DPP v Robards
[2020] VCC 1665
•16 October 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DONALD ROBARDS (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 October 2020 | |
DATE OF SENTENCE: | 16 October 2020 | |
CASE MAY BE CITED AS: | DPP v Robards (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1665 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Persistent sexual abuse of a child under 16 – Standard sentence offence – Victim is offender’s biological granddaughter – Victim aged between 7 and 9 – Serious breach of trust – No relevant prior criminal history – Prospects of rehabilitation assessed positively – Circumstances surrounding COVID-19 taken into account.
Legislation Cited: Crimes Act 1958 s 49J; Sentencing Act 1991 ss 5, 6AAA, 11A, 18; Sex Offenders Registration Act 2004.
Cases Cited:Fichtner v The Queen [2019] VSCA 297; DPP v Dalgleish (a pseudonym) [2016] VSCA 148; DPP v Weybury [2018] VSCA 120
Sentence: Imprisonment for a period of 6 years and 6 months with a non-parole period of 4 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Coombes | Office of Public Prosecutions |
| For the Accused | Mr P Kounnas | Docherty Legal |
HIS HONOUR:
Introduction
Donald Robards[1], you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16, contrary to s 49J of the Crimes Act 1958, which carries a maximum penalty of 25 years imprisonment.
[1] A pseudonym.
You have admitted your prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
The victim in this matter is Emily Robards[2], who was born in February 2011 and is currently nine years old. You are the victim’s paternal grandfather. The victim lives with her father who is your son, Mike Robards[3] and her mother Mia Robards[4]. The victim also has a brother who is currently 10 years of age.
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
You have had regular contact with the victim since she was born. The victim regularly visited your home at Wedderburn, where you resided alone. On or around 1 December 2018 until 7 May 2020, you engaged in persistent sexual abuse of the victim on seven occasions at your home, when she was between seven and nine years of age. It is this conduct that gives rise to Charge 1.
Occasion 1
Between 1 December 2018 and 7 May 2020, when the victim was around eight years old, she was in the kitchen at your house. You asked the victim to play a game of checkers and before playing, you told her ‘if you lose then you take your … a bit of your clothing off’. The victim said ‘I don’t wanna play, let’s just go back to normal … the normal games’, but you started the game anyway. During the game you would tickle the victim’s ‘front bit’ and if you lost you took your ‘rude part’ out of your pants and held your penis before returning it to your underwear or pants.
The victim did not remember if she took her clothes off or if you did it for her. When the victim lost the game, and her clothes were removed, you grabbed her and pinned her to the ground. You tickled the victim on her ‘front bit’ and used your fingers to do so. In the course of playing the game you and the victim ended up naked. You told the victim not to tell anyone as you would get into trouble. The victim wanted to tell someone but did not want you to get mad at her.
Occasion 2
Between 1 December and 7 May 2020 at your house, you touched the victim’s vagina using your penis. The victim stated, ‘he put his front part on mine’, and described that you placed your penis on her vagina, your skin touching her skin, and told her to ‘look’. You grabbed the victim’s hand and put it on your penis. The victim said that it felt ‘gross’.
Occasion 3
Between 1 December 2018 and 7 May 2020, the victim was alone with you inside your home, whilst her brother was outside riding a motorbike. You touched the victim’s vagina and the victim described that you touched her ‘rude part’. The victim told you that her brother was ‘coming back’ in an attempt to stop you. You kept touching the victim’s vagina for an unspecified period of time.
Occasion 4
Between 21 December 2019 and 7 May 2020, the victim was at your house visiting her father who was living there at the time. Sometime after breakfast you rubbed the victim’s vagina with your hand.
Occasion 5
Between 1 May and 7 May 2020, the victim was at your home and trying to hide from you in the top bunk bed, clothed and with blankets over her. You stood beside the bunk bed and reached in under the blanket. You put your hand down the victim’s pants, placing your hand inside her underwear. Your finger penetrated the victim’s vagina, causing her pain. The victim described that the penetration of her vagina felt ‘like, he touched my bones.’
