Director of Public Prosecutions v Couch

[2021] VCC 1719

IN THE COUNTY COURT OF VICTORIA

AT GEELONG

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01584

DIRECTOR OF PUBLIC PROSECUTIONS

v

GERARD LEONARD COUCH

---

JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Geelong
DATE OF HEARING:	1 November 2021
DATE OF SENTENCE:	1 November 2021
CASE MAY BE CITED AS:	DPP v Couch
MEDIUM NEUTRAL CITATION:	[2021] VCC 1719

REASONS FOR SENTENCE
---

Subject:CRIMINAL LAW – Sentencing.

Catchwords: Plea of guilty – Indecent assault on a male person – Offender was a Christian Brother and teacher – Victim was a ten year old student – Gross breach of trust – Relatively serious example of the offence – Offending occurred 48 years ago – Genuine remorse and insight – Section 5AA of the Sentencing Act 1991 not engaged – Good character since the offending.

Legislation Cited:      Crimes Act 1958 s 68(3A); Crimes (Amendment) Act 1967; Sentencing Act1991 ss 5AA, 6AAA; Sex Offenders Registration Act 2004 s 34.

Cases Cited:DPP v Buhagiar & Heathcote [1998] 4 VR 540; DPP v Evans [2019] VCC 401.

Sentence:                  Imprisonment for a period of 15 months, wholly suspended for a period of 2 years.

---

APPEARANCES:	Counsel	Solicitors
For the DPP	Ms P Thorp	Office of Public Prosecutions
For the Accused	Ms C Dwyer	Milardovic Legal

HIS HONOUR:

Introduction

1Gerard Leonard Couch, you have pleaded guilty to one charge of indecent assault on a male person contrary to s 68(3A) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 1967, which carries a maximum penalty of five years imprisonment (Charge 1).

2You have no prior criminal record.

Circumstances of the offending

3A summary of prosecution opening was tendered on the plea and may be summarised as follows:

4You were born on 5 September 1950.  At the time of the offending, you were 22 to 23 years of age and a Christian Brother attached to St Joseph’s College in Warrnambool.

5In 1999, you left the congregation of the Christian Brothers Order, after applying for and obtaining exclaustration.

6The victim in this matter, Heath Hutchinson[1], was born in 1963 and was nine to 10 years of age, at the time of the offending.  He was from a Catholic family and was sent to St Joseph’s College in Warrnambool for his education.  In 1973, the victim was in Grade 4 at the college.  You were his teacher for that year.  You were popular with students and families who attended the college.  You visited the victim’s home on several occasions.

[1] A pseudonym.

7In 1973, the victim’s sister became pregnant.  The victim was excited and shared the news with you.  The victim wanted to understand pregnancy and as a consequence, you engaged in private discussion with him on the topic.  You told the victim that these were ‘private and special’ conversations.

8On a second occasion (a few days later), you showed an educational book on the topic of pregnancy and sexuality to the victim.  The book contained various diagrams of naked male and female persons.  This conversation took place in the classroom and no other person was present.  You were sitting on a chair and invited the victim to sit on your knee.

9During this conversation, the victim got off your knee.  You removed the victim’s shorts.  You stated that this was being done, so as to compare the victim to the diagrams in the book.

10You then put your hand on the front of the victim’s underwear (Y fronts) and rubbed the victim’s genitals and masturbated the victim’s penis.  This act lasted several minutes.

11You then took hold of the victim’s hand and placed it on your own groin (over your clothes).  You directed the victim’s hand in rubbing your penis up and down.  You asked the victim whether he wanted to see an adult penis.  The victim declined.  It is these facts that relate to Charge 1, indecent assault on a male person, the charge incorporating the two separate acts.

12You reminded the victim that the conversation was private before sending the victim away.

13The victim states that he told his parents about the offending many years later, when he was in his 20’s.  Both his parents are now deceased.

14The victim married Rosemary Hutchinson[2] in 1996.  Prior to this, the victim told his wife that he had been abused by a Christian Brother at primary school.  The victim did not go into detail about the abuse.

[2] A pseudonym.

