Director of Public Prosecutions v Clowe
[2020] VCC 792
•5 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-01586
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN EDWARD CLOWE |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 5 June 2020 | |
CASE MAY BE CITED AS: | DPP v Clowe | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 792 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: sexual penetration of a child under 16 – indecent act with a child under 16 years – breach of trust - crushing sentence – prospect of deportation – public denunciation – just punishment
Legislation Cited: Migration Act 1958; Sex Offender Registration Act 2004
Cases Cited: R v RLP (2009) A Crim R 461
Sentence: 13 years and 2 months imprisonment with non-parole period of 8 years’ imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P. Stefanovic with Ms A. Wong | Victoria Legal Aid |
HIS HONOUR:
1 John Edward Clowe, on 20 February 2020, you were arraigned on Indictment K1110912 and pleaded not guilty to 17 charges contained therein, being eight charges of sexual penetration of a child under 16 and eight charges of indecent act with a child under 16 in relation to two complainants. Six of the charges of sexual penetration of a child under the age of 16 years alleged the aggravating circumstance that the child was under 12.
2 Prior to your arraignment, legal argument and a special hearing in respect to victim “A” took place on 17, 18 and 19 February.
3 On 4 March 2020, after three days’ deliberation, a jury found you guilty of all charges save two alternative charges being Charges 2 and 5. You were remanded in custody for plea on 19 May 2020 to allow for a psychological report to be obtained in respect of you.
4 The maximum penalty for sexual penetration of a child under 16 (Charges 1 and 3) is 10 years’ imprisonment. The maximum penalty for sexual penetration of a child under 16 where the aggravating circumstance of the child being under 12 was alleged (Charges 4, 11, 12, 13, 14 and 15) is 25 years’ imprisonment. The maximum penalty for indecent act with a child under the age of 16 (Charges 6 through to 10 and 16 and 17) is 10 years’ imprisonment.
5 You are 74 years of age and are without prior conviction. At the time of your offending you were aged between 62 and 68 years.
6 Charges 1 through to 10 on the indictment concern complainant “A” who was aged between six and 12 years during the period in which you offended against her from September 2008 to September 2014.
7 Charges 11 to 17 on the indictment concern “A”s older sister of “B” who was aged between 10 and 13 years during the period that you offended against her being from February 2011 to January 2014.
8 From a perusal of the indictment, and the evidence called at trial there was a time when your offending against each of the victims overlapped.
9 In respect of each victim, from time to time, they would visit, sleep over, and stay over for the purposes of attending school at their grandparents’ home. For some years prior to your offending and until your offending became known, you resided with the victims’ grandparents. You were a close friend of the victims’ grandfather. At the time of your offending you were regarded as part of the family and would attend family functions held at the victims’ grandparents’ home.
10 In respect to your victim “A”, Charge 1 occurred in circumstances where she was staying over at her grandparents’ home and went to sleep on a couch in the living room. “A” woke when you removed a blanket from her and then moved her pyjama pants down. You played with “A”'s vagina and digitally penetrated her. You whispered to “A” to “be quiet” while you performed these acts. The victim believed she was aged eight or nine when this offence occurred.
(See VARE Questions and Answers 215 to 236 and Transcript pages 105 to 124.)
11 Charge 3 occurred approximately two weeks after Charge 1 and in similar circumstances.
(See VARE Questions and Answers 57 to 62 and Transcript pages 126 to 130.)
12 Charges 4, 6 and 7 occurred on the same occasion when “A” was aged under 12 years. “A” was in your bedroom where she went to sleep in your bed, you joined her there and adopted a “spooning” position behind her and ground your genitals against her back. (Charge 6, indecent act with a child under 16) You eventually took out your penis and forced “A” to give you “hand job”. (Charge 7, indecent act with a child under 16) You then forced your hand into “A”s pants and “fingered” her. (Charge 4, sexual penetration of a child under 16 with the aggravating circumstance that the child was under 12)
(See VARE Questions and Answers 106 to 107, 122 to 165 and Transcript pages 130 to 143.)
13 Charges 8 and 9 occurred about a week after Charges 4, 6 and 7 and each on the same occasion when “A” was once again in your bedroom. You placed “A” on your desk and touched her vagina area over her clothing. (Charge 8, indecent act with a child under 16) You then removed “A”s lower clothing and played with yourself until you rubbed your penis against “A”s vagina. (Charge 9, indecent act with a child under 16)
(See VARE Questions and Answers 166 to 203 and Transcript pages 147 to 149).
