DPP v Robertson (a pseudonym)
[2016] VCC 1845
•1 December 2016
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION
DIRECTOR OF PUBLIC PROSECUTIONS Prosecution
v
TOM ROBERTSON (A PSEUDONYM)[1] Defendant
[1] To ensure that there is no possibility of identification of the complainant of the sexual offending, the reasons for sentence have been anonymised by the adoption of a pseudonym in place of the name of the defendant and other relevant persons.
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JUDGE: HIS HONOUR JUDGE MURPHY
WHERE HELD: Melbourne
DATE OF HEARING: 29 November 2016
DATE OF SENTENCE: 1 December 2016
CASE MAY BE CITED AS: DPP v Robertson (a pseudonym)
MEDIUM NEUTRAL CITATION: [2016] VCC 1845
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Incest – Indecent assault of a child under 16 – serious offending – offences against granddaughter of de facto partner – categorisation of offence – Director of Public Prosecutions v Charlie Dalgliesh (a pseudonym) [2016] VSCA 148 considered – serious sex offender
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Director of Public Prosecutions v Charlie Dalgliesh (a pseudonym) [2016] VSCA 148; Director of Public Prosecutions v DJK [2003] VSCA 109; R v WEF [2998] 2 VR 385.
Sentence:Total effective sentence of 5 years and 6 months with a non-parole period of 3 years and 3 months
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APPEARANCES: Counsel Solicitors
For the Crown Ms N Warda Office of Public Prosecutions
For the Defendant Mr P Tiwana Dribbin & Brown
HIS HONOUR:
Tom Robertson,[2] you have pleaded guilty to one charge of incest and four charges of indecent act with a child under the age of 16. The maximum penalties are 25 years imprisonment, and 10 years imprisonment respectively.
[2] A pseudonym.
Circumstances of the Offending
The circumstances of the offending were set out in the Crown opening which was read in open court on the plea and which I incorporate by reference. The complainant in the matter was your step granddaughter. At the time of the offending, she was aged between seven and 10 years and the offending occurred over the period 1 January 2002 to 31 December 2005.
During the early 1980’s you commenced a relationship with the complainant’s grandmother, Vicki Moran.[3] At the time, she had two daughters from a previous relationship. One of her daughters has two children.
[3] A pseudonym.
The complainant was born on 28 July 1995 and you were in fact present at the hospital at the time of her birth. You had always been part of her life and she referred to you as "Pa". The offending took place at the home of you and the complainant’s grandmother.
During the course of her early years, the complainant would stay over at your home with her grandmother. At the time of the offending, she was either visiting or sleeping over at your residence. On the occasions when the offending took place, the complainant's mother was not at the residence and the complainant was being supervised by you and/or her grandmother.
The first occasion, which the complainant cannot put a specific date on, involved a situation where she was spending the night at your place and she could not get to sleep and she ended up in the bedroom in your bed between you and her grandmother. She woke to find you rubbing her vagina with your fingers and then you inserted your finger into her vagina. She was in shock and she then got out of bed and went into the kitchen. That is the first charge of incest.
There was a further occasion when you had been playing with her in the lounge room and you proceeded at that point, after putting some lubricant on your finger, to inset your finger in her vagina. Charge 1 is a representative charge in that you are being charged with one charge of incest but it is representative of the fact that there was a second occasion when you inserted your finger in her vagina.
Charge 2 involves an indecent act. Again over the same period, the complainant was sitting on the couch when you engaged in a tummy tickle with her and then for a brief period, you proceeded to move your hand down her underpants and rubbed her vagina. You told the complainant not to tell her nanny.
On another occasion, the complainant was sitting on the floor with you wearing a new pair of jeans which were loose fitting. You proceeded to touch her on the groin. That is proffered as an uncharged act.
10.On another occasion the complainant was in the lounge room with you and you put your hand up her nightie inside her underpants and rubbed the lips of her vagina. That is Charge 2, indecent act with a child.
11.There were another two occasions when a similar thing happened. Charge 2 is therefore a representative charge that involved one charge of indecent act but two other events of a similar nature.
12.Charge 3 is another charge of indecent act. The complainant had gone for a walk with her grandmother to a local milk bar and picked up a feather along the way. When she came back, you were in the lounge room and she was sitting on your lap. You then proceeded to tickle her inner thighs and her vagina with the feather. Again, you told her not to tell her nanny.
13.Charge 4 was an occasion where you had a swimming pool at your place and she was there playing in the pool. You were told to put sunscreen on her and in the course of doing that, you slipped your hand into the side of her bikini top and rubbed her breasts. There was another uncharged act that was referred to in the prosecution summary where you did a similar thing, this time in the garage.
