Charges of indecent act with a child under 16 years, sexual penetration of a child under 16 years, rape.
Source
Original judgment source is linked above.
Catchwords
Charges of indecent act with a child under 16 years, sexual penetration of a child under 16 years, rape.
Judgment (5 paragraphs)
[1]
Sentence: LAVERY Total effective sentence of four and a half years imprisonment. Non-parole period of 18 months.
[2]
Sharon Alma Lavery, a jury found you guilty of five counts of indecent act with a child under 16, one count of sexual penetration with a child under 16 and one count of rape. Your offending related to two incidents in Ballarat in 1995.
Kane Andrew Sharman, a jury found you guilty of one count of sexual penetration of a child under 16. This related to one of those incidents.
The jury by their verdict accepted that at the time of the offending the prosecution had proved beyond reasonable doubt that you were each aware that the complainant was under 16 years.
At the time of the commission of these offences the maximum penalties were as follows. Rape, 25 years, sexual penetration with a child under 16 years, 10 years and indecent act with a child under 16 years, 10 years.
You Ms Lavery, will be sentenced as a serious sexual offender if I am minded to impose a term of imprisonment in respect of Charges 1 and 2 in relation to the remaining charges.
Briefly the circumstances of the offending were that you Lavery, had known the complainant since she was a very young girl when she lived in Ballarat. When her parents separated, she lived with her father. Although she was enrolled at high school she engaged in truancy, experienced drug and alcohol issues and had a problematic relationship with her father.
You Lavery, were aged 22 and you Mr Sharman, were aged 25 at the time of the offending. You are now 50 and 52 respectively.
In 1995 you were in a relationship. You Lavery, had befriended the complainant who would regularly visit you both at the flat. During these visits you would consume alcohol and drugs. The jury were satisfied you were both aware the complainant was aged 14 or under 16 at the time.
During one of her visits to the flat in 1995 the complainant was given a tablet by you Lavery, in the lounge room. This occurred in the context of you consuming alcohol and cannabis. Shortly thereafter you Lavery, re-entered the room with your breasts exposed. That is Charge 1.
You Lavery, asked the complainant to also remove her top to show she was comfortable with nudity. The complainant, affected by substances, was unable to do so. So you Lavery, assisted her in removing her top and bra. That is Charge 2.
You Lavery, then kissed her placing your tongue in her mouth. That is Charge 3.
You Lavery, then grabbed her hand and placed it on one of your breasts. That is Charge 4.
The last thing the complainant remembered occurring was being on the floor and having her pants removed by you, Ms Lavery. That is Charge 5.
Some days after the first incident the complainant was on the bed in the bedroom with you both. Whilst on the bed she performed oral sex on you Mr Sharman. Whilst this was occurring you Lavery, were trying to teach the complainant how to perform the act. That is Charge 6, sexual penetration of a child under 16 where you Ms Lavery, aided and abetted Mr Sharman by encouraging penetration.
You Lavery, were dissatisfied with the way the complainant was doing the act though you Sharman, said that it was fine. This angered you Ms Lavery.
You Ms Lavery, then took hold of a child's toy being the centre of a ring pyramid that was made of plastic and approximately six inches in length and you penetrated the complainant's vagina. She said, 'No', but you forced the toy into her vagina. That is Charge 7, the rape.
She told you to stop and that it was hurting. Sharman also told you, Ms Lavery, to stop which then caused another argument between you.
The complainant first complained to police in 2016 though she did not make a statement until 2017. These events occurred over 20 years before police were notified. I will address the consequences of delay later in these reasons.
I received a victim impact statement from the complainant. She describes the offending as impacting her emotionally and mentally from the time she was 14. Her young adult and sexual development were detrimentally affected. She feels she took away her self-worth and made her feel that she was impossible to love making her more vulnerable to manipulation and abuse all through her life.
She resorted to drugs and alcohol to deal with her issues of self-harm and to block out memories of these incidences. She has had significant issues with trusting others. She notes,
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'I was a young girl looking for friendship from someone that I loved because I had known her since I was young. They took advantage and abused me to satisfy their lusts without any concern for how I was being hurt and damaged or how it would affect my life. I carry the scars of what happened and I will have to live with them for the rest of my life.'
