DPP v Shaw

[2013] VCC 1446

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted

Suitable for Publication

AT LA TROBE CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOBBY SHAW (Is a pseudonym)

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JUDGE:  HIS HONOUR JUDGE CARMODY

WHERE HELD:  La Trobe Valley

DATE OF HEARING:  29 August 2013

DATE OF SENTENCE:  29 August 2013

CASE MAY BE CITED AS:                DPP v Shaw

MEDIUM NEUTRAL CITATION:         [2013] VCC 1446

REASONS FOR SENTENCE

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Subject:

Catchwords: Incest – two step-daughters – late plea of guilty – delay in prosecution – sex offender – sex offenders register

Legislation Cited: Cases Cited: Sentence:

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APPEARANCES:	Counsel	Solicitors
FortheDPP	Mr KJ Doyle
FortheAccused	Mr BJ Schultz

VICTORIAN GOVERNMENT REPORTING SERVICE

565 Lonsdale Street, Melbourne - Telephone: [phone]

HIS HONOUR:

1Bobby Shaw1, you have pleaded guilty to three charges of incest against two of your stepdaughters. The Parliament has set a maximum term of 25 years' imprisonment as the penalty for the charge of incest.

2The first two offences on the indictment were committed when your victim, RLS, was 11 years old. You were then 50 years old. The third offence on the indictment was committed when your victim, KS, had just turned 17 years old. That is the last of the offences. You had previously offended against her. You were 52 years old at the end.

The circumstances of your offending

3The two victims in these charges were the daughters of your long-term partner and wife from 2005 onwards. The victim, RLS, was born in 1994. The victim, KS, was born in 1991.

4Initially you lived as a family in Macleod.

5In 2003 you and  your family moved  to  Churchill.  From  that time to 23 November 2008, you remained in the same home at Churchill.

6Your offending against KS on the date in question, which is the last of the dates, saw you evicted, in effect, from the family home, never to be returned.

Charges 1 and 2

7The prosecution summary has been accepted by you as an accurate outline of your offending.

8RLS says that you started sexually assaulting her approximately two or three months after the family moved into the Churchill property. You would come into her room during the night and put your fingers in her vagina.   This

1 Is a pseudonym

conduct continued over the years and only stopped when the mother of the complainants caught you having sexual intercourse with the sister of RLS. It usually happened on the weekends when you came back from working in Melbourne.

9Although it was not every single weekend. RLS describes the frequency as "pretty much every chance he got, he would do something". In effect Charge 1 is a representative count.

10RLS recalls on a particular occasion in 2006, she would have been in Year 6, she thinks it was around the time she got her bunk bed.  The accused came, that is  you, came into the bedroom that night and started to try to feel her body. RLS said no. You then grabbed her by the throat and said that if she ever told anybody what you were doing, you would kill her. You then put your hand up her top and felt her breasts.  You then put your finger into her vagina. That is the counts of incest and I have said before, that is the representative count, Charge 1.

11On that same occasion, you then also inserted your penis into her vagina.

12RLS says this is the only time that you had penile/vaginal intercourse with her.

13As I have  said  before, Charge  1  is representative, covering the  conduct outlined earlier.

14The first person that RLS told of the sexual assaults was her friend. This was before 23 November 2008. RLS told her friend that you had raped her and that you would come into her bedroom at night, go under the blankets and trying to feel her up.

15In December 2010, your ex-wife asked RLS whether you had been touching her. RLS said yes. Your ex-wife didn't ask any questions but went out and rang the police.

16The aggravating features of these offences is your persistent behaviour as outlined for Charge 1, the very young age of your victim, the breach of parental trust and the trust of your long-term partner and subsequent wife and your controlling approach to your victim for your sexual gratification.

Charge 3.

17By 23 November 2008, KS was sleeping in a bungalow at the back of the Churchill property. You had been working in Melbourne. On the evening of 22 November 2008, you, your son, and your sons girlfriend, were watching TV in the  lounge room of the Churchill property. You had come back from Melbourne earlier that day.

