Director of Public Prosecutions v Beasley (a pseudonym)
[2021] VCC 310
•19 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD BEASLEY (A PSEUDONYM) |
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JUDGE: | HIS HOUNOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2021 | |
DATE OF SENTENCE: | 19 March 2021 | |
CASE MAY BE CITED AS: | DPP v Beasley (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 310 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: indecent assault of a male person under the age of 16 years - indecent assault of a girl under the age of 16 years - attempted sexual penetration with a child under 10 – offender aged 17 at time of offending – offending in company with brother - last offence occurred almost 40 years ago – solid work history – delay between offending and sentence – late pleas of guilty – pleas entered after sentence indication hearing – no evidence of remorse – risk of reoffending low - serious sexual offender
Legislation Cited: 47(2) 55(1), 68(3A) Crimes Act 1958
Cases Cited: R v PJB [2007] VSCA 242
Sentence: 26 months' imprisonment wholly suspended for 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr N. Batten | Ms A Hogan Solicitor for Public Prosecutions |
| For the Accused | Mr C.T. Farrington | Haines and Polities |
HIS HONOUR:
1 Ronald Beasley[1] you have pleaded guilty to the following offences:
[1] A pseudonym.
Charge 1 – that at Shepparton[2] between the 14th day of April 1980 and 28th day of February 1981 you unlawfully and indecently assaulted Aaron Michaels[3], a male person under the age of 16 years. The particulars of this charge are that Aaron Michaels introduced his penis into your mouth.
[2] A pseudonym.
[3] A pseudonym.
Charge 2 – that at Shepparton between the 14th day of April 1980 and 28th day of February 1981 you unlawfully and indecently assaulted Aaron Michaels, a male person under the age of 16 years. The particulars of this charge are that you introduced your finger into the anus of Aaron Michaels.
Charge 3 - that at Shepparton between the 15th day of October 1980 and 14th day of October 1981 you unlawfully and indecently assaulted Nicki Montgomery[4], a girl under the age of 16 years. The particulars of this charge are that you touched Nicki Montgomery’s vagina.
[4] A pseudonym.
Charge 4 - that at Shepparton between the 15th day of October 1980 and 14th day of October 1981, on an occasion other than that referred to in charge 3, you unlawfully and indecently assaulted Nicki Montgomery, a girl under the age of 16 years. The particulars of this charge are that you touched Nicki Montgomery’s vagina.
Charge 5 - that at Shepparton between the 15th day of October 1980 and 14th day of October 1981, you unlawfully and indecently assaulted Nicki Montgomery, a girl under the age of 16 years. The particulars of this charge are that you introduced a finger into Nicki Montgomery’s vagina.
Charge 6 - that at Shepparton between the 15th day of October 1980 and 14th day of October 1981, you unlawfully and indecently assaulted Nicki Montgomery, a girl under the age of 16 years. The particulars of this charge are that you licked Nicki Montgomery’s vagina.
Charge 7 - that at Shepparton between the 15th day of October 1980 and 14th day of October 1981, you unlawfully and indecently assaulted Nicki Montgomery, a girl under the age of 16 years. The particulars of this charge are that you rubbed your penis against Nicki Montgomery’s vagina.
Charge 8 – that at Licola between the 15th day of October 1981 and 14th day of October 1982 you attempted to take part in an act of sexual penetration with Nicki Montgomery, a child under the age of 10 years, in that you attempted to introduce your penis into the mouth of Nicki Montgomery.
Maximum penalties
2 The following maximum penalties were applicable at the time each of the offences were committed:
3 The offence of indecent assault of a male person under 16 carried a maximum penalty of 5 years’ imprisonment.
4 The offence of indecent assault of a female person under 16 carried a maximum penalty of 5 years’ imprisonment.
5 The offence of attempted sexual penetration of a child under the age of 10 carried a maximum penalty of 10 years’ imprisonment.
Circumstances of offending
6 The circumstances of your offending are set out in the Summary of Prosecution Opening tendered and marked exhibit P1. Your counsel did not take issue with the matters outlined in that exhibit.
7 The victims of your offending are your cousins Aaron Michaels, born in 1974 and Nicki Montgomery, born in 1976. At the time of the offending, they lived with their parents, Duncan[5] and Evelyn Michaels[6], your uncle and aunt, at an address in Shepparton.
[5] A pseudonym.
[6] A pseudonym.
8 When Aaron was about six years old, you were staying at the Michaels family home. You were then 15 or 16 years of age. On the occasion when charge one occurred, Aaron’s mother told him to go and have a shower. As you were just about to have a shower you asked Aaron to shower with you. After checking with his mother, Aaron got into the shower with you. Whilst showering together, you asked Aaron ‘have you ever had your doodle sucked? It feels really good’ or words to that effect. You persuaded Aaron to allow you to suck his penis. You did so for about a minute. This conduct constitutes charge one.
