On another occasion your daughter was in the bathroom undressing for her shower. She had only her underpants on when you walked into the bathroom. You commented on appearance, made her bend over the hand basin and penetrated her vagina with your penis from behind. Your daughter stated in her statement that she was in a state of shock and did not know what to do. She stayed in the shower for a very long time just to keep a distance between you and herself, and then she got out and went up to her room.
15 On another occasion, which was the day of her confirmation in the Catholic church on 25 April 2005, and again in your family home, you were in the lounge room alone at the home with her and she called her mother to ask permission to watch a movie. Her mother refused that permission. She had earlier been confirmed, the other children were at a friend's house in Nar Nar Goon[5] and your wife and one of your sons were in New South Wales. You both undressed, she had to take off her white confirmation dress, and you then had intercourse with your daughter. She stated that she did so because she was scared of you.
[5] Nar Nar Goon is substituted for another rural location in Victoria
16 In relation to Charge 5 on the indictment, your daughter states that on three separate occasions during which you had sexual intercourse you put your mouth on the nipples of her breast and sucked them. In relation to Charge 6 on the indictment, you inserted your tongue into your daughter's vagina on six or seven different occasions between 1 January 2005 and 1 January 2007, and that is a representative charge indicating it occurred not only on the one isolated occasion.
17 In relation to Charge 7, you inserted three fingers into your daughter's vagina which caused her a lot of pain and she described how you put saliva on your fingers prior to inserting them. In relation to Charge 8, the last occasion on which you had sexual intercourse with your older daughter, occurred during that period when you returned to the family home following your sons being involved in a motor vehicle accident, which I referred to earlier, sometime between 20 and 26 November 2008. Your daughter was in her room asleep, the younger children were downstairs watching a movie. You helped her remove her clothes, removed your own and then inserted your penis into her vagina.
18 The last charge, Charge 9 on the indictment, relates to your younger daughter. This offence occurred while you were living in Longwarry, as I indicated, between December 2002 and December 2003. You entered her bedroom to give her a goodnight hug. You put your hand up her nightie, told her to open her legs, touched her vagina and you then inserted a finger into her vagina, in her words, "just a little bit."
19 A medical examination of your older daughter revealed a complete transection of her hymen and two partial transections which, in the opinion of the examining doctor, Dr Marianne Lobo, was most likely from penile/vaginal penetration.
20 You participated in a record of interview on 4 December 2009 and admitted having sexual intercourse with your older daughter on at least five occasions, indicating that your behaviour commenced when your daughter forced herself onto you, and when you refused, she told you she would go to the police. You persisted during your record of interview to place the blame on your daughter. You indicated that you had no choice but to comply with your daughter's wishes. I reject your version of how the offending occurred.
21 This is an horrific betrayal of trust occurring, in relation to your older daughter, on a child between the ages of 12 to 16. She was continually and repeatedly violated in the one place she should have been able to feel safe. She was, from her VATE statement, relatively unsophisticated, however from the age of 12 she was used by you for your sexual gratification to the extent that she gave up resistance and found her only defence in the end was to leave her home and her family. It is hoped that she is able now to make a new life for herself.
22 In relation to your younger daughter, although there is only one act of sexual penetration, on my calculation that would have occurred when she was about seven years old. Again, a shocking breach of trust for a very small child. Fortunately she suffered only one incident, but her life remains seriously damaged by your actions. Your daughters were completely defenceless and your behaviour inexcusable.
23 Tendered as Exhibit C on the plea is a victim impact statement declared by your older daughter which describes hospital admissions for urinary retention, which she was advised was as a result of sexual assaults she had suffered. She reports difficulty in sleeping due to the fact that she was awoken during the night and assaulted by you, so her sleep was so often disrupted. She now suffers insomnia, worrying about her future and her relationships with her mother and her siblings which have been altered since her disclosure.
24 She also referred to the physical pain which she experienced both during your assaults and after. As she left home on the morning she made the disclosure, she has lived in financial uncertainty ever since. She is now living a completely altered life having left friends, school, family, and her church community. She felt alienated at home from her family and that alienation has continued, and she reports emotional trauma which involves fear of you and fear after each assault of being assaulted again.
25 She states that she suffers anxiety and worry about her future, sadness, difficulty in concentrating and nightmares. It is clear from the simply worded listing of facts and feelings that your daughter will suffer the consequences of your behaviour for a very long time to come. As I understand it, she is now 17 and faces her future alone without family support.
