Director of Public Prosecutions v Clinton Osborne
[2017] VCC 1013
•20 July 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01902
CR-17-00276
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLINTON OSBORNE |
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JUDGE: | HIS HONOUR JUDGE SMITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 May 2017 | |
DATE OF SENTENCE: | 20 July 2017 | |
CASE MAY BE CITED AS: | DPP v Clinton Osborne | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1013 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Sentence – sexual penetration of a child under the age of 16 – false imprisonment – serious sexual offender – Verdins principles - sex offenders’ registration
Legislation Cited: Crimes Act 1958 (Vic) – Sentencing Act 1991 (Vic) – Sex Offenders Registration Act 2004 (Vic)
Cases Cited:R v Verdins [2007] VSCA 102 – DPP v O’Neill [2015] VSCA 325 – Clarkson v R [2011] VSCA 157 – DPP v Dalgliesh (A Pseudonym) [2016] VSCA 148 – Griffin v R [2011] VSCA 304 – Ashley v R [2016] VSCA 246 – R v Khem [2008] VSCA 136
Sentence: 3 years and 9 months imprisonment with a non-parole period of 2 years and 6 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr S. Schembri | Victoria Legal Aid |
HIS HONOUR:
1 Clinton Osborne, you have been found guilty by a jury of two counts of sexual penetration of a child under the age of 16, contrary to s.45(1) of the Crimes Act 1958 (Vic). I will refer to those offences as “the 2008 offences”. You were convicted by a second jury in a separate trial of one count of false imprisonment contrary to the common law, which I shall refer to as “the 2012 offence”.
2 The circumstances of your offending can be summarised as follows.
The 2008 Offences
3 In 2008, and also in 2012, you were the owner and operator of a tattoo and body piercing business located in Maude Street, Shepparton, which I will refer to simply as “the shop”. You lived at the rear of the premises.
4 The complainant in relation to the 2008 offences, who I will refer to as the “first complainant”, was born on 15 February 1992. She was aged 15 at the time of your offending. You were aged 38 or 39 at the time. You had known her for about two years. She and other school friends, including her sister, had been regular visitors to your shop after school. You encouraged them to visit. You knew where she lived and knew her mobile phone number.
5 On the evening of 12 February 2008, you rang her on her mobile telephone and told her you were going to visit her. Shortly after, you arrived at her home where you stayed for a period of time before driving her to the shop.
6 Upon arriving there, you played music and, over a period of time, gave her five or six cans of Jim Beam and coke, which she consumed. You did not consume any alcohol. No one else was present.
7 Later, with her consent, you pierced her chin as she sat on the piercing chair in the studio. After the piercing was completed, you asked her what she was going to do in return for the piercing. She asked if you were serious. You replied by saying that, “Friends do that for each other”. She told you that she was not going to do anything, to which you replied, “Friends do this stuff all the time”. As a result, she became uncomfortable and moved from the piercing chair to a couch near the door.
8 You then asked her for a “head job”, meaning oral sex, to which she replied, “No”. You persisted by repeating that, “Friends do this stuff all the time” and that you would not tell anyone and no one would ever know.
9 You sat beside her on the couch. You put your hand on her right thigh and told her to be a “good girl”.
10 You undid your pants, exposed your penis and began to rub her neck. With your hand on her neck, you pushed her head down and inserted your erect penis into her mouth. You pushed her head down onto your penis until you ejaculated.
11 After, she stood up and went to the bathroom to wash out her mouth. She returned to the couch. Later that evening, you pushed her backwards by the shoulders, pulled her legs forward and slid down her pants and underwear. You lifted her legs up towards her head and inserted your penis into her vagina. During intercourse, you held her down by the shoulders. You also pulled her top and bra down and touched her breasts with your hand. She repeatedly said, "No."
12 Later, you drove her home. Whilst in the car out the front of her house, you kissed her and tried to insert your tongue in her mouth.
13 The touching of her breasts and the kissing of her outside her house were not charged offences in this proceeding. The oral and vaginal penetration of her constituting the two offences of sexual penetration of a child aged between 10 and 16 - the 2008 offences.
The 2012 Offence
14 In relation to the 2012 offence, on 19 September 2012, you were working at the shop when the complainant with regard to the 2012 offence, who I shall simply refer to as the “second complainant”, entered the shop. She requested a piercing from you on the underside of her tongue. The piercing took place on a chair behind two display cabinets in your studio. There was a gap of about half a metre between the two display cabinets behind which the chair was situated.
15 After the piercing was completed, the second complainant stood up with the intention of walking through the gap and past the cabinets. You also stood up and moving faster than her, positioned yourself in the gap between the display cabinets. Your positioning blocked her from exiting.
