Director of Public Prosecutions v West (a pseudonym)
[2024] VCC 588
•1 May 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT SHEPPARTON
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PATRICK WEST (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE CHETTLE |
WHERE HELD: | Bendigo and Shepparton |
DATE OF HEARING: | 2-6 October 2023, 9-13 October 2023, 16-20 October 2023, 27 March 2024, 24 April 2024 |
DATE OF SENTENCE: | 1 May 2024 |
CASE MAY BE CITED AS: | DPP v West (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 588 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW SENTENCE
Catchwords: Sentencing – attempted sexual penetration of a child or lineal descendant, sexual activity in the presence of a child under 16, sexual assault of a child under 16, sexual penetration of a child or lineal descendant
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited:Director of Public Prosecutions v Grabovac [1998] 1 VR 664; 92 A Crim R 258;
Sentence:Imprisonment –standard sentencing, Total effective sentence – 18 years imprisonment, non-parole period 12 years, Sex Offenders Registration – reporting for life, forfeiture order.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Nibbs | Ms J. Cavka, Office of Public Prosecutions |
For the Accused | Mr H. Lewis | Mr L. Docherty Docherty Legal |
HIS HONOUR:
1Patrick West[1], you were convicted by a jury at Bendigo on 20 October of last year on two charges of attempted incest, two charges of sexual activity in the presence of a child, one charge of sexual assault of a child under 16 and
12 charges of incest.[1] A pseudonym
2Your offending occurred between February 2021 and August 2021. In each case your victim was your biological daughter, Stella West[2], born in May 2012, so she was eight and nine years old at the time of your offending. The 17 offences for which you were convicted occurred during nine separate incidents during that period of time.
[2] A pseudonym
3You met Stella’s mother, Shelley[3], in 2005. You had three children; Charlie[4], born in November 2010 and Stella and her twin brother Oliver[5], in 2012. You and Shelley separated in October 2013. Custody and access arrangements saw the children live with you at an address in regional Victoria[6] on weekends. You also had the children for periods in each school holiday. There were times when Stella did not go to your home and others when she indicated that she did not want to go. However, from June 2021 she spent every Saturday night at your home.
[3] A pseudonym
[4] A pseudonym
[5] A pseudonym
[6] A pseudonym
4On 28 August Stella disclosed sexual abuse by you to her mother. Police became involved and Stella completed a VARE statement on 29 August and a second such statement on 1 September 2021 and a third on 26 October 2021.
5Stella described your offending. She said that the first incident occurred between 1 February and 21 August 2021 and that during that evening she was at your home and she and her brothers were watching television. She then went to her bedroom to go to sleep, then you asked her to come into your bedroom, which she did. She lay on your bed and said she tried to go to sleep before you asked her to hop on top of you, you pulled her onto you and removed her clothing. You were both naked.
6You placed your penis between her legs and attempted to insert your penis into her vagina. Your penis touched her vagina before slipping to the side. You moved Stella around while she was lying on top of you, you grabbed her body and moved her around in circles. You grabbed your penis with your hand and masturbated. You then asked Stella to grab your penis and when she said, 'What for?' or 'What?' you grabbed her hand and forced her to masturbate your penis. Those three counts form the basis of the first incident.
7The second incident occurred when you went for a nap in the afternoon in your bedroom. You asked Stella to come to your bedroom and she did. You told her to hop on top of the bed, she got onto the bed with you. You removed her clothing, and you removed your own clothing. You got on top of her and began what she described as humping her. Your penis was between her legs whilst you did so. You also touched her anus with your fingers when you were on top of her. After this, you got off her and began touching her labia with your finger, moving it around in circles, before inserting your finger into her vagina.
8The third incident occurred between February and August of 2021 Stella said you were in your bedroom, you asked her to come into that room and she got up onto your bed. You grabbed her, got her on top of you and rolled her over. You were naked and you took off her clothing. You were on your back on the bed and Stella was lying on top of you. You told her to suck your penis. You grabbed her head and pushed it down, and as you pushed her head down you grabbed your penis and inserted it into her mouth. During this incident you also masturbated your penis. The incident ended when Stella got up, got dressed and asked you if she could go and get a drink because she was thirsty, and you said that she could.
9The fourth incident occurred when Stella said, on an unknown date in the morning, she got into your bed. As soon as this happened you asked her to suck your penis, she said no and moved away. She told you that she didn’t want to do that. You got on top of her and began massaging her back, you touched her bottom before inserting your finger into her anus. Stella said that it hurt her. You grabbed the back of her head and pushed her head down and tried to put your penis into her mouth. Stella got up from the bed, put her clothes back on and left that room to watch television in the lounge room.
