Director of Public Prosecutions v Clay
[2015] VCC 1178
•28 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| ERNEST CLAY |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 August 2015 |
| DATE OF SENTENCE: | 28 August 2015 |
| CASE MAY BE CITED AS: | DPP v Clay |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1178 |
REASONS FOR SENTENCE
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Catchwords: Plea of guilty to 15 charges of indecent assault on a male under 16 and 2 charges of buggery - 7 complainants aged between 9 and 15 years – most charges representative - offences occurred between 1974 and 1981 - offender aged between 32 and 37 at the time – now aged 73 – all boys were subject to grooming – serious life-long effects on complainants – similar prior criminal history and serious subsequent convictions for similar offending – offender prescribed anti-libidinal medication twenty years ago and no offending since – remorse – delay - poor health – fear of dying in prison – effectively rehabilitated – current sentencing practices - totality -
Legislation Cited: Sentencing Act 1991 – Sex Offenders Registration Act 2004
Cases Cited:Stalio v R [2012] VSCA 120
Sentence: 6 years and six months’ imprisonment, with a non-parole period of three years.
NOTE: Pseudonyms have been used to protect the identity of the complainants.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Albert | OPP |
| For the Offender | Mr J. Anderson | Doogue O’Brien George |
HER HONOUR:
1Ernest John Clay, you have pleaded guilty to 15 charges of indecent assault upon a male and two charges of buggery. You committed the offences between 1974 and 1981 upon seven boys aged between nine and 15 years. You were aged between 32 and 39 years at the time and you are now 73.
2You lived in a small country town and frequented a local shop which included a pinball and pool parlour, a favoured meeting place for boys in the area. You were friends with some of the boys' parents. You befriended these boys and gained their trust, giving them cigarettes and money to spend on the pinball machines. By these means, you lured them to your flat, where most of the offending occurred.
3It is necessary to provide a brief summary of the offences.
4Charges 1 to 4 involved Richard Carroll[1], who was aged between 13 and 15 at the relevant times. He was a troubled boy with a difficult home life and he felt able to talk to you about his problems because you were uncritical and non-judgmental.
[1] pseudonym
5Charge 1 is a representative charge of seven acts of touching the boy's penis in the context of masturbation; Charge 2 is a representative charge of three acts of sucking the boy's penis; Charge 3 is a representative charge of four acts of rubbing your penis between the boy's thighs and buttocks; and Charge 4 is a representative charge of five acts of buggery.
6The touching began in 1974 and the abuse escalated in seriousness over three years, culminating in partial and then full penetration when you praised him for enabling this to happen.
7Richard Carroll had a younger brother, Eric Jackson[2], who was aged between nine and ten at the time. He was friends with two other boys, Bryan Lott[3] and Daniel Watkins[4].
[2] pseudonym
[3] pseudonym
[4] pseudonym
8Charge 5 is a representative charge of two acts of touching Eric's penis, once when he was in a bath, and a second time in a car. On that occasion you got Eric to touch your penis as well.
9Eric Jackson made a statement to the police, which was video-recorded, as he suffers from schizophrenia and was reluctant to talk about details.
10Daniel Watkins was a boy aged ten and 11 at the time, whose parents were friends of yours. His father drank heavily and Daniel avoided staying home because of this. When Daniel came to your flat, you masturbated in front of him and encouraged him to masturbate, giving him money afterwards and buying him presents, including a skateboard and a bike.
11Charge 6 is a representative charge of four acts of touching his penis. Sometimes Bryan Lott would be there and you would masturbate both boys at the same time as well as yourself.
12Charge 7 is a representative charge of 12 acts of sucking Daniel Watkins's penis.
13Charge 8 is a charge of rubbing your penis between his thighs and buttocks before masturbating yourself to ejaculation. You also did this on other occasions, but only one can be particularised.
14Daniel Watkins described in his statement to the police the acts you committed upon Bryan Lott, a boy aged 11 and 12 at the relevant times, whose father was a friend of yours and you worked with his brother. Mr Lott made no complaint himself, but you voluntarily admitted in your record of interview that you abused him.
