Director of Public Prosecutions v Clark (a pseudonym)
[2015] VCC 1247
•11 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRAHAM CLARK (a pseudonym) |
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JUDGE: | Carmody | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2015 | |
DATE OF SENTENCE: | 11 August 2015 | |
CASE MAY BE CITED AS: | DPP v Clark (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1247 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms B. Goding | Office of Public Prosecutions |
| For the Offender | Mr J. Lowy |
HIS HONOUR:
1 Graham Clark[1], on 7 August 2015 you pleaded guilty to four charges on the Indictment in this court. You were remanded in custody for sentence today.
[1] Graham Clark is a pseudonym
2 The four charges you pleaded guilty to were as follows: Charge 1, sexual penetration of a child under ten years. This charge has a maximum penalty of 20 years' imprisonment. Charge 2, gross indecency, this charge has a maximum penalty of two years' imprisonment. Charge 3, sexual penetration of a child under the age of 16, this charge has a maximum penalty of 15 years' imprisonment. Charge 4, sexual penetration of a child under 16 years, this charge has a maximum penalty of 15 years' imprisonment.
CIRCUMSTANCES OF OFFENDING
3 I turn to the circumstances of your offending. I rely upon the opening presented in court here. You were the stepfather of the complainant, Eric Johnson[2], who was born in October 1977. You began your relationship with the complainant's mother, Rose Johnson[3], in 1979 when you were aged 32. Ms Johnson was then raising the complainant in a flat in a public housing block in Ascot Vale.
[2] Eric Johnson is a pseudonym
[3] Rose Johnson is a pseudonym
4 You moved in with Ms Johnson and the complainant in about 1980. You and Ms Johnson married in 1983. Ms Johnson took your surname and became known as Rose Clark[4].
[4] Rose Clark is a pseudonym
5 You and Ms Clark both believed that you legally adopted the complainant, Mr Johnson, when he was young. Investigators have been unable to verify that that in fact occurred.
6 In or about 1984-1985, when the complainant was aged between seven and eight years old, you began sexually abusing him. The sexual abuse began one morning at about 3 am when you woke the complainant and led him to the lounge room. The complainant saw a brown towel spread out on the floor next to the couch and table in the room. You told the complainant to lay on the towel on his stomach and stay still. You then penetrated the complainant's anus with your penis. You then moved your penis back and forth in the complainant's anus. The complainant found this very painful and was crying whilst you continued to penetrate him. That is Charge 1.
7 When the complainant was in about grade 3, you, the complainant and his mother moved to private rental accommodation in North Sunshine. Around this time, whilst the complainant was still at primary school, you began showing the complainant pornographic videos, touching and sucking his penis and having the complainant do the same to you.
8 On many occasions over the years that followed, you would wait until the complainant's mother fell asleep and you would then get into bed with the complainant and sexually abuse him in various ways. Sometimes the complainant would wake up to find you trying to penetrate his anus with your penis and would feel a lot of pain in his backside. On other occasions, when you got into the complainant's bed, you would masturbate until you ejaculated on the complainant's body. Often when this happened, you would throw a towel on the complainant and say, "Here, clean it up."
9 Sometimes you would leave money under the complainant's pillow after sexually abusing him and would tell him not to tell his mother where the money had come from.
10 On many occasions, you made the complainant have a bath with you and would have the complainant either masturbate you or you masturbated yourself. On one occasion, you made the complainant shave your groin area. The bath would occur whilst Mrs Clark was at home but doing something else in the house such as cooking tea in the kitchen.
11 Around 1989-1991 when the complainant was aged 12 to 13, you and the complainant's mother temporarily separated and you went to Queensland. After about six months, you returned to live with the complainant and his mother in North Sunshine. You resumed sexually abusing the complainant.
12 On an occasion during the period between 1989 and 1992 when the complainant was by then aged between 12 and 14, you came into the complainant's bedroom and asked him for sex. The complainant told you, "No," because it hurt, it really hurt”. You offered the complainant some money to do it and the complainant again said "no". You then asked the complainant to roll onto his side. When the complainant did so, you masturbated against the complainant's backside until you ejaculated. You then told the complainant, "I love you," and left the room. That is Charge 2, which is gross indecency.
13 In 1991-1993 when the complainant was aged between 14 and 15, he was in the bath with you. You got the complainant to wash your legs and shave your pubic hair from your groin area. You then asked the complainant to put your penis in his mouth. When the complainant refused, you got angry and said, "Go on, do it." To appease you, the complainant complied. That was Charge 3 of sexual penetration of a child between ten and 16. You then removed your penis from the complainant's mouth and masturbated until you ejaculated into the bath.
