Director of Public Prosecutions v Carveth

[2015] VCC 1309

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01875

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT CARVETH

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 September 2015
CASE MAY BE CITED AS:	DPP v Carveth
MEDIUM NEUTRAL CITATION:	[2015] VCC 1309

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J.S.K. Livitsanos
For the Offender	Mr R.F. Edney

HER HONOUR: 

1Robert Carveth, you have pleaded guilty to three charges of indecent assault upon a male.  The maximum penalty for that offence, it is agreed, is five years' imprisonment.

2The circumstances of your offending are set out in detail in the Summary of Prosecution Opening for Plea which was tendered as Exhibit A.  The three offences occurred between 1 April 1980 and 28 February 1981.  At that time you were about 39 to 40 years old.  Your offending was all committed against the complainant, who for these purposes I will call "B."

3You had met the complainant's aunt and uncle at their home in Canberra and became friendly with the family.  You later visited the complainant's family who lived in Victoria.  The complainant during the offending was eight to nine years old.  Having been introduced to the family, you would often come to stay at the complainant's family home in the period 1980-1981.  It was on the occasions of these visits that you sexually assaulted the complainant.

4Charge 1 is a representative charge.  This is a charge which is representative of four occasions on which you masturbated the penis of the complainant.  You fall to be sentenced in respect of the first occasion.  The first occasion occurred in the area of the home where the family was whilst you and the complainant were play wrestling.  The complainant felt you grab his penis and hold it between your two fingers.  The complainant says it did not hurt but made him feel uncomfortable and he was shocked and surprised.  This apparently was particularly the case because family members were all in the room talking together.  The complainant became confused.

5There were three further occasions after this where you masturbated the penis of the complainant under his pants.  It is clear from the occasions that are described that you had a sexual interest in the complainant which you acted on, on various occasions when you had the opportunity to do so.

6Charge 2 relates to an occasion when the complainant was swimming with you and his family at a swimming hole in the Yarra River.  You were teaching the complainant how to get a boost to jump out of the water.  You held the complainant's crotch while the complainant was bending down into the water with his hands on your shoulders.  You were touching the complainant through his swimming shorts and touching his penis.

7Charge 3 relates to an occasion when you were helping the complainant with a shower.  After the shower you wrapped him in a towel.  You were standing behind the complainant brushing his hair.  At this point the complainant could feel your penis and crotch pressing into his back.

8The prosecution summary provides examples of other occasions on which you acted on your sexual interest in the complainant.  You have not been specifically charged in relation to those matters but they provide a context in which the offences occurred that you have been charged with.

9Some time between a fortnight and a month after you had left the complainant's home on the last occasion, the complainant was crying.  He spoke to his parents and told them that you had been touching him.  The complainant said that you had been touching him on his penis.  He also told his parents that you had put your hands down his pants and told him not to tell anyone and it was a special secret. 

10The complainant's parents confronted you and told you that you were never to contact the family again.  The complainant's mother also telephoned her sister and told her what you had been doing.  Having confronted you, this was the last time the complainant's parents, the complainant or other members of his family had any interaction with you.

11The complainant did not disclose your offending until about 2014, when he made a complaint to the police, having decided that that is what he should do.  It appears that the particular trigger was that his son had turned the same age as he was when you abused him.

12You were arrested and interviewed on 25 February 2014.  You denied the allegations that were put to you.  Your plea of guilty was indicated after a sentencing indication hearing shortly prior to trial.

13The complainant in this matter read his Victim Impact Statement.  In that Victim Impact Statement he very eloquently and powerfully described the impact of your offending on him and on other members of the family.  Very sadly, the matters that he describes in his victim impact statement are common experiences to those who suffer sexual abuse as children.  It is to be hoped that having come forward the complainant is able to feel that there is some closure now in this matter for him and his family.  It is clear that he has continuing support and it is to be hoped that matters will improve in future.

14In sentencing you, I have taken into account your personal circumstances.  You are now 73 years old.  You had a disruptive early childhood, with your parents separating at an early age.  When you were about six you were sexually interfered with by an older student who was 11 years old whilst you were in primary school.  It appears that you were somewhat isolated even as a young person, but you had a good work history, working from the age of 15 to 55, including work as a photographer, technical assistant and clerk.  You live alone in country New South Wales.  You have never had an intimate relationship.

15Since the age of 66 you have been involved in charitable activities, by providing goods and support to remote indigenous communities in the territories of North West Canada.  That involvement has been with the aim of supporting the Inuit language in North West Canada.  It appears from the exhibits provided that you have provided generous support by way of various goods and financial support and have received an Inuit language appreciation award.  You have not yourself been to Canada at any stage.

16It appears that throughout your life, you have suffered some forms of concern and distress in respect of what you perceive as the consequences for you of your circumcision as an infant.  You have been a campaigner against male circumcision.  You instruct counsel that your self-consciousness in this regard has been one of the reasons why you have not had an intimate relationship.

17You have some psychological counselling, but as I have not received a psychological report I am unable to incorporate any of those matters into these reasons for sentence.

18You had double heart bypass surgery in 2003.

19When you committed the offences against the complainant you had a prior criminal history which you have admitted.  In February 1973, in Canberra, you were found guilty on two charges of indecent assault of a male and one charge of attempted indecent assault of a male.  You were released upon entering into recognisances to be of good behaviour for a period of two years.  It appears from that sentence that these were not serious matters, but they should have been a warning to you that you needed to make sure that you did not at any stage give way to your impulses towards sexual activity towards male persons without their consent, particularly children.