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I turn then to each of your personal circumstances.
You Kane Sharman, the following material was relied upon by your counsel. A psychological report from Carla Lechner dated 27 July 2023. A bundle of character references from Phil Duff, Joe Barrum, Haisley Angela Sharman, Helena Botana, Margot Sharman, Ruth Keely, Melissa McGough an AOD counsellor from the Star Program. A letter from Jenny Giblin adult services from the Salvation Army. A letter from Cheryl Brown from the Salvation Army. There is a letter from Victoria Thornton psychologist regarding Holly Sharman Haywood dated 10 August 2023. There is a letter from the Department of Health and Human Services regarding Holly Haywood and your other children dated 19 June 2015 and also a bundle of urine screens dated between February 2017 and September 2018. I take all that material into account.
The details of your personal history are fully set out in the report of Ms Lechner. You are aged 52 and your father has passed away but you have a good relationship with your mother and your two sisters.
You had an unremarkable childhood and completed VCE specialising in fine art. After leaving school you commenced an apprenticeship in the printing trade. You completed two years of your training but ceased due to your transient lifestyle and drug use. When aged between 34 and 37 you have worked as a builder's labourer.
You met Ms Lavery in 1994 and were in an on and off again relationship for about two years. There are two children from that union. Haisley Sharman who is 28, born in 1995 and Taylor Sharman who is 26, born in 1997. You reported to Ms Lechner that your life was quite chaotic at that time and that your relationship was turbulent.
You began a relationship with Ms Haywood in 1997 and have five children. Emily 24, Jacelyn 22, Carly 16, Holly 11 and Nellie 10.
You first smoked cannabis and began drinking alcohol when you were about 14. You started using drugs more heavily when you were 20 and had moved out of home. During the period from 1994 to 1996 your drug use slowed down. However, following the breakdown or your relationship with Ms Lavery you became estranged from your two children.
In mid-1998 you commenced a relationship with Ms Haywood which lasted until 2015. During that time you were regularly using amphetamines, prescription medication and methamphetamine.
You have a number of prior convictions between 1991 to 1995 relating to violence and property damage. None of your history is of a like nature to this offending. I accept your history is dated and consistent with the changes that you have made in your lifestyle since 2015.
In 2015 your house burned down due to a fire. The family managed to escape, including your daughter Holly who had been shut in a cupboard by her mother. The Department of Health and Human Services became involved with the family. All the children were placed in your care and you were supported by Child Protection. You were assisted by them with housing and provided clean drug screens to authorities. You received drug and relapse prevention counselling from the Salvation Army.
Ms Lechner notes you rehabilitated yourself from drug use undergoing rigorous drug testing for over three years. You established a home for your children and re-established more regular contact with your older children. You have since lived a stable life as a stay at home father.
When Department involvement ceased you successfully sought orders placing the children in your care in the Family Court in 2018. You have since been a stay at home father with the sole care of your three youngest daughters. You reside together in a three bedroom home in Port Melbourne.
Ms Lechner opined that you do not currently present with symptoms of a psychological or a psychiatric disorder. You have overcome drug and alcohol addiction by remaining abstinent since 2015. Your primary focus is on parenting your children. You do not exhibit symptoms of a psychosexual disorder and she assessed you as being both able to identify triggers to negative feelings and to manage them in an adaptive way.
I turn then to your personal circumstances, Ms Lavery. The following documents were relied on by your counsel. A confidential report by Debbie Commons from the Mental Health Advice and Response Service of 21 August 2023. Letters from both your children. A reference from Jackson White. Additionally, at the request of your counsel I ordered a Forensicare psychiatric report. There is a pre-sentence report dated 5 December 2023 from psychiatrist Dr Alana Bhattacharyya. I also received a summary letter pre 1989 wardship records from the Department and also a letter from the Department of Justice regarding mental health services available at Dame Phyllis Frost.
You are currently aged 50 and as indicated above you were 22 at the time of the offending. You are a long term resident at Ballarat.
Your counsel submitted your history is marked by hardship, resilience, service and stoicism.
