Director of Public Prosecutions v Clarkson (a pseudonym)

[2018] VCC 2059

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

AT BAIRNSDALE
CRIMINAL JURISDICTION

CR 18-00070

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIANE CLARKSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Bairnsdale
DATE OF HEARING:
DATE OF SENTENCE:	6 December 2018
CASE MAY BE CITED AS:	DPP v CLARKSON (A PSEUDONYM)
MEDIUM NEUTRAL CITATION:	[2018] VCC 2059

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 D. CORDY	Office of Public Prosecutions
For the Accused	MR C. MORGAN	Victoria Legal Aid

1HIS HONOUR:  Diane Maree Clarkson,[1] you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 years.  That crime carries a maximum penalty of ten years' imprisonment.  You are now 57 years of age.  Importantly, you have no prior convictions, and have no matters pending.

[1] This is a pseudonym.

2You pleaded guilty at a late time, but it was in relation to a settled indictment, and accordingly, you get the full benefit of that.  I accept that insofar as remorse is concerned, while you have been somewhat tacit in admitting your involvement, that it is a matter which you are ashamed of, and have deep regret for having committed.  Clearly, in a situation such as this, you must get the utilitarian benefit of that plea of guilty.  Because of the nature of the offending, you will be placed on the Sex Offenders Register for a period of 15 years, and that will be given to you shortly. 

3The circumstances of the offending are that, at the time of it, you were 53 years of age.  There is a witness, Max Tate[2], who was 15 years of age at the time.  He was living with his mother and her boyfriend.  The complainant in this particular matter is Harold Denham[3].  He was 15 years of age at the time of the offending.  The two boys were known to each other. 

[2] This is a pseudonym.

[3] This is a pseudonym.

4You and Max were known to each other, as you had previously been in a relationship with his mother some years earlier.  Clearly, you knew Max’s age, and it is clear, from, firstly, the plea of guilty, and also the circumstances, that you were aware of the age of the complainant.  You had met the complainant approximately three or four times prior to this offending taking place, and you had met them when they were both at primary school.        

5In any event, on 1 November 2014, in the afternoon, Ms Tate drove Max to your unit.  There had been arrangements made so that he could stay with you overnight, as he did not want to go with his family to the Melbourne Zoo the next day.  The expression that was used is "babysitter"; I think in this situation that is probably a bit too strong. But you were in a trusted situation, albeit not one of total responsibility.

6While he was at your house, he asked if he could have a mate over, as he was bored.  You said, "Yeah," so he asked the complainant to come over.  They met at the Bairnsdale Golf Course and walked back to your house.  When they arrived, they had a cigarette and drank what alcohol was left in a bottle of Jim Beam.  When they had drunk that, they asked you to go and get more alcohol for them.  You agreed, and drove them to the Paynesville IGA, where two more bottles of Jim Beam and some bottles of Coke were purchased.  You paid for the alcohol.

7When they returned, the boys had some more to drink in the kitchen of the house, and then decided to have an indoor spa bath.  When they got into the spa bath, they had their underwear on.  While they were in there, they asked you if you wanted to come in, and you ultimately agreed.  When you got into the bath, you took your bra off, and you all sat in spa, drinking.

8During that period of time, you placed your hand into the complainant's jocks and took his penis in your hand.  You said, "That's pretty big for a 15-year-old."  You then told him that you were going into the bedroom if he wanted to have sex with you.  The boys said they became excited.  You then went to your bedroom, and apparently kept calling out to Harold.  Both boys got out of the spa and entered the bedroom.

9When the boys entered the room, they saw a purple dildo.  Max picked it up and touched you with it.  Harold then took it and touched you again.  During this period of time, Harold says you were moaning and moving around on the bed, and looked like you were enjoying it.  He then got on top of you, put his penis into your vagina, and had sexual intercourse with you.  During the intercourse, you told him to lick your nipples, as the last person you had sex with did not.  He then did that.  

10When Harold was doing this, Max left the room, and went outside to have cigarette.  Harold, the complainant, remained in the bedroom, having sexual intercourse, until ejaculation, and you told him that you could not become pregnant, as you had been through menopause.  During this time, Max stayed out in the lounge room, put his clothes back on, and continued drinking and smoking cigarettes.  Harold then came out and spoke to Max.  They took a photograph of themselves, which I have seen.  They then left the house, walked to Bluff lookout, met with others, and at approximately 3 am, they returned to your house and slept.  

11When they woke the next morning, you came in, crying, and said you were going to the police, and were going to dob yourself in.  They told you not to go to the police, as they were worried they would get into trouble as what happened was "their fault."  When they have convinced you not to tell anyone, you said, "As long as you don't tell anyone."  You then drove them to Harold’s house.

12It is clear, from what occurred the next morning, that (1), you knew what you had done was wrong, and knew it was wrong when you were doing it and; (2), certainly at that point in time, you were ashamed of yourself to the level of then wanting to go and tell the police. 

13I have now had the opportunity of reading in full the statement, and also the cross-examination of Harold at the Magistrates' Court in the committal.  It is clear that you were aware of the ages.  I think it is fair to say, in this situation, that both of the boys, despite their ages, were at least somewhat worldly.  It would appear at the offending was situational, in the sense that it was not premeditated, you did not set up, and it occurred in the course of a lot of alcohol use. Harold described you as being "smashed."

14On the other hand, it is a situation where there is a very large age difference, which you were clearly aware of.  There were two boys there, and you were in a position of relative trust, and all those matters have to be taken into account.  It is not a situation of a predator luring, or enticing, or grooming, or anything like that.  It is a situation of drunken 57-year-old woman in a situation such as this, doing something that she, that is, you, knew was very wrong, but went ahead and did it.  

