DPP v Grantley (a pseudonym)
[2016] VCC 1538
•13 October 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD GRANTLEY (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2016 | |
DATE OF SENTENCE: | 13 October 2016 | |
CASE MAY BE CITED AS: | DPP v Grantley (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1538 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences against a child
Catchwords: Incest – Sexual offences – Indecent act – Serious Sex Offender – sexual penetration
Legislation Cited:
Cases Cited:R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194, DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, R v AWF [2000] VSCA 172, HMcL v R (2000) 174 ALR 1,
Sentence: Imprisonment of 9 years with 7 to be served before becoming eligible for parole, Forensic order and Registrable Sex Offender.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Hassan for the plea Mr L. Crosbie for sentence | Office of Public Prosecution |
| For the Accused | Ms R. Avis | Paul Vale Criminal Law |
HER HONOUR:
1 At the outset, I advise that I am using a pseudonym for the names of the accused, the complainants and other family members in these reasons. The older complainant will be called Libby. The second complainant will be called Ella. Their next youngest sister will be called Freda, and the youngest sister will be called Tara. Their mother will be called Karen Chester and the accused will be known as Richard Grantley.
2 I remind those listening to these remarks that the law prohibits the publication of any details likely to lead to the identification of a sexual offences complainant[1]. That is the reason for the use of these pseudonyms.
[1] Section 4 Judicial Proceedings Reports Act
Richard Grantley[2], you have pleaded guilty to two charges of incest, an offence which has a maximum sentence of 25 years’ imprisonment, and to one charge of committing an indecent act with a child under 16 years, which has a maximum sentence of ten years’ imprisonment.
[2] A pseudonym
I proceed to sentence you on the basis of the Prosecution Opening[3] which was read out in court as an agreed summary. I will briefly outline the background to your offending, and the offences themselves.
[3] Exhibit A
In 2006, you met Karen Chester[4], and began a relationship. Ms Chester had three daughters when you met her. The eldest, Libby, was aged about seven when you began living with the family; the next, Ella, was aged about five, and the next, Freda, was younger than that. After a break in 2008, you resumed the relationship, and were married in 2009. In 2010, you and Ms Chester had a daughter together, Tara.
[4] A pseudonym
Reading the victim impact statement of Ms Chester, and the psychological reports tendered on your behalf, all of which I will refer to separately later in these reasons, it seems as if you and Ms Chester had completely different perceptions of your relationship. You felt you were never worthy of Ms Chester, and she felt you were controlling her. I do not suggest these differences in perception in any way contributed to the offending.
But whatever the perceptions of you and your wife, it seems that from the girls’ perspective, you were a trusted father figure during the years before you offended, first against Libby, in 2011, and then against Ella, in 2014. This gross breach of trust is of course one of the most devastating features of your offending, for the girls and for their mother.
In 2011, when Libby was in Year 7, and you were on the couch together under a doona watching TV, you began touching her leg and then her genital area. She froze and pretended to be asleep, which is a very common reaction for children suddenly finding themselves in such circumstances. You continued touching her, eventually rubbing her vagina under her clothing and groping her breast on top of her clothing. You then digitally penetrated her for a considerable time, while she continued to pretend to be asleep, until the TV program finished and the other girls, Ella and Freda, left the room. You then resumed penetrating your eldest stepdaughter, again for an extended period of time, while also squeezing her breasts. The two occasions of penetration of her vagina with your finger are the subject of the representative charge of incest - Charge 1. Libby was aged 12 to 13 years and you were aged about 38.
In 2014, Ella was sitting on your lap at the computer. You began touching her leg, and then her genital area. Ella froze, as she was in shock, again a common reaction for a young person suddenly confronted with a sexual act in such circumstances. You continued touching her, eventually putting your hand inside her underwear and digitally penetrating her. That is the subject of Charge 2 – incest. Ella was aged about 14 and you were aged about 40.
A few months after that, you and Ella were in the bedroom you shared with your wife, and you were "play wrestling" on the bed. You grabbed Ella’s top and pulled it down, exposing her breasts, and she saw you looking at her breasts in the wardrobe mirror. That is the subject of Charge 3 – indecent act.