14.The final charge, Charge 5, involves again you playing with the complainant and you picked her up on your bed. You proceeded to lift her up and blow kisses onto her stomach, then you moved down and you ended up licking her vagina. You had done that on another occasion which is described as an uncharged act.
15.Around the time when the offending ceased, you and the complainant’s grandmother had gone to Queensland for a holiday. You continued, whilst in Queensland, to play the tickle game, rub her breasts, rub her vagina and digitally penetrate her vagina. These are uncharged acts relied upon as context. Once you returned from Queensland, the offending ceased.
16.It was not until March in 2016 that the complainant told her boyfriend that she had been sexually abused as a child. She then told her aunt and proceeded to tell her grandmother. At one stage you were contacted by the complainant’s brother – there was a telephone call and later a text message in which you effectively admitted that there had been some misconduct. At that stage, you and the complainant's grandmother ceased your relationship and you left the house, and moved to New South Wales where you have been living with your daughter.
17.You were interviewed by the police on 18 April 2016 and you said that you did not remember the offending but you said you had blocked it out of your memory and conceded that if she had said various things, then you would accept that they had happened.
18.You also wrote a letter of apology to the complainant’s grandmother after the offending came to light.
Seriousness of the Offending
19.Sexual abuse of children of tender age is inherently serious. The offence of incest violates societal norms, involves an invasion of the complainant’s person, is the exploitation of a vulnerable child, causes long-term and severe impact on the complainant, breaches the trust of those responsible for children and undermines the familial roots of society.
20.There is a presumption of harm involved in the deliberate exposure of children of tender age to sexual activity. Your counsel did not dispute that this was serious offending. There was psychological coercion involved in that in the course of the offending, you advise the complainant not to tell her grandmother of your offending.
21.In this case the offending involved five different charges, with Charge 1 representative of a second act of incest and Charge 2 being representative of three occasions. This indicates the offending involved a pattern of repetition or a course of conduct over three years, which is a considerable portion of the complainant’s childhood. The representative charges indicate that the offending was not isolated and the totality of your behaviour must be taken into account, so that any sentence imposed accurately reflects the full context of the offences. Charges 3 and 4 are single incidents and are of lesser seriousness.
22.The context evidence led also supports the proposition that this offending involved a course of conduct and not some form of one-off aberrant behaviour. I accept however that you are only to be sentenced for the five charges to which you have pleaded guilty.
23.You were in a position of trust involving the complainant in that, at the time she was staying over at your house or you were responsible for caring for her at that particular stage, the complainant’s mother entrusted you with episodic responsibility for the complainant. You abused the position of trust and your voluntarily accepted grand-parental responsibility.
Victim Impact Statements
24.Two victim impact statements were filed by the complainant and by her mother. In her victim impact statement,[4] the complainant says that her family is small and has been ruined and torn apart as a result of your offending. She has tried to “hold it together”. She had to tell her parents about the offending as well as her grandmother and her brother. The shock in doing do was too much – arguments have broken out as a result.
[4] Exhibit B on the plea.
25.The complainant says that her father "can't talk to her about it, it is awkward now between us". It has also changed things between her and her brother. She refers to the effect on her grandmother. She also says that she is concerned about her other cousins. "Every day it's on my mind, I can't stop” she says, “I have nightmares, like they are real”. She further says that “I can't control my moods", and she was scared to tell her boyfriend about the abuse she suffered as a child. She feels embarrassed and ashamed, she suffers now from depression and anxiety. She eats to cope with the pain, she always gets headaches, she is so unhappy. She cannot stop worrying about everything. Her brother rages with anger and she does not trust anyone.
26.Vicki Moran has filed a victim impact statement[5] indicating that, from her point of view, the conduct against the complainant was the worst betrayal anyone could do to another person, especially someone they profess to love. Vicki Moran says that you knew how much her family meant to her, her granddaughter was a little girl and you took advantage of her. She cannot imagine what the complainant went through under such manipulation. "It is abhorrent to me and equally abhorrent is his deceit to me and my family. I will never forgive him for what he has done to my granddaughter and there is nothing he could do or say to take away the hurt and damage that has been done to me and my family. He has ruined my life and made promises he has broken. I do not know this man at all. He is not the person I thought he was or knew him to be.”
[5] Exhibit C on the plea.
27.Your counsel did not dispute that this was serious offending. The contents of the two victim impact statements confirm the seriousness of the offending. Your actions have had a major impact on the complainant and have blighted her life to date and into the future.
28.In addition, your conduct has resulted in major implications for the complainant’s relations within her own family. Further and not surprisingly, your breach of trust has had a major impact on your former partner, the grandmother of the complainant.