10In relation to incident five Stella said that on an unknown date in the morning she was in bed with you, and you had told her to hop into the bed, you pulled her clothes off and got on top of her. You then told her to suck your penis, when she refused you grabbed her head and inserted your penis into her mouth. She removed your penis from her mouth got up from the bed, dressed and left the room.
11The sixth incident occurred, again between February and August of 2021, when Stella said that on an unknown date in the evening she went to her bedroom to go to sleep. You came into her bedroom and asked her to come into your bedroom. You dragged her by the arm to your room and told her to hop on your bed. Stella then fell asleep and woke up in the morning. In the morning you got on top of her before you rolled off her and then ended up lying next to her. You told her to touch you, you grabbed her hand and made her rub your chest and stomach with it. You then inserted your finger into her anus. She said that this felt weird and hurt her. You then touched her vagina with your finger, inserting your finger into it. Again, she said this made her feel uncomfortable and it hurt her. You asked Stella whether she wanted to suck your penis, she replied that she did not. You then grabbed her head and inserted your penis into her mouth. She managed to remove your penis and rolled over in the bed.
12In the seventh incident, Stella said that on a Sunday morning she was in her bed. You walked into her bedroom and told her to come into your room. You took her to your room and told her to hop up onto your bed and you removed her clothing. You were also naked. You touched her stomach before touching her anus and her vagina. You then inserted your finger into her vagina, moving it around in circles. You hugged her and rolled over. Your insertion of your finger constitutes the charge of sexual penetration incest, Charge 13. Stella got up from the bed and got dressed and left the room. She returned to her own room and then watched her brothers play PlayStation.
13The eighth incident related to Stella walking into your bedroom after having watched a movie in the lounge room. You told her to hop on the bed and you removed her clothing. You grabbed her, rolled her over and ended up with her lying on top of you. You began 'humping' her and pushing your body against her body. You also touched her bottom. You then inserted your penis into her vagina. Stella said that this hurt her. You hugged her and asked her to suck your penis. You grabbed her head and pushed it forward and inserted your penis into her mouth. Stella removed your penis from her mouth and left the bedroom, went into the lounge room, and watched television.
14In relation to the ninth and final incident, Stella was at your home in regional Victoria on a date in August of 2021. You walked into her bedroom in the afternoon and told her to come to your room. She went to your room and hopped up on the bed. She knew, she said, what was going to happen.
15She fell asleep but woke up with you on top of her. You had removed her clothing and your own clothing. Stella described what you did next during her VARE interview. She showed a thrusting motion, and asked what you did when you were on top of her, she said you attempted to insert your penis into her vagina, but this hurt her and lasted a couple of minutes. You then touched her bottom with your fingers. She turned away. You rolled onto your side, grabbed your penis with your hand and asked Stella to suck it. She said 'No' and you grabbed her head, again pushing it down, inserting your penis in her mouth. Both of you then got out of bed and you made Stella breakfast.
16On the morning of 30 August 2021 Ms Barker[7] made a pretext phone call to you. You vehemently denied any offending. Later that day you were arrested by police and conveyed to the local police station. You participated in a record of interview and on 2 September you participated in a second record of interview. In both those interview you denied any offending against Stella.
[7] A pseudonym
17The investigating police officers seized your mobile phone. An analysis was conduct of the websites that you had searched. Some of those websites had the title 'Sleeping daughter gets humped', which is a site you visited at 3.35 am on 27 July of 2021, the second title was, 'Father enjoying his daughter tight pussy wife sleeping nearby', which was visited at 4.36 am on 8 August of 2021, and the third title was, 'Forced anal girl begging to stop', visited at 9.28 am on 14 August 2021.
18I ruled this evidence admissible as tendency evidence at your trial. You gave evidence upon your trial. You denied the incidents Stella described as having occurred. You admitted watching adult pornography but denied looking at the title of the videos you watched.
19The jury's verdicts on the 17 charges demonstrate that the jury was satisfied beyond reasonable doubt that the incidents described by Stella occurred. The jury rejected your evidence.