16 You asked her for her mobile phone number. She gave you a false number, which you proceeded to call. When her phone did not ring, you realised that she had given you a false or a wrong number. You became angry. She tried to get past you but you blocked her path by pushing your arms against her. This caused her to become scared.
17 OFFENDER: If I can interrupt. That wasn’t said in court. I have to interrupt.
18 HIS HONOUR: Yes, just be quiet.
19 Eventually, she gave you her correct number, reciting the number quickly. You were unable to copy the number down in your phone and said to her “That’s not your real number." You argued with her as to whether or not it was her real number. She eventually produced a business card and placed it on one of the display cabinets. She again tried to leave through the gap but you blocked her path. You rang the phone number on the business card and her phone did ring on that occasion.
20 You asked her to stay and made her promise that she would call you. When she finally said yes, you stepped aside from the gap and allowed her to pass.
21 This conduct constituted the 2012 offence of false imprisonment.
Background
22 By way of background, you are currently aged 48. You have lived most of your life in the Shepparton area.
23 You completed Year 12 at Shepparton North Technical School. After leaving school you trained and worked as a welder, working for an engineering company for about six years before commencing your own business. You have reported that that business failed after you received defamatory publicity in about 1998 when you were wrongly identified on a local TV report as having been suspected as being involved in the kidnapping and rape of a local girl.
24 You established a tattoo and piercing business in Shepparton prior to 2008, which you were operating at the time of these offences.
25 You have been admitted to the Thomas Embling Hospital on two occasions, involving a total of 12 months between 2005 and 2007. You were treated for paranoid psychosis relating to delusional beliefs. You were prescribed various anti-psychotic medications including Clozapine. Soon after your release, you ceased all medication and you have denied receiving any psychiatric treatment since.
26 Your counsel advised me that you have been in a relationship with a woman for some years now, but that you do not live with her. You have no children.
Purpose of Sentencing
27 The purposes for which a court may impose a sentence in respect of an offence include the denunciation of the offending conduct, to deter the offender and others in the community from committing such offences in the future, and the protection of the community.
28 I am required to have regard to a number of matters, including the seriousness of your offences, your culpability for them, your personal circumstances, whether or not you pleaded guilty to the offences, any remorse shown by you for your offending, and whether you have any relevant prior convictions. I have taken into account each of the matters set out in s.5(2) of the
Sentencing Act 1991 (Vic).
29 The maximum penalty prescribed for sexual penetration of a child between the age of 10 years and 16 is ten years imprisonment.
30 The maximum penalty for the offence of false imprisonment is ten years imprisonment.
31 In each case, the girls involved were much younger than you, especially the first complainant.
32 I consider that the offences for which you are before the court are serious ones and that your culpability for them is high.
33 With regard to the 2008 offences, there is no issue regarding consent. It is irrelevant. A complainant under the age of 16 is considered at law as being too young to give any meaningful consent to oral or vaginal penetration.
Prior Convictions
34 You have a number of prior convictions.
· In November 1990, you were convicted of recklessly causing injury and criminal damage.
· In September 1996, you were convicted of two counts of sexual penetration of a child aged between 10 and 16. You were sentenced in respect of both counts to six months imprisonment, four months of which were ordered to be concurrent, wholly suspended for two years.
· In December 2002, following an appeal against an earlier imposed sentence, you were convicted of two counts of recklessly causing injury, sentenced to nine months imprisonment on each, six months of which was concurrent, with a non-parole period of six months.
· In September 2009, you were convicted of behaving in an offensive manner in a public place and fined $750.
35 The fact that you have prior convictions for sexually penetrating a young child is significant. Although you would have been younger, about 26 at the time of that earlier offence, you must have been well aware in 2008 that penetration of a girl aged less than 16 was illegal and a serious offence.
36 Further, I note, at the plea hearing, I was provided with a decision of the
Court of Appeal in the appeal against conviction and sentence brought by you in 2002, to which I have previously referred. In the judgment of
Chernov JA, details were set out concerning the charges that you faced in 2000. Those included three counts of taking part in acts of penile penetration of a child aged between 10 and 16 years. The judgment makes clear that you were acquitted by direction of those charges.
37 The reason I refer to this is not to suggest that you were guilty of those offences but merely that it must have been very clear to you, acutely clear to you, that it was an offence to sexually penetrate a child under the age of 16. Not only had you been convicted of an offence of that nature in1996, but you had faced other charges of the same offence in 2000.
