Director of Public Prosecutions v Cheshire
[2015] VCC 683
•22 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHNNY CHESHIRE (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 1 April 2015 |
| DATE OF SENTENCE: | 22 May 2015 |
| CASE MAY BE CITED AS: | DPP v Cheshire |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 683 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Sexual penetration of child under 16 – Offending committed against step-sister - Delay in complaint – Admissions and acceptance of responsibility for offending
Legislation Cited: Sex Offenders Registration Act 2004
Cases Cited: Boulton v The Queen [2014] VSCA 342; DPP v SBL [1999] 1 VR 706
Sentence:Community Corrections Order of 3 years duration imposed – Ancillary order Sex Offender Registration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms F. Holmes | Solicitor for Public Prosecutions |
| For the Accused | Mr R. Richter QC with Ms S. Leighfield | Galbally & O’Brien |
A pseudonym has replaced the name of the accused person in order to protect the anonymity of the victim and to maintain her privacy. Other names in these remarks have been initialised for the same reasons.
HER HONOUR:
1Johnny Cheshire, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16, and two charges of indecent act with a child under the age of 16. Each of the offences has a maximum penalty of ten years' imprisonment, which reflects the seriousness with which Parliament regards the offences.
2Charges 1, 2 and 3 are representative in nature, whilst Charge 4 relates to one discrete event.
3Your offending was opened by the Crown as follows:
4I was told that the victim is now 24 and is your step-sister. I indicate that when my sentencing remarks are revised, your name will be changed to a pseudonym, so as to protect the victim’s privacy. This is out of respect for her and it is a requirement of the law. Any publication of the identity of a sexual assault victim is prohibited.
5For the purposes of delivering this sentence, I will refer to the complainant as "Ms P" or "the victim", as well as the "complainant". Again, this is out of respect for the complainant and in a bid to protect her privacy.
6The offending took place between 2003 and 2004 at the complainant's home when she was 13 and 14 years old.
7Your father and the victim’s mother had married in 2000, each bringing children from their previous relationships.
8
I was told, by way of context information only, that you sexually assaulted
Ms P from when she was 13, in 2003 until December 2004. The abuse consisted of inappropriate touching, digital penetration and oral penetration by you. You engaged in this conduct in various rooms of the house where you both lived. The prosecution made it clear that this information was not sought to be relied upon as anything other than providing context or evidence of the surrounding circumstances.
9In relation to Charge 1, I was told that this was representative of four occasions. For the purposes of sentencing, the prosecution relied on the first of these occasions, which occurred between 12 April 2003 and 31 December 2003, when you were both on the couch watching TV in the television room. You moved your hand under the complainant’s dress and rubbed her vagina on the outside of her underpants. You then placed a cushion on your lap and told the victim to sit on the cushion. The victim then lay across the cushion, which was on your lap, and you digitally penetrated her vagina, moving her underpants to one side. The victim said "No, no, no".
10The other occasions in relation to this particular charge are detailed in the prosecution opening. The prosecution opening will be attached to my sentencing remarks and it will be incorporated as details of my sentencing remarks.
11In respect of Charge 2, there are nine occasions represented by this charge. The sample offence, for the purposes of sentencing, occurred in about May 2003, not long after the complainant had turned 13. You and she were in her bedroom with the door closed. You said to the complainant, "suck my dick". You suggested to the complainant that she sit on a chair, which was placed behind the cupboard door, so that no one entering the room could see what was happening. The victim sat on the chair and you pushed the complainant's mouth onto your exposed erect penis, by leaning in towards her. The other eight occasions of oral sexual penetration represented by Charge 2, are detailed in the prosecution opening and again, I will not detail these, but they are incorporated into my sentencing remarks.
12Charge 3 is a representative charge of indecent act with a child under the age of 16 years and represents three instances. The sample occasion, for the purpose of sentencing, involved you calling the complainant into your bedroom, on an occasion between 1 January 2003 and 31 December 2003, when the complainant was sitting in the lounge room, watching TV. You told her to sit on your bed, which she did. She could see that your pants were unzipped and that your erect penis was poking out of your pants. She saw that you had a pornographic magazine on your desk with an explicit image on the cover. You asked the complainant to take your penis and she did so, masturbating it until you ejaculated. Again, I incorporate the other two instances into my sentencing remarks.
