Director of Public Prosecutions v Cambridge (a pseudonym)

[2017] VCC 682

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
Suitable for Publication with the use of pseudonym

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL CAMBRIDGE (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	9 May 2017
DATE OF SENTENCE:	23 May 2017
CASE MAY BE CITED AS:	DPP v Cambridge (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 682

REASONS FOR SENTENCE
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Subject: Subject: Criminal law - sentence    

Catchwords:   plea of guilty to one charge of sexual penetration of a child under 10 – child was his niece aged 6 -7 years – offender aged 35-36 years at the time- now aged 66 and in poor health – child left in his care – breach of trust – no insight or remorse – no empathy with child who was obliged to live in same house until she left home aged 16 – profound and long-lasting effects on complainant – low risk of reoffending because of age and health – need for general deterrence significant.  

Sentence: 3 years imprisonment, 1 year suspended.             

NOTE: Pseudonym used to protect the identity of the victim.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J Manning	OPP
For the Accused	Mr N Leslie	Slink & Keating

Pages 1 - 9

 

HER HONOUR: 

1Michael Cambridge[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of ten.  The complainant is your niece who at the time, between 1986 and 1988, was a child aged six or seven.  You were aged 35 or 36. 

[1] A pseudonym.

2The circumstances of the offending were that it involved a gross breach of trust on your part.  You are the brother of the complainant's mother and before the offence, you had often babysat the complainant and her brothers, one older and one younger.

3On the occasion in question, the complainant's parents delivered her and her brothers to your house to be looked after while they went out.  For some reason, the complainant went into your bedroom with you and there you lowered your trousers and underwear.  You motioned the child to come over to you which she did and you pulled down her pants and underwear.  You then held her on your lap, holding her hips with one hand and your penis with the other.  You then penetrated her vagina with your penis.  The complainant does not recall how this ended but remembered you giving her a handful of coins as she left the room.

4Soon afterwards, while aged seven or eight, the complainant wrote a letter to herself describing what you had done to her.  She would take this letter around with her but one day, she left it at home when she went to school.  Her mother found it and later that day asked her if the contents were true.  She said it was true, and when her father came home, he was shown the letter.  He telephoned you and ask you to come to the house, which you did. 

5The child's father told her mother that he would sort it out.  Rather than go to the police, he decided to deal with it himself and he confronted you with the allegation.  You denied it and the complainant's father punched you extensively in the face, causing bleeding and loss of teeth.  No further action was taken after this, at that time, and the family attitude was that it should be forgotten. 

6Several weeks later, you and your brother David moved into the garage at the complainant's family home.  The background to this appears to be that you had received a large payment following being seriously injured at work and you gave the money to your sister, the complainant's mother, to buy a house on the condition that you would live with them in that house.  You lived there as part of the family, despite the complainant's parents knowing what you had done, and the complainant was obliged to put up with it, even having to tell you to leave her alone on one occasion. 

7The complainant's brother, John, later learnt something about what you had done and he assaulted you, causing your face to bleed. 

8During her teenage years, the complainant began experiencing flashbacks of the abuse.  She was struggling at school despite apparently having some aptitude academically, and she told her mother either you would have to leave the house or she would go.  Soon afterwards, she left, and had no family support from that time, having to work and look after herself.  She was denied any further education for that reason. 

9The complainant read to the court at the plea hearing her victim impact statement, a carefully drafted and articulate description of the effects of the abuse upon her, which was moving to hear.  She remains alienated from her family of origin because of her disclosure of the abuse and her objection to her parents' handling of the matter. 

10The complainant described having felt unsafe in her family home, feeling abnormal as a child and now, as a mother, fearing for the safety of her children.  She described a conditioned response to fear which has a physical effect on her.  She said the grownups in her family acted as though nothing had happened and expected her to act that way too. 

11She became suicidal in her early 20s, owing to the persistence of flashbacks she suffered, and she made attempts on her life.  Following an admission to hospital after an overdose of prescription medication, she was unable to work for two years.  Her emotional life has been badly affected and she has had counselling for many years.  She has had to live with the crime being unrecognised and unresolved for many years.

12I turn now to your personal circumstances. 

13You are aged 66, a single man who has never married.  You are in frail physical health and having been a heavy smoker since childhood, you suffer from emphysema or severe chronic obstructive airways disease, which makes you susceptible to frequent infection and consequent hospitalisation.  It also causes shortness of breath, requiring frequent rest. 

14A serious injury at work many years ago left you with a steel pin in your leg.  This, together with severe arthritis and major degenerative changes in both hips, affects your mobility and causes chronic pain for which you are prescribed strong opiate analgesics.  You are regularly monitored for suspected prostate cancer, chronic rapid heart rate and bowel polyps.  According to your general practitioner, you have a considerably reduced life expectancy mainly because of the advanced emphysema. 

15You qualified as a spray painter as a young man and worked for many years in a variety of semi-skilled jobs.  You now receive the age pension. 

16It was submitted on your behalf and conceded by the prosecution, that your frail health and extensive medical needs would mean prison would be more burdensome for you than for others, although it was not suggested that necessary treatment would not be provided in custody. 

17You have no prior convictions and have not spent any time in custody for this matter.  You accept that the offending was very serious but it was submitted that there are mitigating factors which call for some leniency. 

18You pleaded guilty, although not at an early stage, but that plea avoided the need for a trial and so the complainant has not had to give evidence or be cross-examined.  Other family members were spared in the same way. 

19When arrested in July 2015 and interviewed by the police, you made some admissions and expressed some regret but denied this charge.  The case proceeded through the usual stages, with some delay while discussions took place, and illness prevented your trial from proceeding in June 2016.  You made a plea offer in February this year which was accepted, and you were arraigned accordingly.