26 Tendered as Exhibit D is the victim impact statement declared by your younger daughter which is far more dramatic in its condemnation of your behaviour. Her anger is such that she refuses to call you by name and is clearly extremely distressed, not only at what happened to her but at what has happened to her older sister and now the effects that her revelations have had on the entire family. At 15 years of age she is facing conflicting emotions, including concern about how your youngest children had wanted you to come home. She misses her older sister, which makes her really sad, and it has clearly changed your family forever and has changed how your younger daughter thinks about other people.
27 Tendered as Exhibit B is a victim impact statement declared by your wife who feels that you betrayed the entire family. She expresses her shock at being told what you had done to the children. She has had to cope with the destruction of her family and is unable to bring your older daughter home because she could not cope being in the house where the assaults perpetrated by you took place. Your wife states that all of the family bear the scars in some way and will bear them all their lives. It is clear from these documents that your family has been shattered by the revelations of your behaviour.
28 I now turn to your personal background.
29 You are now aged 46. You were the third child in your family and the only boy. You have maintained regular contact with your mother and sisters. You married quite young, and as indicated previously you and your wife have eight children. You grew up in country New South Wales and developed learning disabilities, in part following an accident in which you were hit on the head, which resulted in you remaining in a coma for some weeks. You struggled to acquire literary skills but you do not recall any difficulties or social or behavioural problems.
30 Although you looked up to your father who taught you your early craft as a shearer and assisted you with your school work, you report that he had a drinking problem and you were frequently hit by him either with an open hand or a stock whip. A report by Carla Lechner, clinical forensic psychologist, was tendered as Exhibit 3 on the plea. Your history is set out adequately and in some detail in that report. You left school during Year 10 and you left home at the age of 18 years.
31 You spent the next 25 years as a shearer, travelling to follow your work all over Australia. This resulted, as your children increased in number, in you being away from your wife and that ever increasing family for a great deal of the year. You suffered an injury some ten years ago which put an end to your shearing. You have had numerous operations on your knee but suffer chronic pain as a result of it and from those circumstances you suffer depression. You did successfully, however, find work as a truck driver but a recent diagnosis of epilepsy has forced you to surrender your heavy driving licence.
32 However, you did remain with your employer for about six years, continuing to work even following various operations on your knee. During that period your consumption of alcohol increased and you clearly developed a severe alcohol problem. In 2008, as I indicated before, you moved to work on your sister's goat farm. You last worked in September 2009 there as you had fallen ill resulting in your hospitalisation. You are currently in receipt of a disability pension and prior to your incarceration you were still undergoing treatment to adequately control your epileptic seizures.
33 Your marriage ended when you went to Newcastle in 2008. The report indicates that at the time you suffered depression in relation to your as yet un-revealed offending against your daughter. During the last year you have been living in a boarding house in Melbourne and have undertaken counselling. You are socially isolated, your main social contact occurring through your attendance at AA meetings.
34 You admitted your offending when confronted with it although, as I indicated, in your record of interview you attempted to blame your daughter for seducing you. You have no prior criminal history, though there is a subsequent matter in respect of your breach of an Intervention Order by passing on a message to your older daughter who was extremely distressed when she received it.
35 Ms Lechner diagnoses you as having symptoms of clinical depression, you are cognitively immature with a long history of alcoholism and it would appear that you have a limited capacity to appreciate the impact of your behaviour on your daughters. She further reports that since your apprehension you have made a concerted effort towards rehabilitation and have had certain success in that you have remained sober for about eight months.
36 A report from Dr Simon Wong at the Junction Place Medical Centre, tendered as Exhibit 2 on the plea, indicates that you were treated for your depression and prescribed an anti-depressant on 8 December 2009. The letter also refers to your diagnosis by the First Seizure Clinic at the Austin Hospital as suffering from epilepsy, and also refers to your knee pain. You are therefore on medication for those three conditions.
37 There is also a letter from a psychologist, Robin Silver, which indicates you have been a patient since March of this year and have attended some five sessions, which indicates your further attempts and interest in rehabilitation.