14 Finally, in respect to “A”, while she was in the kitchen at her grandparents’ home and involved in a Skype audio call, you came up behind her and grabbed her “breast area”. You camouflaged your act by hugging “A”. (Charge 10, indecent act with a child under 16)
(See VARE Questions and Answers 204 to 209 and Transcript pages 195 and 196.)
15 In respect to your victim “B”, the subject of Charges 11 to 17, you first offended against her when she was aged between 10 and 11 when she was in Grade 5 or 6. “B” was in your bedroom. You steered her towards your bed and laid her down on it and pulled her pants down. You pulled your own pants down and inserted your penis into her “B”s vagina. “B” tried to push you away from her using both her hands but this had no effect on you. When you had finished with your victim, you cleaned “B” and your own genital regions with a towel. You pulled up your and “B”s clothing. You both then left the bedroom. (Charge 11, sexual penetration of a child under 16 with the aggravating circumstance that the child was under 12)
(See Transcript page 249 to 254)
16 Charge 12 (sexual penetration of a child under 16 with the aggravating circumstance that the child was under 12) occurred in the upstairs bathroom of “B”s grandparents’ home when “B” was about 10 years of age. You closed the bathroom door and locked it. You pulled “B”s pants down then lifted her onto the vanity unit. You undid your belt and unzipped your trousers to an extent that enabled you to take out your penis. You spread “B”s legs and inserted your penis into her vagina. As you did so your hands were placed either side of your victim. After you had finished with “B”, you wiped your own genital area with a towel and “B” pulled up her pants.
(See Transcript pages 255 to 258)
17 Charge 13 (sexual penetration of a child under the age 16 with the aggravating circumstance that the child was under 12) occurred in your bedroom. “B” was about 10 years old. You unbuckled your pants and pulled them down to your ankles. You laid “B” on your bed near its foot and placed yourself between her legs with your hands on either side of her body and inserted your penis into her vagina. Again, “B” tried to push you away, but this had no effect on you. You asked “B” if you could cum. She said “no” even though she did not understand what you meant. After this you just stopped. You wiped your genitals with a towel and dressed yourself and then handed “B” the towel so that she might wipe herself and get dressed.
(See Transcript pages 265 to 266.)
18 Charge 14 (sexual penetration of a child under 16 with the aggravating circumstance that the child was under 12) occurred in a basement area under “B”s grandparents’ home. “B” was about 10 years of age at the time. “B”s grandparents were at home and in a room directly above the basement area in which you and “B” were located. You undressed “B” from the waist down and turned her around so her back was facing your front. “B” did not know how you exposed yourself but you were able to insert your penis into her anus. You started making noises. “B” told you repeatedly that she needed to go to the toilet and you told her to quieten down because you did not want “B”s parents to hear you. “B” continued to say that she needed to go to the toilet and you stopped. “B” pulled up her clothes and ran to the ground floor bathroom and wiped her anus and remembered seeing blood on the toilet paper.
(See Transcript pages 268 to 277.)
19 Charge 15 is the last charge of sexual penetration of a child under 16 years with the aggravating circumstance that the child was under 12. You had taken “B” to a game of basketball and waited for her so that you could take her home. On the way home, you told “B” that you had to grab something from your work. You took “B” into your workplace and whilst there undressed “B” from the waist down. You lifted “B” up onto a desk and laid her down with her legs dangling over the edge of the desk. You adjusted your trousers so that you could expose your penis and inserted your penis into “B”s vagina. You moved your body so that your penis moved inside “B”s vagina.
(See Transcript pages 277 to 281.)
20 Charge 16 (indecent act with a child under 16) occurred when “B” was about 10 years of age. “B” was in your bedroom and she recollected that it was daylight outside. “B” remembered being grabbed by the arm as she went to leave your room and that you had your penis exposed, although your pants were only partially undone. “B” saw that your penis was erect, and you forced her hands onto your penis and moved them in a motion where she masturbated you. This conduct continued for a very short period of time because “B” pulled away from you and you let her go. She left the room.
(See Transcript pages 282 to 283.)
21 The final charge on the indictment, Charge 17, is a charge of indecent act with a child under 16 that occurred at the end of the year when “B” was in Grade 6 and around 11 years of age. “B” was in the garage of her grandparents’ home and she was unable to recall whether you followed her into the garage or were already there when she entered the garage. You grabbed her around the chest using your left arm and put your right hand down the front of her pants and underwear and positioned your hand so that your fingers were touching her vagina. At the time “B” was wearing a sanitary pad. Once you realised this, you removed your hand.
(See Transcript page 283 to 285.)
