R v Simpson, Rhys Kennedy (a pseudonym)
[2009] VCC 1595
•15 October 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
| THE QUEEN |
| v |
| RHYS KENNEDY SIMPSON (A PSEUDONYM) |
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JUDGE: | Her Honour Judge Rizkalla | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 15 October 2009 | |
CASE MAY BE CITED AS: | R v. Simpson, Rhys Kennedy (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2009] VCC 1595 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | ||
| For the Accused |
HER HONOUR:
1 Rhys Kennedy Simpson[1] you were found guilty by a jury on 6 May of this year of two counts of indecent assault, Counts 1 and 2 on the presentment and two counts of sexual penetration with a person over the age of ten whom you knew to be your step child, Counts 9 and 10.
[1] A pseudonym
2 The other counts on the presentment, Counts 3, 4, 5, 6, 7 and 8 received not guilty verdicts on the same day. Thus I come to sentence you on four counts.
3 The circumstances of each of the actual offences for which you must now be sentenced can be summarised from the depositional materials and the trial evidence in brief.
4 The complainant is your step-daughter and was 38 years of age at the time of trial. She was born on 1 September 1970. You married her mother in 1982 and subsequently adopted both her, her brother Caelan[2] and her twin sisters. Her natural father and mother separated and then divorced when Ana[3] was seven. You moved into the family home some time shortly before you were married.
[2] A pseudonym
[3] A pseudonym
5 The first count relates to an incident that occurred between 25 December 1983 and 31 January 1984 when she was about 13. In her evidence she said she was on that occasion, playing in the backyard and went inside to go to the toilet. She was wearing a bathing suit and her mother and aunt had in fact gone down to the local shops. You locked the back door behind her, told her to go into the lounge room, sat her on a chair, pulled her bathing suit to one side exposing her vaginal area and sat in front of her and licked and sucked her vagina. She said she tried to stop you and clenched her legs, but that you kept pushing them open.
6 After you stoped you told her it was your little secret with her and that she was to tell no one about it because they would not belief her anyway. She then got up and went outside. She in fact said that she told her mother several days later what had happened and her mother told her basically not to worry that it would not happen again and made the comment that she herself did not want to grow old by herself. Ana took it that her mother had spoken to you about it because apparently later on that same day you came into her bedroom and apologised and said it would not happen again.
7 Her mother in her evidence at the trial denied any conversation or occasion that she could recall which accorded with what Ana said. The second time something occurred of a sexual nature, according to the complainant's evidence was the subject of Count 2 when she was about 14 or 15 and that was between 1 September 84 and 31 August 86. On this occasion you came into her bedroom when her sister was already asleep as far as she knew. You knelt beside her bed and talked to her for a while and then placed your hand under the covers inside her vagina and her underpants and rubbed her vaginal area.
8 Again she tried to clamp her legs shut but you pushed them open, telling her that masturbation was natural and that she should do it and make her feel good. She pushed your hand away and you stopped and left the room. She made no complaint on that occasion because she said she felt her mother had let her down in terms of the earlier instance. In relation to this count the Crown also called your step-son Caelan Simposon, to give evidence as to a recollection he had of an occasion when he was watching TV with his mother, you went into the bedroom to say goodnight to the girls and Ana began yelling out to her mother.
9 His evidence was that on that occasion he asked his mother why she did not go and do something and she simply did not respond. He then said he went to the bedroom, he turned on the light and saw you sitting next to the bed on the floor. He asked what you were doing and you said something along the lines of, "Piss off and turn off the light". He described you in a position of half kneeling with your left arm halfway under the blankets and that Ana seemed quite upset. He went back to the lounge and told his mother to go and do something. She went into the bedroom and he recalls both you and his mother coming back into the lounge.
10 As the prosecutor said at the plea, it can reasonably be concluded that the jury accepted his evidence in terms of at the very least, that there was an occasion and an opportunity similar to that which the complainant described in relation to Count 2 that he recalls. It is reasonable to assume that was part of their assessment of the evidence when looking at that count.
11 The jury were also told by the complainant that there were many incidents like this after that occasion when she had gone to bed when you would come into the room and although she protested you would stay talking to her and placing your hands on her in the way she described. This was led as uncharged acts on the basis that if accepted beyond reasonable doubt it was the context in which they could judge the relationship between the two of you at the time and assess the allegations about all the actual charges.
