Director of Public Prosecutions v Armstrong (a pseudonym)
[2016] VCC 1098
•2 August 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL JOHN ARMSTRONG (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 25 July 2016 | |
DATE OF SENTENCE: | Tuesday 2 August 2016 | |
CASE MAY BE CITED AS: | DPP v Armstrong (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1098 | |
REASONS FOR SENTENCE
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Subject: Criminal law - sentence
Catchwords: Pleas of guilty to two charges of sexual penetration of child under 16 & two charges of committing indecent act on child under 16 –historic case - late plea – accused was step-grandfather of child – two separate occasions – long-term damaging effects on complainant – accused served sentence for subsequent similar offending - now aged 80, 60-61 at time of offending – relatively good health – limited insight into offending – otherwise reduced likelihood of reoffending.
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Sentence: TES 4 years, non-parole period 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C Duckett | OPP |
| For the Accused | Mr J Williams with Ms D Lamovie | VLA |
HER HONOUR:
1 Michael John Armstrong[1], you have pleaded guilty to two charges of sexual penetration of a child under 16, when the child was under your care, supervision or authority and two charges of committing an indecent act with a child under 16.
[1] pseudonym
2 The child was your step-granddaughter and she was aged between 11 and 12 years at the time of the offending, which was between March 1997 and April 1998.
3 You were married to her grandmother and you were aged between 61 and 62 at the time of the offending.
4 The offending occurred on two occasions at your house. The first being between 15 March and 28 April 1997. The complainant, aged 11, was staying at your house for a few days with her 9 year old stepbrother. You took the children surfing and on returning to the house, you and the children got into the spa. You told the children that it was cuddle time and you pulled the complainant towards you so that her back was against your chest. You then squeezed her shoulders and kept squeezing your hands down her arms until you reached her waist. You then put your right hand over the top of her groin area and kept squeezing using a pulsating motion for 30 seconds. You then grabbed her hand and placed it on your penis, over your speedos and with your left hand, you made her rub your penis for about 2 minutes. That is Charge 1, committing an indecent act with a child under 16.
5 Your right hand had still been placed over the complainant’s groin area, over the top of her bathers and you then started to rub the top her vagina with your fingers. The complainant tried to move away, but you grabbed her hand and moved it back to your penis. You then quickly moved your right hand and pushed your fingers inside her vagina while she tried to slide away from you. This is Charge 2, sexual penetration of a child under 16.
6 You tried to pull her back by squeezing her around her hips and waist, but she resisted and managed to pull herself to the other side of the spa near where her stepbrother was sitting, looking blankly at the water, as she described it.
7 The second incident occurred between 1 September 1997 and 30 April 1998, also at your house, when the complainant was 11 or had just turned 12, her birthday being on 12 February. You took the complainant and her stepbrother to the beach and on returning home, you all got into the spa. Again, you told the complainant it was cuddle time, making her feel awkward. You placed her in the same position as the previous time, except this time she was sitting on your right leg rather than between your legs. You placed her left hand onto your penis over your bathers, then moved her hand so it was rubbing your erect penis in a back and forth motion. With your other hand, you rubbed her hip and moved her bathers to one side and then rubbed your fingers on the area of her clitoris, causing her pain. This is Charge 3, sexual penetration of a child under 16. Because of the pain you caused the child, it is the more serious of the two charges of sexual penetration.
8 As the complainant then moved to one side, you took your hand away and used your other hand to place her left hand under your speedos and directly onto your penis. That is Charge 4, committing an indecent act with a child under 16.
9 It is a charge which is similar to Charge 1, but more serious because the child’s hand was placed underneath your bathers. The complainant was shocked and moved her hand away, but you grabbed it and put it back near your testacies over your speedos. After 10 or 15 seconds, she pulled her hand away. That is not the subject of any charge, but it serves to make Charge 4 even more serious than Charge 1 because of the repeated action which prolonged the episode of touching.
