Director of Public Prosecutions v Cameron (a pseudonym)

[2019] VCC 689

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

AIDAN CAMERON (a pseudonym)

---

JUDGE:	HIS HONOUR JUDGE McINERNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	CR-18-00645 - Trial: 31 October 2018 – 22 November 2018, Plea: 1 March 2019 CR-18-01085 – Plea: 1 March 2019
DATE OF SENTENCE:	16 May 2019
CASE MAY BE CITED AS:	DPP v Cameron (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 689

REASONS FOR SENTENCE
---

Subject:	CRIMINAL LAW
Catchwords:	Trial by jury – rape (2 charges) – sexual assault (4 charges) - plea of guilty – loitering by sexual offender ( 1 charge) – cognitively impaired complainant
Legislation Cited:	Crimes Act 1958; Sentencing Act 1991; Serious Offender Act 2018; Sex Offenders Registration Act 2004
Sentence:	Convicted and sentenced to a total effective sentence of twelve and half years’ imprisonment with a minimum term to be served before being eligible for parole of nine and a half years’ imprisonment

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Shaw	Office of Public Prosecutions
For the Accused	Mr T. Sullivan	Geelong Lawyers

HIS HONOUR:

1Mr Cameron[1] is before the Court aged 70, he turns 71 this year.  He was 68 at the time of this offending.

[1] Aidan Cameron is a pseudonym.

2Because he was already a serious sexual offender and given the determination I made, he is now required to report for life, pursuant to that Act. I stress that is brought about by Parliament, not by me, except for the finding I made last time, and it is therefore necessary to serve an updated notice, Mr Sullivan, and my associate has prepared that.

3Perhaps I do not know whether there is any need for explanation but there is need for acceptance by your client having received the document.

4MR SULLIVAN:  Yes, Your Honour.

5HIS HONOUR:  Yes.  Perhaps if that can be done now.  You have no objection if you want to approach your client to get that done with my associate.

6MR SULLIVAN:  If it please Your Honour.  Yes, Your Honour.

7HIS HONOUR:  Yes.  Thank you, Mr Sullivan.

8Indictment No.CR-18-01085, is the charge of loitering by a sex offender, Mr Cameron pleaded guilty to this on 26 November 2018, that is the day the trial in that matter was about to proceed.  Of course he was involved in more serious matters in the trial that did proceed.

9The offence of loiter by a sex offender and the particular offence which was relevant at the time of the offending, that is s.60B(2)(b)(i) of the Crimes Act, has now been repealed.  However, by pleading to that offence which applied at the time, he is subject to a sentence which is prescribed by Parliament to a maximum five years with and/or without 6,000 penalty units.

10The offence itself concerned him loitering in Norlane, as I said, on 30 May 2016 around the Fort Youth Centre and Stead Park.  On that particular morning, there were children from the Norlane Park Special School, which seems to align very much with his penchant for being involved inappropriately with persons with disabilities.

11This crime came to light as a result of an investigation in regard to Julia Howe[2] because when the police investigated, by way of warrant, his property and his car, they found a dashcam which contained evidence of this crime.  He was observing these young special students in a park. 

[2] Julia Howe is a pseudonym.

12I am satisfied from the material that he was masturbating while observing the children, and I suppose all we can say is it is lucky that one of those children did not wander off on their own, but, anyway, that is a matter purely of speculation.

13The fact is he comes before this Court to be sentenced on this crime, and that only.

14He was a designated sexual offender from the time he was sentenced by Judge Williams on the 19th day of December, 2006 and hence to loiter both at this particular park, where there were school children, was the offence to which he pleaded guilty.

15The other indictment is H127681911C, which proceeded as a trial.  The trial itself took some 20 days.  In particular, prior to the trial, there was a ground rules hearing of which I did not preside, that took place in October 2018.

16In the trial, Janet Wilson was appointed as the Court-appointed Intermediary and albeit she is a member of the Court staff, I want to formally thank her for her role in this case.

