DPP v O'Brien (a pseudonym) [2021] VCC 1803 (11 November 2021)

Last Updated: 30 June 2022

IN THE COUNTY COURT OF VICTORIA

Revised Unrestricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
v
CALLUM O’BRIEN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE HIGHAM
WHERE HELD:	Melbourne
DATE OF HEARING:	15 October 2021
DATE OF SENTENCE:	11 November 2021
CASE MAY BE CITED AS:	DPP v O’Brien (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1803

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW

Catchwords: Sentence – Sexual Penetration of a Child under 16 – Indecent Act with a Child under 16 – Plea of Guilty

Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Sentence: Total Effective Sentence of 8 years’ imprisonment, with a non-parole period of 5 years and 5 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D Guesdon	Office of Public Prosecutions
For the Accused	Ms J Munster/Ms A Burnnard	Victorian Legal Aid

HIS HONOUR:

1. Callum O’Brien^[1], you have pleaded guilty to:
   • one charge of sexual penetration of a child under 16 (Charge 1), the maximum penalty for which is a term of imprisonment of 25 years; and
   • two charges of indecent act with a child under 16 (Charges 2 and 3), for which the maximum penalty for each charge is a term of imprisonment of 10 years.
2. Tendered on the Plea as Exhibit 1 was a Summary of Prosecution Opening in which the agreed details of your offending were set out.

Circumstances of Offending

3. In brief, the circumstances of your offending were as follows.
4. You were a long-standing family friend of Paul Barnard^[2]. He first met you when he was 14 years old. He looked up to you and as time progressed came to regard you as an older brother. He and his wife Clare^[3] had five children: three boys and two girls. You were godfather to their oldest child Charlie^[4]; their two other boys Duncan^[5] (born 2001) and Robert^[6] (born 2003) became your victims. You had known both boys since their birth and they called you uncle Callum.
5. In 2008, their uncle, Paul’s brother, suicided. Paul was particularly affected by the loss of his brother and for a while it seems sought to assuage his grief with alcohol. At this point, you became particularly close to the family, spending more time with Duncan and Robert. You would invite them over to your house where you lived with your wife Melissa^[7], take them on outings, and provide them with treats. Your offending against them would usually occur in the course of these visits.
6. On one occasion when Duncan was nine years of age, he stayed over at your house in a single bed in the spare room. You were taking him to a wave pool the following day. He awoke in the morning to find you at his bedside licking and sucking his penis (Charge 1). You told him to shush and to go back to sleep and then proceeded to masturbate his penis. You then placed his hand on your own penis causing him to masturbate you (part of Charge 2). Later that day you went, as planned, to the wave pool with Duncan and then drove him home. On the drive home you unzipped Duncan’s trousers and proceeded to masturbate his penis (part of Charge 2).
7. On a later occasion when Duncan was about 10 years old, he was at your home seated on a beanbag and watching a movie on TV. You came over to him, placed a hand inside his underwear and masturbated his penis for a short period of time (part of Charge 2).
8. On another occasion when Duncan was again about 10 years old and sat in the front passenger seat of your vehicle, with Robert in the seat behind you, you again took your hand off the steering wheel and placed your hand on Duncan’s penis over his clothing (part of Charge 2). It should be noted that Charge 2 is a rolled-up charge consisting of five separate acts over a period of approximately two years.
9. On an occasion when Robert was about seven years old and staying over at your house, he was taking a shower in the bathroom. You came into the bathroom, stripped naked and got into the shower with him. You then placed his hand on your penis and made him masturbate you to ejaculation. This happened on all three occasions that Robert stayed over at your home.
10. Over the same period you would take Robert to amusement venues, such as Time Zone, and, either on the way there or on the way home, you would drive to some out of the way location, have both of you get into the back seat of the vehicle, remove all your clothes, make Robert kiss you and then make him masturbate you to ejaculation, all the while giving Robert instructions as to how to best pleasure you. You would tell Robert that if he told anyone he would not be able to do fun things anymore. This happened on about four or five occasions.
11. Charge 3 is a course of conduct charge comprising the above seven or eight occasions over a period of months.
12. Neither Robert nor Duncan disclosed your offending against them at the time. In about 2012, their mother Clare found messages from you on Robert’s Facebook account. She consequently asked both boys whether you had done anything to them. Both boys said no. Duncan later stated that he was too scared to say anything at the time. Clare, who had long had her suspicions about your interest in the boys, insisted that you have nothing more to do with the family and your long-standing friend Paul rang you and told you that you will not see the boys anymore. The last time the family saw you was at Christmas in 2012.
13. In April 2018, both Duncan and Robert disclosed your offending to their parents and police were duly informed. Both boys participated in VAREs on 17 May 2018.
14. On 7 November 2018 you participated in a Record of Interview. You told police of the caring, loving and perfectly proper relationship that you had with both boys and firmly denied all allegations of sexual offending against them. You were charged on 30 July 2019.
15. After a committal where both Paul and Clare gave evidence, the trial was fixed for 13 July 2020: that date was vacated due to COVID-19 restrictions. On 5 and 6 November 2020, Special Hearings were conducted for Duncan and Robert, where they were both cross-examined and the falsity of their allegations put to them, albeit in the most delicate term. The matter resolved just before the new trial date of 20 July 2021 and you pleaded guilty to these charges on 2 August 2021. You have been remanded since that date. The Plea hearing in this matter was held on 15 October 2021.