13In relation to Charge 4, this is a stand-alone charge which occurred when the complainant was 14. I understand that you were 18 at that time. You pushed open her bedroom door and asked to see her in the kitchen. She said "No". You insisted that she did, so she followed you to the kitchen. You sat on a stool at the kitchen bench. She stood in front of you and you pushed down on her shoulders, so that she ended up on her knees. You said that she didn’t have to do anything, just to open her mouth. She opened her mouth and you masturbated by touching your penis onto her lips. You then ejaculated into her mouth. This gives rise to a charge of indecent act with a child under the age of 16.
14It was accepted by the prosecution that, for the purposes of sentencing, Charges 1, 2 and 3 were to be regarded as having been committed by you when you were 16 years old, and in relation to Charge 4, that this was committed when you were 18 years old.
15In January 2013, the complainant was referred to a psychologist by her GP, and in February 2013, she told her mother that you had "done things sexually to her from when she was 13 years old". The complainant's mother then spoke to you about the allegations and you admitted that everything that the victim had said was true, and that none of it was the victim’s fault.
16In March 2013, the victim typed a letter to you, telling you how your sexual abuse of her had affected her life. The letter was passed onto you by the victim’s step-father, that is, your father.
17A few weeks later, you typed a letter of apology.
18On 10th November 2013, the complainant gave a disclosure interview to the police and made a statement thereafter.
19Mr Cheshire, objectively your offending is serious and calls for a punishment which is appropriate in all of the circumstances. You treated your step-sister as a chattel, to interfere with her whenever you liked. She was entitled to feel safe in her own home, but you saw fit to defile her, commencing when she was in her early teenage years.
20In saying this, for the purposes of the representative charges, I refer only to the sample offences. Your conduct must be denounced. Having said all of this, in assessing the gravity of your offending, it is a most relevant circumstance that in respect of Charges 1, 2 and 3, you were only to be regarded as 16 years old, so a teenager yourself and barely an adult when you committed Charge 4. Further, the age gap between you and the victim was in the order of about three years, although she was barely a teenager when you commenced offending against her. The complainant’s age and the age gap however are also relevant to my assessment of the gravity of your offending.
21The impact of your offending upon your step-sister has been immense, as you would expect. She took the most courageous step of reading her eloquent and detailed victim impact statement aloud. She has engaged in self-harm and has fantasised about suicide. She said she has experienced intense feelings of self-loathing and shame. She spoke of your heartless treatment of her in the presence of others, and of how she would starve herself for days on end, and would cover herself up in baggy clothing to avoid your attention and because of her feelings of self-loathing. She spoke of the strain that her avoidance of meals placed on her relationship with members of her family, with her step-father accusing her of attempting to "sabotage" the family. She continued on with anorexic behaviour off and on until she was 22 before she sought counselling.
22She also spoke of her feelings of dread and apprehension when you first started to sexually abuse her after she had gone to bed, which she came to accept what she referred to as "the inevitable". Because of your visits at night, she grew tired and could not concentrate at school and her grades dropped because of this and because she lost interest in doing her best. She spoke of various everyday things that she hears now which she associates with your offending and which brings back her feelings of dread.
23She speaks of becoming conditioned to your constant abuse of her and the ways in which it has warped her life and continues to haunt her. She describes feeling very, very sad. She talked about her inconsolable reaction in a class in 2013, when the question was asked about a first kiss. She said that she felt angry that she was robbed of normal sexual development and also that she could not control her emotions.
24She spoke of her sense of defeat and despair when she learnt from her mother that what you were doing to her could not be regarded as in any way "preserving her virginity". Her relationship with her mother soured because of cruel deceits you played on her mother to avoid nearly being caught interfering with the victim on occasions. The victim was punished when you falsely accused her of waking you, when you were really in her room to offend against her yet again. Her mother told her that she took the joy out of her life.
25The complainant spoke of you texting dirty messages to her and of texting her with arrangements to meet her somewhere. She spoke of her anxiety that someone might see these messages and was concerned that if they were read, she might be accused of instigating the contact. She felt that somehow she was colluding with you or was somehow responsible for your conduct and that she was trash.
26She spoke of her great sense of loss and betrayal. When she did speak out, she was not supported by those around her, whom she expected would rally for her. As is too often the case, Mr Cheshire, in matters like this, those around the complainant seemed to be blaming her for going to the police and for the family implosion that followed. Let me make this very clear. The complainant is in no way to blame for the offending or for complaining when she did, and it is to be hoped that she has every support from family and friends, just as you do.
27Ms P spoke of severing ties with her other step-siblings because of their connection with you, and although this was her decision, it has been a significant wrench for her.
