Director of Public Prosecutions v Anderson (a pseudonym)

[2021] VCC 951

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL ANDERSON (A pseudonym)

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2021
DATE OF SENTENCE:	13 July 2021
CASE MAY BE CITED AS:	DPP v Anderson (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 951

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Three charges of sexual assault of a child under the age of 16 years; beyond what was required for medical or educational hygiene purposes; charges based entirely upon admissions in the record of interview.

Legislation Cited:      Sentencing Act 1991; Crimes Act 1958; Sex Offenders Registration Act 2004.

Cases Cited:R v Verdins (2007) 16 VR 269.

Sentence:                  Community Corrections Order for a period of 18 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C. Duckett	Office of Public Prosecutions
For the Accused	Ms M. Casey	Sullivan Braham Barristers & Solicitors

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses.

HIS HONOUR:

Introduction

1Daniel Anderson,[1] you have pleaded guilty to three charges of sexual assault of a child under the age of 16 years pursuant to s 49D(1) of the Crimes Act 1958.  The maximum penalty for this offence is 10 years' imprisonment and the standard sentence is 4 years' imprisonment.

[1]        A pseudonym.

Summary of offending

2The circumstances of the offending were set out in the Summary of Prosecution Opening that was tendered as Prosecution Exhibit 1 on the plea.  I will not repeat that in its entirety but in a somewhat abbreviated form.   You were between the ages of 48 and 49 years old at the time of the offending.  The victim, Patrick Wallace,[2] was between 7 and 9 years old.

[2]        A pseudonym.

3You married the victim’s grandmother in 1993.  The nature of your relationship to the victim was evident from the fact that you were known to him as his grandfather, and that his mother called you “Dad”.

4During the period of the offending you lived with your wife on a hobby farm in Regional Victoria.

5Prior to and during the period of the offending the victim’s mother and her children would regularly visit you and her mother at your property in regional Victoria.

6Between 1 January 2019 and 31 December 2019, when the victim was 7 or 8 years old, he and his family lived in a rental house next door to where you were residing.  You and your wife would regularly babysit the victim and his siblings whilst their mother was at work.

7On one occasion while the victim was visiting your house, he had a shower with you.  During the shower, you showed the victim how to pull his foreskin back.  You did this by making the victim hold your foreskin back on your penis.  The victim held your penis and retracted your foreskin.  This conduct is the subject of Charge 1, sexual assault of a child under the age of 16.

8On another occasion between 1 January 2019 and 31 December 2019, the victim was visiting your house in regional Victoria.  Whilst you and the victim were outside the house near the carport, the victim said to you that his penis was sore.  It was accepted on the plea that the victim had suffered from infections in his penis since 2017.  On this occasion, after the victim told you that his penis was sore you went into the house.  You returned with an unknown cream.  You told the victim, “Here, Pat, we’ll put some of this on and you should be all right”.  The victim proceeded to pull his penis out in front of you.  You told the victim to pull back the foreskin of his penis.  You then rubbed the cream on and around the head of the victim’s penis.  You told him, “There you go Patty-cake”.  You then put cream on the victim’s finger.  You made the victim apply that cream to his penis.  It is this incident that is the subject of Charge 2, sexual assault of a child under the age of 16.

9On a third occasion at sometime between 1 and 31 January 2020, the victim was visiting your house in regional Victoria after school.  You and the victim were outside in front of the house.  You were smoking a cigarette.  You asked the victim how his penis was going.  You said to the victim, “Give us a look, Patty-cake”.  The victim said to you it was “better”.  You asked the victim to show you his penis.  The victim pulled out his penis.  You then touched the victim’s penis.  You lifted his penis up and looked at the underside.  This incident is the subject of Charge 3, sexual assault of a child under 16.

10From September 2019, the victim’s mother became aware of her son showing reluctance to visit you.  On 25 February 2020, the victim disclosed certain matters to her mother that led to a VARE being conducted on 26 February 2020.  You were arrested on 27 February 2020.  A record of interview was conducted that day.

11The entirety of the evidence constituting the three charges on the Indictment comes from admissions you made during that interview.  The conduct that is the subject of the charges was not the subject of any allegations made in the VARE interview nor from any other witness.  The Crown opening for this matter references no other source of evidence for the conduct the subject of the sexual assault charges but for your answers to police.  It follows that the prosecution relies on those answers as being truthful.  In considering the factual basis for sentencing I intend to similarly refer to and rely on your answers to police.

Effect on the victims

12The impact of your offending upon a victim is a relevant sentencing consideration pursuant to s 5 of the Sentencing Act 1991.

13Tendered by the Prosecution were Victim Impact Statements[3] of Patrick Wallace, Glenn Wallace,[4] and Shannon Wallace[5].  I disregard any inadmissible material included in the statements.  In the unusual circumstances of this case I must also take care not to consider what is said to be the impact of conduct that was not the subject of charges on the Indictment.  That said, it is clear from the Victim Impact Statements that your conduct has caused considerable distress, and an understandable feeling of betrayal from the victim’s parents who trusted you.  The victim himself has also been affected by the family unrest that has resulted from your conduct.