Victim Impact Statements

16. Exhibit 2 on the Plea was a Victim Impact Statement from Clare Barnard. She speaks of her agony watching the impact of your offending upon her child Duncan:

“He was such a sweet, happy and loving boy and then everything changed.”

17. She writes of her grief, her anger and her sense of guilt that she did not act earlier:

“I feel like I have failed my boys.”

18. She writes also of the difficulty she faced trying to be there for her boys during the Court process and yet not being able to talk to them about the very subject matter of the Court process. As a mother, she wanted to do to try and heal her boys, who were obviously suffering and in pain, yet could not. She writes:

“My husband was taken advantage of. He was going through a very difficult time and was suffering from depression after losing his brother the way he did .... We trusted you. My boys called you Uncle .... I will never forgive myself for what my boys have suffered.”

19. Exhibit 4 was a Victim Impact Statement from the boys' father Paul, your long-standing friend, the man who looked up to you as an older brother and the man whom you betrayed. He speaks to you in that statement and says simply:

“You have no idea of the damage that your actions have done .... I am so angry with myself for not seeing it and for letting you into my life .... I feel like a fool trusting in you when I was going through my hard time .... My boys' childhood innocence has been taken away. They didn’t deserve this.”

20. Mr Barnard is clearly wracked with guilt. He also speaks of the pressure and impact upon the family of the Court process; the process you could have ended at any time through pleading guilty but, as he says:

“For three years, three long bloody years, we were dragged through the courts.”

21. Whilst these statements must, of course, not be permitted to overwhelm the sentencing process, no one can be in any doubt as to the devastating and traumatic impact that your offending has had upon Clare and Paul. They blame themselves. They are not to blame for one moment. The only person who bears responsibility for your crimes is you yourself, Mr O’Brien.
22. Exhibit 3 was a Victim Impact Statement from Robert. He states he cannot put his feelings into words, but does describe what he thinks of himself now:

“I have no self-confidence or self-sympathy. ... I feel unworthy and I feel that I don't deserve to be loved and cared for. ... I have feelings of shame and guilt that stop me from telling people. I feel that people will judge me if they knew. Socially I’m still myself but there will always be that missing part of me that no one will get to know. ... I keep thinking about what happened, stressing and worrying about things and just not been able to switch off. It's a very embarrassing thing to have gone through as the stereotype of "it doesn't happen to guys" is still a thing. ... One of the hardest things I had to do was to talk about what was done to me.”

“Having to go through giving my statement/evidence was a nightmare. I was constantly reliving the trauma and I couldn’t concentrate on anything.”

23. The Court process coincided with his Year 11 and 12 exams where I was told on the Plea that he did not perform to the expectation. However, that young man ends on a note of optimism where he says:

“I have hope that things will get better for me.”

Personal Circumstances

24. I turn now to your personal circumstances.
25. You were born in December 1958 are now 62 years of age and were aged between 52 and 54 years of age at the time of this offending. You have one prior but no subsequent criminal matters.
26. You were born in Melbourne and grew up in Burwood East with your parents and one older brother. Your family then moved to Gippsland. You report being bullied at school, having low self-esteem and difficulties in forming relationships and social connections. You left school after Form 5 to undertake an apprenticeship as a mechanic. Later you completed a purchasing and planning course at TAFE. You have a solid employment history, but retired at age 55 due to declining health. Since 2018 you have been reliant on Centrelink. You now have chronic arthritis, lower back injury, need a hip replacement and live with both high cholesterol and high blood pressure.
27. You have had one significant relationship in your life, marrying your wife Melissa in 1983 and separating in 2017. Your two children from this relationship are now both estranged from you and you have not been permitted to see your grandchildren in consequence of being charged with this offending.
28. Throughout your life you have volunteered in community endeavours, from surf lifesaving as a teenager to membership of the Salvation Army, involvement in youth groups and in fundraising. You have cared for your parents, with your father passing away recently and your mother now in residential care with dementia, and you have provided financial and practical assistance over the years to both neighbours and friends.
29. Exhibit 6KG was a reference from your wife Melissa and Exhibit 7KG a reference from your brother. Both speak of your compassionate nature and of your dedication to caring for others.
30. You report feelings of depression from childhood and feeling conflicted as to your sexual identity. On enquiry, I was told this was a reference to feelings of same-sex attraction. From 1998 onwards you have received conversion therapy: a practice now both discredited and outlawed in this State. Since being charged, you have experienced reactive depression and feelings of isolation and thoughts of self-harm. Prior to your remand in custody you were living quietly with your dog for company.
31. You have a relevant prior matter. In February 2003 at the Dandenong Magistrates Court you pleaded guilty to knowingly possessing child pornography and were convicted and sentenced to a term of imprisonment of six months, to be served by way of an Intensive Corrections Order. You appealed that sentence to this Court and in April 2003 you were dealt with in this Court by being released on an adjourned undertaking for two years without conviction and directed to attend counselling with a Mr Hunt. Again, only on enquiry at the Plea hearing, was I told that Mr Hunt was a practitioner of gay conversion therapy. The child pornography material consisted of images of boys of the same age as your victims in the matter before me. Now, whilst you do not fall to be sentenced again for matters already dealt with by the courts, that prior criminal matter is relevant to my assessment of your prospects for rehabilitation, the need for specific deterrence and protection of the community.