10 Her stepbrother was still in the spa at this stage, gazing at the water. He came over to you and said, "It’s my turn", and took the complainant’s place, but he was not subjected to any abuse. The complainant told her mother you had touched her in the spa and she never stayed at your house again. Although she had a further conversation with her mother in more recent years relating in nonspecific terms to the offending, it was not until late 2013 that she made a formal complaint to the police.
11 On 27 November 2013, you were interviewed at the MRC where you were serving a sentence for subsequent offending of a similar nature. You denied the allegations and maintained this denial until last week when you indicated that you would plead guilty.
12 In the meantime, a contested committal hearing was held at which the complainant and her mother gave evidence and were cross-examined. Your plea at a very late stage has now saved the complainant and her mother from the trauma of having to give evidence again. Having heard the complainant read her sad and moving victim impact statement to the court, I form the view that such an experience would, indeed, be very difficult for her.
13 As a late plea, it deserves a limited discount on your sentence. Its utility extending also to the avoidance of the expense and inconvenience of a trial and thereby facilitating the administration of the criminal justice system.
14 In her victim impact statement the complainant described the long‑term impact of the offending upon her, including the effects upon her as a child, as an adolescent and later as an adult. She was rebellious and abused drugs and later could not sustain relationships because of the breach of trust she had experienced. She has had extensive counselling. Recently, she has had to delay her marriage because of the timing of the anticipated trial.
15 Her mother also provided a victim impact statement in which she described her sense of betrayal by you and the strain which resulted between her and her daughter, who was reluctant to talk about what you did. She felt guilty at not having known what you did and in her failure to recognise the signs of child abuse which she now thinks were apparent in her daughter’s behaviour as she grew older. She pointed out that she had thought the children were enjoying a happy beach holiday with you when in fact you were abusing her daughter and causing serious harm to her.
16 The breach of trust you committed in abusing this little girl calls for severe punishment even though, as your counsel submitted, it was opportunistic and situational. That is relevant to an objective analysis of the degree of seriousness of the offending, in that there was no apparent planning and there was an absence of the frequency that had characterised the previous offending.
17 However that bears no relation to the effects on the child herself and leaves out of the equation the more serious offences of sexual penetration that you committed on these two occasions.
18 I note that the maximum penalties which apply are 15 years’ imprisonment for Charges 2 and 3 and 10 years’ for Charges 1 and 4.
19 I turn now to your personal background. In January 2014, you were sentenced by His Honour Judge Allen of this court to 24 months’ imprisonment with 12 months’ suspended for 2 years’ for committing incident acts with some grandchildren and their cousin.
20 A psychological report dated 17 January 2014 was prepared for the plea hearing by Dr Michael Daffern. His opinion was that you were at a relatively low risk of reoffending, but that your sexually abusive behaviour, having occurred over a course of several years, indicated entrenched deviant sexual interests. Dr Daffern noted that you minimised the seriousness of your offending and minimised the harm caused by it. You said then that your touching of the children was unintentional and occurred whilst playing with them, even though you committed some of the offending while they were in their beds or whilst massaging them.
21 Judge Allen stated in sentencing you two years’ ago that he accepted that it was most unlikely that you would ever offend again. Nothing has changed in that regard, except that you are two years older and so that unlikelihood is reinforced. Notwithstanding that, Dr Daffern’s report does suggest that you have limited insight into your offending.
22 His Honour also set out the factors which characterise sexual offending against children as being regarded with abhorrence by the community and as requiring stern punishment in recognition of the gravity of the offending. That is no less true in this case. General deterrence is a very important part of sentencing in cases such as this. At the same time, the sentencing principles which apply require the court to take into account not only the circumstances of the offending and the need for general deterrence, but also the personal circumstances of the offender.
23 You are now aged 80, a man in relative good health, who until these matters, had not offended. You had brought up a family and had belonged to various community organisations. You have had two long marriages, your three children being born of the first marriage. There had been no untoward difficulties in your family of origin or your education, and you had joined your father in his electrician’s business, later branching out on your own. You worked until your mid-60’s. It appears you led a conventional life and there were no indications of sexual deviancy until your later years.