15In 2013, at the time when statements were taken from most of the other complainants, Mr Lott denied he had been abused at all. Early in 2015 he told police things did happen to him but it hurt him to talk about them and he did not wish to make a statement.
16Charge 9 is a representative charge of four acts of touching Bryan's penis by means of masturbation.
17Martin Madden[5] was aged 12 and 13 at the times when he would visit you with his friends. He described looking at pornographic magazines at your flat and when he and one of the other boys asked what was shown in a picture, you demonstrated masturbation to them, showing them how to do it.
[5] pseudonym
18Charge 10 is a representative charge of three acts of touching Martin's penis, when you also got him to masturbate you.
19Charge 11 is a representative charge of ten acts of sucking Martin's penis.
20Dennis Collins [6] was aged 12 to 13 at the relevant times, and he met you at the pinball parlour, where you gave him money for the machines. He began going to your flat to ask for money and there you would give him pornographic magazines to look at as well as cigarettes and money. You masturbated in front of him and showed him how to do it. You took him fishing on three occasions and masturbated him each time.
[6] pseudonym
21Charge 12 is a charge of touching Dennis Collins' penis in that context; and Charge 13 is a representative charge of 20 acts of sucking his penis involving mutual masturbation and oral sex.
22Charge 14 is a charge of buggery of a person under the age of 14, committed when you penetrated the boy's anus with your penis, causing him pain. He told you to stop and you did so.
23In 2004 Collins reported the matter to the police and made a statement but took the matter no further as he found it too difficult at that time. In 2008 he signed a statement and requested an investigation. He named boys who were abused by you, and consequently statements were made by the other complainants, yet others were found to have died or did not wish to make statements or could not be located.
24Andrew Watkins[7] was the younger brother of Daniel Watkins and was aged 11 to 12 at the time when he regularly went to your flat and you gave him money and cigarettes. He and his friends would smoke there and look at pornographic magazines. He found you understanding and supportive.
[7] pseudonym
25Charge 15 is a representative charge of six acts of touching Andrew's penis by means of masturbation, and Charge 16 is a charge of placing Andrew's hand on your penis, showing him how to masturbate.
26Charge 17 is a representative charge of three acts of sucking Andrew's penis in acts of mutual oral sex.
27Victim impact statements were provided by four of the complainants, each of them very sad to read. The Watkins’ brothers are engaged in counselling with a psychologist and have each been diagnosed with post-traumatic stress disorder.
28Mr Carroll has been seeing a sexual abuse counsellor, and although no formal diagnosis has been made, it is clear that, as is also the case for the Watkins’ brothers, the effects of the abuse have been very severe and they continue to dominate his life.
29Dr Whitehouse, the treating psychiatrist of Eric Jackson, has provided a report in which the onset of schizophrenia is described as having occurred at age 20 following adolescence marked by emotional turmoil and disrupted development. Dr Whitehouse considers that stressors from the abuse may have contributed to the development of schizophrenia.
30Mr Collins described in his victim impact statement similar effects of the abuse upon his life as those set out by the other complainants. They have all provided considerable detail about the harm they believe was caused to their ability to sustain stable relationships, to their opportunities for education and progression of their careers and fundamentally to their impaired level of happiness in general.
31Your early background is that you grew up in a small country town, one of seven children, in a family subjected to the abuse of an alcoholic father. He was a well digger and labourer and you later followed him into the same work, then worked as a potato and asparagus picker.
32You had left school at the age of 11 and have never become fully literate. You have been assessed as being of low intelligence, but you had always worked until your incarceration in 1995. Since your release after serving that sentence, you have been in receipt of the age pension.
33You have never had any problem with alcohol consumption, nor have you ever used illicit drugs. You have never suffered from any mental health problems other than the diagnosis of sexual deviance in the form of paedophilia and hebephilia. However, you disclosed in 1994 that you had been sexually abused as a child by a number of men, including one from whom you escaped, but for whom eventually you provided care in his old age. You went to live with him after your release from prison, when you had nowhere else to go.
