Director of Public Prosecutions v Bussey
[2017] VCC 166
•3 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-02158
and CR-15-02157
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL JAMES BUSSEY |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 February 2017 | |
DATE OF SENTENCE: | 3 March 2017 | |
CASE MAY BE CITED AS: | DPP v Bussey | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 166 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence - Serious Sex Offender
Legislation Cited: Sentencing Act 1991
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr S. Moglia | Lethbridges Barristers & Solicitors |
HIS HONOUR:
1
Paul Bussey, on 17 October 2016 you came before me in respect of two indictments, being E14030040, containing two charges of wilful exposure and one charge of indecent assault upon a male under 16. You were to stand your trial on this indictment. It was proposed at the end of that trial that you would plead guilty to Indictment F10445423, containing four charges of indecent assault upon a male under 16 and one charge of wilful exposure. The trial was stood down, and on the following day you entered pleas of guilty to the charges on the trial indictment. All matters were adjourned for plea hearing on
24 February 2017.
2 On 24 February 2017 you were re-arraigned on both indictments, you pleaded guilty and your particulars were taken. Tendered as Exhibit A on the plea was a summary of prosecution opening in respect to Indictment F10445423. This concerns offending that occurred when you were aged 25 years. You graduated as a teacher in 1965, and from 1970 to 1973 you taught at the Research Primary School. The complainants in this matter are brothers, and I will refer to them as AD and JD. At the time of the offending AD was 12 years of age and was in Grade 6 at Research Primary School, and you were his teacher. His brother JD was 14 years of age, and at the time of the offending did not attend Research Primary School.
3 In late October 1972 you arranged with AD’s parents to take him away on a camping trip to Beechworth. This trip was outside the normal school curriculum. AD’s parents were uneasy about the arrangement, and you suggested that AD’s older brother JD come along.
4 Whilst camping, you and the two complainants slept in a single tent, with you sleeping in between the two boys. During the night, you ran your fingers down AD’s back before forcefully touching his anus, causing him considerable pain. (Charge 1, indecent assault on a male person under the age of 16 years.)
5 Whilst on this camping trip you lent JD a sleeping bag. The zip on the sleeping bag was broken. During the evening of the first night, you reached over and placed your hand on JD’s penis, stroking it to the point of ejaculation. JD did not say anything or do anything, as he was confused and frightened. You said to JD “You’ve just spoofed in your sleeping bag”, and then “Do you want to put it in me? It’s like doing it with a girl.” JD responded “No,” and rolled over and went to sleep. (Charge 2, indecent assault on a male person under the age of 16 years.)
6 The following morning JD woke to find you fondling his penis. You stroked JD’s penis until he ejaculated. JD was petrified by this process. (Charge 3, indecent assault on a male under 16 years.)
7 The following evening JD wrapped himself tightly in the sleeping bag so that you could not touch him again. However, the following morning JD woke to you stroking his penis, which continued to the point where JD ejaculated. After JD ejaculated you continued to play with his penis and also his semen. (Charge 4, indecent assault on a male under the age of 16 years.)
8 During the course of the camping trip you took the complainants to a lake, and, whilst in a toilet block getting changed with the boys after swimming, you hung a towel over your erect penis, saying “Look what I can do.” (Charge 5, wilful exposure.)
9 In 2015 this offending was reported to police, and on 4 February 2015 you were interviewed under caution and exercised your right to make “no comment” answers to questions put to you by investigating police.
10 The maximum penalty for each of the offences contained in Indictment F10445423 is five years’ imprisonment.
11 Tendered as Exhibit B on the plea was a summary of prosecution opening in respect of Indictment E14030040. During the years 1974 to 1980, you were a teacher at Debney Meadows Primary School. You taught Grades 5 and 6, and you were the music teacher and head coordinator of school camps.
12 I shall refer to the complainants in this matter as FT, MN and DD.
13 During either 1975 or 1976, you organised for FT, MN and DD, who were then aged about ten years, to go away with you for a weekend. You camped in a hall at Mount Lonarch. On an occasion during this weekend away, you lay under a blanket which was raised as if you had an erection. You had the children look under the blanket at your exposed penis, and wanted the children to touch it. Each of the children looked at your penis for a few minutes, and FT and DD touched it. (Charge 1, wilful exposure.)
14 On another occasion during either 1975 or 1976, you took FT and DD once more to the hall at Mount Lonarch. Again you were under a blanket and had the children look under it. The children got under the blanket and you asked them to touch your exposed penis, which FT did. (Charge 2, wilful exposure.)