17That trial proceeded on 22 November of last year, a verdict of guilty was brought down by the jury in regard to all of the five charges in this indictment.

18The plea hearing took place on 1 March of this year and was adjourned to 14 March in order for the defence to obtain a psychological report.  That did not occur, however, it was my view that such a report was necessary and, as I indicated, that has now been obtained and that has been tendered as Exhibit G today.

19In the indictment in regard to the charges of which Mr Cameron was found guilty, the victim of course was Julia Howe.

20The first was a charge of sexual assault against her committed, like all the other crimes, on 13 September 2016. In this particular crime of sexual assault, the touching involved kissing Julia while they were on the bed, such is in breach of s.41 of the Crimes Act 1958, the maximum penalty prescribed by Parliament for that offence is 15 years.

21The second charge is again a charge under that section, again, the same victim and same date.  This involved hugging and kissing and touching Julia's breasts.

22The third charge, again, under the same provision, same date, same victim and involved him kissing her vagina.

23The fourth charge is a charge of rape. Such is an offence against s.38(1) of the Crimes Act.  The maximum penalty, given the seriousness of such charge and the views of the community, prescribed by Parliament is 25 years.

24The fifth charge also involved rape, again an offence against the same section and, subject to the same maximum penalty.  That particular rape involved penile penetration of the vagina.

25The reason for the trial obviously was that Mr Cameron pleaded not guilty as he is entitled.  As a result of that, the prosecution in our system is obliged to prove it’s case.  It is of course Mr Cameron's democratic right, in our legal system, to put the Crown to its proof, and he suffers no detriment as a result of exercising that right.

26Of course, he receives no discount for any remorse and clearly, as has been discussed today, his maintenance of innocence has been proclaimed as set out in the psychiatric report and, again, those matters do not count against him, except in regard to matters put to me by the prosecution on the issue of rehabilitation.

27This trial was certainly for the Court, and I am sure for the jury and anyone in this Court, and indeed for all the participants and no doubt for Julia herself, a very difficult experience.

28Julia suffers from Down Syndrome which she was born with.  It is difficult given those circumstances and the limitations with her communication to be sure of the impact of these crimes upon her, and indeed the impact of trial.  No doubt the major factor was an issue of stress with her and it is very difficult for the Court to assess that.

29I must remark on her manner, her sister talks about her manner in due course, but I must say one does not often get light moments in a trial such as this, but those who were in court when I asked Julia did she mind me wearing my wig, her response was such that no one could help but raise a smile.  The response was joyful in her own unique way.

30Can I thank in particular her family for the manner in which they conducted themselves in this trial. In particular also her carer, Lillian Harrell,[3] and as I have already said, the Intermediary. A combination of all of those parties was necessary to try to assist Julia in providing a voice in this trial, as best can be done.

[3] Lillian Harrell is a pseudonym.

31I make the point that Parliament, and indeed this was the first trial that I had been involved where a Court-appointed Intermediary assisted.  As I say, it is not my role to assess Julia's evidence but, in the sense that I was able to observe, the role played by the intermediary assisted Julia in conveying her story to the jury.

32I think anyone who was in Court and saw that, the trial was still not without difficulty, but the role of an intermediary, as determined by Parliament, is very important.

33As I said, it is difficult to understand because of Julia's condition precisely what she has been through with this crime and the trial.  I was helped, however, in particular by Exhibit F, it was the victim impact statement prepared by her carer Ms Harrell.

34Ms Harrell's statement, as best as one is able to ascertain, provides the Court with a before-and-after analysis of Julia. Particularly concerning to me is the concern she has regarding Julia’s demeanour in the community.

35In particular as Ms Harrell described Julia’s desire and concern as to her security and her now wanting to lock doors, the fact that she is anxious and unsettled, has had difficulty with her sleep. Unlike before, Julia has now, expressed anger.  The major issue which was spoken about by the learned prosecutor earlier was the issue of vulnerability, and Ms Harrell makes that point.