[3]Prosecution Exhibits 2, 3, 4.

[4]        A pseudonym.

[5]        A pseudonym.

Nature and gravity of offending

14The nature of sexual offences involving children is such that it is presumed that considerable harm will be caused to the victims of such conduct, and I intend to sentence you on that basis.

15Sexual offences against children are inherently serious.  In this case, you committed three offences involving the sexual touching of a very young child.  There was an age disparity of more than four decades between you and the victim.

16The offending is made more serious by the fact that you were considered as the child’s grandfather and treated accordingly.  The victim’s parents trusted you implicitly.  This offending represents a breach of that trust.

17The offending the subject of all three charges is very similar in its nature.  All charges are against the same victim.  All charges involved conduct involving either you touching the victim’s penis or the victim touching your penis.  All charges were committed within, it seems, at most a 14-month period.  All charges were in the context of you babysitting the victim while his mother was working.  There is in my view no reason to distinguish between the relative gravity of each charge.

18The moral culpability attaching to the offending is, however, unusually low for offences of this nature.  The charges, as I have mentioned, are based entirely upon your admissions in the record of interview.  Based on those admissions, I cannot sentence you on the basis that you experienced any sexual gratification from the offending.  Nor can I conclude that this conduct was engaged in for that purpose.

19Rather, the touching the subject of the charges is ‘sexual’ by virtue of the body parts touched pursuant to s 35B(2)(a) of the Crimes Act 1958.  It is accepted by your plea that the conduct is contrary to community standards.  It went beyond what was required for medical or educational hygiene purposes.  The victim did not need to touch your penis and attempt to retract your foreskin in order to learn how to do that for himself.  The victim was capable of applying his own cream to his penis.  You did not need to touch or inspect the child’s penis to see how the treatment was going.

20The conduct engaged in was without that knowledge or consent of the victims' parents.

Personal circumstances of offender

21You are now 51 years old.  You have no prior criminal history nor anything pending.

22You were born in Sydney and are the youngest of four siblings.  You still have some limited contact with one sister.

23Your family moved from Sydney to Hobart.  Your parents then separated.  You went to live with your mother, first in Victoria, then again in Tasmania, before returning to Victoria and settling in regional Victoria.  You had some intermittent contact with your father who returned to Sydney.

24Your childhood was tragically marked by physical and sexual abuse, much but not all of it at the hands of your father.  He was apparently imprisoned when you were an adult for sexual offences against approximately 30 victims.  You have had no contact with him since age 14.

25Your mother re-partnered.  Your relationship with your stepfather and your mother broke down and you have had no relationship with them for the last 25 years.

26You moved to regional Victoria 18 years ago with your wife.  She has three children from a previous relationship.

27By way of education, you attended school to approximately Year 8 level.  You instructed that your capacity to progress at school was impacted by dyslexia.

28You left school and commenced work at a bakery in regional Victoria.  Whilst you have no formal qualifications, you gained experience in this field and went on to work for several other bakeries.  For the last eight years you were employed baking and cleaning on an offshore ship.  This employment ended because of the pandemic when a member of the ship’s crew became infected and border restrictions made it untenable for you to continue to fly in and fly out.

29You now reside with your wife on the hobby farm in regional Victoria.  You are still repaying a mortgage on that property.  Your lack of employment in recent months has caused significant financial strain.

30I have had regard for the report of psychologist Megan Rodgers.[6]  Ms Rodgers concluded that you had a full-scale IQ in the extremely low range.  She considered that there was a strong probability that you had severe post-traumatic stress disorder related to your childhood abuse.  You had, in her opinion, severe levels of depression, anxiety and stress.

[6]Defence Exhibit 3.

31Ms Rodgers considered that you had very significant psychiatric problems requiring treatment.  She said that you had suffered significant psychological distress for a substantial portion of your life.

32Ms Rodgers considered that your conditions would make imprisonment more burdensome for you and would decline in a prison environment.  I accept that in this case, Verdins[7] principles 5 and 6 have some application.

[7]        R v Verdins (2007) 16 VR 269 (‘Verdins’).

33Whilst Ms Rodgers did not contend that either the PTSD, depression, anxiety, or other cognitive functioning limitations are causative of the offending, your Counsel submits that all of these matters are relevant as context in which the offending has occurred.  I give full weight to your difficult background and the ongoing issues this has caused and I consider that in mitigation of sentence.

Plea of guilty

34You have pleaded guilty to these charges on the Indictment at a time that I consider was the earliest reasonable opportunity.  Whilst the matter did not resolve until the morning that the Special Hearing was scheduled, the matter settled to lesser charges than were originally laid, and that no allegations reliant upon the evidence of the complainant’s VARE were ultimately the subject of any charges.  Your plea of guilty has saved the time and resources that would otherwise have been expended on contested proceedings.  It has spared the victim and other members of his family the undoubted trauma that would have been involved in giving evidence at trial.  You are entitled to a substantial discount for the utilitarian value of that plea, especially given the pressures that have been placed on court listings because of pandemic restrictions.

35You made full and frank admissions to the conduct the subject of these charges when first interviewed by the police.  Indeed, that conduct would not have otherwise been before the court but for your admissions.

