DPP v Henderson
[2016] VCC 144
•18 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EMMANUEL BERNARD (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2015 | |
DATE OF SENTENCE: | 18 February 2016 | |
CASE MAY BE CITED AS: | DPP v Bernard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 144 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence- Plea of guilty - Incest - Indecent act with or in the presence of a child under the age of 16 – Four victims – Significant age difference - Gross breach of trust – Prisoner suffers from various medical and psychological conditions
Sentence: Convicted and sentenced to Total Effective Sentence six years and nine months’ imprisonment with a non-parole period of four years and 6 months’ imprisonment – s.6AAA Sentencing Act 1991 declared – Sex Offender Registration
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Burnside | Office of Public Prosecutions |
| For the Accused | Mr P. Smallwood | Stary Norton Halphen Criminal Lawyers |
HER HONOUR:
1 Emmanuel Bernard, you have pleaded guilty to four charges of indecent act with or in the presence of a child under the age of 16 years, and two charges of incest. The first-mentioned offence has a maximum penalty of 10 years’ imprisonment, whilst incest has a maximum penalty of 20 years’ imprisonment. The maximum penalties reflect the seriousness with which Parliament regards these offences, and is one of the matters I must have regard when sentencing you.
2 You committed offences against four complainants on various occasions over a seven-year period between January 1992 and September 2000.
3 The first complainant, Amie Leola, was born on 5 September 1986, and at the time that you offended against her, you were her stepfather.
4 The second complainant, Claretta Dee, was born on 11 June 1981, and at the time of the alleged offences, you were also her stepfather.
5 The natural mother of these two complainants is Pamila Eunice. Ms Eunice commenced a relationship with you in 1991, and you moved into the family home. As time went on, the complainant Claretta Dee regarded you as her stepfather, and was affectionate towards you.
6 By way of context only, I was told that when Claretta Dee was in Grade 6 your behaviour toward her changed and you commenced touching her breasts while she was sitting on your knee. This became a regular occurrence until Claretta Dee moved out of the family home at the age of fifteen. When the touching of her breasts commenced, you would claim this was an accident or incidental to tickling her. However, your conduct developed into grabbing or squeezing her breasts, and Claretta Dee began to resist your actions and protested against them to you as time went on.
7 By way of further context information, I was told that you regularly entered the bathroom whilst Claretta Dee was in the bath, and would look at her and try to touch her. When she was in Year 7, she took up smoking and you would exchange a puff of your cigarette or a cigarette for her sitting on your knee. You would then fondle her breasts, which was almost an everyday occurrence.
8 I make it clear that I do not sentence you on the basis of any of this uncharged conduct. It is led to place the charged conduct in context, and that is its sole purpose.
When Claretta Dee was in Year 8 and attending Yea High School, she told a school counsellor about your behaviour. When she returned from school that day, you and her mother approached her in relation to the report to the school counsellor and accused her of being a liar. This is most concerning in circumstances where you knew very well she was telling the truth and bullied her into silence with the help of her mother.
Re: Charge 1
9 I move to Charge 1. Charge 1 is a representative charge which represents two occasions of offending. I sentence you on the basis of the first occasion of this offending, which was opened as follows:
10 Sometime between 1 January 1994 and 31 December 1994, Claretta Dee was in bed sick with chickenpox. She awoke to find you standing beside her bed with the doona pulled down. You had lifted up her top. You told her that you were going to apply calamine lotion. You then walked out of the room, without having applied the ointment. On my calculation the complainant was twelve or thirteen years old when you committed this offence.
11 Charge 1 is representative of another occasion when you lifted the complainant’s top while she was in bed suffering from glandular fever. Again, she awoke to find the doona pulled down and her top had been lifted up. You told her that you had caught her “playing with herself” in her sleep. The complainant was fifteen years old at the time.