I was informed that you had an unsettled and abusive childhood but were reluctant to discuss your history. That was one of the reasons why I ordered the Forensicare report as your counsel indicated that you now have reached a stage where you are willing to deal with and discuss your history and address your issues. Dr Bhattacharyya fully details aspects of your background and your history as reported by you.
You were born in Sydney though spent most of your childhood in Melbourne. Your parents separated when you were about five. You and your four siblings remained with your mother. She re-partnered and was in an abusive relationship, some of which was directed at you. You clearly suffered neglect and abuse as a child.
When you were aged 11 you and your younger brother were placed in care residing at Allambie under a wardship order from 1984. Even though you were under the care of the state you maintained contact with both your natural father and mother. You had various placements including living with your sister.
You have reported that you were subjected to incidents of sexual abuse being perpetrated by your father and a friend of your sister in your teenage years. You have historically been involved with CASA. Ultimately you began to live independently when you were aged 15.
You commenced using cannabis when you were about 13, then amphetamines from about 18 years. You reported that you ceased taking drugs when you about 21 and that you have never had issues with alcohol abuse.
As noted above, you have two children with Sharman. Haisley was born in 1995 when you were 21. You never lived in a permanent relationship with Mr Sharman. I was informed that your relationship finally ended in June 1996 following a family violence incident during which you were assaulted by Mr Sharman. You also had a son together born in 1997. You have reported no other significant relationships since your children were born. You raised the two children as a single parent. You also have helped to raise your grandson, Lachlan, who is aged 10.
The material from your children speak of you as a loving, devoted and supportive mother and grandmother. The reference from Mr White speaks of a kind, caring and loving person who supported not only your own family but countless others. He has attended court with you as support.
Unsurprisingly given your history your schooling was interrupted though you managed to complete HSC. You have attended and successfully completed tertiary studies in Ballarat, obtaining degrees in business information technology and computers.
You have a long history of working in the hospitality industry and have managed to juggle education with child care responsibilities. You ceased work due to health issues and have been on Centrelink benefits for some years. You have undertaken significant volunteer work to benefit the community over many years as set out by your counsel. I accept that you have made a significant contribution to various courses for the benefit of housing and education issues of community and other courses.
You have reported extensive longstanding physical and mental conditions though have been reluctant to provide details and the material in respect of these is scant.
As to your physical health at the time of the offending I was informed that you suffered pain and problems with your joints, subsequently diagnosed as fibromyalgia and asthma.
Submissions filed on your behalf by counsel indicate that you have been diagnosed as suffering with asthma, Crohn's disease, Raynaud's condition, angina, chronic back pain, irritable bowel syndrome and pernicious anaemia.
It was submitted that some of your current conditions are longstanding and may have been present but undiagnosed at the time of offending. I accept that because of your medical conditions you may be more susceptible in custody to the risk of COVID infection given your weakened immune system such that it may make prison more burdensome for you.
You are not receiving any treatment for your conditions as I was informed that you have undergone many investigations and treatments though you have discontinued them preferring to get by by yourself.
As to your mental health, some information is contained in the Mental Health Advice and Response Service report and in the Forensicare report. You were initially a client of Grampians Mental Health Service since 2010. Your mental health deteriorated in the course of the first trial for these matters in mid-2022 and required the jury to be discharged. You were admitted to hospital and had two lengthy in-patient admissions from 30 June to 25 August and 30 November to 28 December.
You have a primary diagnosis of schizophrenia and secondary diagnoses of borderline personality affective disorder, attention deficit disorder,
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post-traumatic disorder and substance use disorder.
33. You have been on a series of community treatment orders, CTOs, with the current CTO expired on 14 December 2023. You are currently treated with an injection four times weekly and prescribed diazepam 5 milligrams twice daily for anxiety.
34. Dr Bhattacharyya recommends ongoing mental health treatment and support, an ADHD assessment and involvement with a psychologist to explore your trauma and anxiety.
35. Your counsel submitted that although your mental health can be adequately dealt with in the custodial environment that treatment is on a voluntary basis and that you are unlikely to agree to it, given your distrust of medical services and your dismissal of your schizophrenia diagnosis.
36. From information provided to me from specialist mental health service at Dame Phyllis Frost Centre it is apparent that whilst in prison prisoners have the right to refuse treatment, including the right to refuse medications as prescribed. If a prisoner's mental health deteriorates and requires involuntary treatment a secure treatment order may be utilised. I can only encourage you to seek and comply with treatment recommendations.