18By the time your ex-wife came back from work at approximately 9 pm, she saw that all three of you were intoxicated. Both the complainants, that is the two  daughters, were in their respective  rooms  watching TV,  RLS  in  her bedroom in the house, KS in her bungalow outside. Your ex-wife went to bed at approximately midnight having said good night to her daughters about an hour earlier.

19Suffering from insomnia or she could not sleep for whatever reason, your wife got up out of bed at approximately 1 pm and saw your son on the couch. When she asked your son where you were, he told her that you were outside locking the shed. Your ex-wife went out to see the shed door was still open. When she asked your son how long you had been gone for, he said you had been gone for 30 to 45 minutes. Your ex-wife then went outside again and saw KS's bungalow door was open. She saw your keys were sticking out of the door lock. She went inside the bungalow, turned on the lights and saw you having sex with her daughter, KS. Your jeans were down past your backside. Your ex-wife told you to, "Get the fuck off my daughter and get out".

20KS's evidence is that she was asleep and when she woke up you were on top of her and had your penis inside her. You were having sex with her.

21Shortly after this, her mother walked in and caught you having sex with KS. KS did not think that you were wearing a condom. She thinks that you ejaculated inside her. That is Charge 3. It is a representative charge setting out a number of other incidents which I will refer to shortly.

22After you had been caught by your ex-wife in this position, you have then gone  back into the house.  KS was crying.   She went to have a shower. Whilst KS  was having a shower, your ex-wife, with incredible presence of mind, removed the sheet from the bed and put it straight in a plastic bag which was then put into a spare bedroom of the property. That bag contained the sheet which subsequently was provided to police in December 2010.

23Over the next four weeks or so you would apparently stay in the shed at the house. You ceased contact with the family in December 2008.

24The representative part of Charge 3 is on occasions at the Churchill property, you would put KS to bed, usually when your ex-wife was at work. You would insert your penis in her vagina, as she calls it, all the time, both in her bedroom, inside the house and later when KS moved out to the bungalow. KS thinks this occurred almost nightly while her mother was at work. On one occasion at Churchill, KS was in the shower and you came into the shower with her.  She says you had sex with her in the shower by inserting your penis in her vagina whilst in the shower. On another occasion KS was lying on the couch watching television at the home, you have then, whilst watching pornography on the computer in the home, came over and started, as she described it, playing with yourself. You then rolled KS over on the couch and had sexual intercourse by inserting your penis in her vagina.

25The concerning matters from Charge 3, as a representative count, is that you have persistently offended against KS, a breach of trust of a step child and her mother and the opportunistic manner of using KS for your sexual gratification. KS was young and you persisted with her up to her 17th birthday

until you were finally caught out by her mother and your own son.

Post offence behaviour

26On 1 December 2010, your ex-wife spoke to KS, who was having problems with her partner. Your ex-wife said to KS that she needed to get some counselling over what you had done to her. KS told her that this had been going on "since we lived in Macleod". Police were contacted shortly after it.

27On 2 December 2010, your ex-wife and the two complainants attended the police station here in Morwell to report the offending by you. As indicated, the sheet from KS's bed was provided to the police on that day.

28On 15 February 2012 and 26 September 2012, you were formally interviewed by the police.  You denied committing any sexual offence against either girl or threatening the life of RLS.

29You maintained your denials of  any sexual offending until the filing of a defence response on 18 July 2013. In that document you admitted the offending that constitutes Charge 3 against KS. You maintained your denials of any  offending against RLS until 28 August 2013 when you pleaded to charges 1 and 2. Your plea, however, is significant.

30I will come back to that.

Dealing with your personal circumstances

31You are 57 years old.  Your personal circumstances really are unremarkable.

You are a disability pensioner and has been so since a motor vehicle accident in South Australia in 1989. You were lucky to survive the injuries you received in that accident.

32In your earlier life you were educated to Year 10 at Preston Technical College.

You commenced an apprenticeship as a vehicle builder. You worked in that capacity until your injury referred to earlier.

33It was put on your behalf that you were a very hard worker. I have no doubt that was the case. That is a description the girls give of you.

