Director of Public Prosecutions v Crosbie
[2018] VCC 768
•25 May 2018
| IN THE COUNTY COURT OF VICTORIA AT BALLARAT CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-01211
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE CROSBIE |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Ballarat [sitting in Melbourne] | |
DATE OF HEARING: | 16 May 2018 | |
DATE OF SENTENCE: | 25 May 2018 | |
CASE MAY BE CITED AS: | DPP v Crosbie | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 768 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr M. Sharpley | Office of Public Prosecutions |
| For the Accused | Mr J. Gullaci | Cinque Oakley Senior |
To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of name of the victim.
HER HONOUR:
1 Shane Crosbie, you have pleaded guilty to two charges of indecent assault. The offences occurred between 1 November 1982 and 31 October 1984 and involved the victim of your offending, Elizabeth Cameron[1]. The maximum penalty applicable to each offence is five years’ imprisonment.
[1] Elizabeth Cameron is a pseudonym
2 It is not necessary for me to recount in great detail the facts of this matter, as the matter was opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during the course of the plea hearing. It is sufficient for present purposes to simply say, the facts in this case are most serious and disturbing.
3 I turn to a brief summary of it. You were born on 12 January 1957 and your offending took place in the early 1980s when you were in your 20s (25-27). You were a leader at the Youth Anglican Fellowship based at St Paul’s Anglican Church in Bakery Hill.
4 The complainant, Elizabeth Cameron, was born in November 1968 and joined the youth group in approximately 1981. She knew you before she joined the youth group. You were married to her brother-in‑law’s sister. She regularly saw you at family functions and was, at the relevant time, 14-15 years of age.
5 The youth group met in Humffray Street, Bakery Hill on Sunday nights, with occasional overnight camps at various locations.
6 I turn to Charge 1, indecent assault. This is a representative charge referable to four occasions. As such the principles in R v SBL[2] , and recently considered in Reid v The Queen[3] (para 72 +) and Browne v The Queen[4] (para 72+) apply.
[2] (1999) 1 VR 706
[3] [2014] VSCA 145
[4] [2015] VSCA 274
7 On an occasion when Elizabeth was approximately 14 years of age, she was at the youth group and the group were going for a walk. On the way back to the church hall, the group decided to play hide and seek. You grabbed her by the hand and pulled her under a large bush in a car park at the rear of the education centre on St Pauls Way. You pulled her in close to you so she was sitting on your lap.
8 You fondled her breasts over the top of the clothing she was wearing (Charge 1, first occasion).
9 You then rubbed her inner thigh, over her clothing. Whilst this was happening, your brother-in-law, also a team leader at the youth group, tried to also hide in the bush but you told him not to as you were already hiding there. You said to Elizabeth “that was close”. She did not understand what was happening and was caught by surprise by your actions.
10 When Elizabeth was approximately 14 she went on a youth group camp in Snake Valley. On occasion she was walking in the main street of Snake Valley at around 9 to 10 pm with others on the camp. The group was staggered into groups and you were walking with Elizabeth. You put your arm around her back. She was wearing a sleeveless top at the time. You put your hand inside her top and fondled her breasts (Charge 1, second occasion).
11 When Elizabeth was 14-15 years old, she went on a youth group camp to Mount Cole. There were approximately 20 people on the camp, including you. She recalled tents set up around a fireplace, around which everyone was sitting. She got up from sitting around the fire and walked to a toilet block approximately 30 to 40 metres away. As she walked back towards the camp, you appeared on the track in front of her and told her to turn off her torch. You hugged her and touched her breasts over her clothing (Charge 1, third occasion).
12 She told you she did not want you doing that and she would scream if you did not let go. You told Elizabeth that she would suffer the consequences if she did not do what you wanted. She turned her torch back on and went back to the camp.
13 When Elizabeth was approximately 15 years of age, she was babysitting for you and your wife, who had a young daughter. Your wife arrived home before you and when you arrived home, your wife took your daughter for a bath. Elizabeth was sitting at the kitchen table. You approached her and put your hand down her top, under her bra and fondled her breasts (Charge 1, fourth occasion).
14 Turning to Charge 2, when Elizabeth was 15 years of age, she got a job at Coles and you used to drive her home from Coles after her shift finished. There was an occasion when you drove home via Lake Wendouree and stopped behind the gardens. At that location you touched her vagina under her clothing (Charge 2). Elizabeth touched your penis.