36Because of that vulnerability and the impact of these crimes, Julia has not been back to her art program, she has difficulties in utilising the public transport system, which she was able to utilize beforehand, after a lot of hard work.

37Exercise has been difficult for Julia since these events and has led to her putting on weight, and of course she has been restricted in her employment.

38So to that extent that one is able to glean the effects of this crime and the trial, Ms Harrell’s material was very helpful.

39Exhibit D was read out to the Court by her brother.  It referred to many of the issues that I have just referred to, as best as she could express them as they were read by her brother. If I might say, true to form, Julia's positive attitude came up when she was asked the question, 'How are you now?'.  It seemed to be that she gave a very positive reply.

40The victim impact statement of her sister, to which I have earlier referred, in regard to the matters set out, I accept totally the sentiments.  If I can make a comment, it does not seem to me anyone in the family should hold themselves at fault. The only one at fault is Mr Cameron, but I can understand the sentiments. I note the comments made of how important it is to get on with your own life as Julia has. As her sister has said, Julia is not only an amazing woman but an inspiration.

41It seems to me if everyone bears that in mind, especially the way Julia has got on with her life, that is going to put all in good stead.

42Coming to Mr Cameron, of course, he comes before the Court with significant priors. The crimes of which he was convicted of before Judge Williams in 2006 almost mirror these crimes, he was sentenced on that occasion to a period of five years with a minimum of three and a half years.

43During the plea, the prosecutor put to the Court matters of aggravation which need to be taken into account.  First, the proposition put was that there was a high level of planning.

44It is clear from the material that was before the jury that Mr Cameron was at the bus stop, was very shortly thereafter taking Julia to his car and ultimately to his home. The prosecutor said that it was clear that he must have been waiting for her and had planned this.

45It is very difficult, in my view, to be satisfied beyond reasonable doubt of that fact.  That comes about because it seems to me there is an issue as to whether, in his planning, he had in fact met Julia on some other occasion or not.  I cannot be satisfied beyond reasonable doubt as to such high level of planning.

46I can, however, be satisfied of the second matter put by the prosecutor and that was that this was high level exploitation of a very vulnerable person.

47In the interview with the psychiatrist, Mr Cameron said that having observed Julia, and he suggested he had observed her on a number of occasions prior to this crime, that he was not aware of her disability.

48I do not accept that as a realistic statement.  One only has to talk and hear Julia to know of her disability, and he would have known how vulnerable and pliable she was.  That would have been very clear.

49The other matter remarked upon as a matter of aggravation, was the time that she was in Mr Cameron’s home.  I do not see that as necessarily a matter of aggravation.  It is a matter of the circumstances whereby the sexual assaults took place.  There is nothing necessarily aggravating about that. There does not seem to be any dispute that part of that time involved them having a meal, as strange as that may sound.

50It was also put that he was a total stranger assaulting this vulnerable young girl.  Again, I cannot be satisfied beyond reasonable doubt on all the materials that that was so.

51In the report to the psychiatrist, Mr Cameron suggests that he had indeed met her on a number of occasions.  It may well be that that is why she was inclined to go in the car with him, I do not know, but I certainly cannot be satisfied that he was a total stranger.

52I suspect the reality probably is that part of the preparation was that he may well have prevailed upon Julia on other occasions, setting up this occasion so that he could commit these crimes.

53The culpability of, the sexual offences and the rapes objectively is high. I make the determination of somewhere between mid to high, and I accept the Crown's submissions on this matter.

54I also accept the submissions of the prosecutor that insofar as sentencing is concerned, the protection of the community is a particularly important matter.  One takes this into account, because despite being sentenced to gaol in 2006 for a considerable period, such has had no impact whatsoever.

55Mr Cameron then on two occasions, one where he has acted out his fantasies or whatever they are or his perversions depending on how you want to put it, and then he has assaulted this vulnerable and innocent member of our community.