15It is the sort of offending that, in the normal course of events, calls for immediate custodial sentence.  And obviously, the statistics can be misinterpreted in any way you like, but on the statistics, about half the people convicted in this court of that offence get an immediate jail term.  Tendered were victim impact statements on behalf of the two boys, and also the members of the family, and I take the admissible parts of those victim impact statements into account.  

16Offending such as this causes great anger, and becomes known through the community.  I do not think, in your situation, the aspect of public protection plays a great role in it, but general deterrence clearly is very significant.  For you, I think, after this experience, specific deterrents probably are not that necessary.  It clearly calls for denunciation, because of the nature of the conduct, and the real question here is, what is the appropriate punishment?

17It is a situation where the Crown say that an active jail sentence should be imposed, and your counsel argues that it is a situation where, on the basis of Boulton, basically, that it is one when one looks at the Sentencing Act, or the circumstances of a community corrections order, albeit one of real significance, would be sufficient punishment and within range in all the circumstances. That is really what this plea and sentencing process is about.

18Accordingly, I turn to matters personal to you.  As I said, you are now 57, with no priors, and nothing pending.  Tendered on your behalf were a large number of references, all of which speak highly of you.  It is clear, and I do not think I need to go into great detail, of all this that you have had a pretty difficult life.  You do have a very long and good work ethic.  You have had a series of unfortunate relationships, and at least 12 months prior to this, you were in a very poor state, where you were, or certainly had, significant suicidal ideation.

19I do not know what the state of your drinking is these days, but clearly you had ongoing and very significant alcohol problem.  You have been on medications, and you were in circumstances - and I do not like to say something like this to somebody, directly, but this is not what I would describe as predatory offending, it is really pathetic offending, but the consequences of it are very significant, and others cannot be allowed to do the same.

20You do have strong family support, you are currently in a relationship of two or three years' duration, which has been of real significance to you, and the reference on your part from Sarah Willow[4] has outlined that very clearly, and very helpfully.  She talks about you and your relationships with others, the relationship that you are in now has been very stable for you, and assisted you a great deal.

[4] A pseudonym

21One of the consequences of this conviction is that you have been forced to give up volunteering and working at schools, where you used to be a "buddy" for kids with issues.  You are in circumstances where that, obviously, will now be not possible.  You do not have a, nor will be able to get a working with children certificate, and the consequences of that for you are great.

22I am well aware of the matters contained in Boulton, relating to situations such as this, and I had you assessed for a community corrections order in any event of what the ultimate disposition was going to be.  The prospects of your rehabilitation should be good, I think, bearing in mind specific deterrents, the risk of you reoffending should be very slight.  So it comes down to, in this situation, what is the appropriate punishment.

23I have given, say, very anxious consideration to all this.  At the end of the day, bearing in mind your personal circumstances, and the circumstances under which this occurred, and bearing in mind that I do not regard it as predatory, and I do regard it as situational, albeit very wrong, I have decided that a community corrections order, albeit one of real significance is sufficient for the sentencing purposes.

24The community corrections order, if you agree, will be with conviction, which is a punishment in itself.  The conditions will be those bought as suggested by corrections, which are contained within the report.  And treatment and rehabilitation for alcohol, treatment and rehabilitation for mental health, treatment and rehabilitation for programs to reduce reoffending.  It may well be that that will incorporate the direction that you do the sex offenders program, which is a very onerous one, and is a very significant punishment in itself.

25The other aspect of it, which has to be significant as well, is the community work.  You are able to work, there is a wide range of areas where that can occur, and I am going to order that you work - do community work of 300 hours.  The order will be over a period of four years.  In these situations, I often order that the time spent on programs be counted as community work.  In this situation I am not going to.  I think the community work should stand by itself.

26It was put to me by your counsel, and I accept that in a community such as Bairnsdale, doing that community work, the public being aware of why you are doing it will be a humiliation for you. I have no doubt it will be an ongoing humiliation for a long period of time.  You are responsible for that occurring, and I am sure you are now fully aware of that.  All right, so it is four years, 300 hours, the conditions that are recommended, and with condition if you agree.  Have you looked at the agreement?

27ASSOCIATE:  (Indistinct words.)

28HIS HONOUR:  Yes, sign that.  Hang on, do that.  I sign that.  All right, sign that as you are prepared to.  You will also now be given the sex offenders registration documents.  If you would not mind going with my associate to the dock, please, Mr Morgan, while this is done.

29(Indistinct words.)  Just stand up for me, for a moment, if you would.  Stand up, please, in front of - this is a situation where it is obvious that the boys, certainly at the time, were willing participants, and there was no suggestion of threats or anything like that from you.  What I want to make to you, very, very clear, is this:  one of the reasons that I have made the order for four years is that you will remain subject to this charge for that period of time.

30And I make it really clear to you, that were something like this to happen again, you would be incarcerated for multiple years.  I just want you to fully understand that.  If I have retired by then, this will be on transcript, and I'm sure another judge will do it.  This is one chance, and one chance only, for what has occurred here.  And I say this, in terms of the offending, had there not been a plea of guilty, I would have gaoled you.  And I would have, as best I can work out, s.6AAA, given you two years' imprisonment with a one year minimum.

31MR CORDY:  It if pleases.

32HIS HONOUR:  So you understand the benefit of having shown some sense and acknowledged all of this.  Right, there is no other orders I have to make, gentlemen.  I'll sign the - I don't think I've got the 464, I'll sign that and give it to counsel.

33MR MORGAN:  As Your Honour pleases.

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