Director of Public Prosecutions v Alchin
[2010] VCC 24
•17 December 2010
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-0901862
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GARY ALCHIN |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 2 November 2010, 16 December 2010 | |
DATE OF SENTENCE: | 17 December 2010 | |
CASE MAY BE CITED AS: | DPP v Alchin | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 24 | |
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – indecent assault – sexual penetration of a child – history of sexual abuse suffered by the prisoner.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Jones | Gary Hyland, solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S. Howe | Jeremy Harper & Associates |
HER HONOUR:
1 Gary Alchin, you have pleaded guilty before me to one charge of indecent assault, four charges of sexual penetration of a child under 16 and five charges of an indecent act with a child under 16. Pursuant to s.391 of the Crimes Act directed verdicts of not guilty have been entered with respect to Charges 10 and 12 on the Presentment being two charges of making a threat to kill.
2 You have admitted your past criminal history. There are some 11 previous court appearances. Your prior criminal history spans the period from 23 November 1981 to 15 August 1989. In the past you have been found guilty of numerous dishonesty offences, various driving offences and firearms offences. Some of the criminal history is of antiquity and is of little relevance to my sentencing you today. I note, however, that you do not have any prior convictions for sexual offending.
3 These offences I consider to be serious as is reflected in the maximum penalties prescribed by Parliament. In relation to indecent assault that is a maximum penalty of five years' imprisonment. In relation to sexual penetration of a child under the age of 16 where the victim is under the age of ten, 20 years' imprisonment. Indecent act with a child under the age of 16 that is 10 years' imprisonment and sexual penetration of a child under 16 where that child is under care, supervision and authority, 15 years' imprisonment. In relation to Count 9 on the presentment, at that time, sexual penetration of a child under 16 where the victim was under the age of ten the penalty was 20 years' imprisonment.
4 I shall proceed to sentence you on the basis of the prosecution opening that was tendered on the plea hearing and marked as Exhibit “1” and that is attached to these reasons for sentence. No issue was taken with the Crown opening on the plea hearing.
5 The two complainants are TM and CM who are brothers. TM is now aged 29, was born on 5 July 1981 and his younger brother, CM, is now aged 25, he was born on 17 May 1985. You became friendly with their family whilst living in Echuca in the early 1990s. That friendship lasted over a period of ten years. The family moved between Deniliquin, Melbourne and Bendigo and throughout that time you kept in contact with them. The offending ceased in 1996 and you have had no further contact with the boys or their family from that time.
6 Briefly, the offending involved in Count 1 which is an indecent assault was an occasion when TM was aged between nine and ten and he was at your flat in Echuca. On that occasion you placed your hands down under his underpants and fondled his penis. This is a representative charge. Another instance occurred on another occasion when he was with you travelling in your car and you asked him to sit on your knee and steer the vehicle and whilst doing so you, again, put your hand down his underpants and played with his penis. On another occasion whilst he was asleep in the bungalow in the rear of the room at Wilson Street, Echuca, you entered the bungalow, reached under the bed clothes and touched him on his penis.
7 In relation to Count 11, that is the sexual penetration of a child under 16 where a person is under the care and supervision of the accused, that relates to TM and that event is alleged to have occurred between 5 July 1995 and 4 July 1996. That occurred whilst both you and the family were living in Bendigo. TM was at home and it was arranged that he could stay with you at your home that night. You bought him some Alcopops and he drank that alcohol. The next thing he became of was waking up in bed without his underpants on and you were sucking his penis.
8 In relation to complainant CM, there are three counts of sexual penetration of a child under 10, Counts 2, 3 and 9, and five counts of indecent act with a child under 16, Counts 4, 5, 6, 7 and 8. It is alleged that you had taken CM to your place for a sleepover and you invited him into your bed to sleep. He woke up to find you sucking his penis. This too is a representative count and there are other occasions where you fellated CM as set out in the opening.
9 Count 3, sexual penetration of a child under ten, also is a representative count and immediately following the incident in Count 2 you caused him, CM, to suck your penis and there are other occasions that are representative as well, where he was required to fellate you as set out in the Crown opening.
10 Count 5 involves the first occasion when CM slept at your place in Echuca. You licked his testicles in between other sexual acts.
11 Count 6 involving CM is an indecent act with a child under 16 and you licked his testicles and anus.
12 Count 7, on CM's eighth birthday you took him into the bush. He was on your knee and you fondled his penis.
13 Count 8 involves an indecent act with a child under 16. Again that is a representative count. It involves you masturbating yourself and ejaculating over CM's stomach and that is representative of two other occasions when that occurred as detailed in the Crown opening.
14 Count 9, sexual penetration of a child under 10 is also a representative count. On the first occasion CM stayed at your house. In between other sexual acts you put your tongue into the anus of CM and there are other occasions particularised in the opening where that is said to have occurred.
