Director of Public Prosecutions v Caldwell (a pseudonym)
[2021] VCC 760
•28 May 2021
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT SITTING IN MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NORMAN CALDWELL (A PSEUDONYM) |
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JUDGE: | HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 18 May 2021 | |
DATE OF SENTENCE: | 28 May 2021 | |
CASE MAY BE CITED AS: | DPP v Caldwell (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 760 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sexual assault of a child under 16 - persistent contravention of an intervention order - standard sentence – below mid-range offending.
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)
Cases Cited:DPP v Becker (a pseudonym) [2020] VCC 795; DPP v Greene (a pseudonym) [2019] VCC 438; R v Verdins (2007) 16 VR 269.
Sentence: 1 year and 13 days imprisonment, to be followed upon your release on a 12 month Community Corrections Order.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr L. Cameron | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M. Kozlowski | Emma Turnbull Lawyers |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the accused, victims and family or witnesses.
HIS HONOUR:
Introduction
1
Norman Caldwell,[1] on Indictment L11162193.A.2, you have pleaded guilty to one charge of sexual assault of a child under 16 pursuant to s 49D(1) of the Crimes Act 1958, as amended by the Crimes Amendment (Sexual Offences) Act 2016, in relation to a single incident that occurred sometime between
20 December 2019 and 31 January 2020.
[1]A pseudonym.
2In addition, on Indictment L11162193.B, you have pleaded guilty to six charges of persistent contravention of an intervention order pursuant to s 125A(1) of the Family Violence Protection Act 2008. The contraventions that are the subject of those charges occurred between 1 December 2019 and 14 May 2020.
3The maximum penalty for sexual assault of a child under 16 is 10 years' imprisonment. I also note that the standard sentence for this offence is 4 years' imprisonment.
4The maximum penalty for a charge of persistent contravention of a family violence intervention order is 5 years' imprisonment or 600 penalty units or both.
Summary of Offending
5The circumstances of the offending was set out in the summary of prosecution opening for plea, which was Prosecution Exhibit 1. The contents of that document were not disputed, and I do not intend to do more than provide a somewhat condensed version of the factual circumstances.
6The victim in relation to this sexual assault was 12 years old at the time of the incident. She resided with her parents and younger brother in Ballarat. You were 54 years old at the time of the offending and resided with your de facto partner and a housemate in Sebastopol.
7Your partner was the sister of the victim’s father. As such, you were a step uncle of the victim.
8On 29 October 2019 a family violence intervention order was granted at the Ballarat Magistrates’ Court. That Order named the victim as the protected person. The Order included conditions that you not commit family violence against the victim, contact or communicate with the victim by any means, approach or remain within five metres of the victim, get another person to do anything that the Order did not permit you to do, and not to go to or remain within 200m of the victim’s home or any place where she lives works or attends school.
9The existence of this Order, and the conditions contained within it, were explained to you by a police officer at the Ballarat police station on 31 October 2019.
10
The circumstances of the sexual assault were as follows. Sometime between
20 December 2019 and 31 January 2020, the victim was visiting your house. On the occasion in question, your partner left to pick up the victim’s grandmother. While she was gone the victim was sitting next to you on a bean bag in the lounge room. Whilst there you placed your hand under her T-shirt, on her stomach and against her skin. You held your hand under her T-shirt for approximately five minutes before you removed it. You accepted that you were sexually gratified by the touching of the victim’s stomach.
11There are a number of separate components that comprise the six charges of persistent breaches of an intervention order on Indictment L11162193.B.
12Charge 1 on that Indictment relates to the victim and her family attending your home on Christmas Day 2019, where the victim sat on your lap as you handed out presents.
13Charge 2 deals with the victim staying overnight in your home on two occasions whilst you were present in January 2020.
14Charges 3 and 4 relate to a period between 28 January 2020 and 21 March 2020, during which you would pick up the victim from school around two days per week.