12 In October 1996, Claretta Dee told her boyfriend about your sexual conduct toward her. Her boyfriend’s mother then contacted police, and the Department of Health and Human Services relocated Claretta Dee into foster care at Shepparton. She did not return to the family home. It does not appear however that any police action was taken at this time. Therefore, rather than having the decency to leave the house yourself, the victim was made to leave, initially living in a caravan at the direction of the Department of Health and Human Services. Although Ms Burnside advised that Claretta Dee was blessed with a foster mother who was very caring and who continues to provide tremendous support, being removed from her own family must have been most difficult for her.
Re: complainant – Amie Leola
13 By way of background, I was told that Amie Leola was five years old when you moved into the family home, and has said that you began sexually abusing her soon after this, with the abuse continuing until she was thirteen years old.
14 Amie Leola, Claretta Dee’s sister, was another victim of yours. I was told that she was five years old when you moved into the family home, and by way of context only, I was told that you sexually abused her from when she was five to when she was thirteen years old. I was told that when she was five, she asked you where babies came from and you said that you would show her and placed her hand on your naked penis, moving her hand up and down. This is an uncharged act and I do not sentence you for it, but it was opened as a piece of contextual evidence and I treat it in this way.
Re: Charge 2
15 The basis for Charge 2 is that in June 1994, on an evening when Amie Leola’s mother was in hospital, having given birth to one of your children, you entered her bedroom which she shared with her brother, who was asleep on the top bunk. You got into the complainant’s bunk bed and lay on top of her. You then inserted your fingers into Amie Leola’s vagina. Amie Leola was seven years old at this time, and you were forty-six years old.
16 As part of the uncharged contextual background, I was told that about nine to twelve months after this offence, you inserted your penis into Amie Leola’s mouth and ejaculated. Again, I must not, I cannot and I do not sentence you in respect of this conduct.
17 By way of further contextual or background information, I was told that at a time after the complainant’s mother bought another property, you would regularly take the complainant to a shed on that property and insert your penis into her vagina, doing so until you ejaculated. I was told that in order to facilitate this, you would spit onto your hand and rub this on your penis. I do not sentence you for this conduct as it is not the subject of any charge.
Re: Charge 3
The basis for Charge 3 is that on one occasion when in the shed, Amie Leola recalls her underpants being pulled down, and lying on her back, with you on top of her with your pants pulled down, you inserted your penis into her vagina, sexually penetrating her. The complainant said she believes that you ejaculated. However, Ms Burnside most fairly conceded that she did not submit that you actually ejaculated, as this was not entirely clear. The complainant was aged between nine and thirteen years at this time.
Re: Charge 4
18 The basis for Charge 4 is that on another occasion after Claretta Dee had left the family home and moved into foster care, and Amie Leola was about eleven years old, Amie Leola was in her bedroom and on her bed. You entered the room and put your hand under the blanket, touching her breasts. Therefore, you committed this offence against Amie Leola at a time when Claretta Dee had left the family home and moved into foster care because of what you had done to her.
19 When Amie Leola was twelve years old, you took her to a house on the property where you were living. The house was vacant at this time. You took her into the front bedroom of the house. Amie Leola was lying face-down on the bed, and her pants had been removed. You inserted your penis into her anus. Again, this is uncharged conduct and I treat it as such for contextual purposes only.
20 By way of further contextual information only, I was told that you sexually assaulted the complainant on many occasions when you drove to the local tip or to the local dairy to collect your weekly milk supply. In the course of these trips, you took her to isolated locations and inserted your penis into her mouth or into her vagina.
21 The third complainant, Gussie Lorinda was a school friend of Claretta Dee’s and was a year above her at school. She was fifteen at the time you offended against her. The fourth complainant, Kayleigh Anise, was also a friend of your step-daughters, Claretta Dee. She was twelve when you offended against her. Her family was a good family friend of Claretta Dee’s mother and children and she would frequently spend weekends at Claretta Dee’s home.