9 After you sucked Aaron’s penis you tried to persuade him to suck your penis. He refused. You then put conditioner onto Aaron’s anus and inserted your finger into it. You then inserted a second finger into his anus. Aaron said words along the lines of “don’t do that”. You told Aaron not to tell anyone about what had happened. This conduct forms the basis of charge two.
10 On an occasion between 15 October 1980 and 14 October 1981, when Nicki Montgomery was about 4 years old, you and your brother Bevan Beasley[7] were at the Michaels family home to look after Nicki and Aaron while their parents went out for the evening. You were 16 or 17 years old at the time.
[7] A pseudonym.
11 Whilst Mr and Mrs Michaels were in the kitchen having a drink, you and Bevan took Nicki into the lounge room and behind a bar that was set up in that room. Together you pulled Nicki’s underpants to one side and then touched her vagina with your fingers. This is the basis of charge three.
12 After Mr and Mrs Michaels left the house, you and Bevan placed Nicki onto the bar. You had her lay on her back and removed her shorts and underwear. You touched her vagina again with your fingers. This conduct is the basis of charge four.
13 You and your brother then took turns putting your fingers into her vagina and licking her vagina. This conduct forms the basis of charges five and six.
14 Nicki was then placed on the floor. You and Bevan then rubbed your penises against her vagina. This is the basis of charge seven. When you had finished doing this, Bevan said words along the lines of “if you tell anyone I will kill your mum, dad and your dog”. You were with Bevan at that stage.
15 When Nicki was about five years of age, there was an occasion when the Michaels family took you and your brother on a camping trip to Licola. You were 17 or 18 years old at the time. On the drive to the camping site Nicki and her mother saw a horse in the process of giving birth. After arriving at the camp site Nicki asked to go and see the foal. Her parents said she could but had to go with you and Bevan. She did not want to go with you, however, in the end, she did. You and Bevan instead took Nicki to an area underneath Cheynes Bridge.
16 Underneath the bridge you sat on the ground and took your penis out of your pants. You had Nicki sit between your legs facing away from you and caused her to lay back onto your lap. Bevan also took out his penis. At one point you pushed your erect penis against Nicki’s mouth, face and forehead. She said “no” as you tried to push your penis into her mouth. This conduct forms the basis of charge eight.
17 Bevan licked Nicki’s vagina and inserted his fingers into her vagina. He then leant over Nicki and attempted to insert his penis into her vagina. This incident ended with both you and Bevan masturbating and ejaculating next to Nicki.
18 At the age of 13, Nicki disclosed to a school friend some of what you and Bevan had done to her. At about the same time she told her brother Aaron about your offending. When Nicki was 15 she disclosed the offending to her parents.
19 When Aaron was aged 27 he disclosed your offending to his then girlfriend. He later disclosed your offending to Nicki and your father.
20 In 2013 police arranged for Aaron to telephone you and for that call to be recorded. Aaron told you that he wanted to know why you had offended against him. He also accused you of touching his sister. You denied his allegations and said that you did not know what he was talking about.
Victim Impact Statements
21 Tendered at the plea hearing were the victim impact statements of Aaron Michaels, Nicki Montgomery and their parents, Duncan and Evelyn Michaels. I have had regard to each of their statements which I will shortly summarise. Your conduct, and that of your brother, has clearly had a profound effect on each of their lives.
22 Aaron described your conduct as having taken away his life and breaking his heart and spirit. He feared retaliation if he told anyone about the offending and also feared that he would be looked at differently or thought of as a liar. Because of the offending, he said he felt as though he had something to hide and has never been able to fit in socially. He has felt like harming himself many times.
23 Nicki described feelings of self-blame, guilt and being ‘dirty’ because of your offending. She attempted suicide on three occasions and has been hospitalized. She has trust issues and experiences paranoia which has impacted her relationships. She has difficulty managing her emotions and has withdrawn from family and social groups. She described herself as a ‘functioning alcoholic’.
24 Duncan Michaels stated that his relationship with his daughter changed when she was about five years old. He said she distanced herself from him and would struggle when he wanted to hug her. In relation to Aaron, he said he watched him go from a vibrant youngster to a reclusive adult. He said both Aaron and Nicki have struggled to be happy and pursue their goals. He blames himself for trusting you and Bevan.
25 Evelyn Michaels said she witnessed a change in Aaron when he was about six or seven years old and Nicki when she was about five or six. She is saddened that she didn’t pick up on what was happening to them. Mrs Michaels said she has nightmares about what you and Bevan did. She described the toll on her and the family as ‘tremendous’.
Personal circumstances
26 You were born in July 1964. You are now 56 years of age. You are the eldest of three children. Your brother Bevan Beasley is a year younger than you. You have a younger sister.