14 Initially the complainant had his own bedroom in the North Sunshine home. However, when rising damp caused a hole to rot through the floorboards in the complainant's bedroom, you made the complainant sleep on a foam mattress on the floor of what was described as the parents' bedroom, that is, next to the bed where you slept with Mrs Clark.
15 In around 1992-1993 when the complainant was aged 15, he was sleeping on the foam mattress on the floor in his parents' bedroom. Whilst the complainant's mother was asleep, you got into bed with the complainant. You gave the complainant some Vaseline and persuaded him to penetrate your anus with his penis. You lay on your side and the complainant penetrated your anus with his penis. That is Charge 4, sexual penetration of a child under 16 years.
16 In around 1992-1993 when the complainant was aged 15 to 16, the complainant climbed out of his bedroom window after one occasion where you had sexually abused him. You had gone back to bed. The complainant rode his bicycle around for a few hours through the night and returned in the morning. When you asked him where he had gone, he told you he was going to leave because he did not like what you did to him. You said "sorry" and you did not sexually abuse him after that.
17 In February 2014 the complainant had a psychological breakdown and was admitted to a Psychiatrist Hospital. The breakdown was triggered by the complainant's realisation that his youngest son had reached an age similar to when you had begun sexually abusing him. The complainant reported the offences to the police later that month.
18 The police interviewed you on 19 March 2014. In that interview you said the following:
(a) your relationship with Rose started during a period when you were abusing drugs and alcohol;
(b) you had continued to abuse alcohol until at least 10 to 15 years ago;
(c) whilst living in Sunshine, you were on speed and cannabis and had grown your own dope;
(d) you had adopted the complainant when you thought the complainant was 13 years old;
(e) you had adopted the complainant because "we just got sick and tired of him not knowing who his father was and I just wanted to give him a father figure", this is what you were telling the police;
(f) you stated that you fell in love with the complainant and took him on as your son; (g) you thought that it was a good relationship with the complainant and
(h) you denied any sexual activity with him.
CONDUCT OF PROCEEDING
19 I now turn to the conduct of these proceedings. You were interviewed by police, as I say, about these matters in March 2014. On 5 March 2015 you were charged on summons. Despite your denials in your record of interview, you indicated your intention to plead guilty to these charges at your committal mention hearing on 15 May 2015. Your plea of guilty was indicated at an early time.
IMPACT OF OFFENDING ON VICTIM
20 I now deal with the impact on your victim. Your victim, Eric Johnson, read out his victim impact statement in the course of the plea hearing. His victim impact statement was Exhibit B on the plea. Mr Johnson gave an erudite and reasoned statement of the impact your offending had upon him in the course of his life. He spoke of the pain, the shame and the nightmares he had endured as a result of your offending. He ultimately had a psychological breakdown and ended up in a Psychiatrist Hospital. He is currently medicated with Zoloft for depression and struggling to bring up his own three sons. He has the support of a partner.
21 Mr Johnson set out the breach of trust by you to him as a stepson and the breach of trust to his mother in your offending against him. Your offending has had a significant impact on his life. Given his diagnosis of depression and his compelling statement in court, he has many years in front of him where grief and pain will continue. That is a sentence you have imposed upon him by your offending.
PERSONAL CIRCUMSTANCES
22 Your personal circumstances: you are now 68 years old. You commenced your offending when you were 37 years old. You offended over a period of approximately nine years to 1993 when your stepson threatened to leave the family home. Since 1993 you have not offended and been in and out of casual work as a truck driver. You grew up in the Bendigo area. You are the second child of 12 children. You left school at the age of 12 and home at the age of 14. Your father was physically abusive toward you. You spent some time in the Sandhurst Boys Home where you learnt bootmaking. At that time, you were sexually abused by older boys on two separate occasions.
23 Your employment was varied, working on a poultry farm, a wool presser in Williamstown, working at the dockyards in Williamstown and you ultimately became a truck driver in your late 20s. The truck driving has been a mainstay employment for most of your life. You ceased work in 2014.
24 In 1973-1974, you married Jill Smith[5]. You had one child, Robert[6], from that union. Robert was adopted out of the family. The relationship was of short duration.
