Director of Public Prosecutions v Checkley, Peter
[2012] VCC 1649
•18 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
CR-12-01446
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER CHECKLEY |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 15 October 2012 | |
DATE OF SENTENCE: | 18 October 2012 | |
CASE MAY BE CITED AS: | DPP v Checkley, Peter | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1649 | |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Sexual penetration of a child under 16, indecent act with a child under 16
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited: Riggall v State of Western Australia (2008) 182 A Crim R 517
Sentence: Total effective sentence 6½ years, 4 years non-parole.
On Sex Offender Register for life
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr T S Lynch | Office of Public Prosecutions |
| For the Accused | Ms K McFarlane | Tyler Tipping & Woods |
HIS HONOUR:
1 Peter Checkley you have pleaded guilty to four charges of sexual penetration of a child under 16 and two charges of indecent act with a child under 16.
2 The maximum penalty for the offence of sexual penetration of a child under the age of 16 is 25 years’ imprisonment, and for the offence of indecent act with a child under the age of 16 it is ten years’ imprisonment.
3 You are presently 48 years of age, having been born on 7 July 1964, and you were aged from 40 to 47 when this offending occurred.
4 You have no prior criminal history.
5 A more detailed description of the facts of this matter is set out in the tendered prosecution summary. Your counsel accepted that summary as an accurate account of the circumstances of offending for the purposes of sentencing and I adopt them for the purposes of sentencing.
6 In essence the evidence is as follows: The victim was aged between 7 and 14 through the years of your offending. She lived with her mother, her stepfather, and her half-siblings on a farm. You were introduced to the victim's family through neighbours in 2004/2005. Over the following 12 - 18 months you became close to her family, and the victim and her half-siblings were fond of you.
7 You rented a house on a farm where you worked restoring and making furniture out of recycled timber. You would sell those products at various community markets.
8 In the period 2006 - 2007 the victim became very fond of you and stayed the night at your home 3 to 4 nights. Occasionally she would stay the Saturday night before going with you to the markets on the following Sunday. She loved to visit you, her parents were aware of how much she loved to visit you and, as a friend of theirs, they trusted you to care for her.
9 You were also a regular dinner guest at the victim's home on Wednesday nights when you would come to watch “McLeod's Daughters”.
10 Your offending commenced when the victim attended your home between her 7th and 8th birthdays.
11 Charge 1 is a representative charge where you admitted placing your penis into the victim's mouth when the victim was aged 8. It occurred in the victim's bedroom at her home. This charge represents other incidents where the victim performed oral sex upon you. Details of other occasions of like conduct are further particularised in paragraph 12 of the prosecution summary.
12 Charge 2 is a representative charge where you placed your finger into the victim's vagina. The charge is based on the first occasion when the victim was staying overnight at your home. You were on a mattress in the lounge room. This charge represents other incidents where you engaged in digital penetration of the victim's vagina. Details of other occasions of like conduct are further particularised in paragraph 15 of the prosecution summary.
13 Charge 3 is a representative charge where you placed your tongue into the victim's vagina. The charge is based upon the same occasion that forms the basis of Charge 2. After the victim undressed and lay on the mattress and you had digitally penetrated her you then began to lick her vagina. Details of other occasions of like conduct are further particularised in paragraph 18 of the prosecution summary.
14 Charge 4 is a representative charge where you placed your penis into the victim's vagina. This charge is based on an occasion when the victim stayed the night in your bedroom. You removed her clothes and rubbed your penis on her vagina before trying to insert it into her vagina, causing her pain. Details of other occasions of like conduct are further particularised in paragraph 21 of the prosecution summary.
15 Charge 5 is a representative charge where you masturbated in the presence of the victim. This charge is based on an incident you admitted in your record of interview when you acknowledged that you were in the bathroom one day and she watched you masturbate. The victim has stated that she regularly observed you masturbating in the bathroom.