28The complainant said many other things in the course of her most articulate victim impact statement, reflecting upon the dreadful struggle she has suffered because of your offending. She ended this statement with this:
29She said, "I haven’t embellished any of this. It doesn’t come from a vengeful place. One of the main reasons I went to the police about this matter was because I didn’t want to be ‘responsible’ for the past events any more. It was a huge burden to feel that the consequences of his actions were in my hands. This way it’s judged properly, whether the consequences are hefty or seemingly insignificant. To reiterate, my goal here is not to add more weight to a sentence. Everything I have said is true."
30Ms P is to be commended for her courage and the dignity that she brought to these proceedings in reading aloud her most eloquent victim impact statement. I do hope that she finds some solace and peace by engaging in this process and manages to overcome the difficulties which she still experiences. It is readily apparent that she is a most impressive young woman with a great deal to offer.
31In sentencing you, I have factored in the impact of your offending upon her, and trust that the victim understands that the best outcome for all concerned, is if the community can reclaim you as a contributing member, rather than a damaged and damaging one.
32In assessing your moral culpability, I must allow for the fact that in respect of three of the charges, you were a child, and that in respect of Charge 4, you were barely of adult age. As much of the research shows, adolescence can last for a number of years beyond 18.
33If you had been dealt with at the time you offended in relation to the first three charges, you would have been dealt with in the Children’s Court, which has a very different regime of sanctions to this court. In relation to the fourth offence, your youthfulness would have be considered significantly mitigatory in the context of this offending, with primacy being given to maximising your rehabilitation, and more sentencing options would have been available. These considerations are relevant to my sentencing task.
34General deterrence would have a primary role to play if you had committed these offences as a fully-fledged adult. It has a rather limited role in respect of your offending however, as those who offend as children are not regarded as suitable vehicles to make examples of in a bid to deter others. You also offended as an 18 year old however, so I place some weight on this principle, albeit limited, in view of your young age and apparent immaturity. The weight to be attributed to punishment and denunciation ought also be seen in the context of the age and stage you were at when you offended and I give some weight to these in that context.
35It is not unusual, in fact it is most usual for victims of sexual assaults to come forward many years after the offending, precisely because of the damage it has done to them and often because of family dynamics at play. In no way is the complainant to be criticised for complaining some nine years after the offending. The injustice of the situation is that whilst she has been crippled by what you did to her, you have been able to make some headway in life, which is too often the case and the law recognises this. In circumstances where you were so young yourself when you committed the offences however, you can call in aid the delay since the offending because in the intervening time, as an adult, you have not committed any further offences and you have shown that you are of otherwise good character. This is a most positive indicator in respect of the chances of you re-offending. You have no prior convictions either, so this is another indication in favour of your prospects of rehabilitation.
36While it is a shame that it took the complainant to make contact with you before you apologised and took responsibility for your actions, once she did so, your response showed a great deal of integrity, insight and heartfelt remorse. Indeed, your response is something that was unprecedented. Rather than deny the allegations, as is so commonly the case, and rather than availing yourself of legal advice to protect your self-interests, you took full responsibility. You told the complainant’s mother that what the complainant had said was true, and you also said that none of the conduct was her fault. Of course, it is very true that none of the conduct was the complainant's fault but, so often in cases like these, there are attempts to at least share blame, if not shirk it altogether.
37What is more, in further disregard for yourself, you wrote a letter of apology to the complainant. These steps also manifest a developed sense of victim empathy, something you did not have as a teenager, but something that you have obviously developed as a young man.
38I accept Mr Richter’s submission that your principal focus in taking these steps was to atone for what you had done and to do what you could to assist the victim to heal. I have taken these matters into account as weighing very much in your favour, over and above the discount to which you are entitled because of your pleas of guilty.
39I take into account your early pleas of guilty, which were indicated at the committal mention stage. In pleading guilty at such an early stage, you have saved the witnesses, especially the victim, the trauma and time of giving evidence and you have saved the community the time and expense of contested proceedings. I also accept that this is a further manifestation of your profound and heartfelt remorse. On that basis you are entitled to a significant discount in the sentence you would otherwise receive.
40Also in your favour, I have factored in the character evidence provided in support of you. I accept that you are of otherwise good character. The material also attests to your remorse and insight.
41Your mother gave evidence that you have been very concerned about the victim’s wellbeing and that you have expressed great shame about what you have done. She described you as being very emotional and teary since the offending came to light. She said that you had recently married a young woman who is fully supportive of you. You wanted to postpone the wedding until these proceedings were over. Your wife determined however that this would not happen. She spoke of the various responsibilities that you took on your shoulders when you were growing up, and that in your teens, the pressures were too much for you. While this might be so, I pause to observe that many teenagers experience pressures growing up but do not conduct themselves as you did.