Occasion 6
On 7 May 2020 you drove the victim to your home. About an hour after you arrived, you pushed the victim on a swing outside the house on your property. Whilst she was on the swing, you grabbed the victim’s pants and underpants and pulled them halfway down her legs. As a result, the victim fell off the swing and landed on her back. The victim stated that she ‘sort of’ hurt herself as a result of the fall. The victim stood up and pulled her underwear and pants up. A short time later, you both went inside the house.
Occasion 7
Later that evening you prepared to have a shower and were wearing underwear and a top. You grabbed the victim and put her on your bed, laying her on her back. You removed the victim’s pants and underwear and rubbed her vagina with your fingers. Your fingers penetrated the victim’s labia majora and touched her clitoris. You touched the victim’s vagina in this way for approximately five minutes. The victim kicked at you and said, ‘leave me alone’. You started to laugh and the victim responded, ‘it’s not funny’. The victim left the bed and went to the other room with the bunk beds toward the rear of the house to lay down. You went to the victim in the other room and told her that ‘Pop’s been a very naughty person lately’ and that you had been thinking about it. You told the victim that you would never do it again. The victim did not believe you and told you ‘you’ve said that before’.
Further uncharged acts of sexual misconduct by you against the victim are alleged only to the extent that they provide context to the offending. The victim stated that you placed your penis upon her vagina ‘a lot’ and would grab her hand, forcing her to touch your penis over your clothing. The victim told you that she did not want to touch you, but this happened on multiple occasions. You touched the victim on her vagina every time she attended your house. The victim stated that when the touching started you would kiss her on the lips and on the waist area when her pants were down.
Complaint and investigation
On 8 May 2020 you drove the victim home after she had stayed overnight at your house. When she returned home, the victim told her parents in the loungeroom that she did not want to go to ‘Pop’s’ anymore. When asked why, the victim responded, ‘Pop does things to me out at the block’. The victim’s mother asked her ‘like what?’ to which the victim responded, ‘he pulls my pants down.’ The victim’s mother asked if it happened when she was preparing to have a shower or getting her pyjamas on. The victim disagreed and started to cry. The victim told her parents that ‘Pop touched me down there’ and gave further details of the continued abuse. The matter was then reported to police.
On 27 May 2020 you were interviewed by police in relation to the allegations at the Wedderburn Police Station. You made admissions to specific sexual assaults committed against the victim and provided generalised comments in relation to contact offending committed against the victim over an approximate period of 12 months.
During the interview you confirmed you were the paternal grandfather of the victim and that she would visit your house often on the weekend and stay overnight. You told police that the offending started when the victim was eight years old. You stated that the first touching was by accident when you were ‘mucking around’ and you accidentally felt the victim on her ‘fanny’ and she did not flinch. You stated that the contact was initially over clothing and progressed from there. When asked how many times you had touched the victim’s vagina, you stated ‘who knows, a hundred times?’. You told investigators that you touched the victim virtually every time she visited and that you only used your fingers to touch her vagina.
You told police that the victim’s vagina ‘felt like a normal vagina’ and ‘like a 30 year old’. You stated that during the offending it ‘felt good’, and you knew it was wrong but kept doing it. Whilst you admitted to most of the allegations, you did not accept that you penetrated the victim’s vagina.
Nature and gravity of the offending
Sexual offending against children under the care of adults is very serious offending. The victims of such offending are vulnerable and reliant on adults to guide them and care for them. As such, when offending of this nature occurs it is rightly described as ‘inherently evil and depraved, violating the basic norms of civilised behaviour and striking at the value the community places on the lives and wellbeing of the young.’[5] Further, as the Court of Appeal explained in DPP v Dalgleish (a pseudonym)[6], ‘The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.’
[5]Fichtner v The Queen [2019] VSCA 297 at [67].
[6][2016] VSCA 148 at [47], referring to Clarkson v The Queen (2011) 32 VR 361 at [3].