34Early in life you knew you were homosexual and identified as a paedophile, but you were unable to control your sexual desire and had no means of seeking help. At a time when you were seeing the psychiatrist, Dr Hardiker, you asked him for antilibidinal drugs, but he prescribed antidepressant medication to address the depressive state in which, it was considered, you were inclined to offend against boys.
35
In 1995, you pleaded guilty in the County Court before His Honour Judge Stott to ten charges of committing an indecent act with a child under 16 and
30 charges of sexual penetration of a child. All those offences were committed after the present ones and therefore are not prior convictions. You were sentenced to ten years and eight months' imprisonment with a non-parole period of eight years which, on appeal, was reduced to seven years with a non-parole period of five and a half years.
36In 1994, before your plea hearing, Dr Walton prescribed Androcur, which successfully reduced your libido to zero, according to your report to him, and in preparation for your release in 2001, a psychiatrist from Forensicare managed your resumption of the drug, which you continued taking until 2005. By that time the drug's known side effects had caused osteoporosis and the drug was ceased. You have continued to be monitored for osteoporosis. However, you still report having no libido, and this, together with other factors, has reduced your risk of reoffending to a level of low to moderate, according to Mr Cummins, the psychologist who assessed you recently.
37Since your release you have not offended again and you have not experienced the paedophilic desires as previously. Upon your release, having served five and a half years as well as nine months of the parole period, you lived alone and employed strategies to avoid coming into contact with children. You remain estranged from your family and have had no contact with your siblings for over 20 years.
38Taking those matters into account, specific deterrence plays a reduced role in this sentence. It would seem that your rehabilitation has been largely achieved and that general deterrence and due punishment are sentencing objectives of greater significance.
39Your prior criminal history for similar offending is limited to previous convictions in 1970, when you were sentenced to 14 months in this court for five charges of indecent assault and placed on a good behaviour bond for two charges of buggery.
40In the years after you committed the offending for which I am sentencing you today, between 1984 and 1991 you committed further sexual offences for which you were variously placed on probation, a good behaviour bond or a suspended sentence of imprisonment.
41The gravity of the current offences is of a high level, tempered by the absence of force or threat. You groomed the boys knowing it was wrong and, having gained their trust, you maintained the abuse over long periods of time. Apart from your friendship with these vulnerable boys, your grooming methods included the use of pornography as well as payment of money and the giving of cigarettes and other gifts. The serious harm done to them is evident from their statements.
42The principle of general deterrence is of great significance in such cases. The crimes you committed are regarded in the community with abhorrence, and the need to protect children calls for a lengthy prison sentence.
43That said, there are a number of mitigating factors to be taken into account. The first is delay, although without criticism of the authorities who were faced with a complex investigation owing to the passage of time between the offending and the disclosures. You were interviewed in 2012 following the complaint by Mr Collins and you made admissions, knowing then and for the next three years that your eventual conviction and imprisonment was inevitable.
44In your initial interview, and when you were interviewed again two years later, you made admissions, not only to the matters put to you, but also to other offences, such as those involving Mr Lott, about which he had not made any complaint.
45Your state of health is a further matter to be taken into account. At the age of 73 you suffer from several conditions including ischaemic heart disease with regularly recurring angina, deafness, arthritis, osteoporosis and a tendency to kidney stones. All your ailments are capable of being treated adequately in prison, and it is not put otherwise, but in combination they will make your experience of imprisonment more burdensome than for a younger healthier person.
46In addition, you are burdened by the fear that you may not live long enough to complete your sentence and be released, and that prospect calls for some leniency in regard to both the head sentence and the non-parole period, but not to the extent that the sentence is inappropriately short.
47An additional factor is that you have no family support and few friends and you do not expect to have any visitors.