38 In 2008, you would have been acutely aware of the law as regards penetration of a child of that age.
39 I consider that your culpability for these offences is high.
Mitigating Factors
40 Your counsel submitted the following matters went in mitigation of your sentence.
41 Firstly, the fact that your business had been forced to close on account of your incarceration. I accept that.
42 Secondly, that prior to 2008, your most recent offending behaviour had been in 2005. I accept that.
43 Further, your counsel submitted that your mental health condition is such as to warrant consideration and application of principles enunciated by the Court of Appeal in the matter of Verdins[1]. I am in receipt of a report from Forensicare dated 18 July 2017 in which the author, a psychiatrist, Dr Carolyn Simms, reported your history of a paranoid psychotic illness.
[1] R v Verdins [2007] VSCA 102
44 Dr Simms reported that you had described a complex delusional system, which focused on a conspiracy alleged against you to have you convicted and to ruin your business. You told Dr Simms that this was a conspiracy involving a chemical company, local police, the first and second complainants and their families.
45 Dr Simms interviewed you on 30 June 2017. She found:
· no evidence to suggest that your mental illness contributed to your offending on these occasions;
· that, should you receive a custodial sentence, your mental state may deteriorate and that you may require assertive treatment;
· that you have a number of risk factors for sexual offending and a risk of future violence; and
· that, on your release into the community, you would benefit from further assessment and, if required, treatment for your psychotic illness.
46 There was no suggestion that any given sentence in prison would weigh more heavily on you than a person in normal health. I note that you have been in custody for nearly five months. You reported to Dr Simms that you were currently not experiencing any psychological stress, that your mood was good, and that you were eating and sleeping well.
47 There is no evidence that either of the complainants or their families are part of any conspiracy against you, and your allegation to Dr Simms that they were does not reflect well upon you. Likewise, there is no evidence before me of any involvement by the chemical company or local police in any such conspiracy.
48 I do not consider that the principles of Verdins have application here. I consider that your mental illness, as identified by Dr Simms, is not relevant to your offending behaviour. I accept that it may explain some of your behaviour during your trial and since in attempting to explain your convictions by alleging a conspiracy against you by others.
49 One matter that I am required to take into account in determining your sentence is whether you have demonstrated any remorse for your offending. Your plea of not guilty and your vigorous denials of offending indicates that you have no remorse for any of the offences. You instructed your counsel that you do not accept any of the jury verdicts.
50 Further, I note that although you were initially arrested in respect of the 2008 offences in July of that year, police did not proceed with the investigation further at that time. The investigation was recommenced by police in 2012.
51 You were arrested in January 2013.
52 Your counsel submitted, and I accept, that:
· the decision to proceed with the charges at least 4 years after the event, and
· that the proceedings were not finalised for some 9 years afterwards
amounts to a significant delay.
You have had these matters, especially the 2008 allegations, hanging over your head for a considerable time, and I accept that this should be reflected in a discount of your sentence.
Victim Impact Statements
53 Victim impact statements from the first and second complainants and their parents were tendered. I note the distress and long term trauma your offending has had on them.
Sentence
54 Taking all of the evidence into account, I am satisfied that the purposes for which these sentences are to be imposed cannot be achieved by a sentence that does not involve your incarceration immediately. Your counsel conceded this.
55 I make specific reference to a number of decisions or authorities that counsel have referred me to, particularly in relation to the Verdins principles, and they were the matters of Clarkson v The Queen[2], DPP v Dalgliesh[3], Griffin v The Queen[4], Ashley v The Queen[5], The Queen v Kym[6] together with the decision of DPP v O'Neill[7], which deal with the application of Verdins principles and the matters that would have to be found. In particular, I note the matters set out by the Court of Appeal in paragraphs [70] to [83] of O’Neill.
[2] [2011] VSCA 157
[3] [2016] VSCA 148
[4] [2011] VSCA 304
[5] [2016] VSCA 246
[6] [2008] VSCA 136
[7] [2015] VSCA 325
56 I consider that there is no evidence here that your mental illness or mental condition reduced your capacity for judgment or understanding or your ability to control behaviour which therefore could be said to have reduced your moral blameworthiness in your offending.
57 I consider that there was no evidence that your impairments would make prison more onerous for you.
58 I consider that there was no evidence before me to indicate that your mental condition was a cause of or had led to your offending behaviour.
59 I take all the comments of the Court of Appeal into account in determining your sentence.
60 Further, I note that you are to be sentenced as a “serious sexual offender” as that term is defined in s.6B of the Sentencing Act 1991 (Vic).