20The delay since mid-2015 was not due to fault on your part and it is a period of delay to be taken into account, having had the uncertainty of the matter hanging over your head. 

21A further mitigating factor of some value is the punishment meted out by your brother-in-law and your nephew when they learned of the abuse, and took matters into their own hands instead of reporting it to the police.  You were quite badly injured and exposed to what might well be called rough justice.

22The maximum penalty for this offence is 20 years' imprisonment.  Sexual abuse of children is a crime regarded with abhorrence by the community, and calls for severe punishment and strong denunciation by the court.  It would usually attract a prison sentence to be served immediately and indeed, that is the prosecution submission. 

23Your counsel has urged me to impose a wholly suspended sentence.  I must consider a number of factors relevant to the seriousness or otherwise of the offending and your personal circumstances including mitigating factors to impose an appropriate sentence. 

24The complainant was a very young child, as I said, aged only six or seven.  You were much older - a man of mature years.  She was your niece and she should have been able to trust you and feel safe in your care.  Her parents also should have been confident in their trust of you.  Instead, you exploited that trust in a most vile way when she was left alone with you. 

25A further aggravating feature of the crime was the fact that you gave the complainant money after you abused her, leading to the possible inference that this was an inducement to keep her quiet.  Given that she did not tell anyone until her mother found the letter at least a year later, it is safe to draw that inference.  Your crime was aggravated in her eyes by the fact that you were invited to live with the family, no doubt, because of the substantial amount of money you had given to her mother to buy the house you all lived in. 

26As a girl growing up, she had to endure your close company for many years in the circumstances of explicit denial of the offence until she was old enough to move out.  Even then, she did so knowing her mother still protected you rather than her and she became estranged from her family. 

27Clearly, you had no regard for her feelings nor any insight as to how she would have perceived your presence as tacit acceptance of your behaviour.  It amounts to almost complete absence of remorse.  The impact on her was indeed profound, as the learned prosecutor described in his submissions, but in any event, there is in these cases the presumption of harm to a child abused in this way, which adds to the seriousness of the crime.

28For these reasons, general deterrence - the need to deter others - is very important and must be reflected in the penalty.  Specific deterrence is also relevant because of the lack of remorse, but the need for it is somewhat diminished by your reduced capacity for further offending and the many years during which you did not offend at all. 

29Your prospects for rehabilitation are also relevant to specific deterrence.  Absence of remorse and the lack of insight you demonstrated do not enhance those prospects, but your poor health and frailty is a matter of considerable weight and suggests you are unlikely to offend again.  Even without any expert evidence as to risk, it is reasonable to conclude on the available evidence that the risk is substantially diminished. 

30I take into account that you received some punishment at the hands of the complainant's family closer to the time of the offending.  I also take into account that your plea of guilty has facilitated the system of criminal justice and spared the witnesses from a trial, as I said earlier.

31It is perhaps the only indication of any remorse, apart from the regret that you expressed to the police.  You said you were sorry it happened, but you did not know why it had, suggesting that you have no insight into your behaviour.  On the basis of its utility, the plea entitles you to a modest discount on your sentence. 

32The maximum penalty for this offence is 20 years' imprisonment, although that penalty has since been increased to 25 years.  I am sentencing you as I must, according to the lower maximum penalty in operation at the time of the offending.  Both those sentences indicate the seriousness of the crime and that the legislature intends offenders to be punished severely. 

33The crime in this case is more serious because the child was so young, the disparity in ages so great and the breach of trust so grave.  Despite the mitigating circumstances I have described, it is deserving of a prison sentence to be served immediately although tempered by those circumstances. 

34I sentence you to three years' imprisonment, Mr Cambridge, one year of which will be suspended, resulting in you having to serve two years.  The operational period will be three years. 

35If you offend again during that time in any way which would attract a prison sentence, you will have breached the suspended sentence and will have to return to court to be resentenced.  Only in exceptional circumstances would you avoid going to prison.

36If you had pleaded not guilty to this charge, I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years and six months. 

37The prosecution seeks an order for a forensic sample of saliva to be obtained pursuant to s.464ZF of the Crimes Act and you have consented to that through your counsel.  I must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.

38Under the Sex Offenders Registration Act, you will have to report your contact details to the police every year for 15 years from the time of your release.  Are there any other matters?

39MR LESLIE:  Your Honour, just in relation to Mr Cambridge's current medical conditions.  He has asked me to let you know he is having extreme difficulty breathing as we speak, and walking.

40HER HONOUR:  I see.

41MR LESLIE:  I do have some material which confirms all of his current medication.  I ask for the authorities to be given ‑ ‑ ‑ 

42HER HONOUR:  I will make a note on the order that he
should be seen by a medical officer as soon as possible.

43MR LESLIE:  Yes. And I also have written down his current treating doctor on the first page of those and the contact details for that doctor.

44HER HONOUR:  All right.

45MR LESLIE:  So if that could be passed onto the authorities. 

46HER HONOUR:  I think the system is that he sees a medical officer as soon as possible once he is admitted.

47MR LESLIE:  Yes, I am not sure whether I can give these directly to Prisons  right now; I am not sure if that is appropriate or not.

48MS MILDENHALL:  Would Your Honour like a copy of the orders to be signed in relation to the forensic sample?

49HER HONOUR: Mr Leslie, I understand the officer is agreeable to taking the documentation down to the custody centre.

50MR LESLIE:  That is right.  And I will pass that on to him.  Yes, thank you.

51HER HONOUR:  No further matters?

52COUNSEL:  No.

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