Re: Charge 6
22 In relation to Charge 6, I was told that on an occasion when Gussie Lorinda was fifteen, you drove to Gussie Lorinda’s house, with Claretta Dee, who appeared to be affected by alcohol. Kayleigh Anise was also with you. Claretta Dee invited Gussie Lorinda to go with you and have a drink. She agreed and you drove the three complainants to some public toilets whilst you went to buy alcohol. You then drove to the shed in the property owned by your wife and you all consumed alcohol. You all played a game of strip poker and Gussie Lorinda saw you kissing Kayleigh Anise, who was naked from the waist up. By this time, your daughter, Claretta Dee had passed out due to intoxication. You and Kayleigh Anise then moved to where Gussie Lorinda was sitting and Kayleigh Anise held Gussie Lorinda down while you kissed Gussie Lorinda. You then lifted her top and kissed her exposed breasts and touched her body with your hands. This conduct gives rise to Charge 6.
23 Gussie Lorinda managed to break free but fell and hit her head. Her next memory was of waking up and sitting on your lap with you holding her around her waist. You drove Gussie Lorinda home the next morning and on the way, you said to her “Thanks for letting me suck your tits and feel you up, Love.’ She told you to ‘fuck off’. Shortly after this, Gussie Lorinda told Claretta Dee what had happened.
Re: Charge 5
24 In relation to Charge 5, I was told that Kayleigh Anise described events in the shed on this occasion as follows. She said that she was between twelve and thirteen at that time. She said that they were gathered around a camp fire before going to the shed. She said that you sat her on your lap and were kissing her whilst touching her breasts. This incident is relied on by way of context information only. Kayleigh Anise said that later that same night, whilst in the shed, you kissed her on the mouth, inserting your tongue into her mouth. This conduct is the basis for Charge 5.
25 Arrest and Interview
26 You were first interviewed by police on 10 May 2000 in respect of Amie Leola’s allegations. You denied these and said that Amie Leola behaved in a sexually overt manner. So, essentially, you blamed the victim and lied to the police about your wrongdoing. The police did not proceed with charges at this time. Your conduct on this occasion has some resonance with your conduct in 1996 when Claretta Dee complained and you branded her a liar.
27 You were again arrested and interviewed on 22 April 2013 in respect of allegations made by each of the four complainants. You made ‘no comment’ answers to the police which is your entitlement.
Victim Impact statements.28
29 I take into account the impact that your offending has had upon the victims in this matter. In saying this, as the uncharged conduct is only relied on as context information, I have factored this in as best I can, when taking into account this aspect of the case. However, insofar as the representative charge is concerned, I can take into account the impact from each of the instances of offending upon Claretta Dee. However, I only sentence you in respect of the first instance in respect of this charge, but in the knowledge that this was not an isolated incident because of a second instance relied on for the purposes of Charge 1. Claretta Dee and Amie Leola courageously read their VIS’s aloud and I commend them for this. However, I make it clear that in no way do I imply that the course taken by the other two victims lacked courage. Indeed, it did not and was perfectly understandable that they took another approach.
30 Claretta Dee said that her life had been ‘the hardest journey’ and that her childhood dreams of growing up to be someone who made a difference, as well as her family and her life had all been taken away by you. She has struggled with suicidal ideation, depression and anxiety, and has turned to alcohol abuse. Claretta Dee had been a dedicated student before you offended against her but after this, she had great difficulty with her studies, barely passing year 12. To her great credit, she has now pursued further education but she has lacked confidence which she feels has held her back to be all that she could have been. She continues to have difficulties with intimacy and is constantly in a heightened emotional state, and high stress which has repercussions for her physical wellbeing as well. She said she is unable to afford treatments to deal with severe physical pain she experiences which she attributes to the impact of your offending against her. She has had to miss days of work and study because of this pain and struggles with fear of abandonment. Her trust in others has decreased because of inadequate responses she received when she complained to various people about what you had done. This has impacted on her ability to form friendships. She has suffered from very poor self-esteem and has blamed herself for your offending. I make it perfectly clear to Claretta Dee, what you did to her was in no way her fault; and she should not blame herself for it. There is only one person responsible for your offending and of course, that is you.