61 Accordingly, by reason of s.6D of that Act, in determining the length of your sentence, I must regard the protection of the community from you as the principal purpose for which the sentence is to be imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
62 Here however, the prosecutor has, in her written submissions, indicated that a disproportionate sentence is not sought in relation to you. I have determined that the sentence imposed on you should not be a disproportionate one.
63 Further, by reason of s.6E of the Act, every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively on any sentence imposed on you.
64 With regard to the two 2008 offences, I note that these occurred at the same premises, within a narrow period of time, involved oral and soon after vaginal penetration, and involved the same complainant. Having regard to the provisions of s.9 of the Sentencing Act 1991 (Vic), I consider that it is appropriate to impose an aggregate sentence in respect of those two offences.
65 On the two counts of sexual penetration of a child under the age of 16, you are convicted and sentenced, on an aggregate basis, to a term of imprisonment of three years.
66 On the count of false imprisonment, I accept that the conduct constituting that offence is not as serious as some examples of that offence. That is not to say that it is not a serious offence. Here however, there was no frank violence involved; the second complainant was not taken away anywhere; she wasn’t locked up by you; and she was detained for only a relatively short period of time.
67 Nevertheless, I have no doubt that the experience of her exit from the shop being blocked by you would have been a very frightening event for her. I accept that there was no one else in the shop at the time, and that she could not have been seen from the street. You are a large man - a powerful man. Much larger and stronger than her. She was at a very considerable physical disadvantage. She was effectively forced to disclose her phone number to you with a resultant loss of privacy. To describe her as a soft target would be an understatement.
68 It is clear from her victim impact statement that she has suffered ongoing stress and anxiety as a result of your conduct.
69 Based on all of the evidence concerning that event, and concerning your circumstances then and now, you are convicted of the offence of false imprisonment and sentenced to a term of imprisonment of nine months.
70 In case there be any doubt, that sentence is to be served cumulatively upon the sentence that I have imposed in relation to the 2008 offences.
71 It follows that the total effective prison sentence imposed is three years and nine months.
72 I direct that you not be eligible for parole until you have served 2 years and 6 months of that term.
73 Madam Prosecutor, I have accurately or otherwise determined that there is 134 days of pre-sentence detention, not including today. Is that correct?
74 MS PARKES: We have calculated 138, Your Honour.
75 HIS HONOUR: You have anything to say about that?
76 MR SCHEMBRI: No. It was 134 the other day, Your Honour.
77 HIS HONOUR: I see. Yes. That’s where I got it from.
78 I declare that you have served 138 days pre-sentence detention, not including today, and I direct that that period be reckoned as detention already served under this sentence.
79 By reason of s.6(1) of the Sex Offenders Registration Act 2004 (Vic), you are a registrable offender, pursuant to s.34(1)(c) of that Act.
80 Now, Madam Prosecutor, my understanding of that section and the relevant Schedules was that Mr Osborne would be required to report for the remainder of his life. Is this correct?
81 MS PARKES: That is correct, Your Honour.
82 HIS HONOUR: Yes.
83 You must comply with reporting conditions set out in that Act for the remainder of your life. Your reporting obligations commence within 7 days of your release from custody.
84 From that date, you are required to report to the Chief Commissioner of Police or his nominee with regard to each of the matters set out in s.14 of that Act.
85 Now, they are multiple and I am not going to go through them here and now. But you will shortly be given a document to sign acknowledging receipt of it. It sets out your obligations under the Sex Offenders Registration Act 1994 (Vic). What I will do is I will provide it firstly to Mr Schembri and he can discuss it with you briefly.
86 OFFENDER: I won’t be signing anything.
87 HIS HONOUR: I will leave it with Mr Schembri to discuss with you. Now, are there any other ancillary orders or matters that I need to attend to, Ms Parkes?
88 MS PARKES: No, Your Honour.
89 HIS HONOUR: Mr Schembri? Yes. Just provide Mr Schembri with the document if you would. I will give you a moment to discuss that with Mr Osborne. You want me to leave the court briefly?
90 MR SCHEMBRI: That is a matter for Your Honour. I do not think we will go too long.
91 HIS HONOUR: All right. I will wait.
92 MR SCHEMBRI: He refused to sign, Your Honour.
93 HIS HONOUR: Refused to sign?
94 MR SCHEMBRI: Yes.
95 HIS HONOUR: Thank you. I will note that Mr Osborne refused to sign that document. Yes, thank you. Mr Osborne can be taken downstairs.
96 OFFENDER: Can I just say something, sir? I do not think I have been treated fairly.
97 HIS HONOUR: Mr Osborne can be taken downstairs right away.
98 OFFENDER: And I will appeal. Thank you.
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