15 On Christmas Eve 1976 you took FT, MN and DD to Carols by Candlelight at the Sidney Myer Music Bowl. It rained, and you took the children back to your flat in Hawthorn. Whilst in the flat, you had a shower with MN, during which you washed him with soap in the shower while you were both naked. Sometime thereafter you contacted MN’s mother and requested that the boys stay with you, but she would not countenance such an arrangement, and organised a taxi to pick up the children and bring them home. (Charge 3, indecent assault on a male under 16 years.)
16 In late 2013, FT reported the offending to police, and the informant located MN and DD. On 9 August 2014 you were interviewed under caution and exercised your right to make “no comment” answers to questions put to you by investigating police.
17 The maximum penalty for each of the offences on Indictment E14030040 is five years’ imprisonment.
18 At the time of your offending you were a man without prior conviction. However, I was informed that in 1986 you stood your trial in respect of a number of counts of indecent assault said to have been committed in 1985. You were convicted on one charge and sentenced to six months’ imprisonment, suspended for a period of 12 months.
19 Tendered as Exhibit C were the victim impact statements of MN, FT, JD and AD. MN, FT and JD each exercised their right to read their victim impact statements in court. Now mature men, each of your victims deposed as to the fear, humiliation and embarrassment that they felt at the time of, and after, you had offended against them. In particular, FT deposed as to how you exploited his position as the child of a sole parent who was struggling in that role. Each of your victims has been profoundly harmed by your conduct, and this harm has pervaded their lives since they were children. Save for JD, you were the victims’ teacher. Your conduct represents a gross breach of trust in respect of each of your pupils, as well as that of the parents of each of your victims who permitted their children to be in your care, believing that their children were safe in your care.
20 You are 70 years of age, having been born on 1 January 1947. Your offending in respect of each of the indictments occurred over 40 years ago. However, the offence for which you were convicted in 1986 occurred in 1985. Accordingly, you have not offended for some 30 years.
21 Mr Moglia of counsel, who appeared on your behalf, conceded that your offending represents a breach of trust by a teacher. He submitted that the offending against FT, MN and DD was at a relatively low level of seriousness; however, in my view, the same cannot be said in respect to the offending the subject of Indictment F10445423 that involved the touching of both boys, and in particular, masturbating JD to ejaculation.
22 Tendered as Exhibit 1 on the plea was the report of Simon Candlish, psychologist, dated 5 December 2016. Contained within the report was a brief history of your life, which was relied upon by counsel on your behalf. You are the elder of two children. Your father was 22 years older than your mother. You described your childhood as happy, and that your parents were affectionate to you, and you had no childhood difficulties. You denied any childhood physical or sexual abuse. You denied any behavioural issues whilst at school.
23 You matriculated with honours, and completed a Bachelor of Science degree. Later you completed a post-graduate Certificate in Career Counselling. You studied teaching, and you were employed as a primary teacher whilst also working in market research on a part-time basis.
24 After leaving teaching, you sold insurance for some time before establishing your own business in telemarketing. At one stage you employed fifteen people in that business. You also had a catalogue-distribution business which you operated from your home in Hawthorn. In the early 1990s you established a training business which was successful, particularly in respect to nursing training and the provision of training in respect to aged care. This work principally came from government contracts, and over time, as your business expanded, surprisingly so too did its debt. Eventually the government contracts ceased, and as at the time of your plea you had a $700,000 mortgage over your address in Hawthorn, as well as a credit-card debt of some $39,000.
25 When interviewed by Mr Candlish you denied any issues with alcohol consumption and denied any illicit drug use. You denied any suicide attempts or any past periods of depression or anxiety. Apart from your age and diabetes and cholesterol problems, you are a suitable vehicle for the application of the principle of general deterrence.
26 You are homosexual by orientation and have had many partners in your life, and some of significance to you. Mr Candlish conducted a number of tests directed at making an assessment of your risk of further offending, and ultimately he assessed you as being in “the low risk category for sexual offending”. This is not surprising, as, generally speaking, because of age, decreasing sex drive, improved self-control, and decreased access to victims, there is usually a lower sexual recidivism rate in older sex offenders.
27 Of note is that you denied any sexual offending and any past sexual contact with children, and this included the offence for which you were convicted in 1986. Accordingly, Mr Moglia on your behalf placed no reliance on remorse. However, he correctly submitted that your pleas have utilitarian benefit. However, in respect to Indictment E14030040 your plea of guilty came late in proceedings, and each of the complainants were cross-examined at committal.