15Charge 4 also deals with multiple occasions on which you massaged the victim’s legs, both at your house and at the victim’s house. Your partner, the victim’s father and others were present on various of these occasions. I should note at this point that these massages relate to occasions other than that comprising the circumstances of the sexual assault charge. They are charged purely as a breach of the intervention order and are not said to be unlawful acts but for that contravention.
16A similar observation could be made about all of the conduct comprising the six charges dealing with the intervention order breaches.
17
Charge 5 relates to a period during the term one school holidays between
25 March 2020 and 11 April 2020 where the victim attended your home on a number of occasions, including sleeping over for two nights. On one occasion you and others took the victim on a shopping trip and then had dinner with her family that evening.
18Charge 5 and also Charge 6 relates to communication you had with the victim via Facebook.
19Charges 5 and 6 also cover a period after 15 April 2020 when you had daily contact with the victim while she was unable to attend school in person due to pandemic restrictions.
20These ongoing breaches were reported to the police on 12 May 2020. The victim participated in a VARE interview on 14 May 2020.
21You were interviewed on that day. You acknowledged the existence of the intervention order and its conditions but denied having any contact with the victim of any kind since the order was in operation.
Moral Culpability and Gravity of Offending
22The offence of sexual assault of a child under 16 is a serious one in any circumstances. In this case there has been an assault of a child of only 12, whilst you were 54 years old at the time. That child was a member of your extended family. There was a substantial relationship of trust in existence between the two of you. The sexual assault of the victim represents a serious breach of that trust.
23It is also relevant that the assault occurred over a period of some minutes whilst you were entrusted to be alone with the victim. The assault was by no means a fleeting touch.
24Your actions have had a detrimental impact upon the victim. I have had the opportunity to read victim impact statements from the victim, her father and her mother.[2] The victim describes the emotional impact of the crime. It has made her feel, amongst other things angry, betrayed, and worthless. She says she is receiving counselling as a result of the anxiety and depression the crime has caused. Her parents also detailed the significant impact your action has had on the family more broadly.
[2]Exhibits P2, P3, and P4.
25Whilst I accept that the objective circumstances of this offence are such that its gravity is correctly categorised as being below mid-range when considered against other examples of the offence, that assessment is a relative one. The offence remains serious criminal conduct that justifies a term of imprisonment.
26I have already observed that none of the specific acts constituting the six charges of persistent contravention of family violence intervention order, were criminal acts in and of themselves, but for the fact they were in direct contravention of the conditions of the order. That said, your repeated breaches were committed with brazen indifference to the existence of the Order.
27The reality is however, that the Order was very much in existence. Compliance required no greater commitment from you, than to simply stay away from the victim. The Order was uncomplicated. You understood that Order. You intentionally and repeatedly chose to disregard that Order. The real culpability for these offences comes not from any adverse impact of your breaches, but from what it reveals of your total disregard for the court Order.
Personal Circumstances
28You are now 55 years old. You were raised in Melbourne. You had substantial challenges in your childhood, including your parent’s separation, your mother’s hospitalisation for mental health issues, and difficulties you had with your violent treatment by one of your mother’s new partners.
29You had learning difficulties that meant your formal schooling ended around age 15. You were the subject of a protection application in the Children’s Court and were cared for separately from your mother for a period. As a teenager you ran away from home and ended up residing in a boarding house and then in a youth hostel.
30By age 18 you would return to live with your father, who by then had serious health concerns.
31I am instructed that you did not have any paid employment until the age of 36. It would seem that this employment did not last long. You had an extended period of unemployment until commencing work for a removalist company in 2009. You left this job in 2016. You have apparently worked for other employers in similar roles since that time.
32You have been in relationship with your current partner for 10 years. You have no children of your own, but your partner has two children aged 28 and 18, to whom you have been a father figure.