15The victim also told his sister, Chelsea Harmon[3], that a Christian Brother had put his hand down his pants and played with him whilst he was a primary school student.

[3] A pseudonym.

16In late 1995 or early 1996, the victim made an appointment with the Head Brother of Treacy House in Parkville.  The victim explained what had happened between himself and you, without going into specific details.  The victim was advised that you no longer taught children and worked in an administrative role with adults.

17In 2001, the victim was working at the Herald and Weekly Times in Melbourne. Whilst working at this business address, he noticed a new security guard who appeared to resemble his recollection of you.  The victim established that the guard was in fact you and confronted you.

18The victim states that you confirmed that you worked as a Brother teaching students in Warrnambool.  The victim stated that he remembered you well and informed you that you had sexually assaulted him as a young student at the college.  The victim states you said you were ‘sorry’ and asked what the victim wanted.  The victim told you that you should terminate your employment by the end of that week.  Shortly after, you ceased working as a guard at the building address.

19On 29 September 2015 and again on 17 November 2020, the victim made statements to investigating police about the offending.

20On 13 March 2018, you were interviewed by police and stated ‘no comment’ in relation to the allegations.

Nature and gravity of the offending

21Sexual offending against young people, under the care of adults is very serious offending.  The victims of such offending are vulnerable and reliant on adults to care for them, whether that be as a parent or guardian, or in this case, where you were the victim's teacher.  You were also trusted by the victim’s family and had visited the family home on several occasions.  At the time of the offending, the victim was 10 years of age, and had a particular affection for you and clearly trusted you.

22What you did was take advantage of the trusting relationship you had with the victim, when he asked you about pregnancy.  You then told the victim that your conversations on the topic were private, clearly in order for you not to be detected.  During one of these conversations, you indecently assaulted the victim.

23It is well settled that the absolute prohibition on sexual activity with a child is founded on a presumption of harm and that the significant harm which such conduct entails, cannot be overstated.[4]

[4] Clarkson v The Queen (2011) 32 VR 361 at [3].

24While your offending did not progress to more serious forms of sexual assault, it nonetheless in my view, represents a gross breach of trust and is a relatively serious example of the offence of indecent assault on a male.

Victim impact statement

25The victim prepared an eloquent victim impact statement which he read aloud at the plea.  The victim states that whilst he suppressed the offending from his memory for a number of years, he has felt an unending and overwhelming sense of guilt and self-loathing ever since your conduct.  The victim writes of how your offending has impacted his marriage and ability to relate with other males.  He states that your offending eroded his trust in men and has made him question his own worth and value.  He has had more shallow relationships with men, as he feared his vulnerabilities would be exposed.  This compromised his career, as he was unable to build relationships of depth with other men in professional settings. The victim also describes the impact of your offending on his mental health, including feelings of morosity and anxiety, and how he has abused alcohol in order to cope.  It is clear your offending has had a significant life-long impact on the victim and how he views himself.  I take the contents of the victim impact statement into account.

Personal circumstances

26You are now 71 years of age.  You are the eldest of five children with whom you were close.  Your father worked in insurance and your mother worked in the home.  Your parents were Catholic and you were subjected to strict discipline, which left you feeling anxious.

27You attended St Paul’s Primary School in Bentleigh and then De La Salle for around a year.  At the age of 12, and then 15, whilst at school, you were sexually assaulted by male teachers.

28You entered the Christian Brothers at the age of 16 and completed Year 12 at the Edmund Rice Training College in Bundoora.  You completed teacher training at the Box Hill Teacher Training College and then taught at St Joseph’s Warrnambool in 1972.  You had a long career in teaching at various schools and an orphanage.

29In 1996, you left the Christian Brothers after having learned of a complaint about you.  You engaged in other employment as a tram conductor, in sales and security work.

30In 2002, you ceased employment and began caring for your mother and were dedicated to this role up until her death in 2012.  The same year, your brother passed away from a brain tumour.  After the loss of your mother and brother, your mental health declined and you moved to Colac.  You have never married or been in an intimate relationship.