28 You are seventy years of age and suffer from diabetes, and you are medicated for cholesterol. It is over 40 years since you committed the instant offences and you have not reoffended since 1985, a period of over 30 years. It is likely that the sentencing practices of the Court, should you have been prosecuted earlier, would have been more moderate than current sentencing practices today. Time in custody will not be easy for you.
29 Mr Moglia submitted that for 30 years you had not offended, you had worked consistently and participated more widely in the community by being involved in a choir and community radio. He submitted that you had rehabilitated yourself. I find some tension between your denial of ever having offended against children at all, as expressed to Mr Candlish, and a claim that you are rehabilitated. I must recognise and give credit for the 30 years or more of good behaviour. However, the gravity of your offending means that general deterrence and denunciation of your conduct are of the first importance.
30 Mr Moglia submitted that a term of imprisonment wholly suspended was appropriate in your circumstances. You will be sentenced to a term of imprisonment in respect to each charge. All charges, save the charges of wilful exposure, are qualifying offences for the purposes of the serious offence provisions of the Sentencing Act 1991 and you were sentenced to a term of imprisonment for a qualifying offence in 1986.
31 Accordingly, in respect to Charges 2 to 4 (both inclusive) on Indictment F10445423 and Charge 3 on Indictment E14030040, you fall to be sentenced as a serious sexual offender. I must regard protection of the community from you as the principal purpose for which sentence is imposed. However, in light of Mr Candlish’s opinion as to your risk, which I accept, the application of this principle must be moderated in your case.
32 By this sentence, I must punish you, publicly denounce your conduct and deter others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedence, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
33 On Indictment F10445423;
On Charge 1, six months’ imprisonment,
On Charge 2, 18 months’ imprisonment,
On Charge 3, 18 months’ imprisonment,
On Charge 4, 18 months’ imprisonment, and;
On Charge 5, 3 months’ imprisonment.
34 I order that one month of the sentence imposed on Charge 5, together with two months of the sentence imposed on Charge 1, together with six months of the sentences imposed on each of Charges 3 and 4, be served cumulatively upon each other and upon the sentence imposed on Charge 2.
35 This results in a total effective sentence of two years and nine months’ imprisonment.
36 On Indictment E14030040;
On Charge 1, three months’ imprisonment,
On Charge 2, three months’ imprisonment, and;
On Charge 3, 12 months’ imprisonment.
37 I order that one month of the sentences imposed on Charges 1 and 2 be served cumulatively upon one another and upon the sentence imposed on Charge 3.
38 This results in a total effective sentence of 14 months’ imprisonment.
39 I order that six months of the sentence imposed on Indictment E14030040 be served cumulatively upon the sentence imposed on Indictment F10445423. This results in a total effective sentence of three years and three months’ imprisonment, and I order that you serve 20 months’ imprisonment before you will become eligible for parole.
40 I declare that you have been sentenced as a serious sexual offender in respect of Charges 2, 3 and 4 on Indictment F10445423 and Charge 3 on Indictment E14030040. I direct that this fact be entered in the records of the Court.
41 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to five years’ imprisonment with a non-parole period of three years’ imprisonment.
42 I direct that you be subject to the provisions of the Sex Offenders Registration Act 2004 for life.
43 Now my associate will bring down some documents that relate to the provisions of the Sex Offender Registration Act. By signing the document, you are merely acknowledging receipt of the documents. Thank you very much.
44 MR MOGLIA: Can I approach the dock, sir?
45 HIS HONOUR: Yes, by all means, Mr Moglia. Mr Bussey, application was made by the Crown for what is known as a forensic procedure. That is, that you undergo a forensic procedure for the taking of a scraping from your mouth, or a buccal swab. I have granted that because of the seriousness of the circumstances of the offending warrant making the order. The order was not opposed, and the granting of the order is in the public interest.
46 I must inform you that if at the time of request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample, and police may use reasonable force to enable that forensic procedure to be conduct, and I hand down three copies. You may be seated, please Mr Bussey.
47 MR MOGLIA: If Your Honour pleases.
48 MR CORDY: If Your Honour pleases.
49 HIS HONOUR: In respect of my orders, are the order arithmetically correct?
50 MR MOGLIA: They seem to be, sir.
51 HIS HONOUR: Thank you. Mr Cordy?
52 MR CORDY: Yes, yes Your Honour.
53 HIS HONOUR: Are there any other matters that need to be attended to?
54 MR MOGLIA: I do not believe so.
55 MR CORDY: No Your Honour.
56 HIS HONOUR: Thank you. I would like to thank counsel for their assistance in this matter. Would you remove the prisoner? I will stand down until 10 o'clock.
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