22 Your victim, “A”, made a digitally recorded statement on 17 October 2018 while “B”, who was entitled to do likewise, made a written statement on 8 October 2018. You were interviewed under caution on 19 November 2018 and denied each allegation put to you by the investigating police and described the allegations “as like a fairy tale” and alleged that “there was a phony conspiracy somewhere along the line”.
23 You were charged on summons on 2 May 2019. You failed to appear at the first filing hearing in respect of your prosecution and a warrant was issued for you. On 1 June 2019, you attended on the police to have the warrant executed and you were placed on bail. Your second filing hearing was listed for 7 June 2019 and once again you failed to appear at Court and a warrant was again issued for your arrest. On 11 June 2019, you again attended at the police station by arrangement, the warrant was executed on you and you were remanded in custody and have remained in custody since that time. Accordingly, as at the time of your plea, you had spent some 343 days by way of pre‑sentence detention.
24 Your failure to appear resulted in you being charged with the related summary offence that at Melbourne on 7 June 2019 you did fail without reasonable cause to appear in accordance with your undertaking of bail which you signed and entered on 1 June 2019 at the Knox Police Station. You consented to this related summary offence being heard and pleaded guilty to it. The maximum penalty for this offence is 3 months’ imprisonment.
25 Your offending against “A” and “B” was brazen. During the course of your offending, “A” and “B”s grandparents’ home was a busy place. The two victims would stay over both separately and together. The victims’ mother would drop them off and pick them up from her parents’ house, thus giving rise to the real chance of complaint being made to her. “A” and “B”s grandparents’ bedroom, together with their en suite bathroom, was on the first floor of their two storey home and your bedroom was on that same level. The victims’ aunt lived with her partner in the ground floor bedroom. From time to time other members of your victims’ family resided in one or other of the two spare bedrooms on the first floor of the house. The risk of your detection during your offending was high.
26 You were a close friend of your victims’ grandfather and lived at his home. You offended against your victims in your friend’s house. You were regarded generally as part of the victims’ family. Your victims trusted you and you were trusted to be in their company. Your breach of trust is egregious at many levels.
27 Tendered as Exhibit A were the Victim Impact Statements of each of “A” and “B” together with that of their mother. Each of your child victims initially had no idea of the nature of the acts that you perpetrated against them. Upon realisation of the nature of your offending, each of your victims acted out at school, played truant and generally performed poorly academically. Each victim experienced feelings of isolation and suffered from anxiety and depression as school girls. As an adult, “A” experiences a feeling of loss of her childhood, the loss of the ability to enjoy intimacy and suffers from flashbacks and isolation owing to her inability to make friends. For her, each day is a struggle.
28 “B” is somewhat more phlegmatic but like her sister expresses feelings of isolation and suffers from anxiety.
29 The complainants’ mother remains in a constant state of shock as a result of the level of your deceit and your breach of the trust that was placed in you. She views her life as having been changed forever.
30 The effect of your offending on each of your victims, both direct and indirect, has been and will continue to be, profoundly adverse to them.
31 As to your personal details, you were born in England in 1946. You come from a large family with your father working as an engineer and your mother caring for you and your siblings. You married your first wife in your early twenties and there is a child of that marriage, Christopher, who is now in his fifties. You separated from your first wife when Christopher was about five years of age. Your married your second wife, Julie, when you were around 32 years of age. There are three children of that marriage. Your second marriage ended in 2004 and you have not had an intimate relationship since.
32 Apart from your son, Christopher, you have had not much if any contact with your other children or their mothers.
33 You have been an active member of the tenpin bowling community for decades as a player as well as a coach and it is through this activity that your friendship with your victims’ grandfather arose.
34 You left school at 15 years of age and worked at an engineering factory. At 17 years of age you joined the British Army as a musician. You remained in the British Army for six years that included a posting to Hong Kong for three years. On return from Hong Kong as a result of the amalgamation of three British regiments, there was a requirement for only one regimental band and you were made redundant.
35 After leaving the army you began working with mechanical and electronic cash registers.
36 You migrated to Australia when you were 24 years of age. You worked for various companies designing and repairing cash registers. Eventually you started your own business Amalgamated Cash Registers which was based in Bentleigh. Your business failed as a result of your second wife misappropriating funds from the business. Because of your second wife’s misconduct, that marriage failed. However, you continued to earn income by installing and maintaining cash registers up until you were remanded in custody in 2019.
37 You suffer from no physical or mental health conditions. While your counsel relied upon data in respect to the average life expectancy of an Australian male published by the Australian Bureau of Statistics there was no evidence called on your behalf concerning your actual life expectancy.
38 Tendered as Exhibit 1 on the plea was your counsel’s written outline of submissions and as Exhibit 2 the report of Simon Candlish, psychologist, dated 7 May 2020. Mr Candlish assessed you using accepted risk assessment tools and found you to be a low risk of reoffending.