15 There are many aggravating features of your offending. The age differential, for instance, TM was aged ten to 15 years and CM was aged seven to 16 years during the period of offending. At that stage you were aged between 26 and 31 years. You were considerably older and more mature than the two boys and were in a more powerful position than them. You exploited them both over many years, the younger one in particular. Your abuse was a great abuse of the trust gained with their parents and the two boys. The offending is serious as it does involve the exploitation and abuse of two young boys whose parents you befriended. You were their family friend and in relation to Count 11 the older boy was particularly left under your care, supervision and control. The offending occurred over a prolonged period and in the case of the younger man involved consistent abuse over seven years. The offending has had a profound effect on both the boys.
16 Counts 1, 2, 3, 4, 8 and 9 are representative counts and the precludes it being said in mitigation that these were isolated offences and enables the offences to be seen in their full circumstantial context.
17 You were using alcohol and cannabis at the time of offending and felt lonely and dissatisfied with life. You had not sought any professional assistance for your own complex range of problems. Whilst providing some context and explanation for your behaviour it does not excuse this offending in any way and your moral culpability is high. You knew what you were doing was wrong. Your behaviour was predatory and you abused these two boys both of whom had come within your sphere of influence through your friendship with their parents. You fostered the relationship through shared mutual interests in reptiles and camping.
18 The offending has had a devastating effect on both the boys who were at a vulnerable stage of their personal, social and psycho-sexual development. It has eroded all their trust in people and has had a devastating impact on their lives. Victim impact statements have been filed with the court.
19 TM speaks of the effect on his life and how things went awry following these assaults. He had difficulty concentrating on his school work, was fearful of your actions and had difficulties in not being able to disclose the offending to his parents for some time. He has engaged in activities of self harm over the years, has difficulties sleeping and is depressed. His hurt and anguish has been exacerbated from the knowledge that your offending also involved his younger brother as he feels partially responsible because he did not disclose the earlier offending. It has a had profound effect on his life.
20 The younger complainant, CM, in his victim impact statement speaks of the years of pain and suffering and difficulties he has had in his life. He too has engaged in self harm, is hyper vigilant, suffers panic attacks and anxiety, has trouble forming close or intimate relationships with people and ruminates about what has happened to him.
21 Further victim impact statement have been filed by the boy's parents. They discuss in that the difficulties they have experienced following the disclosure by their sons of this persistent abuse. They feel undermined as parents and blame themselves for what has happened to their sons.
22 Mr Howe has, on your behalf, put a number of mitigating factors. You were charged on 5 January 2009. You entered your pleas of guilty at the earliest opportunity at committal mention on 7 October 2009 and the matter proceeded by way of straight hand up brief. I accept by your plea of guilty you have spared both the victims the ordeal of having to further re-live what has occurred to them by giving evidence on the trial. The community has been saved time and expense of a trial and you have thereby facilitated justice and your sentence will be discounted accordingly.
23 I am prepared to accept the plea does represent some remorse for the offending. You do now publicly acknowledge what you did was wrong. You indicated that when interviewed by Mr Joblin, the consultant psychologist and also Dr Butt, the Forensicare psychiatric who was engaged by the court to assess you. You told Dr Butt "I knew I done wrong, I did think about the consequences. I don't know why I did it, I was lonely". You now feel sorry for the victims and worry that you may have destroyed their lives. Many years have elapsed since this offending occurred and this is not unusual in these types of cases. Victims of sexual assaults often delay disclosing for years. The eventual disclosure in this case was very difficult and painful for both boys and their families.
24 There is no further offending and since you have been charged you have taken steps to address your underlying offending behaviours through counselling and psychiatric treatment. There has been a delay between the time you were charged with this offending and pleading guilty and the plea hearing. The delay has weighed heavily on you and has impacted on your mental health as is demonstrated in the medical material.
25 I have been told something of your personal history and background. You are now 46, you are a single man and you are the middle child of three siblings. You report an overall happy childhood. You did experience learning difficulties and left school at an early age, aged 14, with only basic literacy skills. You left home shortly thereafter at age 15. You have a history of alcohol and cannabis abuse and have limited work history undertaking only unskilled work. You, unfortunately, have a history of being sexually abused that was perpetrated against you by a family member when you were aged 11. That person is now deceased. You report feeling unhappy with life after that incident. At age 21 you were the victim of a vicious rape whilst undergoing a sentence in Goulburn gaol.