24 As a result of being dealt with for the matters in 2014, you became estranged from your family almost entirely with only a nephew still remaining in contact and attending court to support you. After your release, you set up home in a caravan park in Swan Reach, dependant on the aged pension and with your only assets being a car and a caravan. You are active in various activities.
25 At the age of 80, your life expectancy is now very limited even though you are in good health. You have been seeing your doctor in recent months’ for several complaints and a letter from the medical practice states that all of these conditions are manageable and do not impair your daily function to a moderate or severe degree. You are prescribed only inhalers and eardrops.
26 As I said earlier, the risk of reoffending is lower than previously. You are estranged from family members and there is no evidence that you have any access to children. You have no prior convictions and made positive contributions to the community until your older years.
27 Apart from the issues relating to general and specific deterrence, certain other principles apply. Your age and state of health is to be taken into account as a strong mitigating factor and any additional mitigating circumstances, such as the plea of guilty that I have already mentioned, are also to be taken into account together with the factor of the long delay before prosecution and then sentence.
28 It could be said that had a complaint been made earlier and these offences heard at the same time as the later offences, you may have benefited from some concurrency in accordance with the principle of totality. The fact that you have spent 12 months in prison for similar but less serious offending is also to be taken into account to reduce the length of sentence that is necessary in the present case.
29 Your counsel urged me to place you on a partly suspended sentence or a prison term combined with a Community Correction Order. Having carefully considered those submissions, I regard the offending as warranting a more severe sentence than either of those options permit. Further to that, a period of parole will serve to address any remaining concerns as to your rehabilitation, based on your limited insight.
30 Although you are sentenced as a serious sexual offender for each of the charges, pursuant to the Sentencing Act, which I shall note on the court record, the prosecution does not seek a sentence that is disproportionate to the gravity of the crimes. Would you stand now please, Mr Armstrong.
31 Taking all these matters into account, I sentence you to the following terms of imprisonment. For Charge 1, committing an indecent act with the child, 12 months. For Charge 2, sexual penetration, 2 years and 9 months. For Charge 3, sexual penetration, 3 years. For Charge 4, committing an indecent act with a child, 15 months. The sentence for Charge 3 is the base sentence for purposes of culmination. Some culmination is necessary, not only as between the separate episodes but also because of the distinct acts on the same occasions.
32 I order that 3 months of the sentence for Charge 1, 6 months of the sentence for Charge 2 and 3 months of the sentence for Charge 4 be served in culmination upon the base sentence. This results in a total effective sentence of 4 years. I order that your serve a minimum of 2 years before being eligible for parole. That relatively long non-parole period is intended to take account of your age and limited life expectancy.
33 Your offending attracts a mandatory order for life under the Sex Offenders Registration Act 2004, but as you are already so registered, there is no application and I take no further steps in that regard.
34 If you had pleaded not guilty to these charges, I would have sentenced you to 5 years and 6 months imprisonment with a non-parole period of 3 years.
35 You have been in custody since 25 July, so there are 8 days of pre-sentence detention, as I calculate it, and I declare that time to be reckoned as already served and I shall cause that to be noted on the court record.
36 Are there any other matters?
37 MS DUCKETT: There will be no orders required in the matter. So they are the matters, Your Honour.
38 HER HONOUR: No, thank you. Ms Lamovie, anything further?
39 MS LAMOVIE: No, Your Honour.
40 HER HONOUR: Do you agree with the 8 days?
41 MS LAMOVIE: That would be exclusive of today. Yes, Your Honour.
42 HER HONOUR: Thank you. Now in order to protect the identity of the complainant, I will be applying a pseudonym to the name of the case, in due course and I will let the parties know what they will be.
43 MS DUCKETT: Yes, Your Honour.
44 MS LAMOVIE: Yes, Your Honour.
45 HER HONOUR: Mr Armstrong can be taken now, thank you officer.
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