The very serious nature of the offending in this instance is also recognised by the maximum penalty imposed by Parliament. Persistent sexual abuse of a child under 16 carries a maximum penalty of 25 years imprisonment. Further, it is a Category 1 offence demanding a term of imprisonment and it is also a standard sentence offence, the standard sentence being 10 years imprisonment.
In this instance, your offending also represents a serious breach of trust as you were the grandfather of the victim. The victim would attend your home in order to enjoy a normal relationship between granddaughter and grandfather. Instead, in the trust of that relationship, you sexually abused her on a number of occasions. On two of the occasions that are particularised on the indictment, the offending involved acts of penetration.
Ms Coombes who appeared on behalf of the Director of Public Prosecutions, submitted that your offending falls towards the ‘higher end of the midrange’ of offending of this nature. While such classifications are intended to assist the court, they have limitations. As the Court of Appeal noted in DPP v Weybury[7], classifications in terms such as 'mid-range', carry a risk that it will attract reference to current sentencing practices for offences previously categorised in a particular range, thus bringing the risk of limiting the instinctive synthesis. What is clear, as already noted, is that this offending is inherently serious by its nature, however in this instance in all the circumstances while the offending is not at the high end, in my view it is able to be described as very serious offending.
[7] [2018] VSCA 120 at [54] (Priest JA).
Victim impact statements
Victim impact statements were prepared by the victim’s mother and the victim’s brother and tendered on the plea. Ms Robards states that when she heard of the offending, she felt guilty for failing to protect her daughter from the abuse. She is now anxious and always checks on her children. Ms Robards states that she stopped working and cannot leave the house as a result of the offending. She also laments the traumatic impact the offending has had on her wider family.
The victim’s brother states that he felt angry and sad about the offending and that he worries about his mother, father and sister. He also speaks of the impact the offending had on his home life and that he misses the rest of his family that he no longer sees as a result of the offending.
I have taken the contents of the victim impact statements into account.
Personal circumstances
You are 62 years of age and you are the eldest in a sibship of five. You have a sister and three brothers all of which you maintained contact with before your arrest on these matters.
Your parents separated when you were 22 and you had continued contact with both parents until they passed away. In 1995, your father died of lung cancer at age 69. Your mother died in 2018 aged 81, also from lung cancer.
You attended local schools in Wonthaggi and left school at the end of Form 3. You worked delivering telegrams for six months and then as a plasterer for 18 months before settling into general work in shearing sheds. You have been in receipt of a pension since 2012 as a result of a back injury.
You have been married twice, once when you were in your early twenties and the second time when you were between 30 and 37. You had a daughter from the first marriage with whom you stayed in contact for some years. Tragically, in 1997, your daughter suicided at age 18 together with her mother who was then 37. Both were heroin addicts. You state that from that time, you have been on and off antidepressant medication.
You have not been in an intimate relationship since your second marriage broke down.
From your second marriage you had a son who is now aged approximately 30 and had two children, one of which is the victim in this matter. Your son has battled with an ice addiction which has been stressful for you in the time leading up to the offending, as he was constantly asking you for money. By the time of the offending, you had effectively isolated yourself from your son and the stress associated with that relationship.
You have never used illicit drugs, nor have you abused prescription medication. You have used alcohol relatively heavily for most of your adult life drinking approximately 12 to 14 cans of mid strength beer per day in recent years. Despite this amount of consumption, you do not see alcohol as a problem. I also note that your use of alcohol is not relied on in any way by the prosecution or defence in relation to the offending.
You admitted your criminal history which consists of two court appearances in 1980 for unrelated, relatively minor matters.
At the time of the offending, you were essentially living the life of a recluse. It was submitted on your behalf that you were at a stage in your life where you had suffered significant personal loss and where the relationship with your son had deteriorated. Further, the property you were living in at the time was a very basic rural property with no modern amenities and at times, had no running water.
