R v Dwa

[2010] VCC 19

ON 11

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

CRIMINAL DIVISION

THE QUEEN

v

DWA

---

JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 April 2010
DATE OF SENTENCE:	15 April 2010
CASE MAY BE CITED AS:	R v DWA
MEDIUM NEUTRAL CITATION:	[2010] VCC 19

REASONS FOR SENTENCE

---

Catchwords:

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms F. Dalziel	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	James Dowsley & Associates

HER HONOUR:

1       DWA, you have been found guilty following jury verdict of one count of wilfully committing an indecent act with or in the presence of IAL, a child under the age of 16 to whom you were not married.  The maximum penalty applicable to that offence is 10 years imprisonment. 

2       You have also been found guilty by jury verdict of one count of taking part in an act of sexual penetration in that you introduced your tongue into the vagina of IAL.  The jury further found that on the date of the offending IAL was under the age of 10.  The maximum penalty applicable to that count is 25 years imprisonment. 

3       Both verdicts were by majority of eleven of the twelve jurors.  On Count 3 the jury were not able to reach a verdict, and they were discharged without verdict on that count.

4       Briefly, I turn to the background to the allegations.  You are the father of OA and SA.  At the time of this offending OA was 9 years of age and SA was 12 years of age.  You were married to JAR.

5       IAL was born on 22 August 2000.  The date of IAL’s birth was never challenged during the course of the trial.  Your defence throughout the trial was that you did not commit any of the acts alleged in Counts 1, 2 and 3, and, specifically, for the purposes of sentencing, did not commit the acts of which you were found guilty by jury verdict, being Counts 1 and 2.

6       IAL was a friend of your son OA, and had known him since they were approximately 3 or 4 years of age.

7       On 8 November 2008 IAL stayed overnight at your home in Seaford.  The family were at that time living in Ballarat.  This was the first time IAL had stayed overnight with your family.

8       At approximately 9.00 or 9.30 pm IAL went to bed on a mattress in OA’s bedroom.  OA went to sleep in his bunk bed.  SA and her friend were in SA’s bedroom.  Your wife was at a party in Frankston.

9       Regarding Count 1.  When OA was asleep in his room you entered the bedroom and lay next to IAL where she was on the floor on the mattress, hugged her, and kissed her around the mouth with an open mouth and your tongue touching her lips.

10      Regarding Count 2.  You pulled her pyjama pants down and kissed her vagina with an open mouth.  Your tongue penetrated her vagina for approximately 30 seconds.

11      IAL gave evidence she started to cry, pretending that she missed her mother.  You remained lying with her until your wife returned at approximately 11.00 pm.

12      The following morning EL attended at your home to collect IAL.  On 13 November 2008 IAL disclosed to her mother what you had done on that sleepover, that is, Counts 1 and 2.

13      On 11 December 2008 you were arrested at your home in Seaford and conveyed to Frankston Police Station, where you took part in a taped record of interview.  You denied the allegations in that interview.  You did not give evidence at your trial, which of course was your right.

14      It is not necessary for me to recount in any great detail the facts of this matter, as they are on transcript, the matters having been ventilated during the course of the trial.  I proceed to sentence you on the basis of the facts relevant to Counts 1 and 2 of which you have been found guilty by jury verdict.

15      It is sufficient for present purposes to say that the facts in this case are most serious and disturbing.  An aggravating aspect of your offending involved the gross breach of trust involved.  IAL was in your care at the time of the commission of these offences. 

16      The victim of your offending has suffered considerably, and I shall return to pass some remarks on that subject shortly.

17      A report was before me from Warren Simmons, Consulting Psychologist, dated 1 April 2010.  Mr Simmons outlined your personal background and history, and such was elaborated upon by Mr Tiwana.  You are 49 years of age at the date of your sentence.  There are no prior convictions or court appearances, and nothing pending in relation to you.  I accept his submission that apart from this offending, you have been a respectable and hard working member of the community. 

18      You were born in Ipswich.  Your father was initially working at the Amberley Air Force Base, and was then transferred to Melbourne.  He moved to a number of locations whilst he was in the Air Force.  Your father is 73 years of age, and was a pilot.  Your mother is now 70 years of age.  You have a sister three years younger than yourself, however have not had contact with her for the past twelve years. 

19      Your parents separated when you were 13 years of age.  You reported growing up in a volatile household where there was a great deal of violence between your mother and your father.  You described your parents as aggressive and stubborn people.  You stated that whilst growing up you had always been provided for, although it would appear that the family did not have a lot of finances available to them.  Your father was often away with the Air Force, often for months at a time on short notice, and therefore his availability to the family was limited.  When he was around, he often abandoned the family to pursue his own interests.