12 As was agreed by both counsel at the plea hearing, for the purpose of this sentence I need to look at the two indecent assaults as occurring and then a break of some years before the next two acts of sexual penetration took place when she was over 18, without considering or taking into account any alleged sexual conduct in between because the jury verdict is such that it is not possible for me to form any logical conclusion as to what may have occurred between those sets of offences and what the jury may have accepted in those terms, given the verdicts of not guilty to the incidents in between and that is the way I propose to deal with this sentence.
13 The next instance for which the jury found you guilty was Count 9, a count of penile penetration which happened on the evidence, in the garage at the family home. At this stage the complainant had commenced working as a police officer and she was attending the academy and not living at home but returning there most weekends.
14 She accepts on the evidence that she was over 18 at the time and she describes an occasion when she was in the garage with you when an interruption was caused by her mother entering the garage. She recalls you throwing an ashtray towards her mother, who she said was struck on the finger. You were angry on that occasion according to her. You had pushed her to the floor and you had intercourse with her. She then describes that she tried to leave the house by getting in to her car but that you closed the gates which she drove through in her car. You followed her in your car, pulled up in front of her and apologised for what you had done.
15 The last instance, Count 10, was a later occasion, again where she describes that there was penile intercourse. On this occasion which, on the presentment, is between 1 January 1991 and 31 December 1991. She described you saying to her that you wanted to do it one more time. You described it in effect as a good way of getting back at Woody who was her boyfriend at the time and someone with whom you had reasonably bad relations.
16
Again, this was an occasion where you had full sexual intercourse with her and it was the last occasion on which anything occurred that the complainant describes. After that, with the help of Woody and the other police officers which whom she worked, she moved out of the family home fully. It should be noted in your record of interview you stated to police that you had an affair or a relationship with the complainant at a time when she was about 20 years of age. In your words, "Approximately 15 years ago". You said to police in the record of interview that it was a mutual agreement to have the affair and a mutual agreement to finish it and that during the course of about 12 months that you had sexual intercourse with the complainant on about a dozen to
20 times.
17 The Crown assert that these particular assertions by you should not be taken into account as having any relevance to sentence as the complainant denies any affair in the way that you describe. You did not give evidence in oath in terms of any of the assertions in the record of interview and your counsel did not seek to make any direct submissions on this aspect in the plea.
18 The Crown case was not put to the jury on the basis that the jury could properly convict on these counts - nine and ten - even if they found the complainant consented, given the nature of the crime of incest and they were not directed in that way. The Crown did not lay these charges on the basis that they accorded with any of the occasions that you asserted to be by way of consent in the record of interview. I accept the Crown analysis on that aspect of the evidence.
19 I now turn to your personal circumstances, but before I do so I should refer to the fact that there has been a victim impact statement filed by the complainant in this case. As both counsel agreed at the plea hearing the complainant's victim impact statement has been prepared on the basis of all of the allegations being established and therefore playing a role in her present circumstances. I can only take into account in terms of the matters of which you were convicted although plainly it has to involve a consideration of what she describes as the final circumstances of how her psychological wellbeing is now, after these events but I recognise that it can only relate to the four counts for which you were convicted.
20 In that statement the complainant describes suffering emotional and psychological trauma as a result of these offences. Your conduct she said made her feel afraid and that she had no one to confide in, in relation to the offending. She felt let down by her mother. She says these offences have had an impact on her relationship with other males and other people. She has become hypervigilant in terms of her own children and she suffered the loss of her family in terms of her mother, her younger brother and her younger sister as a result of the allegations. She also details how she suffers some sense of self blame and guilt for the way these matters occurred and she is in a state of confusion and emotionally and psychologically needs counselling on an ongoing basis.
21 As for you circumstance, you come before this court at 56 or 57 years of age without any previous convictions and nothing since. You continue to reside with your wife, the mother of the complainant. Ever since you came to Australia when you were about 15 years of age, you have undertaken employment in numerous fields. You have always worked hard throughout your life and have supported your wife and her four children. It is to your credit that apparently you are still in a position where in your present country home, you are offering support to those in the community by working through community organisations such as the Lions Club and others, and you are keen to put back into the community by voluntary and honorary work.