16 Charge 6 relates to the last occasion on which you sexually assaulted the victim. This occurred in 2011 when you visited the victim's family home after they had been to the beach. You came in the victim's bedroom, kissed her on the lips and neck and were trying to take her clothes off and undo her pants. On this occasion the victim, who was now 14, pushed you off, yelled at you to get out of the room and slammed the door.
17 On 21 March 2012 the victim complained to her mother that she had been sexually abused by you and the matter was reported to police. On 14 April 2012 the victim took part in a recorded interview with police in which she disclosed the offending.
18 On 25 April 2012 the victim again attended with the police investigators and took part in a recorded telephone conversation with you. After telling you that she was thinking of telling her mother what had happened you begged her to reconsider as it "would be really bad" for you, and you thought it was just because you had lost your kids.
19 On 26 April 2012 you were interviewed by police, you cooperated fully in the investigation and made full, frank, and comprehensive admissions concerning your conduct.
20 Victim impact statements were tendered from the victim and her mother.
21 The victim has expressed the understandable reaction of emotional hurt that has resulted, including times of anger, depression, and feelings of guilty because she otherwise sees you as a “nice” man.
22 The victim's mother speaks of her loss of faith and trust in people, her greater sense of isolation from friends, insomnia and periods of depression. She has felt the need to retire from full time employment and seek counselling with a psychologist.
23 You are now aged 48 and have no convictions for any previous offending.
24 You were raised in Korumburra and progressed to Year 10 level at school. You then went to work on a dairy farm and later share farming. You married at 19 but, whilst you loved the farm life, it was not attractive to your wife who preferred city life. You moved to Brisbane where her family was located and you worked long hours in earth moving. You disliked Brisbane intensely and eventually, when you determined to return to resume farming in Victoria, your wife left you. You had been married seven years.
25 You had two young boys aged four and two and they remained with their mother. You have maintained a close relationship with them by arranging for them to be flown to Victoria regularly over the years. This was achieved at great financial cost to you but reflected your determined resolve to never lose your close contact with them. They are now aged 23 and 21.
26 You have also remained close to your parents. Your mother has been afflicted with rheumatoid arthritis since she was seven and she has written a heartfelt testimony to your continual support for her and your children over many years. Both your parents and your sons are aware of the charges you face and supported you at your plea hearing. Your youngest son was unable to be here because of the currency of Year 12 exams.
27 Your mother also spoke of your broken nature when you returned from Brisbane with a failed marriage, no job, no home and no children, and how you applied yourself to learn a craft which has developed into a successful business.
28
A report from Mr David Bruce, psychologist, was tendered on your plea.
Mr Bruce reported you as quiet, cooperative and anxious with no indication of cognitive disorder. You have described sadness in your childhood which you labelled as “chronic depression since childhood”, but depression as a clinical condition was not evident as a diagnosis in Mr Bruce's report. The diagnostic personality testing did not suggest any personality disorder but Mr Bruce considered a mood disorder was consistent with your history and the description of your feelings. From what you had told him Mr Bruce considered that at the times of your offending your thinking was distorted by your belief that the victim was raised in circumstances where sexuality was freely exhibited, that the victim had certainly consented to, and at times initiated, the sexual activity, the activity was not coercive and that the very close and appropriate relationship the victim formed with you led, on occasions, to the serious and inappropriate boundary infringements which occurred.
29 Mr Bruce further commented that from a psychological point of view your conduct can be seen as seriously inappropriate crossing of boundaries rather than predatory behaviour. Mr Bruce also noted your great remorse about any emotional damage you may have caused, that you seemed to have grasped the seriousness of your behaviour, and that you do not have a significant risk of re-offending.