20      At one stage following your parents’ separation your father began a relationship with LC, who had three children of her own.  You described this as a very difficult time for you.  You described LC as being physically abusive of you, and you described to Mr Tiwana your belief she did not have any love for you or your sister.  Your sister was sent to boarding school.  You were required to do all the chores around the home and were restricted in your ability to interact with your friends. 

21      Your father separated from LC after approximately five years.  You subsequently moved out of the house at 17 years of age following a physical assault by your father upon you. 

22      You moved in with friends at Mackay until you were 19 years of age.  When your father separated from LC you began to spend time with him, sailing his boat.  At one stage you and your father rented a house together.  At that stage you described the relationship as “all right”.

23      You attended five or six primary schools, and described yourself as a very bright student.  You also described having plenty of friends at school.  You attended North Mackay High School, and did well until Year 9.  Your performance deteriorated in Year 10, according to Mr Tiwana because you were unable to concentrate at school due to your unhappy home situation.  You briefly worked in Year 10 during the school holidays at a hardware store and a steelyard.  At the end of Year 10 you decided not to return to school.

24      At the age of 15 you obtained an apprenticeship as a glazier, which you completed over four years.  You then worked intermittently in that occupation for the next thirteen years.  You told Mr Simmons you would work for six months at a time and then spend six months at sea with your father.  Alternatively, you would work for a month then have a month off.  You also started a business with your father installing awnings on homes in Queensland, and also worked on a landing barge for twelve to eighteen months.

25      At 28 years of age you moved to Melbourne, were unemployed for three months before you found employment tree lopping, where you remained employed for the next eleven years.  You then did agency work in warehousing, having about half a dozen jobs before you found a position in a dangerous-goods warehouse where you remained for five years.  Throughout your various employment, in particular since being in Melbourne, you obtained various certificates relevant to your work.  Your most recent employer was a retail warehouse that dealt with mountain bikes.  You worked there for two and a half years, ceasing your employment only when you were remanded in custody. 

26      There was a reference from Kevin Mitchell, Director of Bike Corp dated 24 March 2010, confirming your employment.  He spoke highly of you as an employee. 

27      Turning to your drug and alcohol history, at the age of 15 you began drinking with friends, often to excess.  At 17 years of age your consumption of alcohol increased, and became a problem for you for the next two to three years.  When you went to sea with your father your drinking lessened.  Your consumption of alcohol now, I am told and accept, is greatly reduced compared to the early years, effectively essentially now being a social drinker.  In your teenage years you also used cannabis, which continued till your late twenties, at which time you ceased and you denied any other substance use.

28      Describing your relationship history, you had been in a relationship when you were 18 years of age, and remained in that for two years.  Thereafter you had numerous short or casual relationships until you became involved with your wife.  You had known your wife prior to you beginning a relationship with her when you were 28, and have been married to her for 19 years.  You are first cousins.  There were a number of family members in Court to support you during your plea hearing.  You described your relationship as a positive and a loving one.

29      Mr Tiwana described you as being eager to be a good father to your two children because you grew up in a fractured and nomadic existence.  That you related well to your two children.  Mr Tiwana described your family unit as being ‘in tatters’ as a result of you being sentenced by this Court. 

30      I accept that your time in custody serving a sentence will be difficult for your family and for you.  Whilst family hardship amounting to ‘exceptional circumstances’ was not relied upon by Mr Tiwana, I accept your time in custody will be difficult for you and is a relevant sentencing consideration compounded recently by OA’s difficulties at school, to which I shall shortly refer. 

31      You have been the main breadwinner for the family.  Your wife currently works 8 hours per week and receives $315.00 per fortnight.  The family income now depends on this income, Newstart and child allowance.  There is a mortgage on your home for which she is now responsible. 

32      Turning to your medical and psychiatric history, you reported to Mr Simmons an unremarkable developmental history.  That you had always been physically well.  Over the past year you had difficulties with energy and motivation, at times being tearful and irritable.  In the opinion of Mr Simmons, whilst you appeared depressed at interview, that appeared to be reactive to your current circumstances.

33      Specifically turning to your psychosexual history, you denied any sexual arousal to children.  On questioning, Mr Simmons concluded there was little evidence of any cognitive distortions.  That you were quite clear that sexual behaviour with minors was inappropriate, and you were able to articulate their need to privacy and entitlement to their own bodies.  In his opinion there was no evidence that you engaged in grooming behaviours, nor that you regularly undertook activities that would put you into regular contact with unsupervised minors.