Psychological Materials
33I have had the benefit of reading a psychological report from Mr Warren Simmons.[3] He notes that you have previously been diagnosed with an array of disorders including adjustment disorder, mental retardation, acquired brain injury, and explosive borderline and antisocial personality disorder. He opines that you are someone with limited intellectual ability. He finds some evidence of a bipolar mood disorder, and that you are at some risk of self-harm in custody.
[3]Exhibit D2.
34There is no evidence suggesting a clear causal link between any psychological or psychiatric diagnoses and the offending before the court.
35It has been contended on your behalf that the combination of your intellectual deficits and the diagnosed personality disorders mean that imprisonment is likely to be more onerous for you than for someone not facing those diagnoses, consistent with limb six of Verdins.[4]
[4]R v Verdins (2007) 16 VR 269 (‘Verdins’).
36This submission was not challenged by the prosecution and I intend to place some weight on this matter.
Plea of Guilty
37You have pleaded guilty, and as such avoided the cost and time otherwise taken by a trial. While the plea has eventuated relatively late in the course of the proceedings, I note that this was in the context of a plea indictment that differed substantially from that filed prior to the cross-examinations of witnesses at a pre-trial hearing. As such, I intend to give you substantial credit for the utilitarian benefit of the plea. Especially in the context of the substantial pressure placed on court listings as a result of pandemic restrictions, your plea of guilty entitles you to a discount in sentence.
38I also note that the matter has resolved in circumstances where a realistic defence on the sexual assault charge could have been run on your behalf.
39It has not been contended, however, that your plea of guilty evinces any remorse. During the assessment of your suitability for a Community Corrections Order, you adamantly deny any wrongdoing for your actions. Your plea of guilty is to be regarded as of utilitarian benefit only.
Prospects of Rehabilitation
40Your criminal history is relatively lengthy, though not of particular significance in this case. I have had some regard for the fact it spans some three decades, and does include some examples of your previous failure to comply with court orders, though not the subject of specific charges to that effect. It does not include any prior convictions for either sexual offending, nor for contravention of intervention orders.
41You were convicted of manslaughter in 1993, a matter that stands out in a prior history, that is otherwise comprised of relatively low level offending.
42Your prior history includes substantial periods without any convictions at all, including for the seven years leading up to this offending.
43The opinion of Mr Simmons is that you display neither insight nor empathy for your behaviour towards the victim. He considers you to be in the 'average range' for risk of re-offending, albeit regards offending on non-sexual offences, as far more probable than sexual offending.
44Whilst the evidence does not permit any more than limited optimism, on balance I am prepared to conclude that you have reasonable prospects of rehabilitation.
45In relation to the sexual assault charge, the sentencing purposes of general deterrence, denunciation, protection of the community and just punishment are all significant. Some consideration must be given to specifically deter in you from similar offending in the future.
46In relation to the breaches of intervention order, in my view general and specific deterrence are the primary sentencing purposes. If court orders are to serve their purpose, there must be a message sent to you and to others that there are consequences for breaching them.
Impact of COVID-19
47I also note that you have served your time on remand subject to the additional restrictions that the pandemic has enforced on the prison environment. I accept that this has made your time in custody somewhat more onerous that it might otherwise have been.
Submissions on Sentence
48Mr Kozlowski submitted on your behalf that having regard to all of the circumstances of the case, it was open to impose a combination sentence of imprisonment and Community Corrections Order, with the imprisonment component such as to allow your immediate release.[5]
[5]Exhibit D1.
49Mr Cameron on behalf of the Director conceded that a sentence of this type was within the available range, albeit said that the length of any imprisonment portion of such a sentence was a matter for the court.[6]
[6]Exhibit P5.
50Mr Cameron also very helpfully provided the court with a number of recent examples where sentences have been imposed for sexual assault of a child under 16 and other sexual offences where the standard sentence of four years had been a relevant sentencing consideration. The closest comparisons to the present case were those of DPP vBecker[7] and DPP vGreene.[8] Both involved the imposition of a Community Corrections Order for a single instance of sexual assault of a child under 16.