30 Parliament has reflected the community's abhorrence of this type of offending by the maximum penalties prescribed. Your conduct persisted over seven years from when your victim was a very young girl of seven. It involved many separate acts of sexual abuse. You presented yourself to her parents as a good friend whom they could trust. In your interview you said that you believed that as the stepdaughter of her mother's partner the victim was not treated as well as her half-siblings. If that were true, and the strong affection she clearly felt for you was nurtured by a greater need for affection and attention, then your conduct was all the more deplorable. Similarly, if it were the case where the victim was for some reason more inappropriately sexualised than normal, then your response was simply to exploit this, seeking to justify it by couching it in terms of an expression of the love the two of you felt for each other.
31 Whilst it appears that the acts constituting the offences were consensual, as a matter for sentencing consent is not, of itself, a mitigating factor. It may, in an exceptional case, be relevant to the gravity of offending. In the circumstances of the very significant age difference in this case between you and the victim, the fact that the victim was compliant, even at times initiating sexual conduct, cannot be a mitigating factor.
32 You were aware of what you were doing and that it was wrong, and you were aware that you were abusing the trust of the victim's parents. You were also aware that the conduct might ultimately affect the victim emotionally.
33 The offending therefore was very serious. The legislation to which this offending applies is designed to protect young children, even from their own inclinations, from the emotional and social harm from sexual relations until they have reached a sufficient degree of maturity in life to make sensible decisions concerning the consequences of sexual relationships. Children should not have their emotional and sexual development compromised.
34 In a recent case before the Supreme Court of Western Australia the Court of Criminal Appeal said:
"This court has often encountered cases of sexual abuse of children, in which children have acquiesced, or children have been confused as to how they should respond, or in which, particularly if the abuse is introduced gradually and by a liked and trusted adult… a child may come to enjoy in whole or in part the sexual attention to which they are subject. Such reactions are far from a free and voluntary consent. Indeed, reactions of that kind often contribute to the harmful effects of sexual abuse upon a child, by making the child feel guilt or shame for what he or she may perceive to be some complicity in the abuse."[1]
[1]Riggall v State of Western Australia (2008) 182 A Crim R 517
35 I note that in her victim impact statement the victim has said, "I also feel guilty because he is such a nice man."
36 The court is bound to respond to the legitimate community concern and indignation as to these crimes and give particular emphasis to denunciation and principles of general as well as specific deterrence.
37 In mitigation I accept that you cooperated fully and completely with the police investigation and entered a plea of guilty at the very earliest stage. You spared the victim the ordeal of cross-examination and the community the cost and inconvenience of a trial. The open and full extent of your admissions in the record of interview are significant, and particularly so in the circumstances of the generality of the victim's complaint. The outcome of any jury trial can rarely be assumed, particularly when victims are of a young age, the events occurred years earlier and specific occasions are difficult to identify.
38 The admissions you have made have greatly facilitated the course of justice, both to the community and to the victim. Had you not made such full admissions it is likely that you would have been ultimately sentenced on fewer charges. That approach, and the acceptance of the culpability of your role, betokens genuine remorse and should be reflected in appropriate sentencing discount.
39 I also accept that consideration should be given to the circumstances of your life leading to and at the time of offending. You had experienced a break-down in your marriage which resulted in the very sad separation of you from your sons whom you loved very much. You never re-partnered and paid for your boys to stay with you on all school holidays throughout the years. You lived alone in what appears to have been quite an isolated life, developing your craft in furniture making and restoring. I accept that the affection you received from and gave to your young victim enhanced your emotional life with love. This cannot excuse your conduct - your acts were clearly predatory - but I accept that your vulnerability gives context to your offending.
40 There is no evidence that you are attracted to children generally, the offences relate only to the one victim, you have shown significant insight into your offending and given the fullest cooperation to the police investigation and court proceedings. Whilst concern must be held because of the duration of your offending, I regard your prospects of rehabilitation as good. You rebuilt your life after the split from your family, retraining yourself for productive work in the process. You have the intelligence and capacity to apply yourself to successful rehabilitation.
41 You are of mature age, have no previous conviction for any offence and are otherwise of good character. You have the benefit of the continuing loving support of your parents and sons.
42 Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offence charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act 1991 to impose a sentence greater than is proportionate to the gravity of the offence.