38 You were supported in court by a friend who is indeed here today, and by your sister Caitlin Watt[6] who wrote a letter which was tendered as part of the documentation in support of your plea. Her letter gives a very good insight into your learning difficulties and behavioural problems. She was 13 years old when you were born and indicates in her letter that you grew up in domestic violence with a very abusive father. The youngest child of the family, Lydia[7], is profoundly intellectually disabled and cannot speak or communicate. She also suffered epilepsy and was not stabilised for a very long time.
[6] A pseudonym
[7] A pseudonym
39 Your sister Caitlin indicates in her letter that your mother was very occupied with caring for that younger sister, as well as running a business with your father, and she indicated there was just not sufficient time or input into your special needs when you were a young child. She refers to your difficulties in trying to reconcile what was expected of you as husband and head of a family and your own capacities. She indicated that your inability to manage money or finances resulted in financial problems throughout your marriage and she writes of your lack of insight and understanding of yourself and others in your family. She does indicate her continued support for you.
40 I now turn to the submissions of counsel.
41 Your counsel made comprehensive submissions on your behalf. In relation to your background he submitted that despite your cognitive difficulties and your difficulties with alcohol, until the age of 38 there was no allegation of any criminal behaviour against you. He submitted that the reports, together with the letter of your sister, indicate not only your depression but also the fact that you made a suicide attempt some ten years ago.
42 Your psychological testing carried out by Ms Lechner, in the report as indicated earlier, states that you are "a borderline candidate for receipt of Intellectual Disability Services." I take those submissions into account. He urged on your behalf that the court should take into account your depression, your intellectual difficulties, which I have referred to, and urges that your low functioning and depression should moderate the need for general deterrence to be taken into account in sentencing you, and I take that into account to a very limited degree.
43 He said you accepted your responsibility to the extent that someone of your capacity is able and that your attempts to blame your daughter, as evident in your record of interview and your interview with Ms Lechner, have to be seen side by side with the regret and shame otherwise expressed. I find those matters very difficult to reconcile.
44 He submitted that your ongoing sobriety indicates a strong attempt at rehabilitation and your admissions and plea of guilty entitle you to a significant discount in any sentence which is eventually imposed. It was further submitted that your alcohol consumption was something that was acquired as a result of your occupation as shearer, which you used to support your large family, and that since this offending you have taken steps to address that and have spent those eight months attending Alcoholics Anonymous. That is further evidence of your willingness to rehabilitate yourself.
45 Mr Dempsey also submits that your depression following the accident which prevented you from continuing your employment was what was eventually diagnosed by Ms Lechner. He further stressed the significant discount which should be attached to the plea, which has certainly saved your daughters from undergoing trial and cross-examination, and of course you have saved the community the expense of a criminal trial.
46 Mr Gibson on behalf of the Crown agreed that your admissions and eventual pleas of guilty are certainly in your favour. He further refers to your attempts to justify your behaviour by casting the blame on your daughter in your record of interview as indicative of your attitude. In relation to your cognitive functioning Mr Gibson pointed out that your verbal skills were low but you are at a much higher level in relation to your non-verbal abilities which meant that you had been able to maintain employment and function in the community up until you were diagnosed with epilepsy.
47 He further submitted that although it is conceded that you were an alcoholic, there is no suggestion of you being inebriated at the time of any of the offending. Mr Gibson did concede that you would fall within the Verdins principles only in that the impact of custody on a person with diagnosed depression and epilepsy would be more difficult than for someone without those diagnoses. His submissions were that your depression does not directly impact on your offending in that you knew what you were doing was wrong. He referred me to recent cases which involve sentencing in cases similar to yours, including those where there are intellectual disabilities, and I take all those matters in account.
48 I now turn to the other matters that am required to take into consideration in sentencing you.
49 Firstly, specific deterrence. It would appear that what you have already gone through, being the inevitable consequences of your behaviour in that you are no longer able to have contact with your family and the fact that you have now been through a lengthy legal process, will have considerably deterred you from committing such offences in future. Specific deterrence is of lesser importance, in my view, in the sentencing exercise.
50 I must also take into account general deterrence. That is, that others must be deterred from committing such offences and that they must realise that serious consequences flow from the violation of children in their own homes by their own parents, and although to some extent that may be moderated, it is still a very important consideration in my sentencing.
