Director of Public Prosecutions v Clay
[2013] VCC 501
•17 April 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-01163
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PHILLIP VIVIAN CLAY AKA MR COCK |
---
JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 17 April 2013 | |
CASE MAY BE CITED AS: | DPP v. Clay | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 501 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Lew | |
| For the Accused | Mr R. Kelly |
HER HONOUR:
1 Phillip Vivian Clay, you have pleaded guilty to three charges of committing an indecent act with a child under 16. The facts underlying your offending are as follows.
2 The offending took place between 1 January and 13 December 2011 and the victim, Vy, was a little boy aged seven. Vy's mother met you through your daughter, with whom she lived for several months after moving with her four children from interstate to Victoria. She was aware you had molested your daughter when she was a child, but was convinced by others you had since changed, and allowed her children to stay with you on occasion, noting that Vy became your favourite. He often stayed with you on weekends, about nine times, according to his mother. She said you were over at her house nearly every day and Vy "loved" going to your house and always wanted to go there. Apparently Vy was to be tested for what appeared to be a slight autism.
3 On 14 December 2011, police and DHS workers went to Vy's primary school, where Vy told you he let you touch his "winky", Vy's name for his penis, because he loved you. In a recorded statement, he said you sometimes drove him to a place by the side of the road, known as the pee-ing place, Vy saying that while there you liked to feel his penis and he liked to feel your penis. He said he always let you feel his penis, or winky, because you liked doing things with it and he demonstrated to police how he felt your penis and how you touched his.
4 Charge 1 relates to those incidents where Vy felt your penis.
5 Charge 2 relates to incidents where you touched his penis. He said he had not told anyone else about it because you told him it was a secret whenever these acts occurred.
6 Charge 3 relates to an incident at the “pee-ing place”, where you put your penis near Vy's bottom as he knelt on the ground, but did not touch his skin.
7 In a record of interview with police, on 14 December 2011, you agreed there was a place where you took Vy to urinate and said you stopped there with him about four times, but otherwise denied the offences.
8 I now turn to your personal circumstances. You are 56 years old, one of two children born to your parents. Your father was a bank manager. You told psychologist, David Ball, whose report dated 22 March 2013 was tendered on the plea, that from about the age of eight your father sexually abused you. You attended a private college to Year 8, undertaking special learning classes, it now being apparent you have intellectual functioning difficulties. You lagged behind in literacy and numeracy skills compared to other students your age. On leaving school you had several short term casual unskilled jobs and left home at age 18 to share a flat with a friend.
9 You married in 1978, producing three children, now aged 32, 29 and 28. The marriage ended in 1997 after you were sentenced to imprisonment on five charges of gross indecency relating to your daughter when she was eight; a charge of gross indecency committed with a boy under 16; a charge of incest committed with your daughter when she was about 12; a charge of committing an indecent act in the presence of two boys, aged under 16; a charge of indecent act committed with your daughter when she was 14.
10 The charges of gross indecency mainly comprised you rubbing your penis between your daughter's legs. The charge of gross indecency with a boy under 16 occurred on a camping trip, where you rubbed your penis against the victim's bottom while both of you were clothed. The charge of incest in relation to your daughter involved penile penetration. The charges of indecent act with two boys under 16 related to two friends of you son, aged ten and 11, in front of whom you masturbated. Charge 9 related to an act of simulated intercourse with your daughter in the shower.
11 On the plea I was provided with a Court of Appeal judgment in relation to the sentence you received for that offending, for which you ultimately received a total effective sentence of four years and ten months with a non parole period of three years.
12 On leaving prison, you returned to live with your parents for a few months, then with your brother-in-law, then moved to country Victoria where you rented a flat with your son. In 2003, your father bought you a house in that country area where you still live. Your father died in 2004 and your mother in 2008 and you have inherited $1.2 million from their estate. You continue to live in the house that your father bought you.