29.The impact on the complainant, on her mother and on other family members are matters that go to increase the seriousness of your offending. They must be taken into account in the sentencing.
Matters in Mitigation
30.I turn now to matters in mitigation put by your counsel in a comprehensive plea.
31.First, you pleaded guilty. I accept that you have pleaded guilty at the first opportunity and you are entitled to full credit for that. You have avoided the need for a contested committal and trial and spared the involvement of the complainant and her family in the criminal justice system. You have facilitated the course of justice.
32.Your plea of guilty is also evidence of remorse. You did apologise to the complainant in a text message in response to a text message to you. You also wrote a letter of apology to your ex-partner.
33.There is also evidence of remorse in the report of Pamela Matthews, forensic psychologist.[6] The learned Crown prosecutor sought to cavil with your counsel as to the extent of your remorse. On balance, I accept that your remorse is genuine. There will always be a range of things that will constitute expressions of genuine remorse. In your case you are unable to recall the detail of the offending, but as stated in the record of interview, you accept the word of the complainant, and have been prepared to apologise from the time when she first texted a complaint to you. It follows that you are entitled to the benefit of both the objective and the subjective elements of your pleas of guilty.
[6] Exhibit 1 on the plea.
34.I am satisfied you are a person of good character. You have had a very good employment record and have supported your family. You are entitled to credit for that. In evidence were a number of written references from members of your family and a long-standing friend who continue to support you.
35.Those references confirm your contribution to the community and that this offending is seen as out of character by those family members and friend. This is particularly relevant given that you were involved in coaching your daughter’s netball side for many years without any suggestion of misconduct.
Your Personal Circumstances
36.You are about to turn 74. You were brought up in the inner northern suburbs of Melbourne and are the eldest of four children with three younger sisters. Your childhood memories are unhappy as both parents were heavy drinkers and you were the subject of verbal and physical abuse. You attended local schools but left during year eight. You left home at age 17 and were able to secure a position as a butcher and you worked in that trade either on your own account or as an employee for most of your adult life. You married at age 20 and had three children. Two of those children were in court to support you on the plea. A third son committed suicide late last year. This has had a serious and continuing impact on you, and you require counselling to deal with it.
37.Your first marriage lasted 20 years and when you were in your early 40’s, you met the complainant’s grandmother were in a happy relationship with her for a period of some 30 years. That relationship ended when the complainant disclosed this offending.
38.As I have indicated, you have had a good work history. You conducted your own business at the Victoria market for some nine years and owned and managed various butcher shops for a period of three and a half years. You have also previously worked in a factory as a handyman for a decade since your retirement. You have, on occasion up until 2014, worked as a butcher. You were effectively in the workforce for some 50 years.
Rehabilitation
39.Your counsel noted that the offending in this case ceased voluntarily when the complainant turned ten. That is some 11 years ago. The delay in the matter coming forward operates to your advantage in that you have not been involved in any further offending. This goes to your prospects of rehabilitation. I accept that your prospects of rehabilitation are very good. You are assessed as having a very low risk of reoffending by Pamela Matthews.
40.Given that the offending was situational and that, at your age, you are unlikely to be exposed to young children, I regard specific deterrence as having lesser salience.
41.Given your good work records and you the support you have from the members of your family as set out in the testimonials, I regard your prospects of rehabilitation as good to very good. A further matter supporting your prospects of rehabilitation is that after this offending came to light, you voluntarily commenced counselling with Pamela Matthews.
42.In her report, Pamela Matthews indicates that you require individual therapy with a clinical psychologist to address your own history of childhood physical abuse, your poor self-awareness and insight and the management of psychological stress. This is required also to prevent psychological decompensation and a risk of suicide.
Medical Issues
43.Before me was evidence that you have significant medical issues. You had major surgery about eight years ago for the excision of a neuroma. Subsequent to that, you have postsurgical headaches and you have a history of migraine headaches. You also have a history of high blood pressure, diabetes, osteoarthritis, depression and controlled epilepsy. Pamela Matthews opines that at your age and with your conditions, you are likely to be in and out of the prison medical facilities. That is a matter I take into account. Imprisonment will be more burdensome for you, however, the authorities have an obligation to facilitate your medical care.
44.The unaddressed grief and depression following the suicide of your son is a matter that I also take into account in making imprisonment more burdensome.
Sentencing Considerations
45.Your counsel accepted that a sentence of imprisonment was the appropriate disposition here. He submitted that, given your age, you would find imprisonment more burdensome than a person who was younger. I accept that, however, it is very common that this type of offending takes time before it is disclosed and brought to justice with the result that offenders are often around the same age as you or even older. While I give some weight to your age, it cannot override other sentencing considerations.