This behaviour towards two children is outrageous. It is even more so, because you were in a parental position with these girls, who loved and trusted you until you offended against them so seriously.
I received impact statements from Libby, Ella, their mother, Ms Chester, and their younger sister, Freda. Libby, Ella and Freda did not want their statements read out aloud, and to preserve their privacy I will not refer here to what they said, but I have read them carefully. You heard Ms Chester’s statement read in court.
When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them, harm which can be long term and serious, and both physical and psychological[5], and which includes future harm[6]. In this case, the harm you caused to Libby and Ella has spread across the whole of the family. I take very much into account the impact on the girls and the whole family, including the youngest, your biological daughter, who has lost all contact with you as a result of what you did to two of her big sisters. They have all clearly suffered considerably, and will continue to do so for some time.
[5]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[6]Adamson v R [2015] VSCA 194, [56]
There are some features present in your case that characterise the offences of incest you committed as serious: “extreme invasion of [each] victim’s person; exploitation of [each] vulnerable child; violation of societal norms; long-term and severe victim impact; serious breaches of the trust reposed in [you] by [each] child and by [your wife]; and an undermining of the familial roots of society.”[7]
[7]DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, [72]
15 In order to pass a just sentence, I must assess the seriousness of your offending. What distinguishes worst case offending from mid-range offending is the nature and extent of the offending conduct, its frequency and duration, and the circumstances in which it occurred. On the one hand, you took advantage of Libby, thinking that she was asleep, and were persistent in the offence against her, repeating the behaviour when she did not "wake up"; and you did not stop yourself from offending against Ella three years later, and were brazen in your offending against her on each occasion. On the other hand, it is sadly the experience of this court that there are worse examples of this type of offence. I make the finding that yours is not in that category primarily because your offending was not frequent, being one event only for Libby, and two events three years later for Ella. However, because of the other features I just mentioned, and the fact that you offended against two of your stepdaughters, I find your overall offending is mid-range.
16 As has been pointed out by your counsel, there are however, some factors that must be taken into account in your favour. The first of these is the fact that you pleaded guilty, and did so at the earliest opportunity. I accept that this shows that you accept responsibility for your offending, and demonstrates remorse for the impact of what you did on the girls, and the whole family. Your plea of guilty has not only saved the community the time and cost of a trial, but it has saved Libby, Ella and their mother from the ordeal of giving evidence. As a result of your plea of guilty, the sentence I will impose is less than would have been imposed had you been found guilty by a jury after a trial.
17 Next, you have no relevant criminal record alleged against you. You were dealt with for dishonesty offences in the Magistrates’ Court in the early 90s. It means that you are to be sentenced as person who had not previously committed an offence of a similar nature.
18 Next, I take into account that you continue to receive strong support from your brothers and a friend who is also a previous employer. In their written references[8], they expressed their shock and disbelief that the man of the character as they knew you, could commit such crimes against your stepdaughters. Whilst obviously not condoning your crimes, their continued support is vital to your rehabilitation.
[8] Exhibit 4
Turning to your background, you are now aged 43 years. It seems you had a difficult upbringing. Your mother left you and your two older brothers with your father when you were very young, returned for brief periods, and then left again. This clearly had an impact on you, in a way that you have only realised recently through therapy. I will come to that report in a moment.
20 You were therefore raised by your father alone, and that was also problematic, as he was apparently a violent alcoholic who physically abused you, and sexually abused you on one occasion when you were about five, and you and your brothers had virtually no parental supervision. Your father then re-partnered, and you did not get on with your stepmother. Your brothers left home in their teens, when you were still quite young. Ultimately, because of violence in the home, when you were aged about 15, you were placed in protective care at Turana for two weeks until you went to live with one of your brothers. You spent the rest of your childhood, and some adult years, living with one brother or another. Both brothers continue to be close to you, and as I have said, provide support in your current situation[9]. You had no bond with your mother, who died about nine years ago, and have effectively no relationship with your father.