27 Your father passed away in 2018. Your mother lives on her own on the Gold Coast. She performed home duties during her adult life and your father worked mostly in a factory. Your mother suffers from leukaemia and associated pain for which she receives regular treatment. You speak to your mother at least once per week. You have had little to no contact with your brother and sister for many years.
28 You grew up in Shepparton and completed year 10 at St Patricks College, Shepparton. At the age of 16 you went to work as an attendant at a local service station. Between the ages of 17 to 23 you worked with your father at the Nylex factory. You then served in the army for 11 years. Your army service included deployments in East Timor in 1999 and 2000. You resigned from the army at the age of 34 because of the transient lifestyle and pressure it put on your wife and family.
29 After leaving the army you and your family settled in Queensland. You drove trucks in Queensland until the age of 55. Last year you started work as a maintenance officer for a housing estate in Queensland.
30 You and your wife have been married for thirty-five years. You have seven children ranging in age from 13 to 35. Four of your children continue to live with you and your wife. Two are still at school and the others are all employed. You instructed your counsel that they are all good, law abiding people. You have been the sole income earner for the family for over thirty years.
31 All members of your immediate family, save for the two youngest, are aware of your offending, as are a number of other relatives. Despite the nature and seriousness of your offending they remain supportive of you.
32 With the exception of these matters, you have not been in any other trouble with the law.
Sentencing Considerations
33 Your offending was, without doubt, serious offending. Aaron and Nicki’s parents trusted you with their children. You were trusted family members. You took advantage of that trust and abused it for your own selfish sexual gratification.
34 Your conduct was manipulative and calculated. You knew that what you were doing was wrong. Furthermore, as against Nicki, you offended in the company of your brother. This is an aggravating feature of your offending.
35 In assessing the seriousness of your offending I also have regard to the very young age of your victims and the age difference between you at the time you offended. You were 9 to 10 years older than Aaron and 11 to 12 years older than Nicki.
36 Also relevant to the seriousness of your offending is the on-going impact your offending has had on the victims of your criminal conduct and their parents. Of course, in relation to Nicki, the impact on her was not caused by your offending alone.
37 In assessing the gravity of your conduct and your moral culpability I must also have regard to the fact that you were a child when you offended. It was accepted by the learned prosecutor, given your date of birth, and given the time period in which the offence occurred, that I should sentence you on the basis that at the time the last offence was committed you were aged 17 years. I agree that this is the correct approach. The fact that you were a child at the time of your offending is a significant consideration in sentencing.
38 In PJB, Nettle JA, with whom the other members of the Court agreed, stated:[8]
Decisions of this Court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.
[8]R v PJB [2007] VSCA 242 at [16]
39 As stated, I will sentence on the basis that you were a child when you offended in respect to all charges. Having regard to that fact, I find that the nature and gravity of your offending is much reduced as is the degree of your moral culpability.
40 It is also of significance that the offences to which you have pleaded guilty are prosecuted many years after they occurred. The last of the offences occurred almost 40 years ago. You have since then achieved a significant degree of rehabilitation. You have a solid work history. You have married and raised a family. Importantly, you have not been in any trouble before or since you committed these offences.
41 That is not to diminish the impact that your offending has had on the two direct victims and their parents. As is evident from their impact statements, your offending has had deep and lasting effects upon them. I want to make it clear that the only persons to blame for what happened are yourself and your brother. You breached the trust placed in you by your uncle and auntie and you took advantage of two very young and innocent children.
42 I must also take into account the fact that you pleaded guilty to the offending. Your plea is of utility. Witnesses have been spared the ordeal of attending court and being examined and cross examined. This is of particular importance in this case given the on-going effects of your conduct on each of the victims. However, they did live with the prospect of having to give evidence against you for a considerable period of time. Your pleas have also spared the Court and the community the time and cost of a trial. This is a matter of added significance given the delays to trials in this court as a result of the COVID-19 pandemic.
43 Regrettably, I am not able to find that your pleas of guilty are reflective of any remorse on your part. Your pleas were entered late and followed a sentence indication hearing. Indeed, there is no evidence that you are in fact remorseful for your conduct and no submissions were made to that effect.
44 Because you were a child when the offences were committed the need to deter others from such offending is much reduced. Similarly, because you have not reoffended in over forty years, there is little need for the sentence to act as a deterrent to you. I consider that the risk of you re-offending is low.
45 Your brother pleaded guilty to two charges of indecent assault of a female under 16 years, and one charge of attempted sexual penetration of a child under 10. The charges to which he pleaded guilty were committed against Nicki only and occurred at the time you committed charges three, four, five and six. Your brother was sentenced by her Honour Judge Sexton to a total effective sentence of 12 months' imprisonment wholly suspended for a period of 18 months from the date of sentence. I note however, that your brother pleaded guilty at an early stage, made a statement to the investigators and gave an undertaking to assist, after sentencing, law enforcement authorities in the investigation or prosecution of an offence. You are also a year older than your brother.