Submissions of Counsel

32. Ms Guesdon, on behalf of the Director, submitted correctly that general and specific deterrence and denunciation were primary sentencing considerations in your case. The only appropriate disposition was a term of imprisonment with a non-parole period. Specific deterrence and protection of the community were also relevant sentencing considerations.
33. She pointed to the close family relationship between you and your victims, the great disparity in age, the breach of trust and the devastating impact upon your victims. Yours was a late plea. Other than the plea of guilty itself, there was no evidence of remorse on your part, she submitted. She reminded me of the Serious Offender provisions, but did not seek a disproportionate sentence in your case.
34. Ms Burnnard, who appeared with Ms Munster on your behalf, conceded this was serious offending meriting a significant term of imprisonment, but in mitigation of such sentence she urged upon me:
    • your plea of guilty, which she conceded was not early and came after both your victims have given evidence;
    • the onerous nature of custody during the time of the COVID-19 pandemic;
    • that this is your first time in custody at the age of 62; and
    • the increased burden upon you of your concerns for your ailing mother.

Objective Gravity of the Offending

35. Mr O’Brien, offending against children will always be viewed by the courts as serious offending. There has been a growing recognition by the courts of the lasting impact that such offending has upon children and how it can often lead to lives that are not fully lived. Children who have been sexually offended against have had their innocence and sense of self stolen from them. They often blame themselves for acts committed against them by adults and for which they are completely without blame. They may struggle to engage in healthy relationships. They may struggle to find their place in the world. These are the lived and recognised experiences of child victims of sexual abuse. Crimes against children are crimes against our common future and our common humanity, and the courts have repeatedly stated that they will do everything within their power to protect children.
36. I was told on the Plea that you have struggled with feelings of same sex attraction throughout your life. In order to address these feelings, you apparently placed yourself in the hands of charlatans who masqueraded as legitimate therapists. This was only led by Ms Burnnard as part of your personal narrative and your counsel, sensibly, did not argue that there was any connection between such attraction and this offending. I have no hesitation in finding, absent any material placed in front of me on your behalf, that you offended against these children simply because you were attracted to pre-pubescent boys, as indeed your earlier criminal matter makes clear. Your sexual interest has led you to progress from viewing to contact offending.
37. Due to your longstanding relationship with Paul Barnard, you were viewed as a part of the Barnard family. You were Duncan and Robert's 'Uncle Callum'; a trusted quasi- familial older adult. At a time when you knew that Paul was struggling with grief and loss, you were permitted access to the boys, despite their mother's misgivings. You arranged opportunities for the boys to be away from their parents and to give them outings.
38. However, instead of caring for them when you had them under your care, you abused them and, in doing so, you reduced them to mere sexual objects whose sole purpose was to satisfy your own perverted desires. It is true that your offending was absent many of the aggravating features so often encountered in offences of this kind, but this was serious offending nonetheless.
39. Duncan awoke one morning in the home of his Uncle Callum, where he was entitled to feel safe and secure, to find his penis in your mouth. You then masturbated him and caused him to masturbate you. It was a complete violation of that young boy. Thereafter, you would attempt to masturbate him as and when you pleased, as identified in the occasions of Charge 2.
40. Robert could not know when a sleep-over or trip to an amusement venue would turn into something of a sexual nature, and these events left him confused, unable to comprehend your motives and your actions. You made it clear that if he told anyone of your abuse of him then the nice things would stop. Now, Mr O’Brien, intimacy should not be transactional, but that is a lesson that you sought to teach Robert. If he told of your abuse then the nice things would stop. You were dealing in a pernicious and corrupting form of currency.
41. At the time of your offending, you were between the ages of 52 and 54: your victims were aged between seven and 10. Your offending was not opportunistic. It was not isolated. It was not situational in any meaningful sense. Rather, it was manipulative, persistent, exploitative and continued over many months against both your victims. You were, it seems, offending against both your victims over the same period of time. You had ample opportunity to appreciate that what you were doing was wrong, but you continued. Your betrayal of your friendship with their father was absolute. It was a grotesque breach of the trust that the children placed in you and of the trust placed in you by their parents. Your moral culpability for your offending is high indeed. And further, apart from your late plea of guilty, I find that you have demonstrated little, if any, remorse.