34The first marriage of 13 years collapsed under your work ethic.

35In your time as a disability pensioner you have spent a great deal of your time as a volunteer with the local Lions Club in Churchill. This is indicative of your inherent work ethic. You have performed maintenance on Lions Club facilities and assets so that charitable work can be undertaken. Mr Kevin Hogan, a local Lions person, has written a letter of support in that regard. You had the support of your family members in court today and I note that they are here at the time of the sentence.

36Your behaviour has no doubt let them down but they have still turned up to lend you moral support.

37When you are released from prison you will need that support to reintegrate into society.

38You have a number of prior court appearances that can be characterised as alcohol-related offending in driving motor cars. Alcohol is a background feature in your offending against these two girls. It does not excuse or explain your offending.

39I have been told that you have outstanding matters relating to driving offences and an indecent assault charge against an adult female victim. I do not factor these matters into the sentence for these offences.

I now turn to the effect you have had on your victims

40The offending has affected three people very directly.   The first is the girl's mother, your ex-wife and at the time of these offences your wife. A victim impact  statement  was  filed  and  read  into  evidence.   It  is  Exhibit  B.   In summary it  sets out the effects of a gross breach of trust that you have

committed against her and her daughters. The impact of your actions on her daughters is her main concern and presently she is estranged from KS due to your actions and the consequences of it.

41However, she did have the presence of mind, when shocked with your activities in November 2008, to recover the bed sheet and keep it for appropriate forensic testing at a later time.

42The second victim impact statement was from RLS, the younger of the two girls.  It was also read into evidence as Exhibit C in this plea.

43In summary, RLS is now a frightened little girl in a young woman's body. She is scared of you and fears seeing you. That is the net effect of your personal sexual gratification in this case. Your actions will be with her for life and she thinks it makes her life borderline impossible. I hope she can recover to some extent so she can overcome your evil impact on her life.

44KS had an opportunity to file a victim impact statement and she has not done so. That is a matter for her. However, as I have previously outlined in these reasons to date, it is quite clear that you have had a large impact on her life to now and into the future.

I turn to sentencing considerations

45The crime of incest strikes at the very heart of the most important building block of a civilised society, the family. Your behaviour towards these two stepdaughters was inexcusable and abhorrent. The damage you have caused them can never be fully known.

46Two of the charges are representative charges, that is offending charge is representative of two or more acts of the same character.   This fact has a two-fold relevance in sentencing. First, it is to be understood as the absence of a mitigating factor as being an isolated event and, secondly, it provides a wider context for the extent of your offending.

47As part of the governing principles to be considered in sentencing, I must take into account current sentencing practices. That inquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and statistics at the time of the sentence. I have considered these statistics and current practices. I am mindful that each case must be considered in the light of its own particular circumstances and many of the cases would be distinguishable from your case as they are from one another.

48The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community.

49In sentencing you I must have regard to a range of factors such as the seriousness of your offences, your culpability for them, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing your criminal conduct with the interest of the community in seeking to ensure, as far as possible, you, as an offender, are rehabilitated and reintegrated into society.

50Under the serious offender provisions of the Sentencing Act, your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offences charges, I am required on the sexual offence charge thereafter, to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered, under s.6D of the Sentencing Act, to impose a sentence greater than is proportionate to the gravity of the offence. This means that the sentencing task in respect of Charge 3 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which that sentence is imposed and to achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in light of the objective circumstances.

51However, because of the mitigating circumstances in your case, I do not propose to do so.

52Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charge 3 on the indictment, the sentences I impose are to be served cumulatively.

53Allowing for the matters I have already outlined, in my view it is appropriate to only impose the degree of cumulation to which I subsequently refer, reflecting as it does,  several episodes of offending. To do otherwise may produce a sentence which is not appropriate and which is unjust.

54I note here that the Crown did not call for disproportionate sentencing or the cumulation contemplated in either 6D or 6E of the Sentencing Act.