[5] Jill Smith is a pseudonym
[6] Robert is a pseudonym
25 Relevantly, on 3 February 1976, you were convicted in the Devonport Court of Petty Sessions of indecent assault and sentenced to four months' imprisonment. Your offending on that occasion was described in Exhibit C as follows:
"The offender is a native of Victoria and has been visiting his sister in Devonport. For some two weeks during the absence of his sister and the rest of the family, the defendant indecently assaulted a nine‑year‑old, namely by playing with her private parts and also by rubbing his penis on her legs."
26 It was only about three years after you were released from prison for indecent assault that you commenced your relationship with your wife, who had a two‑year‑old son, who became your victim in these circumstances. You were living with your wife Rose in Bendigo when this matter came on for hearing. It was put on your behalf that your wife was dependent on you for her care and maintenance. I note your brother also lived in the same premises and assisted you in that task.
27 Your health is poor. You have been diagnosed with chronic obstructive airways disease and depression. You are prescribed citalopram for depression and Valium for anxiety. Dr Rahman, who is your general practitioner, is of the opinion that your health will deteriorate if you go to prison. His report is Exhibit F on the plea.
28 You were assessed by Dr Simon Kennedy, forensic psychologist, in his report dated 24 July 2015, which is Exhibit E on the plea. He gives his opinion as follows. He states:
"Graham Clark is a 68-year-old man, psychologically evaluated in the context of criminal charges concerning sexual offences against his stepson between 1983 and 92. Historical issues are relevant, including Mr Clark having experienced neglect and physical abuse in childhood, sexual abuse in a children's home in his teens and subsequent substance abuse up until 15 years ago. The sexual offending occurred within the context of that substance abuse.
Based on this evaluation, Mr Clark's function in the borderline range of intellectual abilities had a percentile of 4. These factors possibly have been affected by substance abuse. Additionally, his literacy is poor."
29 He goes on to say:
"A sexual risk evaluation revealed his chances of reoffending are significantly reduced by his age and very poor health. He is extremely unwell and has little or no access to potential victims. He has ceased substance abuse which also reduces his risk of reoffending."
30 I take these matters into account when fixing the totality of your sentence.
SENTENCING CONSIDERATIONS
31 I now turn to sentencing considerations. The offence of sexual offending against your stepson, a child in this case, strikes at the very heart of the most important building block in a civilised society, the family. The prevalence of the crime of sex offending in the community erodes the decency of family life and the trust and confidence of its young victims. Such crimes call for punishment to reinforce the principles of general deterrence, denunciation and protection of young people.
32 Your offending continued over a period of approximately nine years which coincided with the formative and most vulnerable years of your victim. You have breached your trust as a stepfather and as a husband to the mother of your victim. You were privileged to exercise parental care, and the community is entitled to expect that those who exercise such care will not abuse the trust and confidence reposed in them by those in their charge. Parents and those in loco parentis who fail to exercise restraint which the community expects of them, who give in to their own sexual gratification, must expect to be severely and appropriately punished.
33 I have to take into account that at the time of your offending, you had a prior conviction for indecent assault of a child.
34 As part of the governing principles to be considered in sentencing, I must take into account the current sentencing practices. That inquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and statistics at the time of the sentence. I have considered these statistics and current practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed they are from one another.
35 I also take into account the sentencing practices of the time of your offending. Each case again has its own distinguishing features and may be distinguished from yours and from one another. The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.
36 In sentencing you, I must have regard to a range of factors such as the seriousness of your offence and your culpability for them, your personal circumstances and those of your victim. I am required to balance those interests with the interests of the community in denouncing your criminal conduct with the interests of the community and seeking to ensure, as far as reasonably possible, that you as an offender are rehabilitated and reintegrated into society.
37 Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice. There is a certainty of outcome and a resolution of the substantive issues raised by your offending. Your plea also allows for the preservation of court and police resources to deal with other matters. Your plea of guilty vindicates public confidence in the legal process set up to protect the community.
38 You have by your plea relieved your victim, your stepson, from giving evidence against you. It facilitates some closure for him. Your plea of guilty also indicates and demonstrates your remorse. Your plea is also a clear acknowledgment by you that you accept responsibility for your criminal behaviour in this case. Your plea also recognises you are willing to facilitate the course of justice in the community.
DELAY
39 I will now deal with the issue of delay. There is delay in time between the period of the offending and the time of the court hearing. The final act of the offending occurred in 1993. In effect, there is a 22-year gap or delay from that last offending and now. A delay of this magnitude is a mitigating factor in sentencing you, based on the principles of fairness and rehabilitation. In this case, you have not offended since 1993. You have continued your working career until your retirement in 2014. Since that time, and more particularly in recent times, you have become the full‑time carer of your wife, Rose.