42Your wife also gave evidence in support of you. She also spoke of your immense upset and concern for your step-sister upon receiving her letter. You told your wife, then fiancée, about what you had done as soon as you received the letter from the victim, but she has stood by you. She said that for as long as she has known you, you have been a very loving and caring person. This indicates how much you have grown as a person since the offending.
43
About nine months after you received the letter from the victim in this matter and wrote your letter of apology, you commenced to see a Dr Rowan McIntosh for psychiatric treatment. I have taken into account his report, although I was told that he had not conducted the assessments of you, and that
Mr Newton, psychologist, had. Dr McIntosh's findings as to your current mental state did not accord with Mr Newton’s, and I would have thought that he as your treater, might have a better idea about this. However, in view of the fact that Mr Newton conducted formal assessments, and in view of the prosecutions apparent stance in respect of this aspect, I have acted on the basis of Mr Newton’s evidence, insofar as it apparently conflicts with
Dr McIntosh’s.
44Mr Patrick Newton, psychologist, gave evidence in accordance with his report, that you suffer from an adjustment disorder with mixed anxiety and depressed mood. You have experienced suicidal ideation from time to time, which is a concern. Your psychological state is relevant to the type of sentence I impose and I must also factor in that if you were to be imprisoned, it is likely that your mental state would further deteriorate. Also, your experience of gaol would be a good deal harsher than someone without your mental health difficulties. You would benefit from ongoing counselling to address your mental health issues. Mr Newton assessed you as being at low risk of re-offending and remarked upon your most advanced level of insight, victim empathy and acceptance of responsibility, in contrast to hundreds of sex offender clients he has dealt with in 20 years of practice.
45I also take into account your evidence at the plea hearing and your expressions of remorse to the victim, apologising for what you have done and reiterating, correctly, that none of this was her fault. You are an electrician by trade and have a solid work history, but because of these proceedings with an uncertain fate, you resigned your employment. I am pleased to hear that you have been offered another position in recent days with Carlton United Breweries.
46In sentencing you, I have factored into your background, which is set out in the chronology tendered on the plea and referred to by Mr Richter of Queen's counsel. You are the oldest of four children. You moved from place to place with your family, including moving to Katherine, Northern Territory when you were seven years old. When you were nine years old, your parents separated in acrimonious circumstances. You attended a number of different primary schools, which would have been rather destabilising. You completed your secondary education at Box Hill Secondary College, having moved on from a private college at the end of Year 11.
47After secondary education, you then embarked on an electrician’s apprenticeship at a prominent beer brewery, Carlton United Brewery, which subsequently offered you much a prized position as a technician. You also completed your Certificate IV in the "Electrical" course at RMIT. When you were 25, you went on to work for another large company and were involved with the Victorian desalination project. When 27, you were employed by Turbine Australia Maintenance, and worked at various sites, including a stint in Papua New Guinea. In February 2014 you were employed by GE Oil and Gas to work on Curtis Island, Queensland, where you had the very responsible role of overseeing the installation of electrical plant equipment. You resigned this position early this year, as I have said, in anticipation of these proceedings, and in so doing you have lost lucrative employment. You have however recently been offered a new position with the brewery.
48You met C. A. in 2008 and subsequently embarked upon a relationship, which has culminated in your marriage in March this year. She and her family are fully supportive of you and speak very highly of you. Therefore, Mr Cheshire, you have taken full responsibility for your offending, expressed heartfelt remorse and victim empathy. You have no prior or subsequent convictions and are of otherwise good character. You have solid family and friendship support, as well as a strong work history.
49I accept Mr Richter’s submission that you are a completely reformed character and have grown up a great deal since you committed these offences when you were a teenager or barely into your adult years. In all of the circumstances, I find that you have strong prospects of rehabilitation and on any view, there is no need to place any weight on specific deterrence or protection of the community.
50Mr Richter submitted that the most appropriate disposition for you, in the light of the recent guideline judgement of Boulton v The Queen [2014] VSCA 342 , I will give a citation in due course, was a community corrections order, which could be suitably crafted to address all sentencing considerations. Ms Holmes for the prosecution submitted, on instructions from a Crown Prosecutor, that a community corrections order would not be appealably outside the range of available sentences. I have reached the view that there would be no utility in sending you to gaol. This would not be a win for the community or for you, for the reasons that are set out by the Court of Appeal in Boulton.