39 It was accepted by Mr Stefanovic and Ms Wong of Counsel, who appeared on your behalf, that your offending was extremely serious because of your betrayal of trust, the length of time over which you offended, that you offended against more than one victim and that each of them were very young and vulnerable. Further, it was acknowledged that your offending was penetrative in nature and that profound harm has been caused to each of your victims.
40 Your counsel emphasised the lack of any actual violence as opposed to the violence that is inherent in your offending against each of your victims. Further, you made no threat to your victims or to their family.
41 Your counsel emphasised that you had no prior or subsequent convictions and that you are of advanced age.
42 Since your time on remand, you have been subject to the restrictions imposed as a result of the COVID‑19 pandemic and I must take this into account in arriving at an appropriate sentence in your circumstances.
43 You are a non-citizen for the purposes of the Migration Act 1958, and as you will receive a sentence of greater than 12 months’ imprisonment, this will result in the automatic cancellation of any permanent resident visa. Accordingly, imprisonment will be more burdensome for you because of anxiety that you will experience arising out of the prospect of deportation back to your homeland that you left some 50 years ago.
44 You will be sentenced to a term of imprisonment in respect to each of the charges upon which you were convicted. Accordingly, from Charge 4 onwards you will be sentenced as a serious sexual offender and protection of the community is the principle purpose of sentencing in respect to you. However, bearing in mind the analysis of your risk of reoffending and your age in that respect, the serious sex offender provisions must be sensibly moderated in your case and this will result in orders for partial cumulation of each of the sentences imposed on you. Finally, I must be careful in applying the principle of totality in respect of you, bearing in mind your age. However, the principles set out in R v RLP (2009) A Crim R 461 have application in respect to you. I must not impose a crushing sentence on you, however you will spend the majority of your twilight years in custody.
45 Public denunciation and just punishment are the principal sentencing factors that apply in your circumstances. You are an appropriate vehicle for the application of general deterrence.
46 Doing the best I can, taking into account the circumstances of your offending and their effects, together with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1 – 3 years’ imprisonment;
On Charge 3 – 3 years’ imprisonment;
On Charge 4 – 4 years’ imprisonment;
On Charge 6 – 1 year’s imprisonment
On Charge 7 – 14 months’ imprisonment;
On Charge 8 – 10 months’ imprisonment;
On Charge 9 – 14 months’ imprisonment;
On Charge 10 – 6 months’ imprisonment;
On Charge 11 – 4 years’ imprisonment;
On Charge 12 – 4 years’ imprisonment;
On Charge 13 – 4 years’ imprisonment;
On Charge 14 – 5 years’ imprisonment;
On Charge 15 – 4 years’ imprisonment;
On Charge 16 – 14 months’ imprisonment;
On Charge 17 – 6 months’ imprisonment.
47 I order that 12 months of each of the sentences imposed on Charges 4, 11, 12, 13 and 15, together with 9 months of each of the sentences imposed on Charges 1 and 3 and 4 months of each of the sentences imposed on Charges 7, 9 and 16, together with 3 months of the sentence imposed on each of Charges 6, and 8 together with 1 month of the sentence imposed on each of Charges 10 and 17, be served cumulatively upon each other and upon Charge 14. This results in a total effective sentence of 13 years and 2 months imprisonment and I fix the period of 8 years’ imprisonment that you must serve before you will become eligible for parole.
48 In respect to the related summary offence, you are convicted and sentenced to one month's imprisonment.
49 I declare that you have spent 359 days by way of pre‑sentence detention, not including today.
50 I direct that it be entered in the records of the Court that you were sentenced as a serious sexual offender in respect to Charges 4, and 6 to 17, both inclusive.
51 I direct that you be subject to the provisions of the Sex Offender Registration Act 2004 for life.
52 Is there anything that arises out of the sentence? Take your time to do the maths. They have been checked but that does not mean that they are absolutely correct.
53 MR STEFANOVIC: Yes, Your Honour. Your Honour, just in respect of the summary offence - fail to appear, that is one month.
54 HIS HONOUR: Yes.
55 MR STEFANOVIC: And that is concurrent?
56 HIS HONOUR: Correct.
57 MR STEFANOVIC: Correct. I am satisfied with the mathematics.
58 HIS HONOUR: That the maths are correct.
59 MR STEFANOVIC: Yes.
60 MR McKENRY: Yes, Your Honour.
61 HIS HONOUR: Thank you. I will stand down till the next matter.
62 MR McKENRY: As Your Honour pleases.
63 MR STEFANOVIC: The court pleases.
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