31 Amie Leola said, in essence, that you robbed her of a happy childhood; that she had dreamed of becoming a vet or a veterinary nurse but that she was so traumatised and depressed by your offending that she had to leave school after the first term of Year 12. She moved out of foster care when she was 16 and struggled to maintain employment, as she battled mental illness. She also struggles with low self-esteem and is unable to go anywhere alone in the dark. She said she is obsessive about security and is constantly anxious about her childrens' safety. She said that she has had to leave everything she loved in order to escape from you. She has missed important milestones in the lives of her siblings. She said ‘You took everything from me; my dreams, my potential, my innocence.’ Amie Leola said that she is left with spending the rest of her life haunted by your offending and that she had to constantly deal with the consequences of your actions.
32 Gussie Lorinda said in her Victim Impact statement, that your offending has impacted on her trust of others, because of the fact that you abused her trust in you. She said that she has had severe depression, anger and anxiety problems and that it impacted on her behaviour at the time. She felt unable to trust any males at school and she lost Claretta Dee as a friend as she was banned from seeing her. She has had difficulty in maintaining relationships and whilst she acknowledges that her issues are not completely attributable to your offending, she said that they played a big part. She said that it has taken so many years for all of your victims to come this far without you showing remorse or admitting guilt at any stage until now, and this has had an impact upon her.
33 In her Victim Impact statement, Kayleigh Anise said that your offending against her put a strain on her to the point of developing a drinking problem when she was thirteen or fourteen years. In this regard, I factor in that Kayleigh Anise has had some other dreadful things befall her which has contributed to her situation. She had tried to move on but when she was contacted by police and learned of your other victims, her bad memories of your offending returned to her. She said she has struggled a great deal over the years, losing her child to the care of the Department of Health and Human Services for eight years from when the child was five years old, and she speaks of her trauma of not being able to turn to anyone for fear of not being believed in relation to your offending. She said that she has had nightmares as a result of your offending and is concerned that others may frown upon her for talking about what you have done. However, she said that her cries go out to those who really believe that she is speaking the truth and that her motives are pure. I wish to make it clear to Kayleigh Anise that she has done nothing which is deserving of being frowned upon, and she is believed, which is acknowledged by your plea of guilty in respect of the charge concerning her.
34 Mr Bernard, the Victim Impact Statements reveal the very real effects that your offending has had on the lives of four young girls, two of whom were your step-children.
35 You grossly breached the trust that your stepchildren, in particular, placed in you; however, you also betrayed the trust of the other victims who looked to you as the adult in charge of supervising them on the occasion in question.
36 You conduct was sleazy and utterly degenerate, and is deserving of a punishment which is just in all of the circumstances. Further, your offending must be strongly denounced and strong weight must attach to general deterrence, in a bid to deter others from behaving as you have. In sentencing you, I have borne in mind, the significant age gap between you and the victims at the times you offended against them, as well as the respective ages of the victims as at the time of the offences.
Prior convictions
37 You have no prior or subsequent convictions for sexual assault, but you have a criminal record for dishonesty matters, some firearm offences as well as cannabis possession and cultivation and in March 1978 you were fined for assault in company. Your most recent prior conviction was in 1991 for Obtaining Property by Deception, which is a good while ago now, although, not long before you commenced the offending for which I now sentence you. You received a six-week gaol term which was suspended for twelve months. Therefore, I take into account that you have a criminal history, but that it is rather dated, and that you have no convictions for sexual assault. Further, I take into account that you have not committed any further offences since the matters now before me.
38 I take into account your personal circumstances and background: You are now 68 years old and in rather poor health, as is demonstrated by the medical material tendered on your behalf. You suffer from chronic obstructive pulmonary disease, advanced osteoarthritis in your knees and hands, hearing loss, although you wear hearing aids, recurrent angina pain and polyposis coli. You have been medicated for chest pain, chronic pain and insomnia. I accept that gaol will be harder for you than for a healthier and younger man and I have made some allowance for these factors when sentencing you.