Your plea of guilty

55You have pleaded guilty. You have pleaded guilty in relation to the charges 1 and 2  at a late stage in these proceedings.   The plea for Charge 3 was indicated at an earlier stage.

56Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea allows for the preservation of court and police resources to deal with other matters. Your plea indicates public confidence in the legal process set up to protect the community and particularly its young members.

57You have, by your plea, relieved your victims from giving evidence against you, who was their stepfather

58It facilitates some closure for them as victims of your offending.

59The plea of guilty to these charges indicates and demonstrates some remorse on your part.  However, in your record of interview you have denied dealing

with these children at all.

60Your plea is a clear acknowledgement by you that you accept responsibility now for your criminal behaviour in this case. Your plea also recognises you are prepared to facilitate the course of justice in the community.

I will deal with delay

61There was a delay from when you were discovered offending against KS and when the police first interviewed you of some four years. This day has been coming for a long time, that is the day of sentence. You have had the prospect of detection and punishment in your mind for nearly five years. You must have known that fact.

62Whilst you maintained denials of offending as late as last year, the inevitability of your position must have become clear to you.

63I take into account the delay in time between your initial detection in 2008 and the present time when fixing appropriate total sentence for you.

64The prosecution submitted that imprisonment is the only appropriate sentence. The prosecution submitted the range of sentence should be 6-8 years as a head sentence with a minimum non-parole period of four to six years. This is a merciful but appropriate submission taking into account all the factors in this case.

65Could you please stand.

66I sentence you as follows.

67On Charge 1 you are convicted and sentenced to three years' imprisonment.

68On Charge 2 you are convicted and sentenced to four years' imprisonment.

69On Charge 3 you are convicted and sentenced to five years' imprisonment.

70I order that one year of the sentence in Charge 1 and two years of the sentence in Charge 3 be served cumulatively on the sentence in Charge 2 and  on  each  other.  That  is  a  total  effective  sentence  of  seven  years' imprisonment.

71I order that you serve a minimum term of five years' imprisonment before being eligible for parole.

72Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, the total effective sentence that I would have imposed in this case was ten years' imprisonment with a non-parole period of eight and a half years.

73I also direct pursuant to s.6F of the Sentencing Act that it be entered into the records of the court that I have sentenced you in respect of Charge 3 as a serious sexual offender within the meaning of that act.

74At this hearing the prosecution sought an order for retaining a forensic sample. I have made that order here today and signed it. They have also made an application for a disposal order in respect of the sheet. I have made that order and signed it.

75The reason for making the retention of the forensic sample is that the seriousness of the offence warrants such a retention and that the order is made by consent and that it is in the public interest.

76Further, sex offender registration.

77The offences for which you have been found guilty are registrable offences pursuant to the provisions of the Victorian Sexual Offenders Registration Act 2004 and by reason of your convictions for these offences, you are a registrable offender obliged to comply with the reporting obligations imposed by the Act.

78As required by sub-s.5(2)BC of the Victorian Sentencing Act, in sentencing

you I have ignored any consequences that may arise and in this case do arise under that act from the imposition of a sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence. I am required to give you written notice of your reporting obligation and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of the reporting period which in your case is life.

79My associate will shortly hand you the notification reporting obligations which you will have to sign. Your representative in court today will ensure that you understand the requirements set out in the form and I ask that he attend at the back of the court with my associate for you to sign that document and sign the acknowledgement. The appropriate forms will be shown to you shortly.

80Mr Doyle, I've signed these two orders and I just hand them down to you.

81MR DOYLE: Yes, thank you, Your Honour.

82HIS HONOUR:  Was there anything else I need to attend to in respect of this matter?

83MR DOYLE: No, Your Honour's covered it.

84HIS HONOUR: Is everything covered, Mr Schultz?

85MR SCHULTZ: Yes, Your Honour.

86MR DOYLE: There is one matter. I should replace the - - -

87HIS HONOUR: Yes, thank you.

88MR DOYLE: That's the original indictment.

89HIS HONOUR:     Yes, thank you.     I file the original indictment on the file in substitute for the copy that was done. Thanks.  You can remove the prisoner.

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