51In that judgment at the Court said:
"It follows from what we have said that a community corrections order may be suitable, even in cases of relatively serious offences, which might previously have attracted a medium term of imprisonment, such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide. The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned community corrections order of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects of rehabilitation." [131]
52In that decision, the Court of Appeal made it clear that the introduction of community corrections orders had dramatically changed the sentencing landscape and that they ought be utilised far more often than they are currently.
53I am going to impose a community corrections order which can adequately address all sentencing factors, including the need to punish you and denounce your conduct, in the context of what you did and the age and stage that you engaged in such conduct.
54
In sentencing you, in respect of the three charges which are representative,
I have been mindful of the prescribed approach, stated by His Honour Batt JA in DPP v SBL [1999] 1 VR 706, where His Honour said:
"Not only does the fact that a count is agreed to be representative preclude its being said in mitigation that the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context. The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context. Consistently with the view which I have expressed about agreed representative counts, regard may, in the present case, be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent, by the offences counted alone." [70]
55I have borne those remarks in mind when imposing sentence upon you, insofar as the representative charges are concerned. As I have said, in all of the circumstances however, I regard a community corrections order, in relation to all the charges, is appropriate.
56Would you please stand up, Mr Cheshire.
57You are convicted of each of the offences.
58Firstly I make an order for a forensic sample to be taken by way of a buccal swab from the mouth. I make the order because of the seriousness of the offending, because the order is not opposed, and because it is in the public interest to do so. I must warn you that if you do not co-operate with the authorised officer in the taking of the sample, then reasonable force may be used to take the sample.
59
Under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences, you are to be recorded - sorry, I should say, by reason of your conviction in relation to Charge 4 only, you are to be recorded as a registrable offender for eight years. You must report your personal details to the Chief Commissioner of Police annually for the next eight years. You must first do so, that is report, within seven days from today. Details in writing of these reporting conditions will be served shortly upon you by my associate.
I will ask your counsel to assist you with an acknowledgement in relation to receiving that notice.
60Mr Cheshire, I can only impose a community corrections order if I have your consent to do so, so please listen carefully to the community corrections order that I propose:
61The order will run for a period of three years.
62The mandatory terms that apply to all community corrections orders are:
·Firstly, you must not commit another offence for which you could be imprisoned, during the time that the order is in force;
·Secondly, you must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011;
·Thirdly, you must report to and receive visits from the Secretary to the Department of Justice, or his or her delegate;
·Fourthly, you must report to the Ringwood Community Corrections Centre before 4 pm, within two clear working days of today, so that is by Tuesday of next week. It might be best to go on Monday, just in case, all right?
·The next condition is, you must let a Community Corrections officer know within two clear working days of you changing your address or job;
·Sixth, you must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice, or his or her delegate;
·Seven, you must obey all lawful instructions from and directions of the Secretary to Department of Justice, or his or her delegate;
63Now the conditions that apply in addition to the mandatory terms listed are, or the ones that I propose, are as follows:
Community Work
64Firstly, you are to undergo 300 hours unpaid community work within the next 18 months.
Supervision
65Secondly, you must be under the supervision of a Community Corrections officer for a period of 18 months.
66Thirdly, you must undergo mental health assessment and treatment, which may involve you being treated in a hospital or residential facility, as directed by the Regional Manager. In this regard, it may well be desirable for you to continue to see Dr McIntosh, but I will leave this to Community Corrections to consider, after consulting with you.
67Fourthly, you must undergo programs or courses aimed at addressing factors relating to the offending, as directed by the Regional Manager, including the Sex Offender's Program, if deemed appropriate in all of the circumstances of your case.
68Do you consent to the terms and the conditions of the proposed order?
69OFFENDER: Yes I do. I do, sorry.
70HER HONOUR: I should tell you that if you do not comply with all of the requirements of this community corrections order, then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a term of imprisonment. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order. Do you understand this?
71OFFENDER: I do.
72HER HONOUR: Do you maintain your consent to the order?
73OFFENDER: I do.
74
HER HONOUR: Therefore, in relation to the charges, you are convicted and sentenced to a community corrections order in the terms and conditions that
I have just set out.
75
If not for your pleas of guilty, I would have sentenced you to gaol term of
12 months, plus and four year community corrections order.
76You can now leave the dock and approach your counsel, and we will have the documents you need to sign attended to. So there is the sex offender's register document and the Community Corrections one.
77Mr Cheshire, I hope never to see you again. All right? I just want you to go from strength to strength, which you obviously appear to be doing. All right? Thanks, we will now adjourn.
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