51 I am further required to denounce your conduct on behalf of the community and I do so absolutely. The sexual abuse of children by their parents strikes at the very heart of the community, that is, the family unit. It will not be tolerated and in a mark of the seriousness with which this type of offending is regarded Parliament has seen fit to prescribe a penalty of 25 years maximum imprisonment for incest, which places your offending in the highest range in terms of maximum sentence. I do not say that you are at the highest range of people who commit these offences, but I do take into account that maximum sentence.
52 Further, I am required to impose just punishment in all of the circumstances, that is, taking into account the matters put in mitigation on your behalf by your counsel, as well as those put on behalf of the Crown and those I have just referred to. I also accept that you are a person of otherwise good character in that you have no prior criminal history.
53 Any sentence I impose cannot repair the wreckage that you have left behind and the damage to your wife and your children. Not only those against whom you have perpetrated these crimes but also the younger children who have suffered by being deprived of their father.
54 Obviously, as is conceded, the only sentence appropriate for this offending is a term of imprisonment. In sentencing you for multiple offences I have considered how the sentences to be imposed relate to each other, and in doing so I have applied the principles relating to concurrency, cumulation, totality and proportionality. I have determined in the circumstances of this case that there must be some degree of cumulation, firstly between the counts in relation to your older daughter and further in relation to the final count which relates to your younger daughter. That cumulation will be so that the total effective sentence imposed is just and adequately reflects the total criminality involved and, as I indicated, it involves two different complainants.
55 I also take into account the fact that Charges 5 and 6 are representative counts, which means that the offending occurred on other occasions than the one actually charge, and I sentence you on the basis that these offences were not isolated incidents.
56 I have also considered what is an appropriate minimum term in all of the circumstances. Other considerations which affect my sentence are that I am satisfied that in relation to the charges from Charge 3 onwards you are to be sentenced as a serious sexual offender. That brings into operation s.6D and 6E of the Sentencing Act. With respect to those offences for which you are sentenced as a serious sexual offender, the Act requires that I regard the protection of the community from you as a principle sentencing purpose and s.6E of the Act applies with respect to cumulation.
57 However in this case, in view of the materials available and the submissions of counsel, I consider that it is not necessary or appropriate to impose a sentence that is longer than that which is proportionate to the gravity of each of the relevant offences, and accordingly I will not do so.
58 I direct that it be noted in the records of the court that you have been declared a serious sexual offender with respect to Charge 3 to 9 on the indictment. Pursuant to the Sex Offenders Registration Act, you will be required to register and you will be given documentation in court following my sentencing which will explain that process. The relevant offences are Class 1 offences and you will be subject to that registration regime pursuant to the Act for the rest of your life.
59 I also make an order by consent for the retention of DNA evidence material pursuant to s.464ZF(B), and note that it is by consent.
60 I now ask you to stand for sentence.
61 Mr Watt, on Charge 1 you are convicted and sentenced to three and a half years' imprisonment.
62 On Charge 2 you are convicted and sentenced to four and a half years' imprisonment, as you are in relation to Charges 3, 4, 7, 8 and 9.
63 In relation to Charge 5 you are sentenced to 18 months' imprisonment.
64 In relation to Charge 6, which is the representative count of incest which will be the base sentence, you are convicted and sentenced to five years.
65 Using that as a base sentence I order that three months of Charge 1; four months of Charge 2; four months of Charge 3; four months of Charge 4; four months of Charge 7; two months of Charge 5; four months of Charge 8 and 15 months of Charge 9 be served cumulatively on the base sentence and on each other.
66 In my calculation that is a total effective sentence of eight years and four months, and I order that you serve five years before you are eligible for parole.
67 Pursuant to s.6AAA I declare that but for your plea of guilty, I would have imposed a sentence of ten years with eight years to be served before being eligible for parole.
68 If you could just take a seat. Is there anything arising out of any of that?
69 MR GIBSON: PSD, Your Honour.
70 HER HONOUR: There is? Yes, PSD.
71 MR GIBSON: Sixteen days, Your Honour.
72 HER HONOUR: Sixteen days. I declare that 16 days pre-sentence detention be declared as time served and that the records of the court reflect that.
73 MR GIBSON: If Your Honour pleases.
74 MR DEMPSEY: If Your Honour pleases.
75 HER HONOUR: I think that’s all.
76 MR GIBSON: Yes, Your Honour.
77 HER HONOUR: You can take the prisoner down, thank you.
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