34      In Mr Simmons’ opinion there was a very strong relationship between yourself and your wife, and, whilst you have two children, there had also been an unfortunate history of miscarriages along the way.  Family, he said, appeared important to you.  You appeared overprotective of your children, to the extent that you found it difficult to allow children to grow up.

35      He said you demonstrated no evidence of any inappropriate patterns of sexual arousal, and denied any attraction to children.  You did not, in his opinion, meet the criteria for a diagnosis of paedophilia.

36      Mr Simmons correctly noted that as you have denied the offending, and he concluded that it was therefore not possible to provide an insight into the mechanisms behind your offences other than to say that it was very clear that you had a level of involvement with the children of friends which was quite tactile, and although not inappropriate in any sexual sense, was probably blurring the boundaries of the level of contact that an adult should have with children who were not their own.

37      Turning to the likelihood of you re‑offending, Mr Simmons concluded you were a low risk of re‑offending, though he was cautious when referring to the future, stating any final conclusion would be speculative.

38      There were two references before me. 

39      From MA, your cousin.  He regarded you as a trustful and caring individual, and a reliable, consistent and hard working member of society.  He spoke of your involvement in school fund raising and organising of social events.  You and your family have regularly cared for his three children for two days a week. 

40      There was a reference from GB, who has known you for 18 years, and as I understand it she is the wife of MA.  She confirmed your care of her children. 

41      Also before me were two references from Leanne Davison-Armao, Principal at Seaford North Primary School, dated 1 April 2010.  You have been active in supporting the school by organising activities over the school holiday period, being responsible for operating stalls at fetes and attending school working bees. 

42      She noted that over the past 15 months, OA had been withdrawn at school and difficult to engage.  He had also recently resorted to uncharacteristic violent behaviour.  As I have stated, I accept in mitigation of sentence the effect incarceration will have upon you as you will not be at home to assist your wife and the children, and such will no doubt be distressing for you.

43      Further, there was a reference from your wife, dated 2 April 2010.  She confirmed the reliance of the family upon you.  She also referred to the assistance you provided to an elderly neighbour and she will remain supportive of you. 

44      As I have stated, I note you do not have any prior court appearances, nor is there anything subsequently alleged against you.  I am satisfied on balance that your chances of rehabilitation are good, and in fixing an appropriate sentence I must seek to maximise such chances of your rehabilitation as there may be.  I accept that prior to this matter your general reputation within the community was good.

45      There was also a victim impact statement in this matter from EL (IAL’s mother), sworn on 5 April 2010. 

46      She described the repercussions of your offending as having turned her family’s life upside down.  You were a close friend and she now has difficulty trusting others.  She panics about her children’s safety when they visit others and have sleepovers.  New sleepovers, she said, were currently out of the question.  Your offending had placed emotional stress upon she and her husband.  IAL had difficulty sleeping and had difficulty with emotional issues.  EL was continually trying to reassure Indigo that she was safe.  She had regarded your family as an important part of her life for many years and is troubled by the loss of the friendship. 

47 The effect upon a victim is a relevant sentencing consideration: See s.5 Sentencing Act 1991. However, I am conscious that I must not allow the effects upon a victim to swamp the sentencing process.

48      Turning to your offending, Mr Tiwana described it as a black mark on an otherwise positive character.  He conceded, however, that your offending was a breach of trust and involved a young victim. 

49      He submitted your offending whilst serious, was an isolated incident and of short duration.  That your offending was not premeditated, nor did it involve grooming of IAL.  Also, that the penetration was minimal and no physical pain was caused to IAL. 

50      Ms Dalziel, on behalf of the prosecution, agreed with that description of your offending, conceding your offending was an aberration in an otherwise good life.  She referred, however, to the devastating impact of your offending on IAL and IAL’s family. 

51      Mr Tiwana submitted there was a delay of seven months between you being interviewed by police and being charged, in which you were in limbo regarding these allegations.  Ms Dalziel submitted such was, and I accept, a relevant consideration when sentencing. 

52      Mr Tiwana submitted that whilst an immediate term of imprisonment was appropriate for your offending, I should impose a shorter non-parole period to reflect the matters raised in mitigation of sentence. 

53      Ms Dalziel submitted that a relevant consideration when sentencing was a disparity in age between Indigo and yourself.  She further referred me to statistics prepared by the Sentencing Advisory Council in March of 2009 entitled “Sentencing for Sexual Penetration Offences: A Statistical Report”.  

54      I discussed the statistics with Ms Dalziel.  Whilst I accept that they are relevant, they do not provide me with such things as details of the relevant offences or of the offenders themselves.

