Director of Public Prosecutions v Cormack

[2017] VCC 858

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00344

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLAN CORMACK

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	26 June 2017
CASE MAY BE CITED AS:	DPP v Cormack
MEDIUM NEUTRAL CITATION:	[2017] VCC 858

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	Ms D. Guesdon
For the Accused	Mr Davis

HIS HONOUR:

1Allan Cormack, you have pleaded guilty to one charge of sexual penetration of a person under the age of 16 years.  That crime carries a maximum penalty of ten years' imprisonment.  You pleaded guilty at the earliest reasonable opportunity, and I accept that that plea is accompanied by appropriate remorse, and it has had a very significant utilitarian effect.

2You made admissions from the outset, including in a pretext tape, and it is your admissions which effectively have enabled the prosecution against you to take place.  Had you not made those admissions either in the pretext or to police, it may have been a very difficult charge to prove, and I take that into account on your behalf.

3The offending occurred now some 32 years ago, and that is a very significant delay indeed.  It is often the case that complaint is not made for extended periods of time, but the end result is that a judge is called upon to sentence a very different person over a quarter of a century later.

4You have no prior convictions, and whilst you have some minor subsequent matters, you have no other convictions at all for any form of sexual offending, and that is crucial.  In my view, that means that your prospects of rehabilitation, so far as this is concerned, are excellent, and the risk of you reoffending, in my view again, I would describe as non-existent.

5However, pursuant to the legislation, you will be placed on the Sex Offenders Register, and I must advise you that you will be required to report for a period of 15 years, and I will just ask you to acknowledge that now, if you do not mind going down with him, Mr Davis.

6The offending can be described in fairly short compass.  At the time, the complainant was 14 years of age, and is now 48.  You were 23, and are now 55.  There had been a family connection over a period of time, and family members and others were staying at a farm, which I assuming - I am not quite sure – was around Jack River or certainly in Gippsland. 

7Alcohol was drunk, and the complainant says that it made her unsteady on her feet. It was the first time she had drunk alcohol.  A couple of people were in a caravan, as well as you and the complainant, and she was sleeping at the front end, where a table was.  Her memories are of her lying on a bed with you on top of her, face to face, and you kissing her.  She said that she was trying to say no, but was unable to move or speak.  You subsequently said that you thought that she was consenting, and you are certainly not being sentenced for rape.

8As I said, you were lying on top of her, you lifted her on top of you and over your penis.  Your hands were around her waist.  You inserted your penis into her vagina and had sexual intercourse with her.  She has no memory, apparently, of what occurred after that, but the next day her vagina felt sore, and she observed a dried substance on top of her inner thighs.

9There is then a history where she did not report the matter for a very lengthy period of time, which as I have said, is often the case in such situations.  You again, as I have indicated in a pretext conversation, made admissions, and again when interviewed by police, that interview only having taken place a relatively short period of time ago.

10I have before me, and it has been read out in open court, the victim impact statement, which describes the emotional and psychological effect that this sort of offending can, and does, have on young girls, and obviously I take that into account.  In your particular situation, I am prepared to find quite comfortably that the offending was situational, and I am sure had you offended in this way subsequently, it would have been brought to the attention of the police. 

11The offending however has to be regarded as serious and calls for the application of general deterrence, though in your case I suspect specific deterrence is of no real purpose.  There has to be an element of denunciation, and has to be an element of punishment.

12I have before me, in terms of matters put on your behalf, a report from
Dr Simon Kennedy, and that can remain on the court file.  In simple terms, you are now 55 years of age.  You were essentially brought up in the country, you are one of 12 children, and you have eight children of your own, four of whom you are subsequently now - as I understood, three certainly that you are still responsible for.  They are aged seven, six and three.  You had been in a 20-year relationship, and your partner and the mother of the children died three months after the birth of the youngest.  Obviously, that has had a very significant effect on you, and had a very significant effect on the surviving children.  They live with you, and you, whilst seeking work, are essentially their carer.

13Over the years, you have had a pretty good work record, worked on farms, at Coles, and in various other areas.  So far as your rehabilitation is concerned, you have no mental health or physical issues, and I accept what your counsel says, that you have no drug or no alcohol issues, and that your time is spent looking after your children.  You are seeking employment, and I accept that that is the case.

14In those circumstances, I think that the appropriate disposition here is one of a suspended sentence.  I certainly would not have imposed an active custodial sentence, and I cannot really see the point of a community corrections order in your particular circumstances.

15Accordingly, on the charge, you are sentenced to be imprisoned for a period of six months.  That six months is to be wholly suspended for a period of 12 months.

16Pursuant to s.6AAA of the Crimes Act, I say that but for your plea of guilty and the accompanying admissions, I would have sentenced you to be imprisoned for a period of 12 months, which would have been suspended for a period of two years.

17Now, having done that, I must advise you that having been placed upon a suspended sentence, that if you commit an offence punishable by imprisonment, it will breach that suspended sentence, and you will have to show exceptional circumstances as to why it should not be restored fully. 

18There is nothing else, or no other orders?  Anything I need to do?

19MS GUESDON:  Just the s.464ZF ‑ ‑ ‑

20HIS HONOUR:  No, I knocked that back.

21MS GUESDON:  Yes Your Honour.

22HIS HONOUR:  Nothing else?

23MR DAVIS:  No Sir.

24HIS HONOUR:  No?  All right, thanks for that.  Yes, thanks Mr Cormack, you can come out of there.  I will come back at say, quarter to, and we will get started with the other one.

25(At this stage the court proceeded with another matter.)

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