46.The learned Crown prosecutor called for a significant term of imprisonment with both a head sentence and a non-parole period to reflect the gravity of the offending.
47.She referred me to the recent decision of Dalgliesh where the Court of Appeal indicated that sentencing judges must have regard to the yardstick of the 25 year maximum penalty for the offence of incest.[7] The Court indicated that sentencing judges appeared to have failed to do so and that current sentencing practices for offences in the middle and upper range needed to rise.
[7] Director of Public Prosecutions v Charlie Dalgliesh (a pseudonym) [2016] VSCA 148.
48.The learned Crown prosecutor did not seek to ascribe any particular range for this offending, except to submit that it was not the bottom of the range.
49.In the Crown submissions are the various statements of the seriousness with which the courts are required to treat offending against children, and the crime of incest in particular.
50.I accept that you must be sentenced on the basis that this is serious offending, and that the sentence of the Court must, in the context of the maximum penalty, denounce your conduct, emphasise general deterrence, and in general make plain to the community the abhorrence at your conduct.
51.Another important sentencing consideration is what has been described as social rehabilitation, which is expressed by Vincent JA in a case called DJK where he indicates that the sentence must recognise societal values and also recognise the significance that the offending has had on the complainant.[8]
[8] Director of Public Prosecutions v DJK [2003] VSCA 109, [16].
Purposes of Sentencing
52.The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of factors such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the complainant, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
53.In the case of Dalgliesh,[9] the Court of Appeal quoted Winneke P in R v WEF stating:
[9] Director of Public Prosecutions v Charlie Dalgliesh (a pseudonym) [2016] VSCA 148, [82]
"This court has frequently said that those who engage in sexually abusing young persons who are in their trust can expect to receive condign punishment. Such conduct is not only destructive of family values and all they stand for but it is now well known that it has the capacity, for its young complainants, their chances of enjoying a natural and health lifestyle.”[10]
[10] R v WEF [1998] 2 VR 385, 387.
54.Your conduct must be utterly condemned. It was an affront to societal values, exploited a child in her tender years and has resulted in significant psychological damage to her and her wider family.
55.In sentencing you in this case, I have taken into account all the matters put on your behalf. You are being sentenced only for the five counts. As charges 1 and 2 are representative, then the sentence can treat that as a circumstance of aggravation such that the particular behaviour was not isolated.
56.Your counsel sought a longer than usual period during which you would be eligible for parole. I have considered that submission. There is no usual non-parole period. The non-parole period is the period that must be served having regard to all sentencing considerations including general deterrence before which you will be eligible to serve the balance in the community.
57.In sentencing you on charges 3, 4 and 5 you are to be sentenced as a serious sexual offender. The protection of the community is the principal sentencing consideration. There is a presumption of cumulation on those sentences. This is, however, subject to considerations of totality. The prosecution did not seek a disproportionate sentence.
Sentence
58.Could you please stand. The sentence of the Court is as follows:
a)On Charge 1, of incest, you are sentenced to four years' imprisonment. That is the base sentence.
b)On Charge 2, indecent act, you are sentenced to nine months’ imprisonment.
c)On Charge 3, indecent act, you are sentenced to nine months’ imprisonment.
d)On Charge 4, indecent act, you are sentenced to six months' imprisonment.
e)On Charge 5, you are sentenced to 12 months' imprisonment.
59.I direct that three months of the sentence on Charge 2, five months of the sentence on Charge 3, four months of the sentence on Charge 4, and six months of the sentence on Charge 5, be served cumulatively on the sentence on Charge 1, and on each other, making a total effective sentence of five years and six months.
60.I Order that you serve three years and three months before being eligible for parole.
61.I declare, pursuant to section 6F of the Sentencing Act,[11] that I have sentenced you as a serious sex offender on Charges 3, 4 and 5, and Order that it be entered in the records.
[11] 1991 (Vic).
62.I declare that you have served two days pre-sentence detention.
63.I declare, pursuant to section 6AAA of the Sentencing Act, that had you not pleaded guilty I would have sentenced you to a total effective sentence of seven and a half years imprisonment with a non-parole period of five years and three months.
64.The prosecution have sought a forensic sample and having regard to the seriousness of the offences, I will direct that you provide a forensic sample, namely a mouth swab. The authorities are entitled to use reasonable force to obtain that sample.
65.By reason of the convictions on these offences you will required to be placed on the Sex Offenders Register for life. You will be handed the relevant documents before you leave the court.
66.That requires you to complete a register and report to a registrar within 14 days of being released from prison and advise them of your change of address, et cetera, for the balance of your life.
67.I thank counsel for their assistance in the plea and in the sentence.
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