26
You do not enjoy good health. You have acquired hepatitis C through a blood transfusion and you have smoking related emphysema. You have a neck and back condition as well. You had a C6 nerve root compression requiring left C 6-7 cervical foraminotomy that was performed on 2 October 2003. You have ongoing chronic neck pain and associated neck spasm. You have been required to take Diazepam along with Panadol, Osteo, and other
anti-inflammatory medication for that condition. You have had inpatient treatment at Ballarat Health Services for dysthymia, cannabis abuse and antisocial personality traits.
27 Dr Tim Thompson, your general practitioner, provided the court letters dated 18 April 2010 and 12 December 2010. He confirms that you are very distressed by the likely outcome of the court case and he has treated with Zoloft, Zypraxia and Valium for paranoia and depression. He confirms that you remain prone to anxiety and depression and ongoing psychological support is recommended. He has expressed concerns about how you will cope with your sentence and considers that your depression may well deteriorate.
28 Prior to being remanded in custody you were living a reclusive life, living in a shed on a property in Dereel for several years and your mental state was described as fragile. You have been in receipt of a disability support pension for ten years for medical conditions and you have not worked in that period. In the past you have only had one relationship, long term, with who you went to live in Echuca. You have now been single for several years.
29 You have indicated your willingness to attend programs for therapy that may be recommended for treatment for sexual offending. You have recently completed two programs whilst in custody including a Staying Safe in the Community program directed at understanding risks associated with substance abuse and giving you strategies for the future.
30 Overall, having regard to your express willingness to attend programs and the other efforts that you have taken, I consider you have good prospects for rehabilitation and are amenable to appropriate treatment to address your underlying offending behaviours.
31 I have considered the reports of Mr Ian Joblin, the forensic psychologist of 30 November 2009 and 18 May 2010. They were tendered on your plea. I have read all the additional material that was made available to him. He refers to your own history of sexual abuse and states that that has had a very strong impact on you.
32 You have been highly anxious about the possibility of incarceration for a number of reasons including the possibility of further attack. He thought that that fear was quite real and palpable. He notes your problems with alcohol and cannabis and considered that you were a somewhat isolated and inadequate individual who had few meaningful relationship and then, therefore, few appropriate sexual relationship. Given your isolation, loneliness, and lack of appropriate relationship he says that is the context in which the offences has occurred.
33 I agree with his assessment that initially the offending was somewhat opportunistic but there is no doubt you did receive considerable gratification from the offending. He says that it is difficult to report that the continuation of the offending related solely to opportunity. You acknowledge the inappropriateness of your behaviour and accept what you did was wrong. He considered that there was a relationship between you psychological mental state and the offending.
34 Mr Joblin notes that you are conscious of the need not to re-offend and is emphatic such offending will not occur again. He notes that the offending did not generalise from these boys to others in the community and thus there may be some basis to consider the voracity of your claim that the sexual relationships were an extension of the emotional relationship that you have with these boys.
35 Dr Butt, a consultant psychiatrist, has provided to the court a report. In her report dated 13 December 2010 she states there is no clear evidence that you suffered from a severe mental condition that may have impaired your functioning or contributed to this offending. She states that you may have been dis-inhibited through the use of cannabis and alcohol.
36 I prefer and accept her analysis having regard to the persistence of the offending over the prolonged period specified in the charged offending. She concedes depression may have played a part but nonetheless you understood what you were doing was wrong.
37 Her primary diagnosis is dysthymia, a chronic mood disorder but of less severity than major depressive disorder. She acknowledges that your past history of sexual abuse would have contributed to your dysthymic disorder but there is no direct link with the offending, that is, it did not impair your ability to appreciate the wrongfulness of your acts. Her other diagnosis includes alcohol dependence disorder and cannabis dependence disorder in remission. She considered that you did suffer from an adjustment disorder in 2008 when you became aware of these charges but that is not active currently.
38 She recommends that you undergo the Sex Offenders Treatment Program and drug and alcohol counselling and treatment addressed at reducing the risk of re-offending. She considers your risk of re-offending to be low in the short term and low-moderate in the long term. Both Mr Joblin and Dr Butt agree that gaol may well impact on you adversely in terms of your psychological state and that you require psychological treatment.
39 I had regard to the references provided at the plea hearing from people who have known you and have benefited from the assistance you provided over the last 12 months together with the letter from your father and sister. Both of whom state you have been assistance to your parents and have helped them remain in their home. Overall I am cautiously optimistic about your rehabilitation prospects having regard to the efforts you have made following your arrest to deal with the underlying offending behaviours through treatment received from your doctors.
40 I note that you now have insight into your offending behaviour. Having regard to the medical material I accept that some of the principles in Verdins are enlivened in the sense that your prior medical conditions and dysthymia means that imprisonment will weigh more heavily on you than it would on a person of normal health. There is a serious risk of imprisonment having a significant adverse affect on your mental health.
