Director of Public Prosecutions v Courtney

[2017] VCC 799

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01350

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT COURTNEY

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	24 May 2017
DATE OF SENTENCE:	15 June 2017
CASE MAY BE CITED AS:	DPP v Courtney
MEDIUM NEUTRAL CITATION:	[2017] VCC 799

REASONS FOR SENTENCE
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Subject: Criminal law - sentence            

Catchwords: Plea of guilty to one charge of committing an indecent act with a child under the age of 16 - child aged 6 – offender aged 69, now 70 – breach of trust- parents of child deeply affected – little or no remorse – lack of insight into offending – assessed as low risk for reoffending – likely hardship in prison owing to probable loss of home and business – general and specific deterrence.      

Cases Cited:Soo v R [2014] VSCA 304

Sentence:      3 months’ imprisonment with two year CCO    

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Parkes	OPP
For the Accused	Mr L Gwynn	Doogue O’Brien George

HER HONOUR:

1Robert Edward Courtney, you have pleaded guilty to one charge of committing an indecent act with a child under the age of 16.  I will be sentencing you to a term of imprisonment of three months and a Community Correction Order and I will explain the reasons for that sentence.

2You had been running your own domestic and commercial cleaning business successfully for some years.  You had worked as a cleaner for the family of the complainant for about a year.  You regularly cleaned this family's home on Tuesdays from 7.15 am until 10.30.

3The complainant was aged six at the time, the eldest of three children in the family.  She would be getting ready for school when you were cleaning.

4On 1 March 2016, when you were vacuuming the child's bedroom, she came into the room to get her library bag and you placed your hand on her vaginal area and rubbed it for a second or so.  This is not the subject of a charge but provides some background to the second incident.

5That occurred on 15 March when you were again cleaning her bedroom before she left for school, vacuuming between two beds.  The complainant came into her room to get something for school and you pushed her over onto the bed.  You then pulled down her shorts and underwear and knelt down and licked her vagina.  She pushed you and you stopped and let her go.  She went downstairs into the kitchen and told her mother.

6You came downstairs and the mother confronted you with the accusation of having touched the child's shorts.  You replied that she had got it wrong and when further challenged, you said, "Maybe with the vacuum."  You said it was a misunderstanding and then you left the house.

7The mother rang the police and spoke again with her daughter asking if it had happened before.  She said you had touched her on the vagina on the outside of her shorts a few times, including the last time you had been at the house.

8The child made a video recorded statement to the police that morning and immediately afterwards was examined by a doctor at Monash Hospital.

9In addition to what the child had told her mother, she told the doctor that you had kissed her on the cheek and on the mouth that morning.

10Swabs were taken for forensic analysis to test for saliva, with positive results from the child's face and vulva, and from her underpants.

11The DNA profiles obtained from these swabs indicated a high likelihood of you being the offender in two of the instances and in the third instance, relating to the vulva male DNA was found and the overall result as I understand it, having read the forensic report, is that you were not excluded as a contributor.

12You were interviewed that day by the police and you denied the offending saying the child had been looking for part of a toy and to get her out of the way, you lifted her up by putting your hands on her hips.

13A contested committal was held at which forensic evidence was heard and the child's mother was cross-examined to a limited extent.

14You entered a plea of not guilty but after negotiations you pleaded guilty to one charge on 19 October 2016 after the first directions hearing.

15Turning to your personal background, you are aged 70, a married man with three adult children from your first marriage.  At the time of the offending, you were 69.

16Your wife, to whom you have been married for some 20 years, has recently been treated for breast cancer and is now in remission, but being treated with long-term medication and frequent regular check-ups.

17You began your working life as a 15 year old when your father died and you left school.  After several years in the retail trade, you began working in a cleaning business and soon began running your own.  That was 47 years ago and you have continued running that business.

18In 2003, you and your wife purchased an aquarium business but with the advent of online sales as well as the theft of stock by an employee, the business failed leaving significant debt.

19You worked seven days a week in the cleaning business to settle the debt but also had to re-mortgage your home in order to do so, thus avoiding bankruptcy.  Accordingly you have a mortgage of $325,000 with fortnightly payments of over $1000 paid with income from the cleaning business.  You stand to lose your business and your home if incarcerated, as your wife would be unable to continue operating the business alone.

20You yourself have several medical conditions which require monitoring and medication but you have been able to continue working long hours despite them.  You suffer from hypertension with very high blood pressure uncontrolled by medication.  You also suffer from type 2 diabetes which is controlled, as well as an enlarged prostate and a hernia, and you are medicated for high cholesterol.

21Turning now to the sentencing considerations, your plea of guilty has spared the complainant from being cross-examined at a trial and her parents from having to give evidence.  It has saved the overall expense and inconvenience of a trial and has therefore facilitated the system of criminal justice.

22At the same time it is a plea accompanied by denial, and so there is no remorse, nor even acknowledgment of wrong-doing.  The discount to which you are entitled by reason of the plea is somewhat diminished by the denial but still has some effect.

23As to your prospects for rehabilitation, there are several matters to be taken into account, including your denial.  It leads to consideration of the risk of your reoffending.  Remorse is often a starting point in weighing that risk, but in its absence in this case, the opinion of Dr McKenzie, the forensic psychologist who assessed you recently, is valuable.

24Dr McKenzie has assessed you as being at low risk of reoffending and an appropriate candidate for treatment.  She found no indications of paedophilia or sexual attraction to children given your long-term relationships -  two marriages and a defacto relationship -  with adult women.  Dr McKenzie found no stable pattern of deviant arousal.