56On the other crime for which I am to sentence him, he has been indulging himself while watching handicapped children.  Protection of the community obviously is a very important aspect. Mr Sullivan says, well, at least there is some movement in the sense that he accepts there was sexual congress on this day with Julia, but still maintains such was consensual.

57The learned prosecutor makes the point, well, there was a total lack of insight not only in regard to these crimes, but the crimes for which he was sentenced by Judge Williams, obviously those matters need to be taken into account.

58Clearly because of that, because of the assessment of his sexual risk of reoffending, because of history, specific deterrence is important.

59As to the issue of rehabilitation, one would have to have very grave doubts as to whether Mr Cameron will ever rehabilitate, in the sense of not being a danger to the public.

60The learned prosecutor put that there is really no way that the Court could be satisfied that he presents any prospect of rehabilitating, and in particular puts to the Court the issue of insight, that I have already spoken about.

61Mr Sullivan put to the Court what he described as at least some light on the horizon, that while Mr Cameron still disputes the consensual aspect, at least he has now moved to a degree and accepts that there was sexual congress that day.

62Such does not change my view as to rehabilitation.

63What is fundamental in this case is that the sentence must represent denunciation by this community for this type of conduct.  To sexually assault a vulnerable member of our community in such a manner is, I am sure, revolting to all the members of our community and deserves appropriate punishment.

64Insofar as the serious sexual offender legislation there was no submission by the prosecution that the sentence should be any longer than the gravity of these crimes call for, and I take that into account.  I do obviously accept the directions of Parliament that where a serious sexual offender is sentenced, there must be cumulation of the sentences.

65However, of course, as pointed out appropriately by the prosecutor, there is always a tension in regard to this requirement, because fundamentally this Court must pass a just sentence.

66That just sentence necessarily requires the Court to consider the issue of totality and that concept, even though the High Court says this Court must accept Parliament's wishes as best it can, there is, as referred to by our Court of Appeal, a tension between, in particular in this case, a just sentence and the direction of Parliament that each sentence must be cumulated in full.

67Insofar as the plea put by Mr Sullivan, he submitted that in regard to the loitering indictment that the criminality in that matter should be seen at the bottom level.

68The prosecution submitted that it was more midrange, and in analysing the matter, I accept the prosecution submission.

69The reason for these provisions which stop a person, who is a serious sexual offender, from loitering near schools or anywhere near where children congregate is to protect children.  It is quite clear in this case that he has deliberately breached that rule, and I accept the analysis of the prosecution in regard to culpability in this matter.

70I note that there was no issue in regard to forfeiture and I have signed that document.

71As to the offences of which the jury convicted Mr Cameron, given Mr Sullivan's instructions, there was not a lot that he could put.  As I said, the case had been adjourned so he could get an appropriate psychological report, but it was deemed for whatever reason that that was not appropriate to be put to the Court.  Whether it was obtained or not, I was never told.

72However, I felt that the Court did need such a report. Mr Sullivan made reference to some light on the horizon as to Mr Cameron's future, that as against the instructions when the trial was on that there was no sexual activity at all at least and the report showed that he accepted that.

73However, there is nothing in the report by way of psychiatric issues, psychological issues or personality disorders which would necessarily explain these crimes.  Clearly, there is some aberrant passion held by Mr Cameron that excites him about disabled people.  I cannot classify it any further than that, and, unfortunately, that aberrant passion was exercised, insofar as Julia was concerned.

74I accept totally that Mr Sullivan was bound by his instructions and, in the circumstances, there was nothing more that he could say.

75I note that the pre-trial detention to date is now agreed by the parties at 175 days.

76I come therefore to sentence you, Mr Cameron, and, I do this in sentencing you as a serious sexual offender, so that in each offence it will be noted that you are sentenced as a serious sexual offender.  I have already explained the provisions of the Sentencing Act in regard to those matters and the tension that presents.

77Pursuant to s.6F(1), the fact that you have been so sentenced will be recorded in the records of this Court.

78Mr Cameron, would you stand up please?

79In regard to the indictment concerning Julia, on Charge 4, that is the charge of rape, you will be sentenced to a period of nine years' gaol.

80On Charge 5, the charge of rape, you will be sentenced to a period of nine years' gaol.

81In regard to the three sexual assault charges; Charge 1, you will be sentenced to one year's gaol; Charge 2, you will be sentenced to 18 months' gaol; and Charge 3, two years' gaol.

82Taking Charge 4 as the base sentence, that is of nine years, I order that 30 months of the second rape charge be cumulated with that sentence, and insofar as the sexual assault charges, that one month of Charge 1, two months of Charge 2 and three months of Charge 3 of the sentence imposed therein be served cumulatively with Charges 4 and 5, making a total, therefore, of 3 years.

83The aggregate sentence that I am sentencing you therefore to, in regard to this indictment, involving Julia is 12 years gaol.

84I come then to the loitering indictment.

85Clearly, as the authorities show, it is important for this Court to impose an appropriate sentence where there is a clear refusal to comply with the law, a law provided to protect the community, especially in your instance, where you have this passion for disabled people.

86Specific deterrence is obviously particularly important, as is protection of the community.

87In the circumstances, therefore, I will sentence you to a period of 18 months for that breach.

88I order that six months of that sentence be served cumulatively with the sentence imposed in the Julia Howe indictment, meaning that the total period that you will be sentenced to is a period of twelve and a half years gaol.

89Insofar as the indictment concerning the loiter charge, I am required by Parliament to indicate to you that had you not pleaded guilty, the sentence you would have been given is one of 26 months, not 18 months.

90Parliament requires me to explain to you clearly that as a result of you pleading guilty and saving the community a trial in that matter and assisting justice to that degree, the eight months difference is the eight months represented by the discount you have got by pleading guilty in that matter.

91As I say, six months of that sentence will be cumulated to the other sentence, making a total sentence of twelve and a half years that you are to serve, and insofar as your parole is concerned, I order that before you can be paroled and I take into account the fact that you are now 70 years of age, you will be required to serve a minimum of nine and a half years.

92As I said earlier, one aspect that does impact on the community in this regard comes about from the assessment of you as a person with a high risk of further sexual offending.

93The current laws of Parliament, being the Serious Offender Act, will operate, I would think, to mean that it will be a question for the Court as to, after you serve this sentence, when you are able to return to the community, if ever, and if you do, whether you return with supervision.

94I must point out, however, in determining my sentence, I did not take those matters into account.  They are matters prescribed by Parliament, and may or may not ever be taken into account, but it is important, I think, to stress the current regulations.

95I do, pursuant to s.18 of the Sentencing Act, declare that the 175 days that you have served on remand, be deemed service of this sentence and that a declaration to that effect be entered in the records of this Court.

96Mr Prosecutor or Mr Sullivan, are there any other matters that I need to attend to?

97MR SULLIVAN:  No, Your Honour.

98HIS HONOUR:  Mr Sullivan, unfortunately, your client signed the wrong page of the sex offender registration.  Would you mind getting him to sign the appropriate page?

99MR SULLIVAN:  I apologise, Your Honour.  It was my fault.

100HIS HONOUR:  Yes.  I thank counsel again for their assistance in this matter.  Yes.  The prisoner can be taken away.

101MR SHAW:  Would Your Honour announce the Sex Offenders Registration Act declaration?

102HIS HONOUR:  Yes, for life.

103MR SHAW:  Yes.  Thank you.

104HIS HONOUR:  Yes.  I think I did that last time, did I not?

105MR SHAW:  Yes, I am not sure.

106HIS HONOUR:  Yes, but that is certainly what was in the notice.

107MR SHAW:  Yes, Your Honour.

108HIS HONOUR:  Yes.  Yes, Mr Tipstaff.

‑ ‑ ‑