40 Since the time of these offences, you have lived in effect a productive life. The delay also means that at the age of 68 years, you are less likely to reoffend. These considerations are to be balanced by the impact your offending has had on your victim.
SERIOUS SEXUAL OFFENDER
41 Under the Serious Offender provisions of the Sentencing Act, on your conviction and sentence, to a term of imprisonment on two sexual offences charges, I am required on the sexual offences charges thereafter to regard the protection of the community from you as a principal purpose for which the sentence is to be imposed. If necessary, in order to achieve the purpose of protecting the community, I am empowered under s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence. This means that the sentencing task in respect of Charges No.3 and 4 on the Indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which that sentence is imposed. To achieve that purpose, a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of the objective circumstances.
42 Section 6E of the Sentencing Act also requires that unless I otherwise direct with respect to Charges 3 and 4 on the Indictment, the sentences I impose on you are served cumulatively. I note here the Crown did not call for a disproportionate sentencing or the cumulation contemplated in s.6D or 6E of the Sentencing Act.
43 Allowing for the matters I have already outlined it is appropriate to impose only the degree of cumulation to which I subsequently refer, reflecting as it does several episodes of your offending. To do otherwise may produce a sentence which is not appropriate and is unjust. I have previously referred to the impact of your plea of guilty and I have taken that into account in the manner which I have outlined previously.
44 I have also dealt with the considerations of delay, the hardship on your wife, the reflected - if I can call it that - hardship on yourself, that is, the concern for her care in the future. I have taken into account your age, health and the burden of imprisonment on a man of your age. I also take into account that there is a diminished need for specific deterrence in your case, given your age and that you have not offended since 1993.
45 Your counsel urged me to impose a longer than normal parole period in your sentence, whilst conceding a term of imprisonment was the only appropriate sentence. The Crown submitted a substantial term of imprisonment was an appropriate sentence in this case.
46 Would you stand, please. I sentence you as follows: on Charge 1, you are convicted and sentenced to four years' imprisonment. Charge 2, you are convicted and sentenced to six months' imprisonment. On Charge 3, you are convicted and sentenced to three years' imprisonment. On Charge 4, you are convicted and sentenced to three years' imprisonment. I order that three months of the sentence in Charge 2, 15 months of the sentence in Charge 3 and 12 months of the sentence in Charge 4 be served cumulatively on the sentence in Charge 1 and on each other. That is a total effective sentence of six and a half years' imprisonment. I order that you serve a minimum term of four years' imprisonment before being eligible for parole.
47 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty I declare I would have sentenced you to a term of imprisonment of eight years with a nonparole period of six years' imprisonment. I declare that you have served four days' pre‑sentence detention which is to be deducted administratively from your sentence. I also direct that under s.6F of the Sentencing Act that it be entered in the records of the court that I have sentenced you in respect of Charges 3 and 4 as a serious sexual offender within the meaning of the Act.
48 At this hearing, the prosecution sought an order for the retaining of a forensic sample. I will sign such an order when it is given to me. The reasons I am making that order for the retention of a forensic sample is the seriousness of the offences warrants such a retention. As I understood, it was made with your consent and it is certainly made in the public interest.
49 The offences for which you have been found guilty are registrable offences pursuant to the Sex Offenders Registration Act 2004. By reason of your conviction for these offences, you are a registrable offender obliged to comply with the reporting conditions imposed by the Act. Your reporting is for life, and three of the offences are class 1 offences.
50 As required by s.5(2BC) of the Sentencing Act, in sentencing you, I have ignored any consequences that may arise in this case and so arise under the Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can be objectively influencing a position of a just sentence. I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with these obligations. I am also required to inform you of the length of the reporting period, as I say, which in your case is life.
51 In a short while, my associate will hand you a document that you have to sign which relates to the reporting under the Sex Offenders Registration Act. Mr Lowy can assist you with understanding what that all is.
52 Is there anything else I have to deal with?
53 MR LOWY: No, Your Honour.
54 HIS HONOUR: Mr Clark, I have made an order that the authorities can take a forensic sample from you. What I have to advise you is you can consent to that sample being taken. Usually it is taken by a swab from your mouth. If you do not agree to that, they can use reasonable force to obtain one. Do you understand that?
55 OFFENDER: Yes, sir.
56 HIS HONOUR: Yes, thank you. First of all, I want to thank Mr Lowy, and if you could pass on my thanks to the prosecutor. Thanks for your attendance today and assistance. This was a very difficult case for everyone to deal with. Mr Johnson, do your best from this day on.
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