20You have admitted a prior criminal record: In 1986 you were fined for unlawful assault and criminal damage; in 1987 you received a suspended gaol sentence and fine for assault by kicking and unlawful assault. In 1989 you were fined for making a false report to police; in 1991 you were fined for behaving in an offensive manner in a public place; in 1993 you received a bond without conviction for cultivating and using cannabis and in 1998 you were sentenced to two months' imprisonment wholly suspended for 18 months on the charge of intentionally causing injury. Finally, in 2001 you were fined for breach of an intervention order.
21These prior appearances have no relevance to the charges I am about to sentence you on. You are not a man without legal blemish, but I give no weight to your prior offences in the sentencing exercise.
22Turning to your personal circumstances, you are now 55 years of age, being born in August 1968 in Melbourne. You attended a local Primary School[8]. You had a younger brother who is apparently five years younger than you. After attending a Technical School[9] you left school half-way through Year 10 and started a plumbing apprenticeship, but you did not complete that; apparently because the company did not have enough work for you. You then started working in a factory making car parts, before returning to the plumbing trade later in life, becoming a qualified plumber at the age of 25. You have maintained regular employment over the course of your working life.
[8] A pseudonym
[9] A pseudonym
23When you were about 21 you had a relationship with a woman called Sharon Turner[10] and you had a child, Brittany[11], when you were 23 years old. That relationship ended after four years, and you have no contact with your child.
[10] A pseudonym
[11] A pseudonym
24After your mother died in 2005 you moved from Melbourne to live in regional Victoria[12] to assist your father, who had his own cancer issues. When you were about 36 years of age you met Shelley Barker, the mother of your children and the victim in this case. You separated in October of 2013. You were 52 to 53 years of age at the time you offended, and you were working full time as a plumber in regional Victoria[13], a job you had obtained through your son's football coach. As a result of these proceedings you have lost your home, apparently a caveat being put on it as a result of legal fees.
[12] A pseudonym
[13] A pseudonym
25You suffered a serious anxiety attack at the conclusion of the trial, upon the jury's verdicts, and you required the assistance of medical staff. There is a full intervention order in place between you and all of your children and their mother, Shelley Barker, and a family violence safety notice was made on
30 August of 2021, preventing you having any contact with them.26You are suffering symptoms of anxiety and depression, obviously as a result of the jury's verdict, and have been so assessed by Mr Cummins, the psychologist who provided a report in this case. He described your risk of reoffending as moderate, although as I said during your plea, I have some issues with that report.
27The charges that you have been convicted of carry standard sentences under the Sentencing Act regime. Charges 1 and 8 have a standard sentence of ten years, Charges 2 and 7 have a standard sentence of four years, Charge 3 has a standard sentence of three years and Charges 4, 5, 7, 9, 10, 11, 12, 13, 14, 15, 16 and 17 have a standard sentence of ten years.
28A standard sentence is much like the maximum penalty for any particular offence. It is just another signpost or indication of the seriousness of the offence as regarded by Parliament. It represents a sentence that Parliament says should be imposed for a mid-level example of the offence. But it is not a starting or determinative point in figure, it is just one of the signposts that I have to take into account as part of the intuitive sentencing process.
29I have to make an assessment of the relative gravity of your offending and your culpability for it. I accept your counsel's submissions that your offending represents mid-range examples of the serious offences for which you have been convicted. Nonetheless, your offending is shocking and gross. You were trusted to care for Stella, not to use her for your perverted sexual desires.
30Totality is a difficult concept in your case. Your 17 separate crimes occurred, as I said, over nine distinct incidents, each of which should be recognised in the sentence imposed. Moderation of both sentence and cumulation of sentence still lead to the imposition of a substantial term of imprisonment.
31Justice of Appeal Ormiston, in the case of Director of Public Prosecutions v Grabovac[14], said:
'As the High Court said in Mill v The Queen, where practicable when applying accepted rules of sentencing as to totality, proportionality and the like, and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent rather than by order or orders of for accumulation of unnecessarily reduced individual sentences. Nevertheless, the rule of this kind can only be a precept or guideline to be applied as and when practicable, in particular though concurrency is to be preferred. A degree of cumulation ought to be ordered where sentences represent separate episodes or transactions who ought to be recognised though at all times avoiding the imposition of a crushing sentence.'
[14]Director of Public Prosecutions v Grabovac [1998] 1 VR 664; 92 A Crim R 258
32That represents a very substantial difficulty in your case. I have been required to impose substantial concurrency in order to avoid what would be, on my view, a crushing sentence and in order to try, as best I can, to give recognition to the totality of your offending.