36Whilst the moral culpability attaching to these offences is distinctly lesser than most other examples of this offence, based on the available evidence I still consider that you have genuine remorse for your actions.  You have pleaded guilty, made full admissions, and most significantly have openly engaged with the psychological assessment and expressed understanding and empathy for the victim.

37You are a first-time offender with prior good character.  This offending does not reveal that you have an ongoing interest in children.  Based on all this, I consider that prospects of rehabilitation are very good.

38It is necessary in imposing sentence for an offence of this nature that significant weight is placed on the need to deter others from similar offending.  In the circumstances of this case, I consider that only limited weight needs to be placed on the purpose of specifically deterring you.

39The sentence must impose a punishment that is just in all the circumstances and adequately expresses denunciation for your conduct.

40In the circumstances of this case the protection of the community is, in my view, a lesser consideration that might normally be expected for an offence of this nature.

Submissions on sentence

41Ms Casey on your behalf submitted that this was a matter that could be dealt with without the imposition of a period of imprisonment.  She contended that a Community Corrections Order would be suitable in the circumstances.[8]

[8]Defence Exhibit 2.

42Counsel for the prosecution, Ms Duckett, conceded that a Community Corrections Order was within the available range.

43You were assessed and found suitable for a Community Corrections Order.

Standard Sentence

44The charge of sexual assault of a child under 16 is subject to a standard sentence of 4 years imprisonment pursuant to s 49D of the Crimes Act 1958.  I have regard for that standard sentence as part of the instinctive synthesis approach to sentencing.  As was noted by the Court of Appeal in Brown v the Queen,[9] the standard sentence is to be regarded as a legislative guidepost, having the same function as the maximum penalty.  It is not a starting point nor to be perceived as a minimum.

[9] [2019] VSCA 286.

45In this case I intend to impose a sentence lower than the standard sentence.  I am doing this having regard to my assessment of the relatively lower end gravity of the offences, and the powerful matters in mitigation.  These include your admissions, your plea of guilty, your lack of prior convictions and your very good prospects of rehabilitation.

Serious Offender

46Sexual assault of the child under 16 is a “serious offender” offence pursuant to s 6D of the Sentencing Act 1991.  This means that if the court imposed a period of imprisonment on Charges 1 and 2, that you would fall to be sentenced as a serious sexual offender on Charge 3.  For the reasons that I have outlined, I do not intend to impose a period of imprisonment on any of the three charges and as such this provision has no application in this case.

Sentence

47What I am proposing to do at this stage, on Charges 1, 2 and 3 is record a conviction and place you on a Community Corrections Order for a period of 18 months from today's date.

48Before I ask if you to consent to such an order being made, I must tell you about the order.  All right?  So, Mr Anderson, just listen carefully.  I am about to tell you about this Community Corrections Order.

49The following Core conditions apply to all Community Correction Orders:

(a)   You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(b)   You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.

(c)   You must report to the Justice Service Centre via telephone within two clear days from today.

(d)   You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after that change.

(e)   You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

(f)    You must comply with any direction given by the Secretary that is necessary for the Secretary to ensure you comply with the Order.

50Now, there are a number of other conditions attached to this Order, and they apply to you:

(a)   You have to perform 150 hours of unpaid community work over a period of 18 months as directed by the Regional Manager (s 48C).  Fifty hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition (s 48CA).

(b)   You must be under the supervision of a Community Corrections Officer for a period of 18 months.

(c)   You are required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s 48E).

(d)   You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager (s 48D(3)(e)).

(e)   You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager (s 48D(3)(f)).

51Now, I can only impose a Community Correction Order if you agree to such an Order being imposed.

52I should advise you that if you contravene or breach that order by committing further offences that you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach (s 83A(d)).

53You can also be re-sentenced for the offences that are before me.  One of the options available includes a term of imprisonment (s 83A(s)).

54I also advise you that if you fail to comply with any direction of the Secretary to the Department of Justice, that is a Community Corrections officer or worker if you like, as part of this order, a substantial fine can be imposed (s 83A(e) and A(f)).

55Right.  Now are you aware of all of that, Mr Anderson, or do you want to have a chat with Ms Casey about that?

56OFFENDER:  No, that's fine, thank you.

57HIS HONOUR:  All right.  So you understand all that?

58OFFENDER:  Yes.

59HIS HONOUR:  All right.  So do you consent to the Community Corrections Order on the conditions I have just outlined?

60OFFENDER:  Yes.

61HIS HONOUR:  All right.  Then I make that Order.

62I direct that you are required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004.  I understand that is for life, is that correct?

63MS CASEY:  That's right.

64HIS HONOUR:  All right.  And I will arrange for the details of the Sex Offender Registration to be provided to your instructor and then it can be passed onto Mr Anderson and explained to him.

65Pursuant to s 6AAA Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a Community Corrections Order of two years duration including conditions of 250 hours community work.

66All right.  Are there any other matters?

67MS CASEY:  No, Your Honour.

68MS DUCKETT:  They are the matters, Your Honour.

69HIS HONOUR:  Thank you both for your assistance.  I will adjourn the court till 10.30.

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