Sentencing Considerations

42. Mr O’Brien, the sentencing process is not about revenge and it is not about retribution. The sentencing process cannot give back to your victims that which they may feel has been taken from them. In sentencing you, I must have regard to a range of different factors. I must give effect to the principle of general deterrence, that is I must deter others from behaving as you did. I must consider specific deterrence, that is the need to deter you from repeating such offending. I must consider the need to protect the community from you. I must express the community's denunciation of your conduct and I should promote, if possible, your rehabilitation. I must take into account the effect of your crimes upon your victims and I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty and to current sentencing practices. In short, I must try to balance your personal circumstances with the circumstances of your offending.
43. Clearly, principles of general and specific deterrence, denunciation, just punishment and the protection of the community are all relevant considerations in the sentencing exercise. On Charge 3, I am required to sentence you as a Serious Sexual Offender and, ordinarily, that means that I would be required to impose a sentence that is cumulative upon the other sentences.
44. Ms Guesdon for the Prosecution did not seek to persuade me that I should impose a disproportionate sentence and I do not propose to impose a sentence that involves total cumulation. I have not been provided with any assistance as to your risk of re-offending. It is the duty of the Court to impose, however, no longer sentence than is necessary in all the circumstances of the case. It seems to me that justice can be done in this matter, and the public can be adequately protected by a measure of concurrency that sufficiently addresses all relevant sentencing considerations.
45. The fact of the continued support of your family and the absence of subsequent criminal matters moderates, to some extent, the need for specific deterrence and protection of the community. It also provides some guarded optimism for your prospects of rehabilitation.
46. I have had regard to all the matters urged upon me in mitigation, including:

(a) to your long-standing health issues, but I note it was not argued that these would make custody per se more onerous for you;

(b) I accept you will keenly feel the separation from your mother and that you may not see her again before she passes;

(c) I note this is your first time in custody. I accept that the challenges and onerous impact of custody in a time of Covid and the uncertainties and restrictions that are placed upon you in the custodial setting;

(d) I have regard to your plea of guilty. Your plea of guilty, of course, must have significant and substantial utilitarian value in the time of Covid, as recent authority makes clear. However, the mitigatory value of your guilty plea is, in my view, considerably diminished in view of its timing. This was a plea almost at the door of the court and after both your victims had given evidence. The Victim Impact Statement of Robert speaks of the impact of giving evidence upon him and the other Victim Impact Statements have spoken of the impact of the trial process upon the wider family; and

(e) I also have regard to the protective factor of the ongoing support that you will have from your family upon your eventual release.

47. However, as your Counsel conceded and as you must be only too well aware, the objective gravity of your offending is such that it can only be met by a significant term of imprisonment.

Sentence

48. On Charge 1, sexual penetration of a child under 16, you are sentenced to a term of imprisonment of five years and four months.
49. On Charge 2, indecent act with a child under 16, you are sentenced to a term of imprisonment of two years and ten months.
50. On Charge 3, indecent act with a child under 16, you are sentenced to a term of imprisonment of four years and two months.
51. I order that ten months of the sentence on Charge 2 and 22 months of the sentence on Charge 3 run cumulative to each other and cumulative to the sentence on Charge 1. This makes a Total Effective Sentence (TES) of eight years’ imprisonment.
52. I direct that you must serve a period of five years and five months before you are eligible for parole.
53. Pursuant to s 6AAA of the Sentencing Act 1991, had you not pleaded guilty you would have been sentenced to a TES of ten years and eight months’ imprisonment with a non-parole period of seven years and nine months.
54. On Charge 3, you are sentenced as a Serious Sexual Offender and I direct that this be entered into the records of the Court.
55. Pursuant to s 18(4) of the Sentencing Act 1991, you have served 101 days of the sentence that I have passed upon you and I direct that this be entered into the records of the Court.
56. Pursuant to the Sex Offenders Registration Act 2004, you are now a registerable offender and the period of registration is for the rest of your life.

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^[1] A pseudonym.

^[2] A pseudonym.

^[3] A pseudonym.

^[4] A pseudonym.

^[5] A pseudonym.

^[6] A pseudonym.

^[7] A pseudonym.