13 You met your current partner in 2006. She lives with you in your home and you described her to Mr Ball as the love of your life. You have a number of medical difficulties. You were diagnosed with Type 1 diabetes at age 11 and have a history of poor eyesight. You take insulin for your diabetes three times a day. You have suffered from kidney trouble since the early 2000's, commencing regular dialysis for renal failure in 2005 and, finally, undergoing a kidney transplant in 2010. You suffer from high blood pressure.
14 Your general practitioner of ten years, Dr Nado, in reports to the court, dated October 2012, listed the medical ailments from which you suffer. You have a shunt in your right arm, which was used to obtain easy access to your vascular system when you were on dialysis. This has apparently been left in place in case your new kidney fails and you require dialysis in the future. Apparently an injury to the shunt could result in a catastrophic haemorrhage. You have regular appointments with your renal physician and transplant team, take a variety of drugs to prevent rejection of this transplanted kidney which also reduces your immune system. You take an antidepressant for depression, which appears to have arisen in relation to your arrest for this offending.
15 Importantly, psychological testing by Mr Ball revealed a very low functioning level. You were assessed as having a full IQ of 70, which you places you on the borderline range of intellectual functioning and indeed, I note that to be a client of Intellectual Disability Services a person must have an IQ of 71 or under. Mr Ball had previously assessed you in the 1990's, when you were facing charges in relation to the abuse matters I have outlined, and he found that there has been a deterioration of nine percentile levels and 11 full scale IQ points since he tested you in 1995. You demonstrated very little insight into your offending, tending, Mr Ball said, to justify your actions in the context of caring for a child. Psychological testing by Mr Ball placed you in the moderate risk category for sexual re-offending. He said the features which could increase your risk of recidivism were your intellectual impairment, your limited social interaction, lack of insight and personality function. You have retained the support of your partner.
16 It was Mr Ball's view that the main protective factors that should be applied to you were the sex offender treatment program and supervision and monitoring in the community. He stated: "He would greatly benefit from developing an understanding that he is not to assume the caring role of any child, irrespective of real or imagined neglect." I interpolate here that you believed Vy was starving and neglected at the time you had dealings with him.
17 The offending, although serious, is of less gravity than that for which you were sentenced in 1995. Certainly there was a breach of trust. My concern is that you are subjected to a sex offender treatment program, which I am not satisfied would occur in a prison environment, unless I sentenced you to a term of 18 to 24 months, which in my view in all the circumstances, particularly given your lack of intellectual functioning, would be an inappropriate response in this case. Any sentence of imprisonment would also have to be modified, in my view, by considerations of your ill health, that is your renal failure, the dangers attached to this illness, potential catastrophic injury to the shunt, the drugs you must take in relation to your kidney transplant which results in a lowering of your immune system and so forth.
18 There has been no further offending by you. You continue to live in your home. You lead a fairly isolated life, particularly now that the circumstances of your offending have become known in the wider community. In my view the community is best protected by you attending the sex offenders program which can be most easily effected by the imposition of a community corrections order with appropriate conditions attached. The sex offender's program also has a component whereby partners can be advised and educated in the most effective ways of ensuring such abuse does not occur in the future.
19 Mr Ball's opinion is that you satisfy the diagnostic criteria for paedophilia.
20 I have had you assessed for suitability for a community corrections order. You have been assessed as suitable for the order.
21 I should note here that I have had access to a victim impact statement, both from Vy and his mother. Vy, himself, is very concerned that he no longer has contact with you and feels betrayed by what you did. His mother obviously is enormously distressed at what occurred and, like many parents of a sexually abused child, now finds the world an unsafe place. She is hyper vigilant with her child and very reluctant to allow him to be cared for by anyone but herself. It is expected that these very drastic effects on both your victim and his mother's wellbeing will continue into the foreseeable future.