22
Three reports were tendered on your behalf. A forensic report from
Mr Cummins, a report from your treating psychologist Ms Leslie Ozenics and your general practitioner Dr Slivervich. Mr Cummins' report dated 8 July 2009 sets out in some detail the history he took from you and his observations as a result of his examination and his testing. On examining your response to testing he was of the view that the tests were invalid in their conclusions and it was his opinion, that if anything, your response to testing was probably reflective of someone who had had some sexual fantasies involving underage females. He assessed you in his final analysis as being at moderately high risk of re-offending, although he accepted that there was a lower risk of recidivism for offences of incest than there is in non incestuous sexual offending.
23 He felt that you were at this stage, still coming to terms with the jury verdict and struggling with it and not coping very well in a psychological sense with your current situation and that consistent with your past, suicidal ideation was highlighted in the results of both personality tests. As a result of his findings he is of the view that you had some high risk in terms of deterioration of mental state and would need to be monitored by the authorities. He noted that you have been taking anti-depressants and receiving psychological treatment for some time.
24 You have a history of suicide attempts and you suffer from sleep apnoea and narcolepsy. You presently require the use of a mask when you sleep at night and that was one of the issues relied upon in the plea by way of an aggravating circumstances in terms of the difficulty you might experience in custody beyond the norm. You have been treated by Dr Slivervich in 2007. He prescribes current anti-depressant medication. In his report of 19 May, he sets out a brief resume of your previous medical history and attaches a list of drugs which you are presently prescribed to deal with depression and anxiety. The medical history shows that from your teenage years, following bullying and incidents of sexual abuse including rape at the age of 16, you commenced having problems dealing with your psychological issues and your state of mind and that led to a suicide attempt when you were 17 years of age. Another when you were 21 and another in 1989.
25 Since your teens you have been on and off referred for psychiatric treatment and counselling and in later years the whole family have been involved in family counselling after you suffered what was referred to as a nervous breakdown in 1990. It is his view that because of your fragile state of mind and with your current medical history you will feel a gaol sentence more heavily than a person without those problems.
26 The third report by Ms Lesley Ozenics dated 15 May this year again went through your history and specifically answered questions posed by your legal advisers in terms of direct reference to this case. She notes that she has been treating you since 2007 for depression using various therapies. She also stated that at the moment she sees you facing high anxiety, largely because of the issues surrounding these offences and because of your previous predisposition for depression. She agrees with the previous reports that imprisonment could cause you significant problems.
27 Your counsel in the plea relied on these aspects of your history, that is your psychological health and mental health issues, your ongoing depression and anxiety, your suicidal ideation and your sleep apnoea, as issues that should result in a finding that you will be a person who will find custody much more difficult than a person without these problems and I accept that those issues are genuine and that I should take that into account when fixing sentence as is appropriate.
28 Your counsel also called two character witnesses who were able to give evidence of a long term relationship with yourself and your family through associating with your wife in her role as a kindergarten teacher or assistant. Ms Fleming[4] and Ms Gordon[5] both gave evidence that they had never noted anything untoward in your behaviour towards any of the children they had seen you with and from the evidence that had been a significant number over the 20 years or so that they knew you.
[4] A pseudonym
[5] A pseudonym
29 The evidence that was led from them was relied upon effectively to establish that although Mr Cummins found in his report a moderately high risk of offending against others or young children in particular, that this evidence in a sense balanced out those findings from those who had the opportunity to observe you over a long period of time and I accept that that evidence does have an impact in terms of the likelihood of your re-offending, particularly against young children and should be balanced against the qualified view that Mr Cummins gave in his report.
30 Your counsel submitted that although Mr Cummins' conclusions were adverse to you in terms of the likelihood of offending, because the overall testing was regarded as invalid and the concessions made by Mr Cummins in terms of incestuous offenders and the evidence led by those witnesses that at best there could be no real conclusion in terms of an increase of the likelihood of re-offending in your case. At best the evidence was submitted as inconclusive.
31 I am inclined to agree with your counsel in that submission. In particular in your state of health, both mental and physical, your present depression, anxiety and your age and the inconclusive nature of the testings I think it is difficult to conclude what is the risk of your re-offending in the future and I would not accept, without further inquiry the moderately high range that was indicated by Mr Cummins. Having said that however, it is my view that without proper treatment and ongoing supervision, the community would not feel protected from any risk of re-offending and that you will have to ensure that that happens in the future.
32 I also accept your counsel's submissions that because of those matters, you are a person who would benefit from a reasonably long period on parole where you can be supervised and assisted both with counselling and professional support on your release from custody. I accept the Crown's submission that the mental health issues that were raised have limited relevance in sentencing terms of moderating sentence, but rather go effectively to the way in which you will serve your sentence and the parole period and your counsel quite properly limited her submissions in terms of these principles to those aspects.