[7]DPP v Becker (a pseudonym) [2020] VCC 795.
[8]DPP v Greene (a pseudonym) [2019] VCC 438.
Standard Sentence
51The sentence I am imposing today is lower than the standard sentence for the offence of sexual activity in the presence of a child under 16. Having identified and considered what I consider to be the relevant factors in assessing the sentence, including my assessment that the offending is somewhat below the middle of the range, when weighed against the matters in mitigation I regard the imposition of a sentence below the standard sentence to be appropriate.
Sentence
52Balancing all these considerations as best I can, I sentence you as follows.
53On Charge 1 of Indictment L11162193.A.2, sexual assault of a child under 16, you are convicted and sentenced to a combination of 9 months' imprisonment with a 12 month Community Corrections Order, the conditions of which I will explain more fully in a moment.
54On each of Charges 1 through 6 on Indictment L11162193.B, namely the six charges of persistent contravention of the family violence intervention order, you are convicted and sentenced to 104 days imprisonment.
55The sentences imposed on each charge on Indictment L11162193.B are to be served concurrently with each other and cumulative upon the sentence of imprisonment imposed on Charge 1 of indictment L11162193.A.2.
56This makes for a total effective sentence of 1 year and 13 days imprisonment, to be followed upon your release on a 12 month Community Corrections Order.
57I declare that 379 days, and I will ask you both to check that, whether that calculation is correct. I declare that there have been 379 days of presentence detention already served.
58Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have imposed a total effective sentence of 2 years and 3 months' imprisonment with a non-parole period of 18 months.
59Sexual assault of a child under 16 is a class 2 offence under the Sex Offenders Registration Act 2004. This means you will be required to comply with reporting conditions of that Act for 8 years.
60I do not require Mr Caldwell to sign the documents acknowledging your receipt of Sex Offender Registration Act obligations, but my associate will arrange for a copy of those documents to be sent to his representatives.
61What I am proposing to do at this stage, on Charge 1 of Indictment L11162193.A.2, is record a conviction and place you on a Community Corrections Order for a period of 12 months upon your release from custody.
62So Mr Caldwell, before I ask if you consent to such an Order being made, I have to tell you a bit about the Order, so you know what it means.
63The 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 Community Correction Centre at Ballarat Justice Centre within two clear days following your release from custody.
(d) You must not leave Victoria except with the permission of the Secretary of the Department of Justice, or his or her nominee.
(e) You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.
64There are a number of other conditions attached to this Order, and they apply to you:
(a) You have to perform 100 hours of unpaid community work over a period of 12 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 12 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 programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager, and I specifically refer to participation in the Forensic Intervention Services Branch(s 48D(3)(f)).
65I can only impose a Community Correction Order if you agree to such an Order being imposed.
66I 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)).
67You can also be resentenced for the offences that are before me. One of the options available includes a term of imprisonment (s 83A(s)).
68I 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, as part of this Order, a substantial fine can be imposed (s 83A(e) and A(f)).
69HIS HONOUR: Now Mr Caldwell, are you aware of all of that or do you want to speak to Mr Kozlowski about it?
70ACCUSED: I am aware, Your Honour.
71HIS HONOUR: Yes, all right. So, do you consent to a Community Corrections Order on the terms I have just outlined?
72ACCUSED: I do.
73HIS HONOUR: All right. So, Mr Cameron, Mr Kozlowski, is there any further orders that are required?
74MR CAMERON: No Your Honour and just to confirm that the prosecution agrees with 379 days, being the pre-sentence detention.
75HIS HONOUR: Thank you both very much for your assistance with this matter. I'll adjourn the court until 10.30am. All right.
76ACCUSED: Your Honour, before you go, does that mean I get released from custody today?
77HIS HONOUR: I think it should, yes.
78ACCUSED: Thank you.
79HIS HONOUR: Thank you.
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