39 Your treating doctor also opined that according to dementia screening results you suffer moderate to severe depression ‘with underlying dementia as a possibility.’ In order to explore this aspect further, I allowed your representatives time to obtain an expert report, which is now to hand. Mr Martin Jackson, neuropsychologist, in a report dated 12 February 2016, said that you are not suffering from dementia, but you are suffering a good deal of stress due to your current predicament. He said you were angry and agitated when speaking of your ex-partner and the current charges. In the circumstances and on the basis of Mr Smallwood's concession this morning, I make no allowance for any impairment of mental function, but I take into account, the neuropsychological report in a general sense, when sentencing you.
40 I now turn to your background. You grew up in country Victoria and you are the youngest of four children. You do not have a close bond with any of your siblings, who are a good deal older than you.
41 You had a difficult childhood. Your father was in the army and was often away, but when he was home, he often physically disciplined you. Your relationship improved after your father retired. You enjoyed a close bond with your mother as you spent a great deal of time with her as you were growing up. Your mother died in 1988, and your father died in 1993.
42 You struggled at school academically and socially. You suffered from dyslexia which was discovered when you were in Grade Four, and you had an isolated existence. You had to repeat several grades at primary school and eventually, you left before completing Grade Six.
43 You then obtained various unskilled jobs but then worked for a company for twenty-five years where you repaired and maintained printing machinery. I was told that you have also repaired various items at home.
44 You left your job at the printing company upon meeting the mother of the first two complainants in this matter. You became involved in cattle farming but fell off a roof, damaging your vertebrae and were placed on a pension and still receive this, 20 years on. Apparently, the effects of your injury has not prevented you however, from repairing items at your house in more recent times, which I understand is something that you have enjoyed doing.
45 You have two daughters from a previous marriage which lasted four years. One of your daughters provided a character reference in support of you. Sadly, the other daughter died of a drug overdose when she was only nineteen. You maintain contact with your other daughter and her two children. I expressed some concern about you having contact with her two children, notwithstanding her assertion in her letter to the Court that she trusts you implicitly. In any event, I will that matter to one side.
46 You and the mother of the first two mentioned complainants remained in a de facto relationship for 20 years which ended in 2011. You no longer have any contact with the two children who you fathered in the course of this relationship.
47 After separating, you went to live in Heathcote and for the past three years you have shared accommodation with an 88 year old male friend. I was told that you look after this person in a number of ways, that you help maintain the property, and that you attend local markets together. I accept from this, and from the numerous character references tendered on your behalf, that you have make a number of positive contributions to the Heathcote community, and that a number of referees have described you as being kind to them. It appears that none of the referees from that community were aware of the charges before me, which I have also factored in when considering some of their comments about your character, such as one comment which I remarked upon, that you are of the ‘highest moral substance’. I also take into account the character reference of your daughter from your first marriage who speaks highly of you. Your lack of subsequent matters and the length of time since the offending before me is relevant to your prospects of rehabilitation, protection of the community and the weight that I need to give to specific deterrence.
48 I take into account your pleas of guilty and the stage that these were indicated by you. These were indicated following a committal hearing in which the complainants and other witnesses were cross examined. In fact, you entered pleas of guilty to the current indictment in the week before your trial was to commence. You are not to be punished for taking this course, as this is your right, but having done so, you are not entitled to the significant discount in sentence that you would have otherwise received. I accept and factor in, that following the committal hearing, you were not represented for a time and that once Counsel became involved, discussions were conducted, which led to the resolution of this matter on 17 September last year.
49 In all of the circumstances, I allow for a fairly substantial discount for your facilitation of justice in this matter, in that you have saved the witnesses, especially the victims, the time and trauma of giving evidence at trial. You have also saved the community the time and expense of running contested proceedings.
50 In light of the time that has elapsed since you last offended and your advanced age and ill health, I am satisfied that your prospects of rehabilitation are fairly good and that I need only place fairly minimal weight on specific deterrence and protection of the community. However, I place some weight on these factors in circumstances where I am not convinced of heartfelt remorse or appropriate insight into your offending, and where it appears that you have been able to perform various physical tasks in the community in recent times.