43 This means that the sentencing task in respect of Charges 3 to 6 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose sentences may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. However, because of the circumstances of the offending and the mitigating factors in your case, I do not propose to do so.
44 Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 3 to 6, the sentences that I impose are to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered.
45 I note here that the Crown did not call for a disproportionate sentence as contemplated by s.6D of the Sentencing Act.
46 I have carefully considered the submissions of both your counsel and counsel for the prosecution on the appropriate sentencing range and have read the authorities and applicable statistical record referred to. I have also considered the appropriate statistical summary of sentences for offences relevant to Charges 1 to 4.
47 Charges 1, 2, 3, 4 and 5 are representative charges of multiple events. This prevents a court from exercising any leniency that might have been permitted on the basis that an offence was an isolated act, and gives context to the extent of the culpability and need for specific deterrence and prospects of rehabilitation.
48 Mr Checkley, would you please now stand.
49 On Charge 1 of sexual penetration of a child under 16 you are convicted and sentenced to three years’ imprisonment.
50 On Charge 2 of sexual penetration of a child under 16 you are convicted and sentenced to three years’ imprisonment.
51 On Charge 3 of sexual penetration of a child under 16 you are convicted and sentenced to three years’ imprisonment.
52 On Charge 4 of sexual penetration of a child under 16 you are convicted and sentenced to three years’ imprisonment.
53 On Charge 5 of wilfully committing an indecent act with or in the presence of a child under 16 you are convicted and sentenced to 18 months’ imprisonment.
54 On Charge 6 of wilfully committing an indecent act with or in the presence of a child under 16 you are convicted and sentenced to three months’ imprisonment.
55 Charge 4 is the base sentence.
56 I direct that one year of each of the sentences imposed on Charges 1, 2 and 3 and six months of the sentence imposed on Charge 5 be served cumulatively on Charge 4 and upon each other.
57 The total effective sentence is six and a half years’ imprisonment.
58 I direct that you serve a minimum period of four years’ imprisonment before being eligible for parole. I also direct, pursuant to s.6F of the Sentencing Act 1991, that it be entered into the records of the court that I have sentenced you in respect of Charges 3 to 6 as a serious sexual offender within the meaning of that Act.
59 Pursuant to s.18(4) of the Sentencing Act, I declare that the period of three days, not including today, be reckoned as time already served under this sentence, and I direct the fact of this declaration and its details be noted in the records of the court.
60 Pursuant to s.6AAA of the Sentencing Act, but for your pleas of guilty the total effective sentence over all charges that would have been imposed is eight years’ imprisonment with a minimum period of six years to be served before eligibility for parole.
61 There is a further matter to which I need to attend. You may take a seat for the moment, Mr Checkley.
62 I need to speak to you about the provisions of the Sex Offenders Registration Act. The offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act, and by reason of your conviction for these offences you are a registrable offender obliged to comply with reporting obligations imposed by that Act. As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of a sentence today. In other words the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
63 Further, pursuant to s.50 of the Sex Offenders Registration Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which is for life.
64 My associate will in a moment hand to you the Notification Of Reporting Obligations, which I have already signed. Your representative in court today will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notification form and to return the Acknowledgment to my associate.
65 If those sex offender registration materials could now be passed through to Ms McFarlane and then passed to the offender please. Thank you, Ms McFarlane.
66 At the plea hearing the Crown sought an order which was consented to for the retention of a forensic sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order was by consent and the granting of the order is in the public interest.
67 HIS HONOUR: Is there anything else from either counsel - Mr Lynch?
68 MR LYNCH: No, Your Honour, thank you.
69 HIS HONOUR: Ms McFarlane?
70 MS McFARLANE: No, Your Honour.
71 HIS HONOUR: To the parents and to the victim, I just want to indicate that in my sentencing remarks I referred to her simply as “the victim”. This is the usual procedure to protect her privacy and should not be considered as any disrespect - it is in her interests, please understand that.
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