20Since the offending against the complainant, there have been no allegations against you of any form of sexual offending.  From what was said by your counsel, I draw the conclusion that one reason for this is that you were confronted by the complainant's parents shortly after the offending against the complainant.  It appears that the complainant having said something to his parents and the parents confronting you did prevent further offending against young persons. 

21You are entitled to credit for having spent the time since your offending against the complainant without further offending and being a contributing member of the community.  I consider that there is low risk of you committing any further offences, given your good behaviour over that period and your advanced age.  I consider that you do have good prospects for rehabilitation.

22There has been considerable delay between the offending and this sentencing hearing.  During that period of time you have not further offended and it appears have done your best to avoid getting yourself into situations where you might offend.

23In sentencing submissions, your counsel submitted that an appropriate sentence would be a sentence of imprisonment wholly suspended.  Your counsel submitted that would take into account the matters in mitigation and that a term of imprisonment would be more burdensome for you because of your age.  The prosecutor accepted that a suspended sentence was within sentencing range. 

24Mr Carveth, the offending in which you engaged was serious.  You offended against a young child.  You abused that child's innocence.  You abused his trust and the trust of his family.  Your offending was brazen.  Your offending on some occasions was accompanied by manipulative emotional statements.  The harm that this offending has caused has been clearly described.  There was clearly a very significant age difference between you and the child.  You had had a prior matter and therefore a warning that you needed to avoid this kind of situation.

25Your offending must be strongly denounced and justly punished.  A sentence must be imposed which signifies to others that if they offend in this way they will be seriously punished.

26In view of your good prospects of rehabilitation and low risk of further offending, I do not consider that specific deterrence need be given weight in sentencing you.  It appears that you have learned your lesson and are very unlikely ever to reoffend again.

27I accept to a degree this has been hanging over your head.  There has been no police involvement until recently but you knew that the family were aware of what had happened.

28There are a number of matters which I have taken into account in mitigation of sentence.  Essentially I accept the matters which your counsel outlined.  You are entitled to a significant discount for your plea of guilty which has saved the trauma and expense of a trial.  I accept that your plea of guilty is an expression of your remorse. 

29I am sentencing you in a circumstance where you are of an older age.  You live alone by yourself in New South Wales.  If those factors were different, in view of the delay and the matters in mitigation, I might have considered a term of imprisonment to be followed by a Community Correction Order, or a Community Correction Order.   I consider in the circumstances that you are now in, given your age, good prospects of rehabilitation and residence out of Victoria, that the appropriate disposition would be a sentence of imprisonment to be wholly suspended.  A sentence of imprisonment is warranted to reflect the seriousness of your offending, denunciation, just punishment and general deterrence.  In view of the matters that I have outlined, I consider that to wholly suspend that sentence would be appropriate.

30You will be sentenced to a term of imprisonment on Charges 1 and 2.  That means in respect of Charge 3, you will be sentenced as a serious sexual offender.  The relevant provisions provide that community protection must be the principal purpose of sentencing you in respect of Charge 3.  I do not intend to impose a disproportionate sentence for that purpose.  The relevant provisions also provide that unless I otherwise order, the sentence on Charge 3 is to be served cumulatively on the other sentences.  In my view cumulation would offend the principle of totality and accordingly I will be making an order for partial cumulation.  I will be making orders for partial cumulation to reflect the different incidents of offending.  In making those orders I have considered the principles of totality and proportionality.

31You have pleaded guilty to three Class 2 offences for the purposes of the Sex Offenders Registration Act and you will be required to comply with the reporting conditions of that Act for life.  Shortly you will be provided with paperwork as to your obligations under that Act and I will ask you to sign a document to say that you have received that material.

32An application was made for the taking of a forensic sample from you. 

33The making of that order is consented to.

34

Charge 1, you are convicted and sentenced to a term of imprisonment of

12 months.

35

Charge 2, you are convicted and sentenced to a term of imprisonment of

six months.

36

Charge 3, you are convicted and sentenced to a term of imprisonment of

six months.

37The sentence on Charge 1 is the base sentence.  Three months of the sentence on Charge 2 and three months of the sentence on Charge 3 are to be served cumulatively on each other and on the sentence on Charge 1. 

38The total effective sentence is a sentence of 18 months' imprisonment.  That sentence is wholly suspended for a period of three years.

39But for your plea of guilty, I would have sentenced you to a term of imprisonment of two years with a non-parole period of one year and three months.

40Mr Carveth, I am required to tell you that if you breach the suspended sentence by committing any further offences, you will be brought back before me for resentencing.  Unless there are exceptional circumstances, I will be sentencing you to the term of imprisonment that is outstanding.  Do you understand that?

41OFFENDER:  Yes.

42HER HONOUR:  I am making an order for the taking of a forensic sample from you.  I am making that order because of the seriousness of the circumstances of your offending and that the order is by consent.  You will be given paperwork and required to go to a police station.  The sample will be taken from you by way of a saliva swab.  I am required to advise you that you must co-operate with the authorities.  If you do not co-operate, they will be entitled to use reasonable force and to take a blood sample.  I am sure that you will co-operate with the police in that regard.

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