37. I accept your current mental health situation will make prison more burdensome for you than others who do not experience your issues or have your diagnosis. Further, I accept your condition may deteriorate in the custodial environment.
38. At the time of offending you had no diagnosed mental health issues though I recognise that your traumatic childhood would have impacted on your functioning at that time. I accept your childhood was profoundly deprived, marred by physical abuse, sexual abuse, severe neglect, lack of supervision and instability. As a result of your childhood depravation your moral culpability for the offending is less than the culpability of an offender whose formative years had not been marred in the way yours were.
39. I accept there is a nexus between your experiences of childhood neglect and abuse and the offending which operates to reduce, to a certain extent, the need for general deterrence.
40. Often when this circumstance is taken into account prominence is also given in the sentencing exercise to community protection. However, given the passage of time since this offending and your success in raising your children and contribution to the community that consideration is not particularly relevant.
41. As to delay I was referred to various authorities regarding the impact of delay and the mitigatory effect of it. You have both had these matters hanging over your head since police first spoke to you in 2018 and 2019 respectively.
42. Further, from the time of the offending in 1996 you have each taken significant steps towards your rehabilitation. It has been 28 years since the offending occurred. The complainant first went to the police in 2016 and her statement was not complete until 2017. That is approximately 22 years after the event.
43. Police contacted you regarding the nature of the allegations in October 2018 and January 2019 respectively. The jury reached a verdict on 3 May 2023. You both have had these allegations hanging over your heads for four years and six months. The responsibility for any of these delays is not attributable to you.
44. In respect of you Mr Sharman, it was submitted that you have made real progress towards your rehabilitation between the time of offending and being sentenced. You have, for a significant period of time but more particularly since 2016, engaged in a proactive lifestyle and remained the sole carer and provider for your children. It was, however, conceded that since you have not accepted responsibility for the offending the strength of any rehabilitation argument was weakened though relevant to the lack of need for specific deterrence and community protection as considerations in the sentencing exercise.
45. Various tests were conducted by Ms Lechner with the assessment based on the finding of guilt. You are assessed as a low risk of sexual reoffending compared with other sex offenders. Your involvement in this matter appears to be a one off incident.
46. In respect of you Ms Lavery, during the period after you were contacted by police you have suffered anxiety and hardship given the uncertainty of your future. Your mental state has deteriorated whilst awaiting trial, as evidenced by two lengthy in-patient admissions mentioned above. You similarly have, since the time of this offending, engaged in a proactive life, caring for your children and broader friend community contributing your skills to volunteer work. You have had no other involvement in the criminal justice system other than these matters. Similarly, as you have not accepted responsibility for your offending the argument regarding rehabilitation is weakened.
47. I accept on the material filed on behalf of each of you that you have, since the commission of this offending, matured and made valuable contributions to your respective families and the community.
48. As to the objective gravity of this offending, any sexual offending against children is serious. This is reflected in the maximum penalties imposed by parliament for the offending at that time. I note that the penalty for sexual penetration has significantly increased but at the time of your offending was 10 years.
49. The impact on the complainant has been significant. Though you were not in a formal care or supervision role with the complainant she was a troubled 14 year old who was vulnerable. You both took advantage of that. There was at least an eight year age gap between you.
50. In respect of you Ms Lavery, you knew the complainant when she was very young and were aware of her troubled family situation. You are to be sentenced in respect of more charges, including the more serious of rape. This offending occurred on two occasions over a two week period.
51. It was conceded your actions in penetrating the complainant with the toy caused physical pain. I note that in respect of you Mr Sharman, the prosecution accepted that you sought to intervene in relation to Lavery's offending and told her to stop.
52. In respect of you Mr Sharman, Ms Lechner opined that an immediate term of imprisonment would be extremely detrimental to your mental health and that of your children. You have expressed concern your daughter, who has just completed Year 11, will not complete her schooling but more significantly that your daughter Holly's mental health which is already precarious, will deteriorate further without your presence and support. That your biggest source of anxiety will be the care, welfare and support of your children.