46 It was the submission of Mr Farrington, of counsel, that given all the circumstances of mitigation, and in particular the fact that you were a child at the time you offended, the delay between the offending and sentence, and that you have not been in any further trouble, that I should sentence you to a term of imprisonment and suspend that sentence in full. Mr Batten, who appeared on behalf of the Director of Public Prosecutions, agreed that a wholly suspended sentence was open.
47 In my opinion, your offending warrants a term of imprisonment. In the face of all matters in mitigation, I am, however, satisfied that a wholly suspended sentence can meet each of the sentencing considerations set out in section 5 Sentencing Act 1991.
48 It should be remembered that a suspended sentence is a term of imprisonment and, in the circumstances of your case, I consider it sufficiently manifests the courts denunciation of your conduct, addresses the need for deterrence, reflects the gravity of your offending, and also allows for your continued rehabilitation.
49 The Serious Sexual Offender provisions under Part 2A of the Sentencing Act are applicable as I propose to sentence you to a term of imprisonment on charges one and two. Therefore, you fall to be sentenced as a “serious sexual offender” on the remaining charges. I must therefore regard the protection of the community from you as the principal purpose for which the sentences are imposed on charges three to eight. Furthermore, I may impose a sentence longer than that which is proportionate to the gravity of the offence and must, unless I otherwise direct, order that the sentences on each of charges 3 to 8 be served cumulatively. It is not my intention to impose a disproportionate sentence of imprisonment.
Sentence
50 Mr Beasley, you are convicted and sentenced as follows:
51 Charge one - indecent assault upon a male under the age of 16 - eight months’ imprisonment;
52 Charge two - indecent assault upon a male under the age of 16 - 8 months’ imprisonment;
53 Charge three - indecent assault of a female under the age of 16 years - six months’ imprisonment;
54 Charge four - indecent assault of a female under 16 - 6 months’ imprisonment;
55 Charge five - indecent assault of a female under 16 - 8 months’ imprisonment;
56 Charge six - indecent assault of a female under 16 - 8 months’ imprisonment;
57 Charge seven - indecent assault of a female under 16 - 8 months’ imprisonment;
58 Charge eight - attempted sexual penetration of a child under the age of 10 - 12 months’ imprisonment.
59 The sentence imposed on charge eight is the base sentence. Having regard to the principle of totality I direct that two months of the sentence imposed on each of charges one, two, three, four, five, six and seven be served cumulatively on each other and on the base sentence. That makes a total effective sentence of 26 months' imprisonment. I direct that the whole of that sentence be suspended for a period of 30 months from today.
60 The consequence of the sentencing order is that you will be released immediately, but if within the next two years and six months you commit an offence punishable by imprisonment, either inside or outside of Victoria, you may be brought back before the court and the sentence that has been suspended may be activated in full or in part. Do you understand that, Mr Beasley?
61 OFFENDER: Yes, Your Honour.
62 HIS HONOUR: I direct that the fact that you have been sentenced as a serious sexual offender be entered onto the records of the court in respect of charges three to eight.
63 Had you not pleaded guilty to the charges, the sentence I would otherwise have imposed is one of 2 years and 8 months' imprisonment to be suspended after serving 12 months.
64 Mr Batten, are there any other matters to which I need to attend?
65 MR BATTEN: No, Your Honour.
66 HIS HONOUR: Mr Farrington?
67 MR FARRINGTON: Nothing, Your Honour.
68 HIS HONOUR: Before I adjourn the matter I would ask that you both double check the calculation made to ensure that it is accurate, if you have not already done so.
69 MR FARRINGTON: I was calculating as you went, Your Honour, and it seemed to be correct in my view.
70 MR BATTEN: Yes, I agree.
71 HIS HONOUR: Thank you. I should add, this is not part of the sentencing remarks but in the event that any media reports this they must bear in mind that they are prohibited from publishing the names of any victims or any other information that may lead to the identification of the victims. In the circumstances of this case I would think that publishing the name of Mr Beasley would lead to the identification of the victims.
72 May I thank you both, gentlemen, for your assistance in this matter as well as to the other counsel who have appeared. Unless there are any other matters I will now adjourn the court.
73 MR BATTEN: Nothing further, Your Honour.
74 HIS HONOUR: Mr Farrington, will you please explain to Mr Beasley the orders that I have made as well as what may occur if he was to commit an offence punishable by imprisonment.
75 MR FARRINGTON: I will, Your Honour.
76 HIS HONOUR: Thank you very much. Please adjourn the court.
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