31You currently live a quiet life, enjoying hobbies such as stamp collecting and you enjoy horse racing.  You are in receipt of the aged pension.  As a result of having surgery for a detached retina, you are unable to drive.

32You live with a number of physical health conditions, including diabetes, chronic heart failure, chronic airways disease and chronic kidney failure.  You are currently prescribed a number of medications for these conditions.  A letter from your general practitioner, Dr Fatmira Pojani was tendered, which confirms your conditions and your medication regime.

33A report was prepared by Jeffrey Cummins, consultant and clinical psychologist, and tendered on the plea.  Mr Cummins conducted a risk assessment and conducted a clinical assessment of you.  He opines that you do not suffer from any type of psychiatric disorder or personality disorder and were not suffering any mental disorder at the time of the offending.  Mr Cummins formed the opinion that at the time of your offending, you were psychosexually immature and that your offending was reflective of immaturity, inexperience, naivety, curiosity and sexual experimentation.

34After conducting a formal risk assessment that placed you in the ‘average risk’ category, once consideration was given to all of the available information,
Mr Cummins’ opinion is that the risk of you committing a further sexual offence is low.

35You are supported by a small group of family members, some of whom prepared character references which were tendered on the plea.  You are described as a caring family member and all authors of the references find your offending wholly inconsistent with the person they know.

Sentencing considerations

36Ms Dwyer who appeared on your behalf at the plea, outlined a number of matters in mitigation.  First and foremost, is your plea of guilty.  A contested committal hearing took place in the Magistrates’ Court during which the victim and other witnesses were cross examined and the matter resolved in August this year, after a number of circuit directions hearings in this court.  Whilst the plea was not entered at the earliest opportunity, it still carries signification utilitarian value, as it has spared the time and expense of a jury trial and avoided the need for the victim to relive the trauma of the offending again at trial.  I take your willingness to facilitate the course of justice into account in your favour.  Your plea carries additional weight which must be reflected in an additional amelioration in sentence, as the plea has been entered in circumstances where the pandemic has created a substantial backlog of cases in the criminal justice system. 

37It was submitted that you have expressed genuine remorse, over and above your plea of guilty.  Firstly, when confronted by the victim in 2001 about your offending, you apologised to him.  Secondly, you wrote a letter to the victim dated 29 September 2021, which was tendered on the plea.  In the letter, you convey your ‘deeply sincere apology’ for your offending.  You also acknowledge the ‘permanent’ hurt you caused on the victim and appreciate that your actions have had a widespread impact on the victim’s parents, partner and children. Thirdly, you prepared a letter to the court, in which you take responsibility for your actions and the traumatic impact it had on the victim.  You also demonstrate an awareness of the long term impacts of childhood sexual abuse as ventilated at the Royal Commission into Institutional Responses to Child Sexual Abuse. Fourthly, Mr Cummins, having assessed you and read your letter of apology to the victim, stated that your comments and presentation at interview supported the conclusion that you feel riddled with guilt, shame and embarrassment concerning your offending behaviour.

38Ms Thorp who appeared on behalf of the Director of Public Prosecutions, submitted that your expression of remorse should be viewed with caution, as the letters were prepared very shortly before the plea hearings.  Further, you conducted a contested committal, where you cross-examined the complainant and three other witnesses.  There was little explanation given to explain that course in circumstances, where you apologised to the victim for your conduct in 2001 and, according the Mr Cummins, you have acknowledged your behaviour for many years prior to being charged.

39Nonetheless, it would seem that through the criminal process, you have accepted your responsibility and gained more understanding of the serious impact of your conduct.  Therefore, in my view in all the circumstances, you have expressed genuine remorse and have, perhaps only in recent times, gained significant insight into the profound effect that your abuse has had on the victim.

40As to the use of good character before the commission of the offence, s 5AA of the Sentencing Act1991 was discussed during the plea, as to whether that provision is engaged in this instance.  Reference was made to DPP v Evans,[5] a sentencing decision of mine, which dealt with s 5AA. As I have formed a similar view in relation to this case, I will adopt some of the comments I made in Evans.

[5] [2019] VCC 401.