33As I mentioned, the standard sentences that apply to each of your offences, Parliament has prescribed a maximum penalty of 25 years imprisonment for the offences of incest, of which you have 12 separate convictions, and 20 years for attempted sexual penetration or attempted incest.
34As I intend to impose a term of imprisonment for each of the offences for which you have been convicted, you fall to be sentenced as a serious sexual offender for Charges 3 through to 17, and I must regard protection of the community from you as the paramount sentencing consideration. In order to achieve that purpose I can impose a disproportionate sentence, though that is not suggested to be required in this case. I can satisfactorily protect the community with the sentences otherwise available to the court, but I do order that it be recorded in the records of the court that you have been sentenced as a serious sexual offender on Charges 3 through to 17.
35Under the Sex Offenders Registration Act, 2004[15] you also fall to be a registerable offender with reporting conditions, and you are to report for life.
[15]Sex Offenders Registration Act, 2004
36Can someone tell me, please, what the pre-sentence detention is in this case? Do you know, Mr Lewis?
37MR LEWIS: Your Honour, I'm just going to have to double-check that.
38HIS HONOUR: You haven't done so. Do you know, Mr Nibbs?
39MR NIBBS: Not off the top of my head, Your Honour. I hadn't turned my mind to it, I'm sorry.
40HIS HONOUR: Can you both turn your mind to it? Up until 27 April, I think it was 164 days, but I ask that you consider that. I will come back to that.
41References tendered on your plea, Exhibit 3, demonstrate that many people think highly of you. People believe your protestations of innocence, even though the jury did not. The psychological report, Exhibit 2, provided by Jeffrey Cummins, is of no assistance in the sentencing process.
42You demonstrate absolutely no remorse for your crimes and maintain your innocence. It follows that there are no mitigating factors for the court to take into account in sentencing you. Your prospects of rehabilitation are impossible to assess. Much depends on your completion of the sex offender's course whilst you are in custody. Your risk of re-offending is equally difficult to assess.
43Sentences of the court are: On Charge 1, attempted incest, you are sentenced to eight years' imprisonment. On Charge 2, sexual activity with a child, you are sentenced to three years' imprisonment. On Charge 3, sexual assault of a child, you are sentenced to three years' imprisonment. On Charge 4, incest, you are sentenced to be imprisoned for nine years. On Charge 5, incest, you are sentenced to be imprisoned for ten years. Charge 6, sexual activity with a child, you are sentenced to be imprisoned for four years. On Charge 7, incest, you are sentenced to be imprisoned for eight years. On Charge 8, attempted incest, you are sentenced to be imprisoned for seven years. On Charge 9, incest, you are sentenced to be imprisoned for nine years. And on Charge 10, incest, you are sentenced to be imprisoned for nine years. Charge 11, incest, sentenced to be imprisoned for nine years and Charge 12, incest, you are sentenced to be imprisoned for nine years. On Charge 13, another charge of incest, you are sentenced to be imprisoned for eight years. On Charge 14, incest, you are sentenced to be imprisoned for ten years. On Charge 15, incest, you are sentenced to be imprisoned for nine years. Charge 16, attempted incest, you are sentenced to be imprisoned for eight years. Finally, on Charge 17, incest, you are sentenced to be imprisoned for nine years.
44I have had regard to my assessment of the seriousness of each offence in arriving at an appropriate sentence for each offence.
45I direct that two years of the sentence imposed on Charge 1, two years of the sentence imposed on Charge 4, two years of the sentence imposed on Charge 5 and two years of the sentence imposed on Charge 9 be served cumulatively upon the sentence imposed on Charge 14, which I declare to be the base sentence. All other sentences will be served concurrently.
46That is an effective term of imprisonment of 18 years, and I order that you serve 12 years of that sentence before being eligible for parole.
47Have we got the pre-sentence detention?
48MR NIBBS: I've got it at 195 days.
49MR LEWIS: I agree with that, Your Honour.
50HIS HONOUR: I declare that 195 days of the sentence I have just imposed has already been served by way of pre-sentence detention. As I said, pursuant to the Sex Offender's Registration Act, 2004 you are subject to reporting for life, and I make the disposal order sought by the prosecution in relation to the phone. Are there any other orders required?
51MR LEWIS: No, Your Honour.
52MR NIBBS: No, Your Honour.
53HIS HONOUR: Thank you. Would you remove Mr West, please. I will adjourn until tomorrow morning at 9.30 tomorrow.
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