51 Mr Smallwood most properly conceded from the outset that a term of immediate imprisonment which involved a non-parole period was the only appropriate course. Ms Burnside for the Crown agreed.
52 Mr Bernard, having taken all relevant matters into account, and having had regard to current sentencing practice, I have arrived at a sentence which I consider reflects appropriate weight in respect of all applicable sentencing principles in your case.
53 Would you please stand up, Mr Bernard.
54 Firstly, I make the following ancillary orders:
55 Forensic Sample Order:
56 I make an order for a forensic sample to be taken from you by way of a scraping from the mouth. I make the order because it is not opposed by you, because of the seriousness of the offences and because it is in the public interest to do so. Notwithstanding your present lack of opposition to the order I warn you that if you do not co-operate with the officer who is authorised to take the sample, reasonable force may be used to ensure your compliance.
57 The second ancillary order I make is for the Sex Offenders Registration.
58 Sex Offenders Registration
By reason of your convictions for these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first report these details within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you now by my associate and I will ask your counsel to attend to have you acknowledge receipt of that notice. Thank you.
MR SMALLWOOD: Your Honour, Mr Bernard has signed that notification.
HER HONOUR: Yes, thank you very much.
59 You are to be sentenced as a serious sexual offender after the sentence which I impose in respect of Charge 2 and thereafter there is a presumption of cumulation. However, I will not impose a disproportionate sentence in order to achieve protection of the community, which is the principal purpose of the serious sexual offender provisions. The principle of totality is sufficient to address all sentencing considerations. I intend to order some cumulation from the sentences in respect of Charges 1 and 2, in order to reflect the fact that a different victim was involved insofar as Charge 1 is concerned and that a separate sexual offence was committed against Amie Leola on a discrete occasion insofar as Charge 2 is concerned.
60 I sentence you as follows:
61 Charge 1: 6 months’ imprisonment.
62 Charge 2: 4 years’ imprisonment.
63 Charge 3: 5 years’ imprisonment. This will be the base sentence.
64 Charge 4: 12 months’ imprisonment.
65 Charge 5: 12 months’ imprisonment.
66 Charge 6: 16 months’ imprisonment.
67 I direct that two months of the sentence on Charge 1, 10 months of the sentence on Charge 2, and 3 months of the sentence on each of Charges 4, 5 and 6 be served cumulatively with each other and with the base sentence, producing a total effective sentence of 6 years 9 months’ imprisonment and I direct that you serve 4 years 6 months’ imprisonment before becoming eligible for parole.
68 If not for your pleas of guilty, I would have sentenced you to a Total Effective Sentence of 8 years 4 months’ imprisonment with a non-parole period of 5 years 10 months’ imprisonment.
69 I declare that you have already served 65 days by way of pre-sentence detention which will be reckoned as already served in relation to the sentence I have just imposed. Could you take a seat for a moment, please sir.
70 Is there anything arising?
MR SMALLWOOD: No, Your Honour.
MS BURNSIDE: No, Your Honour.
HER HONOUR: All right. Mr Smallwood, are there any measures that you ask be conveyed to the custody officers?
MR SMALLWOOD: No, Your Honour. Mr Bernard has seen a medical practitioner while he has been on remand and Corrections Victoria ought to be well familiar with his physical ailments.
HER HONOUR: Yes.
MR SMALLWOOD: And in those circumstances, I do not request further information to be provided to the authorities other than perhaps Mr Jackson's report, if it is appropriate to provide that to Corrections.
HER HONOUR: Yes. Well there was some mention there, I think, of some medications not being provided at some stage in Mr Jackson's report.
MR SMALLWOOD: Yes.
HER HONOUR: So a copy of that report, you would ask if that could be provided?
MR SMALLWOOD: If that could be accommodated, yes, Your Honour.
HER HONOUR: Yes, all right. Thank you. Could you please remove the prisoner?
(Prisoner removed).
‑ ‑ ‑
1
0