41 I am required by the Sentencing Act to impose just punishment and to condemn your behaviour on behalf of the community. Pursuant to s.6B(2) of the Sentencing Act upon your conviction of two or more sexual offences for which you receive a term of imprisonment you are, by law, a serious sexual offender. You fall to be sentenced as such, therefore, in respect of Counts 3 to 11 on the presentment. The protection of the community is the principal sentencing purpose in respect to these counts: s.6D(a). Pursuant to s.6E such sentence must be served cumulatively unless otherwise ordered. I propose to order otherwise in this case.
42 I am empowered, in order to achieve the purpose of protection of the community, to impose a sentence that will be longer than that proportionate to the gravity of the offending. I do not propose to do so in this case and have had regard to the principle of totality. Taking into account all the matters put in mitigation and note that the sentence must reflect the need to emphasise both general and specific deterrence. Having regard to the seriousness of your offending I consider that a substantial and immediate custodial sentence is warranted. The Crown have submitted a range for the head sentence of between six to eight years with a non-parole period of four to six years.
43 In sentencing you I have made allowance for a longer period of parole to enable your eventual release into the community upon appropriate supervision. I will sentence you now.
44 Count 1, the indecent assault, you will be convicted and sentenced to one year imprisonment.
45 Count 2, which is the head sentence, sexual penetration of a child under 16, convicted and sentenced to three years' imprisonment.
46 Count 3, sexual penetration of a child under 16, convicted and sentenced to three years' imprisonment.
47 Count 4, indecent act with a child under 16, convicted and sentenced to two years' imprisonment.
48 Count 5, indecent act with a child under 16, convicted and sentenced to two years' imprisonment.
49 Count 6, indecent act with a child under 16, convicted and sentenced to two years' imprisonment.
50 Count 7, indecent act with a child under 16, convicted and sentenced to one year imprisonment.
51 Count 8, indecent act with a child under 16, convicted and sentenced to two years' imprisonment.
52 Count 9, sexual penetration of a child under 16, convicted and sentenced to three years' imprisonment.
53 Count 11, sexual penetration of a child under 16 where the victim is under the care, supervision or authority, convicted and sentenced to three years' imprisonment.
54
I make the following orders for cumulation. Three years in Count 2 is the head sentence. Three months of the sentence imposed in respect of
Count 1, Count 3, Count 4, Count 5, Count 6 and Count 7 and one year in respect of Counts 8, 9 and 11 are cumulative upon each other and upon the sentence imposed on Count 2. That makes a total effective sentence of seven years and six months' imprisonment. I fix a non-parole period of five years.
55 I make the following declaration pursuant to s.6AAA of the Sentencing Act. But for your plea of guilty I would have imposed a sentence of nine years to serve seven years' imprisonment.
56 I make the declaration with respect to serious sexual offender. Pursuant to s.6F of the Sentencing Act 1991 I note that that relates to Counts 3 - 11 on the presentment inclusively.
57 In addition upon your conviction for these offences you become a registrable sex offender and because of the nature of the offending and the number of Class 1 offences: there are four Class 1 and six Class 2 offences, the requirements are that you remain subject to reporting pursuant to the requirements of the Act for the rest of your life.
58 I make the order in respect to s.464ZF of the Crimes Act with respect to a forensic sample. Having regard to the seriousness of the offending I consider that such as in the interests of the community and also I note that it was by consent. I do have to tell you, Mr Alchin, if at the time the police request you to take a scraping from your mouth you do not consent they can use reasonable force to enable the procedure to be conducted.
59 The only other formal declaration to be made relates to pre-sentence detention which is 45 days. Is that right?
60 MS MCLEOD: Yes, Your Honour.
61 HER HONOUR: I make that declaration pursuant to s.18 of the Sentencing Act and I direct that that be recorded in the records of the court.
62 I'll hand down those orders in respect of 464ZF and I'll ask - Mr Howe, can you approach the dock with my Associate just to get the acknowledgment of reporting conditions under the Sex Offenders Treatment Program. I think that finishes the matter after that.
63 All right. I will arrange for the revised sentencing remarks to be provided to the victim's mother but that will probably be in the early new year now. So we'll disconnect from Bendigo. Thank you.
64 Thank you for your help it was quite a complex one, this one.
65 MS MCLEOD: Thank you, Your Honour, yes.
66 HER HONOUR: That's been signed?
67 MR HOWE: Yes, Your Honour and Your Honour did refer also to some directions with regard to custodial matters.
68 HER HONOUR: Yes, that'll be noted on the - I said that yesterday. The reports will be provided to the corrections authorities and also the Adult Parole Board. That's been arranged and my Associate will note on the record in the remarks section that they should be directed to those comments made by the general practitioner, Dr Thompson, in relation to the medications.
69 MR HOWE: Thank you, Your Honour.
70 HER HONOUR: Yes, thank you.
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