25On the other hand, she found you have problems with self-awareness, lacking insight into your own general mental processes and that you have difficulty coping with stress, using avoidance strategies to cope.

26She also referred to your consistent denial of any sexually inappropriate behaviour, denial relating not only to this offence but also to a previous matter, the incident resulting in your conviction for indecent assault in 2000 when you were sentenced in the Magistrates' Court to a four month wholly suspended prison term.  You denied that offending claiming that your action leading to your conviction was entirely innocent, just as you have denied this offence. You also denied the circumstances of a charge of unlawful assault leading to a non-conviction fine in 1995.

27Nonetheless Dr McKenzie identified a number of protective factors which indicate low-risk, including a solid and ongoing work history, good family supports and the need to assist your wife, and the absence of any substance abuse problems or anti-social attitudes.

28Importantly, she noted that denial of offending is common among sex offenders and research shows that there is no link between the denial of sexual offending and recidivism.  She added that whatever risk there may be would be reduced through individual psychological treatment.

29Clearly your time in prison will be very difficult for you.  It is your first time in prison and you do have some health problems, although none that cannot be managed in custody.

30You will suffer the anguish of being unable to assist your wife, and the high likelihood that your home will have to be sold, and your wife will be unable to continue to operate the business on her own.

31It was not put by your counsel, Mr Gwynn, that they amount to exceptional circumstances to constitute hardship but they will make your imprisonment more burdensome than it would be for others.

32The prosecution's submission as to sentencing was that immediate imprisonment is warranted because this is a serious example of serious offending.  The child was very young, only six years old and she was entitled to be safe in her own home.

33The offence was not committed in isolation from other similar acts you committed on other occasions against the child.  The denial and lack of insight I have already mentioned adds to the seriousness of the offending.

34The child's parents trusted you in the presence of their children and the breach of that trust has had a very great impact upon them, leading them to distrust other people who might otherwise help them look after their children in the absence of their parents.

35They each read their victim impact statements to the court during the plea hearing.  Her mother stated that she feels terrible guilt for having allowed you into her house and for having trusted you.  She also fears that when her daughter is old enough to understand what was done to her by you, she might be adversely affected by it.

36The complainant’s father stated that he also was devastated by what you did and that he has to experience the effect on his wife, both of them distraught over such things being done to their child.  He has had to stay strong to support the family and has found this very stressful, causing him loss of sleep and emotional impacts ranging from sadness to depression and anger.

37There is a high need for general deterrence in a case such as this and also for strong denunciation by the court.  The legislature has provided for a maximum penalty of ten years' imprisonment.

38The community regards these crimes with great abhorrence as appalling intrusions on the innocence of young children and they must be severely punished.

39I was referred to the case of Soo v R[1], a case involving indecent assault of a child the same age as the complainant as well as other related charges.  The offender in that case was sentenced, after a trial, to four and a half years imprisonment on the individual charge.  The issue of trust in that case was of a different nature in that the offender was actually babysitting the child and had done so for a long time.  The charges overall are more serious and there are sufficient dissimilarities to distinguish the case. It appears that there are no other comparable cases.

[1] [2014] VSCA 304

40The mitigating circumstances in this case call for some leniency to be reflected by a short prison term combined with a Community Correction Order.  This combination provides for punishment which in your circumstances will be deservedly severe, but also provides for further punishment to be carried out while you are once again living in the community and undergoing specific programs to improve your prospects for rehabilitation.

41If you do not comply with the requirements and obligations under a Community Correction Order, you would be in breach of the order and would have to return to court to be re-sentenced by me.

42I sentence you a term of imprisonment of three months with the Community Correction Order to follow straight afterwards.  It will begin on the day of your release from prison and will last for two years.

43You will be under supervision and you must perform 80 hours of unpaid community work.  You must take part in treatment and programs directed towards your rehabilitation including a program under the Specialised Offender Assessment and Treatment Program to reduce the risks of reoffending in any similar way.

44You must report to the Ringwood Office of Corrections within two working days of your release from prison.  The address there is Level 1 2 Bond Street, Ringwood.

45If you had pleaded not guilty to this charge, I would have sentenced you to five months imprisonment with a similar Community Correction Order.

46I will now turn to the Sex Offenders Registration Act. Ms Parkes, does your instructor have any information from the Registry?

47Discussion ensued re the Sex Offender Registration Act)

48(Short adjournment.)

49HER HONOUR:  Yes, Ms Parkes?

50MS PARKES:  Thank you for the time, Your Honour.  We have spoken to the head of the Sex Offender Registry and the indication is that it is eight years.  There is conflicting advice currently but he has indicated that we are prepared to agree that it is eight years.

51HER HONOUR:  All right.  Well it is a bit strange that there is no reference to a Class 4 case anyway, with the legislation, except under sub-paragraph 4 but that is not sufficient basis for going any further with that.

52MS PARKES:  Yes, Your Honour.

53HER HONOUR:  So it will be eight years, Mr Gwynn.

54MR GWYNN:  As Your Honour pleases.  In relation to custody management issues, I think the medications that have been noted in my outline are his current medications and health conditions that unfortunately needs treatment are as indicated there.

55HER HONOUR:  All right.  Well that will be put on the record then on the order.

56MR GWYNN:  Thank you.  As Your Honour pleases.

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