53. The material provided from your family, older children, friends and others involved in your life support the opinion regarding you overcoming your addiction and the care that you have been able to provide for your children, particularly as a consequence of what was described as a catastrophic event in your life or the fire.
54. The material is consistent as to the traumatic effect your incarceration would have on your children, especially Holly who has some learning difficulties but also significant psychological issues. See the report of Victoria Thornton, psychologist. Your counsel relied on this material particularly to establish exceptional circumstances submitting the plea for mercy was irresistible.
55. I was provided with a number of comparative cases, however, they are of limited assistance given the unusual features in this case including the passage of time since the offending occurred and that many of those referred to were in relation to pleas of guilty.
56. Serious sexual offender provisions apply to you Ms Lavery. Sentence imposed on a serious sexual offender counts must prima facie be served cumulatively on other terms of imprisonment imposed. I must also have regard to the principles of totality but it was not submitted by the prosecution that a disproportionate sentence was required.
57. Both counsel submitted that each of you could be sentenced to terms of imprisonment but that the period should be wholly suspended. Although not a current sentencing option suspended sentences are available for offences committed prior to 1 September 2014 as these matters were.
58. The prosecution submitted that in respect of you Mr Sharman, the only appropriate sentence was a term of imprisonment though conceded a term of imprisonment in combination with a community correction order was within proper sentencing range given your family circumstances.
59. In respect of you Ms Lavery, the prosecution submitted the only appropriate sentence was a term of imprisonment with a head sentence and a non-parole period. That in those circumstances a suspended sentence was not within the range given the legislative requirement that a suspended sentence can only be imposed in circumstances where the total effective sentence is less than three years and it was submitted such a sentence would be outside the range available.
60. Neither of you are entitled to any of the benefits in sentencing that you may have had if you had pleaded guilty, although that is not an aggravating feature. Further, I can have regard to your plea of not guilty in my assessment of your lack of remorse and insight into your offending.
61. General deterrence, punishment and denunciation are important sentencing factors in this case. You both took advantage of a young girl who was craving acceptance and participated in cruel and sexual offending. There is very strong mitigatory material on behalf of each of you as I have outlined, including delay, good rehabilitation prospects and other matters specified personal to each of you, though the objective gravity of the offending, particularly the rape charge, is high. In relation to that charge no other sentence other than an immediate term of imprisonment is appropriate.
62. If you could both please stand.
63. Ms Lavery, in respect of Charge 1, you are convicted and sentenced to a term of imprisonment of one month.
64. In respect of Charge 2, you are convicted and sentenced to a term of imprisonment of one month.
65. In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of two months.
66. In respect of Charge 4, you are convicted and sentenced to a term of imprisonment of two months.
67. In respect of Charge 5, you are convicted and sentenced to a term of imprisonment of three months.
68. In respect of Charge 6, you are convicted and sentenced to a term of imprisonment of 12 months.
69. In respect of Charge 7, you are convicted and sentenced to a term of imprisonment of four years.
70. In relation to you Mr Sharman and Charge 6, you are convicted and sentenced to a term of imprisonment of 18 months. In relation to that sentence, Mr Sharman, that sentence will be wholly suspended for a period of two years.
71. In relation to you Ms Lavery, one month of the sentence imposed in respect of Charge 4 and one month of the sentence imposed in respect of Charge 6 will be cumulative giving a total effective sentence of four years and two months. I set a non-parole period of 18 months.
72. In respect of Charges 1 to 5 they are Class 2 offences under the Sex Offenders Registration Act. Charge 6 is a Class 1 offence. It is accepted that mandatory registration applies.
73. In relation to you Ms Lavery, you will be registered for life having regard to the convictions in respect of your offences.
74. In relation to you Mr Sharman, you will be required to report for, is it 15 years?
75. MR McKENRY: Yes, Your Honour.
76. HER HONOUR: Fifteen years. In respect of all the charges against you Ms Lavery, including Charge 3 and following you will be noted as being a serious sexual offender. Is there any other orders I need to make?
77. MR McKENRY: No, Your Honour. As Your Honour pleases.
78. MS MUNSTER: As Your Honour pleases, no other orders.
79. HER HONOUR: All right. I will just stand down. I have just got another matter I have got to do almost straight away. Thank you.