15 In your record of interview you admitted touching Elizabeth’s vagina, however said you would pick her up from school and then drop her off at Coles and that you would never take her home.
16 You described an occasion when Elizabeth had her schoolbag with her. You admitted you touched her on the vagina after she had removed her underwear. You admitted that there were times when you would touch each other. This was not an isolated event and took place on approximately six occasions. These occasions are relied upon as context to show Charge 2 (the specific incident) was not isolated.
17 Elizabeth contacted you in a recorded telephone conversation on 25 May 2016, during which you and Elizabeth discussed your offending. You were remorseful for your actions, stating to her it was out of line, that you felt a genuine attraction for her, and you "sincerely deeply apologised". You said it was stupid, but you were going through a difficult period with your wife. I discussed this ‘explanation’ by you and Mr Gullaci conceded, some of your offending occurred prior to your daughter’s birth in May 1983. There was discussion in the call in relation to your respective ages at the time. You said you did not believe Elizabeth was as young as she said she was. You said you had deep feelings for her, you felt sick, that you should have known better and it was "just dumb". You said you felt horrible and you knew it was wrong. You thought there was a mutual attraction between Elizabeth and yourself.
18 You were interviewed by police on 6 July 2016, during which you admitted a sexual relationship with Elizabeth, although you did not admit all the allegations. Mr Gullaci conceded in the record of interview you minimised your offending and attempted to ‘blame’ Elizabeth for it, referring to her as flirtatious and instigating some of the offending (see Questions 25-26 as an example).
19 You said you thought Elizabeth was older than she alleged, but agreed your offending was not appropriate, given you were a youth group leader and Elizabeth, a member of the youth group. You agreed you touched her on the breasts and vagina area on a number of occasions, including when at Lake Wendouree in your car when you dropped her home after youth group and after school.
20 You said there was a mutual attraction between you and Elizabeth and everything was consensual. By your pleas of guilty you do not urge that she was consenting to the offending before me, after all you were the ‘adult’ or the ‘authority figure’.
21 You pleaded guilty on 15 June 2017 to the two charges on the indictment. The matter was initially booked in for a contested committal, however, resolved prior to committal. No witnesses were cross-examined. I am aware, as I discussed with Mr Gullaci, you faced further charges not proceeded with after negotiations resolved your offending to the two charges on the indictment before me.
22 The matter then proceeded to a directions hearing in the County Court on 13 July 2017, subsequently adjourned for a plea in the circuit commencing 28 August 2017 at Ballarat, then again subsequently adjourned until your hearing before me. I accept you have had the resolution of this matter hanging over your head for 34 years, although that delay in itself is not surprising, but significantly since June 2017.
23 There are a number of aggravating features of your offending, including not only the breach of trust of Elizabeth, but also the trust of her parents. Further, you ‘threatened’ Elizabeth and told her not to tell anybody about what you were doing, that she would ‘suffer the consequences if she didn’t do what you wanted’. A further aggravating feature is the age difference between you and Elizabeth. Elizabeth 14-15 at the time of your offending, you 25-27 approximately.
24 You have pleaded guilty to these two charges and you are entitled to have that fact taken into account in your favour, and I do so. The community has, by your pleas of guilty, been spared the time and cost of a trial and witnesses have not been required to give evidence upon your trial and in particular, I refer to Elizabeth.
25 Further, I take into account in your favour that you intimated early your intention to plead guilty to the charges that are on the indictment. I note you made some admissions to your offending, albeit minimised it in your interview with police. I am prepared to accept in the circumstances your pleas of guilty indicate remorse for your offending, tempered to a degree by your minimisation of your offending and your attempt to deflect responsibility for it onto Elizabeth.
26 You provided details of your background and history (Exhibit 1). You were born in 1957, the eldest of four siblings. You had always lived in Ballarat. In 1975 you achieved your Higher School Certificate (Form 6), and in 1976 enrolled in a Diploma of Social Sciences at Ballarat University. You completed that diploma and between 1980 and 1984 tutored HSC Biology. You began employment with Australia Post, commencing a supervisor’s course in 1989 and undertook a number of other courses related to that work.
27 In 1979 you married your first wife and in May 1983 your daughter was born. Your wife and daughter were back in hospital within a month of the birth. