Director of Public Prosecutions v Carr
[2016] VCC 1629
•4 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 16-01010
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER CARR |
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| JUDGE: | HER HONOUR JUDGE LAWSON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 September 2016 |
| DATE OF SENTENCE: | 4 November 2016 |
| CASE MAY BE CITED AS: | DPP v Carr |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1629 |
REASONS FOR SENTENCE
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Subject:Criminal law – sentencing – a persistent sexual abuse of a child under the age of 16 – plea of guilty – presumption of harm – immediate custodial sentence imposed.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. MacDougall | John Cain Solicitor for Public Prosecutions |
| For the Accused | Ms M. Casey | Elizabeth Nickolls & Associates |
Pages 1 - 11
HER HONOUR:
1Peter Carr, you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16. The offence is serious and that is evidenced by the maximum penalty that is prescribed by law. It is Level 2 imprisonment, 25 years' maximum.
2You have also admitted your prior criminal history, although the Crown accepts and I agree that you have no relevant prior convictions. There are no subsequent or pending matters.
3There is only one court appearance that took place at Sunshine Magistrates' Court on 7 December 2007, where without conviction, the magistrate adjourned one charge of obtaining property by deception for 12 months to 8 December 2008 and ordered you to pay restitution in the sum of $4,000 in compensation in the same amount. On the return date, on 8 December 2008, the matter was dismissed and compliance with the undertaking noted.
4You are aged 36. Your date of birth is 16 February 1980 and you were 35 at the time of the offending. The offending involves a 14 year old male complainant, whom you met on Grindr, a social media site. You identify as a gay man. You used Grindr, a gay dating website, to meet and chat with the complainant. At the point of first contact, the complainant's profile did not show a picture of him, or any name. He stated only that he was 18 (which is the youngest age for Grindr members).
5It is not disputed that the complainant initiated the contact. The complainant did not reveal that he was under the age of 18 until 25 November 2015, at which time he sent a message that read: "But I'm younger than 18, is that okay?" He then sent you a picture of his face. Despite knowing that fact, that is, that he was younger than 18, you arranged for him to meet with you at your home. The complainant told you, when you met for the first time, that he was 15 and that his birthday was on 1 February. In fact, he was only 14.
6The offending took place over the course of three visits on 26 November 2015, 27 December 2015 and 12-13 January 2016. On those occasions, various acts of sexual penetration took place. As particularised on the Indictment:
7Occasion 1 – First Visit
(a) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s mouth;
(b) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s mouth;
(c) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
8Occasion 2 – Second Visit
(d) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
(e) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s anus;
(f) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s mouth;
(g) Sexual penetration of the complainant by introducing a vibrator into the complainant’s anus;
(h) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s mouth;
(i) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
9Occasion 3 – Third Visit
(j) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s mouth;
(k) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s mouth;
(l) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
(m) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s anus;
10Occasion 4 – Third Visit
(n) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
(o) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s anus;
11Occasion 5 – Third Visit
(p) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
(q) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s anus;
12Occasion 6 – Third Visit
(r) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s anus;
(s) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
13Occasion 7 – Third Visit
(t) Wilfully committed an indecent act with the complainant a child under the age of 16 as follows:
i. Masturbated the complainant’s penis.
(u) Sexual penetration of the complainant by introducing Peter Carr’s penis into the complainant’s anus;
(v) Sexual penetration of Peter Carr by introducing the complainant’s penis into Peter Carr’s anus.
14In effect, there was penile penetration involving oral penetration of the mouth and also anal penetration on numerous occasions.
15The Crown accepts in paragraph 15 of the opening that you used a condom on all occasions for each act. Your offending was revealed when the complainant's father discovered his son was missing from his house on the evening of 12 January 2016. His father eventually accessed his son's iPad and found the Grindr conversations that took place between his son and you, following which he contacted police. Eventually the complainant arrived home and when questioned by his father, he told him that he had stayed overnight at Peter's house and had sex with him and that he had seen Peter on two previous occasions. The police were informed.
16A forensic examination was conducted the following day of the complainant and swabs were taken that were later examined, but no DNA attributable to you was found. There was a HIV scare. You have been diagnosed in the past as being HIV positive. Fortunately, the complainant tested negative for HIV after precautionary treatment was provided. He was not infected with any STDs as a result of your sexual encounters.
17The complainant participated in two video audio recorded evidence (VARE) statements, one on 13 January 2016 and one on 25 January 2016, where he gave details of most of the offending, the subject of the charge.
18You were arrested at home on the evening of 13 January 2016. A formal record of interview was conducted during which you made full and frank admissions. Significantly, you admitted on all three occasions when the complainant visited you had had sex (Question and Answer 19). You acknowledged what you did was very, very wrong (Question and Answer 74). Before the first encounter you believed the complainant was 15, about to turn 16 within a few weeks (Question and Answers 106-11). You informed police that you were HIV positive and you said that you and the complainant used a condom on each occasion you had sex.
19Mr Carr, the offending is very serious. There are a number of aggravating features to the offending. You were aware that the complainant was under 16 at the time of your offending. There was a great disparity in your ages, you being 34 and he being only 14. You were the adult and had power over the complainant.
20Further, I have had regard to the number of occasions and the nature of what took place on each occasion and the fact that, on one occasion, you used a vibrator.
21Parliament has formulated this offence to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[1]
[1]Clarkson v The Queen; E J A v The Queen [2011] VSCA 157 [3].
22The fact that the complainant initiated contact on Grindr and appeared to be well versed in homosexual conduct and a consenting participant is irrelevant.
23Consent is not a defence to the offence of persistent sexual abuse of a child under 16. You were the adult and could have desisted from further contact once you were made aware that he was under the age of 18 prior to commencing a sexual relationship with the complainant.
24I consider your moral culpability to be high, having regard to the fact that you were the older and more mature male who ought to have been cognizant of the potential for harm upon the child as a consequence of your sexual abuse.
25In sentencing you, there is a real need for the court to emphasise both general deterrence and specific deterrence, although I am now satisfied that you are genuinely remorseful and disgusted by your actions. You have shown remorse for your offending and sorrow for; "Putting the family, including the victim, through the anguish of all of this." You are concerned and worried for the victim and you have taken positive steps to address your offending behaviour. Therefore, in this case, specific deterrence is to be moderated.
26The effect of your offending on the victim and his family has been profound, as is set out in the victim impact statement that has been tendered and prepared by his father.
27The victim is the oldest child in a family of two children. His parents were devastated when they found out what occurred and they have responded in anger and also they have been very concerned and anxious about what has happened to their son since the revelations of this sexual relationship. They have had to undergo the anxiety and difficulties of their son being placed on retroviral medication and being investigated for HIV. Their son has had nine months of counselling. He has also had to be seen by an infectious disease specialist. He was extremely ill whilst taking the retroviral medication and it was a difficult time, awaiting the outcome of the HIV testing over the six month period before their son was given the all clear.
28The offending has had a great impact on the family and it has been suggested that family counselling be undertaken by those who are currently responsible for the complainant's counselling. His parents' relationship has been put under a lot of strain and his father describes it as having been the worst year of his life. He says his son is not the same since this and that his schoolwork has suffered and he is very withdrawn and he feels he is very unhappy and he is extremely concerned about what lies ahead for his son in the future.
29In mitigation I have noted the following features in your favour. Firstly, you entered a plea of guilty at an early stage following a further committal mention on 10 June 2016. You therefore spared the victim and his father the further trauma of having to come to court to give evidence at either the committal or trial. There is real utility in your plea. You spared the State the expense of the trial and further witness inconvenience. You facilitated justice and your sentence will be discounted accordingly.
30Secondly, the Crown acknowledge that when you were interviewed, that you made numerous admissions and told police more about the sexual offending than was otherwise disclosed by the complainant in his VAREs and that that cooperation was significant. I have noted that full cooperation with the police. I have had regard to the principles expressed in the decision of Ellis[2] and I have allowed discount for your confession. This principle rests upon the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and the making of a confession of guilt of that offence and that principle has been applied in Victoria.[3] It is known colloquially as the “Doran” discount and that has been applied in the circumstances of your case.
[2]R v Ellis (1986) 6 NSWLR 603-4 (Street CJ).
[3] R v Brazel (2005) 153 A Crim R 152, 159 [21] (Callaway JA); R v Doran [2005] VSCA 271 [14]; R v C L P [2008] VSCA 113.
31Thirdly, I accept that you are genuinely remorseful and that you now suffer from a sense of shame and that has been demonstrated amply in the discussions following treatment with your psychologist, Michael Bilyk. The clinical psychologist, Dr Ben Jones, also noted it in his report and it is noted in the presentence report that has been prepared at the request of the court and also in the various references that have been tendered to the court that I will refer to later.
32Fourthly, you have taken positive steps to address your offending behaviour through undertaking the counselling with Michael Bilyk and in total there are some 11 sessions that you have attended from 6 June 2016 to 27 October 2016 and during your consultations you have been open and demonstrated a willingness to have treatment and expressed a willingness to undergo further treatment and that all augurs well in terms of your future rehabilitation prospects and also ultimately the protection of the community.
33I have had regard to your past history. In the past, your sexual relationships have been age appropriate. You had a seven year relationship during your twenties, which ceased upon you becoming aware that your partner was unfaithful and that you had contracted HIV in this context. The breakdown of that relationship caused great distress and you have never had an opportunity to properly discuss with your former partner the reasons for the breakdown of your relationship. Currently, your HIV is undetectable, following compliance with anti-retroviral medication.
34I have had regard to the context of the offending. In the period before the offending, you were unemployed, which was unusual, having regard to your work history and you were living a more unstructured lifestyle and it was in that context you met the complainant. It is said by Dr Jones and also Mr Bilyk that your mood is likely to have been lowered during that time and whilst that provides some explanation for your offending, it does not ultimately excuse the offending.
35Mr Bilyk could not find any evidence of pervasive antisocial traits or sexual deviance historically. He did, however, accept that it could not be disregarded in the light of the current offending that you may feel, in some way, an attraction to adolescent males. He considered other factors were also at play, including a sense of rejection by your natural father. You are an only child, born to the union of your parents. They separated when you were young, aged seven and ultimately divorced. You have six elder half-siblings, with whom you maintain some limited contact. Your father is now deceased. Your mother is still alive. You were a person who was subjected to bullying at school, because of your size, you were overweight, and also your homosexuality. You left school early at the end of Year 9 and predominantly have worked in retail since that time.
36As a result of all of the factors that were indicated, including the abuse by your former partner, Mr Bilyk opined that you may experience some difficulties formulating trust, in trusting intimate relationships, and against this background you may have perceived that your relationship with the young victim afforded you a greater degree of control and less risk of rejection, but he says treatment has led to insight into the offending and its impact. He describes your progression within treatment as being in the early phases. He also considered that you exhibit anxiety and depressive symptoms that were likely to have been operative at the time of the offending.
37Your counsel, Ms Casey, did not seek to rely on principles 1 to 4 of Verdins,[4] but I have taken these remarks into account in a general sense.
[4] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102.
38I accept, because of your various conditions that were described, namely anxiety and depressive symptoms and also your HIV status, that imprisonment is going to be more difficult for you.
39Ultimately I have formed the opinion that you are a low risk of reoffending. I accept the findings of Dr Ben Jones, forensic psychologist, as set out in his report of 9 September 2016. You were open with him and confirmed what you did was wrong and I accept your culpability. On reflection, you acknowledge that you should have abandoned your interaction with the complainant once his age was raised. He tested you for sexual risk and using the Static-99 model, found you a moderate to low risk category and according to the Risk for Sexual Violence Protocol, known as RSVP, he says you do not present with a large number of attributes or behaviour known to link to ongoing sexual risk and therefore he concluded, overall, the risk of further sexual offending is low.
40I have also had regard to the protective factors that have been identified, including your community engagement, your employment options and family support and also your response to treatment, all of which have been accepted by the court. Further, you are accepting of the responsibility for your actions and you are open to further treatment.
41I have accepted that you will be vulnerable in gaol, given your particular attributes and sexual orientation and HIV status and accept that it is likely that you will require further support during your time in prison around your mental health. I have noted and accepted the comments of Dr Tina Schmidt in her letter of 12 September 2016, where she says imprisonment will have a huge negative impact and there will be difficulties in terms of confidentiality in respect to your medical condition and also maintaining your antiretroviral medication and there is a possibility of you being subjected to psychological, verbal and physical abuse and I have taken that into account in your favour. Therefore, limbs 5 and 6 of Verdins have been enlivened.
42I accept that you have had a difficult childhood and there is a history of past sexual abuse that has only recently been disclosed. Mr Bilyk in his letter of 14 September 2016 acknowledges that you still need to have treatment to properly explore the impact that it has had on you and that such treatment is unlikely to be made available whilst you were in prison and that will cause some further anxiety for you.
43Apart from the offending, I accept that you are a person who is otherwise of good character and that is evidenced by your comprehensive work history and also by the material that was reflected in all the references provided from, firstly, your niece, Emma McLennan, your friend, Stephen Kelly, who has known you for 16 years, Graham Robertson, who has known you for some 20 years, Sally Carr, your sister and Damien McCombie, who has known you for four years.
44Each of the referees confirm their personal belief that you are a person who is to be respected, that you are very remorseful and as a group they were shocked and surprised by your offending.
45I accept that you have made contributions to the community through your work in the past. In particular, your participation in the Living Positive Victoria program.
46Overall, having regard to all the factors that I have already identified, I consider that you have excellent prospects of rehabilitation.
47In sentencing you, I have to have regard for the need for just punishment and on behalf of the community formally denounce your conduct. I have already said both general and specific deterrence are important and in this case, they are further factors.
48Ms MacDougall, on behalf of the Crown, referred the court to s.6B(2)(ac) of the Sentencing Act 1991 and that section applies such that you fall to be sentenced as a serious sexual offender and in that case, the court does have the power, if required, to impose a disproportionate sentence. However, the Crown, in this case, does not seek such a sentence but importantly, community protection is the principal purpose for which the sentence is to be imposed (s.6D(a) Sentencing Act 1991).
49On behalf of the Crown, Ms MacDougall acknowledged all the mitigating factors. She confirmed that it was significant that you had made a full confession, but submitted that an immediate custodial sentence was required, to reflect the gravity of the offending. Ms Casey sought, in the alternative, a community correction order, or a community correction order, in combination with gaol.
50It has been acknowledged in this State in the guideline judgment of Boulton,[5] that a Community Correction Order (CCO) might be appropriate, even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment, but as was stated by Justice of Appeal Priest in the case of Hutchinson v R,[6] it should not be thought that Boulton offers a ‘get out of gaol free’ card in situations where a sentence of imprisonment is necessary in a given case to satisfy the various purposes for which a sentence may be imposed. This is a case, having regard to the seriousness of the offending, where I consider that a CCO alone, or in combination with a gaol term, would be insufficiently punitive to satisfy the need to punish you in a manner which is, in all the circumstances, just.
[5]Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342.
[6]Hutchinson v R [2015] VSCA 115 [17] (Priest JA).
51Having regard to the gravity of the offending, which I consider to be serious, and your personal circumstances, I consider that a CCO is not capable of satisfying the requirements of proportionality, parsimony, just punishment and rehabilitation and therefore a CCO, either standing alone, or in combination with a gaol term, is not adequate to satisfy the need for the court to punish you, to denounce your conduct and provide for a measure of general deterrence.
52So could you please stand now, Mr Carr? In respect to the one charge of persistent sexual abuse of a child under the age of 16, you will be convicted and sentenced to five years' imprisonment, with a minimum term, a non-parole period of three years.
53I will make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your sentence, I would have imposed a term of imprisonment of seven years, to serve five years.
54You are sentenced as a serious sexual offender and I direct that that status be noted on the record of the court.
55Because of the charge being pursuant to s.47A of the Crimes Act 1958 it is a Class 1 offence and therefore pursuant to s.34(1)(c)(ia) of the Sex Offenders Registration Act 2004, you are required to be registered on the sex offenders registration list and reporting is for life and shortly my associate will provide you with the documentation about that.
56I believe that covers all the orders that are required. Sorry?
57MS MacDOUGALL: Yes, there's nothing else, Your Honour.
58HER HONOUR: No, there is not. What I propose, Ms Casey, is that my associate accompany you and ask Mr Carr to sign the acknowledgment of the SORA requirements ‑ ‑ ‑
59MS CARR: Yes Your Honour.
60HER HONOUR: ‑ ‑ ‑ and with his consent, we can provide an envelope with it being marked confidential, to be provided to the Corrections authorities so that that can be given to the medical assessor ‑ ‑ ‑
61MS CARR: Yes.
62HER HONOUR: ‑ ‑ ‑ who will see him upon his reception at Melbourne reception.
63MS CARR: Yes, thank you Your Honour ‑ ‑ ‑
64HER HONOUR: Yes.
65MS CARR: ‑ ‑ ‑ and if Your Honour would note, just on the remand warrant that it's his first time in custody and he's vulnerable ‑ ‑ ‑
66HER HONOUR: Yes, I will ask ‑ ‑ ‑
67MS CARR: ‑ ‑ ‑ but, yes, the confidential medical materials in an envelope.
68HER HONOUR: ‑ ‑ ‑ yes, I will ask that my associate highlight the fact that he's a vulnerable prisoner and that the confidential medical material is attached, to be provided to the doctor. There are protocols that are required by Corrections in order to ensure they exercise their duty of care in circumstances such as this and I will ask that they utilise those protocols, but I will make every effort to ensure that his confidentiality is ensured and the relevant material is provided to Corrections, to provide to the doctor.
69MS CARR: As Your Honour pleases.
70HER HONOUR: Alright, thank you. Alright, so adjourn the court. Mr Carr can say his goodbyes to the parties and then take him downstairs, but please note that material will be provided today, all right and he's not to be taken until such time as that's been provided. Alright, thank you.
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