41Section 5AA came into effect on 5 April 2018, in order to give effect to recommendation 74 of the Royal Commission into Institutional Responses to Child Sexual Abuse and states:

'5AA Court not to have regard to previous good character or lack of previous findings of guilty or convictions in certain circumstances

(1) Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender’s previous good character or lack of previous findings of guilty or convictions, if the court is satisfied the offender’s previous good character or lack of previous findings of guilty or convictions, was of assistance to the offender in the commission of the offence.

(2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the commission of the offence.

(3) In this section –

child sexual offence means a sexual offence within the meaning of section 3 of the Criminal Procedure Act 2009, committed in relation to a person under the age of 18 years'.

42Ms Thorp argued that the section has operation in this instance, as you were employed as a teacher in a position of trust, however, did not point to any evidence directly as to whether your previous good character was of assistance to you in the commission of this offence. 

43While the section is clear in its language, that good character must be shown to have been ‘of assistance to the offender in the commission of the offence’, the Second Reading Speech suggests that application may be wider.  The then Attorney General stated:

'This change will ensure that those who take advantage of their good reputation to commit sexual offences against children cannot then rely upon that reputation to argue for leniency in sentencing'.

44Ms Dwyer submitted that there was no evidentiary basis that would enable the court to be ‘satisfied’ that your previous good character was of assistance to you in committing these offences.  In other words, there is no evidence to demonstrate that your lack of prior criminal history or good character assisted you in gaining or maintaining the position you had as a Christian Brother or teacher in the 1970s, in the time leading up to these offences. 

45In my view, for this section to be properly engaged, there would need to be some evidence that enabled a finding that good character assisted in the commission of the offence by allowing you to become a teacher or maintain your teaching role.  That evidence has not been led and as such, I am of the view that the section is not engaged in this instance.

46As was the case in Evans, the way in which the point was put by the prosecution, is that even if s 5AA is not directly engaged, the weight that might be given to any previous good character is reduced by the breach of trust inherent in this offending, which was the common law position before the introduction of s 5AA. I accept that submission.

47Your good character post the commission of the offence is however of some significance and I take it into account.  Some 48 years have passed since the commission of the offending.  While with this type of offending that is not an uncommon situation, it was submitted that the delay is still able to be taken into account, as it demonstrates that you have not reoffended for some 48 years.  You have been a contributing member of the community and the references tendered demonstrate that you have been a trusted, positive influence on your wider family.

48Undoubtedly, the primary sentencing considerations in cases of this nature are general deterrence and denunciation of your conduct.  It was submitted on your behalf that in the circumstances, community protection and specific deterrence need not feature in the sentencing equation.  Further, that given the passage of time, with no further offending in addition to the insight you have demonstrated, your rehabilitation has been achieved.  I accept those submissions.

49

Ms Dwyer submitted that because of the time in which the offence was committed, a suspended sentence is an available sentencing option. 

Ms Thorp submitted that while a term of imprisonment is warranted, a suspended sentence is within range.

50In my view, a term of imprisonment is warranted.  However, in the circumstances, the applicable sentencing considerations are able to be met by the imposition of a wholly suspended term of imprisonment.  As was noted in DPP v Buhagiar & Heathcote,[6] 'a suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency.  Rather, it is an order made in the community's interest and generally designed to prevent re-offending.'[7]  

[6] [1998] 4 VR 540.

[7] Ibid at 547.

Sentence

51Mr Couch, can you please stand.

52Gerard Leonard Couch, on Charge 1, indecent assault on a male person, you are convicted and sentenced to 15 months imprisonment.  That sentence will be wholly suspended for a period of two years.

53I am required to warn you that if you commit any offence punishable by imprisonment, whether in or outside of Victoria during the period of suspension, you will be brought back to this court to be dealt with.  In that circumstance, unless you are able to provide exceptional circumstances, that sentence will be restored and served.

54Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have sentenced you to a period of 20 months imprisonment with 12 months suspended for two years.

55Pursuant to s 34 of the Sex Offenders Registration Act 2004, as Charge 1 is a Class 2 offence, you will be required to comply with reporting obligations for a period of eight years.  

- - -