48Your early plea of guilty to these charges entitles you to some discount on your sentence because it has facilitated the system of criminal justice by avoiding the need for any trials. Importantly, it has saved the complainants from the ordeal of having to give evidence in court, and at least one witness would have had great difficulty in doing so.
49Many of your admissions carry the value of having been made voluntarily in the absence of any actual complaint. I accept your plea as an indication of remorse, which you have also expressed to others.
50The offences are similar in character to those heard by His Honour Judge Stott in 1994, and the cause of paedophilia is the same. Considerable concurrency is warranted by this circumstance and in order to avoid the sentence being a crushing one as well. Nor is a disproportionate sentence sought by the prosecution under s.6D of the Sentencing Act, but you are sentenced as a serious sexual offender by the provisions of that Act, and I shall cause that to be noted on the court record.
51You stand to be sentenced according to current sentencing practices, but taking into account the maximum penalties which applied at the time, these are as follows.
52For the charges of indecent assault, the maximum penalty was ten years' imprisonment, increased from five years because of previous convictions for the same offence.
53In relation to Charge 4, the maximum penalty for buggery was then 15 years. It is now ten years for the crime of sexual penetration of a child.
54In relation to Charge 14, the maximum penalty for buggery with a person under the age of 14 was 20 years. It is now ten years for the crime of sexual penetration of a child.
55The meaning of current sentencing practices was considered at length by the Court of Appeal in Stalio v R. It was there held that the term referred to sentencing practices at the time of sentencing.
56In your case, guidance is provided by the sentences imposed in the County Court in 1995 and on appeal. At the same time I must consider the mitigating factors, including the passage of time, insofar as you are now an elderly man in poor health and your rehabilitation has been effective, although there remains some risk of reoffending.
57A further significant element is that of totality. If these matters had been disclosed before 1994, they could have been dealt with by the County Court at the time of the charges for which you were sentenced at that time and it would likely have resulted in a longer sentence but with considerable concurrency.
58I must take into account that hypothetical scenario and allow a considerable reduction in what otherwise would have been a much longer sentence. Another way of putting it is that this is a factor which compels leniency which would not otherwise apply. I must also avoid the sentence being a crushing one in view of your age and circumstances. I note also that if these matters had been dealt with earlier, some closure might have been achieved for the complainants at a much earlier time in their lives.
59Would you stand now, please, Mr Clay.
60Taking all these matters into account, I sentence you to the following terms of imprisonment.
61For each of Charges 1, 3, 5, 6, 9, 10, 11 and 15, two years.
62For each of Charges 2, 7, 13 and 17, two years and six months.
63For each of Charges 8, 12 and 16, 12 months.
64For each of Charges 4 and 14, five years.
65The sentence for Charge 4 will be the base sentence for the purposes of cumulation.
66Three months of the sentence for Charge 14 and one month of the sentences for each of the other charges are to be served in cumulation upon the base sentence. This results in a total effective sentence of six years and six months.
67Taking into account the mitigating circumstances, I order that you serve a minimum period of three years before being eligible for parole.
68If you had pleaded not guilty to these charges, I would have sentenced you to eight years' imprisonment with a non-parole period of four years and six months.
69Under the provisions of the Sex Offender Registration Act, you must provide your details to the police every year for the rest of your life after your release from prison.
70You have been in detention for 24 days not including today, and I declare that time to be reckoned as already served, and I shall cause that to be noted on the court record.
71Are there any other matters, Mr Albert?
72HER HONOUR: My associate will approach Mr Clay now for the Sex Offender Registration form for him to sign. Mr Anderson, do you want to accompany him?
73MR ANDERSON: Yes, thank you, Your Honour.
74HER HONOUR: All right. Mr Albert and Mr Anderson, the practice of applying pseudonyms to the names of the complainants will be made, I will put that into place shortly.
75I understand there is some media interest in having a copy of the sentence, so as soon as those pseudonyms are put in place, it will be made available.
76MR ANDERSON: As Your Honour pleases.
77MR ALBERT: As Your Honour pleases.
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