22 In sentencing you as I have, that is I have had you assessed for suitability for a community corrections order and you have been assessed as suitable, I am in no way trivialising the gravity of what you did. Sexual abuse of children is an appalling crime, no matter the circumstances. I accept that in your case the problems of your intellectual functioning have a large role to play, both in what you did and in your poor insight into your behaviour. Nevertheless, I am making it very clear that the factors personal to you, both intellectual and physical, are the main reasons why you are being placed on a community corrections order as well as the overriding need for you to attend a sex offender's program. The fact that you are not to receive gaol, as is overwhelmingly the case for persons who offend as you have, is not to be taken as any indication by this court that your offending was other than very serious and aggravated by the fact that this child had developed a loving relationship with you, which you exploited, and was particularly young, that is under ten.
23 One of the recommendations of the assessing Community Corrections Officer was that I have you assessed for eligibility for assistance by Intellectual Disability Services and certainly the IQ testing reveals that you would be eligible to be a client of this service. This is not, however, in my view, necessary. You have the support of your partner, you have your own home, you appear to be functioning adequately and I have some doubts, in any event, that you would be accepted by IDS who, in my experience, look not only at the IQ quotient, but also have regard to the living and functioning circumstances of a particular person. I do not believe that a justice plan would be of any particular assistance to you as they are mostly directed towards assisting a person with accommodation and day to day functioning. I therefore propose to place you on a community corrections order.
24 On each of the charges, you are sentenced to be placed on a community corrections order for a period of 24 months.
25 There are core conditions which attach to any community corrections order and I will explain them to you, because I cannot place you on such an order unless you agree to it. Do you understand that, Mr Clay?
26 The conditions are that you must report to a Community Corrections Centre within two working days of being placed on this order, that is by Thursday. You must report to and receive visits from the Community Corrections Office. You must not, while you are on this order, commit any offence punishable by imprisonment. What that means, Mr Clay, is if you get into any trouble, criminal trouble and particularly with children, you will be brought back before me on a breach and I will re-sentence you. I will sentence you again on these charges and I make it very clear, if you do anything in the next 24 months I will put you in gaol. Do you understand?
27 OFFENDER: I understand.
28 HER HONOUR: You may not leave Victoria without the permission of the Community Corrections Office. You must inform the Community Corrections Centre of any change of address or employment within 48 hours of that change. You must obey all lawful directions of the Community Corrections Office. I am going to order that as special conditions there be supervision. I am going to order judicial monitoring, that is I want a report from the Community Corrections every three months. That means I will be keeping a track of how you are going, Mr Clay, all right?
29 OFFENDER: I understand.
30 HER HONOUR: I also order that you undergo assessment and treatment for - I want you placed on the sex offender's program. We will just prepare the documentation.
31 Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of 12 months.
32 MR LEW: Your Honour, the Sex Offenders Registration Act?
33 HER HONOUR: Yes. You are to be placed on the Sex Offenders Registration for?
34 MR LEW: Your Honour, life. It is a three class, two offences.
35 HER HONOUR: For life.
36 MR KELLY: Yes, Your Honour.
37 HER HONOUR: Your counsel will explain to you your obligations under the Sex Offender's Program. You really need to keep away from children,
Mr Clay. I mean I am satisfied you do not quite get what you do, all right, but it is very wrong, it has a terrible effect on children and it is going to have a terrible effect on you, but I am satisfied that with this sort of structure you are unlikely to re-offend. I do note that it was a period of something like 16 years between the two incidents of offending.
38 MR KELLY: Yes, Your Honour.
39 HER HONOUR: Yes, thank you. We will just wait until the community corrections documentation is prepared. Thank you very much. I will just bet you to sign that. Do you agree to being placed on the order, Mr Clay?
40 OFFENDER: Yes, I agree.
41 HER HONOUR: Thank you very much. Yes, thank you, is that all I need to do?
42 MR LEW: Yes, Your Honour.
43 MR KELLY: Yes, Your Honour. Thank you, Your Honour.
44 HER HONOUR: Very well, I will stand down.
45 (Community corrections order signed and acknowledged.)
46 (Sex Offenders Registration signed and acknowledged.)
- - -
0
0
0