[9] References in Exhibit 4
Despite your difficult domestic situation, you continued your studies after age 15, through to Year 12, but in that year, you were living alone in a bungalow, and did not do as well as you had hoped. You then undertook further studies in desktop publishing and you worked in that field until you resigned shortly before your plea, anticipating that you would be going to prison. You had two excursions into running your own business, alone and in partnership, but both of these failed. During the period in which the offending occurred, you were working in a stable job and also had casual work through a former employer, who is aware of your situation and continues to support you[10].
[10] Reference in Exhibit 4
After your offending was reported to police in 2015, and an intervention order was taken out in early January 2016, you voluntarily began counselling with
Ms Vikki Prior, commencing on 23 January, and continuing for eight sessions until 23 July 2016. Ms Prior provided a report to the court[11], in which she said the primary purpose of you attending was to receive therapy for your behaviour [against your stepdaughters].
[11] Exhibit 2
Ms Prior also reported that you appeared genuinely bewildered by and disappointed in your behaviours and ashamed, as well as saddened by the impact on the family. According to her, you have accepted responsibility for your actions and were initially reluctant to consider external factors that could have led to the offending, as you wanted there to be no excuses, and she said appeared genuinely regretful.
There are no excuses for your behaviour; but it is important that you explore why you might have done these dreadful things, in order to attempt to ensure that no other children you ever have contact with are at risk. Ms Prior expressed the opinion that by the end of your treatment you reported you had insight into the factors contributing to your behaviour, but she thought you are likely to benefit from continued treatment.
You were assessed by a forensic psychologist, Mr Jeffrey Cummins, who also provided a report[12]. In his opinion, as at August 2016, you were at a relatively early stage in developing insight into what might have motivated your offending, but he accepted that you were taking responsibility for it. On testing, you were found to be depressed as a result of the situation you now find yourself in, which Ms Prior had also reported. Despite your response that you had not engaged in sexual fantasies about underage females, Mr Cummins thought that improbable.
[12] Exhibit 3
Mr Cummins found no issues with drugs or alcohol, and no psychiatric disorder. He assessed your risk of sexual reoffending using the tools available to him and was of the opinion that you are currently at a moderate to high risk. He thought it imperative that you participate in a group based sex offender program, which he thought should eventually reduce your risk towards low to moderate, and that you should also undertake treatment focussed on your dysfunctional upbringing.
I find that you have expressed remorse and empathy for your criminal behaviour against your stepdaughters, but your insight remains low. You are beginning to understand that your difficult childhood may have contributed to your feelings of inadequacy that may have led on to the offending, but it must not be forgotten that whatever led you to commit these crimes, you knew it was wrong to be sexually attracted to the girls, and wrong to act on that sexual attraction.
28 Your own childhood was dysfunctional, and that background of emotional neglect and physical violence is relevant as a potential explanation for your offending, but it provides of course no excuse. I include the fact that you yourself were sexually abused, which I take into account as a relevant background factor. However, while it may come to play a part, even an important part, in you developing insight into why you did what you did, there is no clear evidence before me to connect that single episode of you being touched on the buttocks and then the penis by your father, with the serious offences of sexually penetrating not just one, but two of your stepdaughters, three years apart. The sexual touching of you by your father has not, on the evidence before me, led to a condition or state of mind which is a proper basis for viewing your criminality as less serious or for reducing either your moral culpability, or the need for my sentence to deter other men, and to deter you, from committing such offences[13].
[13]R v AWF [2000] VSCA 172, [6]
On balance, I find your prospects of rehabilitation to be reasonable on the basis of your acceptance of responsibility, your remorse and developing empathy, your lack of psychiatric or substance abuse issues, and your willingness to undertake further treatment. Your prospects will be enhanced if you do undertake the two areas of treatment recommended by Mr Cummins, and you have taken a step in the right direction with your work with Ms Prior.
Apart from those matters personal to you to which I have referred, I must also take into account deterrence, especially general deterrence which is of the utmost importance in cases involving sexual offending against children, and even more so, when committed by parental figures. That means that by my sentence of you the court must seek to deter other men from committing sexual offences against children, especially those within their care. Further, I find that without further treatment, there is a risk of you committing more offences, and so my sentence must also seek to deter you from reoffending.