A report was prepared by Jeffrey Cummins, clinical and forensic psychologist, and tendered on the plea. Mr Cummins assessed you and conducted some testing in relation to future risk. Based on the tool that was used, Mr Cummins states that the risk categorisation would be assessed as ‘very low risk’. However, in combination with Mr Cummins’ clinical assessment, he formed the view that the overall risk of you committing a further sexual offence against an underage female is ‘low-moderate’. Mr Cummins noted that you acknowledged to him that it was appropriate that you engage in offence specific treatment and that you expressed regret and remorse for your offending.
In Mr Cummins’ opinion, at the time of the offending you attracted the clinical diagnosis of paedophilia. Mr Cummins also noted that at interview you were forthright, acknowledging that at the time of the offending you knew that what you were doing was wrong and admitted that you felt sexually aroused.
Mr Cummins stated that in his opinion you were suffering symptoms of grief as a result of your mother’s death and symptoms of a major depressive disorder. Further, at the time of the offending, Mr Cummins is of the view that you were living the life of a recluse and had found solace in the inappropriate relationship with your granddaughter.
Sentencing considerations
You pleaded guilty to this offending at the committal mention on
16 September 2020. Your early plea has not only spared court time and expense but most importantly, has avoided the need for the victim to have to give evidence and relive the trauma of the offending. In sexual cases involving children, a plea of guilty carries significant weight. Further, as a result of trials being suspended due to the pandemic, your plea brings to a conclusion a matter which would have been delayed for a significant period of time before a trial could be conducted.
Mr Kounnas, who appeared on your behalf, submitted that you have demonstrated genuine remorse over and above your plea of guilty. You cooperated with police and made full and frank admissions to the offending. While initially denying the penetrative acts, you resolved the matter and pleaded guilty to the offence and the acts particularised. It is clear also that you have shown insight into the wrongness of your conduct together with a willingness to engage in treatment. These steps, together with your expressions of contrition to Mr Cummins, in my view demonstrate genuine remorse.
As to your prospects of rehabilitation, while you will be required to undertake a sexual offenders treatment program in custody, given your acceptance of responsibility, your acknowledgment of the need for treatment and the fact that you are assessed as a low-moderate risk, in those circumstances, in my view, your prospects of rehabilitation can be assessed positively.
Ms Coombes submitted that general and specific deterrence, denunciation of your conduct, just punishment and protection of the community are relevant sentencing considerations. I agree. However as to specific deterrence, in my view your lack of relevant prior history and your insight into the offending, reduces the weight to be attributed to specific deterrence.
General deterrence and denunciation of your conduct must take prominence in the sentencing synthesis. Sexual abuse of young children is abhorrent, and a clear message must be sent that people who seek to engage in such conduct will face significant terms of imprisonment.
I take into account the circumstances surrounding the COVID-19 pandemic. While conditions have been improving in the custodial environment as corrections authorities respond and adapt to the current risk factors, there is still an added burden for prisoners. Face to face contact visits are still suspended and educational programs are restricted. There is also the general stress to prisoners and their families in relation to the risk of the virus entering the prison system.
Finally, in addition to the matters that I am required to take into account under s 5(2) of the Sentencing Act1991, I must also take into account that the offence of persistent sexual assault of a child under 16 is a standard sentence offence. The standard sentence proscribed is 10 years imprisonment.
Having identified and considered the relevant factors in assessing the appropriate sentence as part of the instinctive synthesis, including the maximum penalty and the standard sentence, in this case I form the view that the sentence I will impose on the charge on the indictment falls below the proscribed standard sentence. In setting the non-parole period in relation to a standard sentence offence I am also mindful of the requirements of s 11A of the Sentencing Act 1991.
Sentence
Mr Robards please stand.
Donald Robards, on Charge 1, persistent sexual abuse of a child under the age of 16, you will be convicted and sentenced to 6 years and 6 months imprisonment.
I direct that you serve 4 years before becoming eligible for parole.
As you have been convicted of an offence against s 49J(1) of the Crimes Act 1958 which is a Schedule 1, Class 1 offence, you are a registerable offender and will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.
Pursuant to s 18 of the Sentencing Act 1991, I declare that 142 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to a period of imprisonment of 8 years with a non-parole period of 5 years and 6 months.
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