33 The issue of delay was also relied upon in terms of some mitigation in sentence and I think it does have some small support when one considers the chronology of the court process. However, the fact that the charges themselves are old on itself cannot be relied upon because as often is stated the nature of these offences are such that they often go undisclosed for a long period of time. However, the first statement was taken in 2005 and the interview with yourself was in 2006. The trial was not until April/May of this year so when one looks at that it can be said that there has been a period of some three years or so when these matters have been unresolved over your head. I do accept that there has been therefore some increase in stress and anxiety as a result of that.
34 Whilst you do not get any mitigation in sentence for remorse that would be inferred from a plea of guilty, it should be said, as your counsel submitted, that the trial proceeded in a manner that was appropriate and it is not one whereby it could be said that the trial process itself exacerbated the offending as often can be the case in trials of this nature. It also should be noted that the trial process did lead to acquittals on a significant number of the charges.
35 On the other hand, the Crown submit, and it is accepted, that these are offences which have aggravating features of breach of trust of your own stepdaughter particularly the first two incidents when they occurred when she was a young adolescent. As such your abuse of your position was significant because her natural father had not been in her life for some years. You were her father figure for most of her childhood and her adolescent years. At the time of the offending, the charges of indecent assault had a maximum period of five years' imprisonment. Incest, 20 years' imprisonment.
36
It was conceded by the Crown it is appropriate some concurrency between charges occur because of the recognition of the totality principle. Further, it is accepted by your counsel that pursuant to the Sex Offender Registration Legislation, you will be placed on that register as a result of these offences for a period of 15 years under s.34(1)(b)(ii). That is based on the fact that the incest is a Class 3 offence where a person is over 18. The other two offences are Class 2 offences. It should also be noted that after sentencing on
Counts 1 and 2 you will be sentenced as a serious sex offender on the others.
37 I should also note that there is an application made in terms of an order under 464ZF for a saliva sample for DNA testing and I propose to make that order based on your lack of opposition to that order, the social utility of such an order being made and the seriousness of this offending. I propose then to move to sentence.
38
Taking all these matters into account and doing the best I can to deal with competing considerations in this case I sentence you as follows: On
Counts 1 and 2 of indecent assault you will be convicted and sentenced to a period of imprisonment of two years on each count. Count 1 is to be the head sentence and one year of the sentence on Count 2 is to cumulate on Count 1. On Count 3 of incest, you will be convicted and sentenced to a period of imprisonment of five years, two years of which is to cumulate on Count 1. On Count 4 you will be convicted and sentenced to a period of imprisonment of five years, two years to cumulate on Count 1. On those matters you are sentenced as a serious sex offender and I have that noted in the court record. That is an effective sentence of seven years' imprisonment and I fix a minimum term of four years before you are eligible for parole. I further reckon 22 days as already served of this sentence. Yes thank you.
39 I will ask my associate to approach you and get you to sign documents noting that you have been told you will be placed on the sex offender registration and if you would sign them simply saying that you have received those documents. You will be contacted in the future by the relevant authorities. Thank you.
40 COUNSEL 1: Your Honour if I could send Mr Price in lieu of me.
41 HER HONOUR: Yes, you have got your own instructor - yes thank you. I will just get those signed. Yes thank you, thank you if you would just assist your client, yes. Whilst that is being done, can you tell me how many days - - -
42 COUNSEL 2: Your Honour it's 22 days and that does not include today.
43 HER HONOUR: Thank you, so 22 days. Thank you.
44 COUNSEL 1: As Your Honour pleases.
45 HER HONOUR: You may take the prisoner down thank you. I will hand down those orders for s.464ZF thank you. (Indistinct) we will give you that - the sex offender registration documents come back to me. It should have stayed with your client, so perhaps if I can give that to yourself and you can arrange for that to be delivered to him.
46 COUNSEL 1: Certainly Your Honour.
47 HER HONOUR: Thank you.
48 COUNSEL 1: In relation to the exhibits if they could be returned.
49 HER HONOUR: Yes, because there was a particular reference to that. I will adjourn briefly and we will bring them up because I do recall there was a specific reference to those, so before I start the next case we will hand them to you.
50 COUNSEL 1: Thank you Your Honour.
51 HER HONOUR: Thank you. Please adjourn.
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