31 Before I turn to the sentence, there are three further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your counsel, you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place.
The second matter is that as a result of my sentence today, you become a registrable sex offender. You will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My Associate will now ask you to sign a document to acknowledge that you have received notice of these obligations. And Ms Avis, perhaps you might accompany my Associate to assist your client.
MS AVIS: Thank you, Your Honour.
HER HONOUR: The third matter is that you are to be sentenced as a serious sexual offender after sentences of imprisonment are imposed on Charges 1 and 2, which will happen. Although you are to be sentenced as a first-time sex offender, the factors that make your offending serious apply from the first charge, and there is no alternative to a term of imprisonment for all charges.
As a result of your status as a serious sex offender for Charge 3, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed on that charge. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offence. The prosecution do not seek that, and I do not intend to do that.
It is also necessary for the sentence I impose on Charge 3 to be wholly cumulative on the other charges unless I order otherwise, because of your status as a serious sex offender. I have decided to order some concurrency because of the factors in mitigation of sentence. In saying that, I have also had regard to the limits the serious sex offender sentencing regime places on the application of the principle of totality[14] for Charge 3.
[14]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
Despite the factors that mitigate the seriousness of your offending, these are offences which the community expects to result in stern punishment. As courts have said:
“A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate[15]."
[15] Hedigan AJA, cited in Toomey, [18]
And:
“Reflecting community views, courts have condemned in the strongest terms sexual offending against children by those responsible for their care[16].”
[16]Dalgliesh, [43]
The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, particularly committed against children, with the damage that has caused.
Further, I note that recent Court of Appeal authority states that the guidance provided by current sentencing practices for a particular offence may conflict with the guidance provided by the statutory maximum, and where that is so, the requirement to have regard to current sentencing practices does not foreclose the possibility of an increase in the level of sentences[17]. The Court of Appeal in 2009, and again in 2016, found that there is a disparity between the maximum penalties and the sentences handed down for sexual penetration offences against children[18], with a real question as to the adequacy of current sentencing.
[17]CPD, [7], citing R v AB (No 2) (2008) 18 VR 291, [68], [71]-[74]; CPD, [72]-[81]
[18]CPD,[8]-[9]; DDJ (2009) 22 VR 444, [72]; Dalgliesh,[87]
Stand up please. You are convicted and sentenced as follows:
On Charge 1 – representative charge of incest – 6 years 6 months’ imprisonment.
On Charge 2 – incest – 5 years six months’ imprisonment.
On Charge 3 – indecent act – 12 months’ imprisonment.
I make the following orders for cumulation in the usual terms rather than in the terms required by the wording of s.6E of the Sentencing Act to make them easier to understand.
The sentence on Charge 1 is the base sentence. I direct that two years of the sentence imposed on Charge 2, and six months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 1, and on each other.
That makes a total effective sentence of 9 years’ imprisonment.
I direct that you serve 7 years before becoming eligible for parole.
I declare that you have served 31 days in pre-sentence detention including today. These will be deducted administratively from your sentence. Could I just pause to ascertain that that is correct, 31?
MS AVIS: Your Honour, I thought it was 30 from 13 September, but may be 31.
HER HONOUR: Including today it would be 31.
MS AVIS: Yes, yes.
HER HONOUR: Yes, thank you. Mr Crosbie, you agree?
MR CROSBIE: Yes, Your Honour.
HER HONOUR: Thank you. I declare that in respect of Charge 3, you have been sentenced as a serious sex offender and direct that this be entered into the records of the court.
If you had not pleaded guilty, but had been found guilty after a trial, taking into account that the representative charge would become separate charges, the total sentence I would have imposed is 14 years’ imprisonment with a minimum of 12 years. Mr Crosbie, any other orders?
MR CROSBIE: No, Your Honour. Just the making - or the signing of the forensic sample order.
HER HONOUR: Yes, I think I have signed the copies that were provided to me.
MR CROSBIE: Thanks, Your Honour.
HER HONOUR: All right. Thank you. Yes, thank you. The prisoner may be removed. Thank you. - - -
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