55      The Courts have repeatedly referred to the seriousness of sexual offending against children over the years.  See Van Roosmalen (1989) 43 A Crim R 358, Wayland, 14/9/1992 CCA Vic, Wakime [1997] 1 VR 242 and also in many recent judgments of the Court of Appeal in this State.

56      Sentencing judges are also required to pay regard to the maximum penalties imposed by Parliament for sexual offences involving children. 

57      There is no doubt that Courts have a special duty to protect children.  They are vulnerable and especially vulnerable to abuse of trust.  They are immature in their understanding of right or wrong and are dependent upon adults responsible for their care not to abuse that immaturity. 

58      As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as general deterrence, which is of considerable importance in a case such as this. 

59      Turning to specific deterrence, whilst there is an element of this when sentencing, it need not loom large in the sentencing process in your case.

60      I must also consider the question of protection of members of the community from you, and bear in mind the likelihood of your re‑offending.  I am comforted by the conclusion of Mr Simmons that you do not fit the criteria for a diagnosis of paedophilia, and his, albeit cautious, assessment of you as being at low risk of re‑offending.  Whilst there is a need to reflect protection of the community in the sentencing process, again it need not loom large in sentencing you.

61      I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.

62      Because of the finding of guilt in this matter, you become a registrable sex offender under the Sex Offenders Registration Act 2004.  Pursuant to s.34(1)(b) of that Act you will be required to report for 15 years.  Mr Tiwana agreed such applied to you. 

63 I state for completeness that you are not sentenced as a serious sexual offender for the purposes of s.6C Sentencing Act 1991.

64      In all the circumstances I record convictions on Counts 1 and 2, and you are to be imprisoned as follows.

65      On Count 1 you are convicted and sentenced to 12 months’ imprisonment.

66      On Count 2 you are convicted and sentenced to 3 years’ 6 months imprisonment.

67      Count 2 is the base sentence, and I direct that 2 months of Count 1 be served cumulatively on Count 2.  That makes a total effective sentence of 3 years and 8 months and I direct you serve a period of 2 years before you are eligible for parole.

68 Pursuant to s.18(4) Sentencing Act 1991, I declare you have spent 30 days – I ask counsel to check that - in custody by way of pre-sentence detention, including yesterday being 14 April 2010, and that this be entered into the records of the court.

69 The prosecution made an application for the retention of a forensic sample pursuant to s.464ZFB(1) Crimes Act 1958. This was consented to by counsel on your behalf and I make that order based on the seriousness of your offending.

70      In a moment my Associate will approach you with documents that relate to the Sex Offenders Registration Act 2004. You are simply being asked to acknowledge that you have received those documents by signing them where indicated.

71      Now, before I move onto that stage can we just check those days?

72      MR TIWANA:  Yes, Your Honour.

73      MS DALZIEL:  Yes, Your Honour, 30 days pre-sentence detention.

74      HER HONOUR:  You are sure?  It has to be right.

75      MS DALZIEL:  Up until yesterday, yes.

76      HER HONOUR:  Including yesterday, of course.

77      MS DALZIEL:  Yes, including yesterday, yes.

78      HER HONOUR:  Yes, all right, Mr Tiwana, do you agree that those figures are correct?

79      MR TIWANA:  I agree with that.

80      HER HONOUR:  All right.  Well, before – are there any other matters?

81      MS DALZIEL:  I think counsel has previously entered the nolle prosequi in this matter, but if not I'd just confirm that on Count 3 the Crown enters a nolle prosequi.

82      HER HONOUR:  Discontinuance?

83      MS DALZIEL:  It still remains under the old Act, Your Honour.

84      HER HONOUR:  Yes, I was not sure, yes, well, nolle prosequi is entered in relation to Count 3; that has been stated in open court.

85      MS DALZIEL:  Thank you.

86      HER HONOUR:  All right.  My Associate is now just going to go back to – yes, you can go as well, Mr Tiwana.

87      MR TIWANA:  Yes, Your Honour.

88      HER HONOUR:  And all that is being required or requested is signing, acknowledging receipt of these documents, that is all it means.  So if you want to go back to Mr Arms, you certainly can.

89      MR TIWANA:  Yes, Your Honour.

90      HER HONOUR:  Thanks.  Thank you.  I have signed the retention orders.  They are coming back.  Could you please date them.  Put today's date on them, thank you very much.  And unless there is anything else?

91      MR TIWANA:  No, Your Honour, thank you.

92      HER HONOUR:  Thank you.

93      MS DALZIEL:  No, Your Honour.

94      HER HONOUR:  Thank you.

- - -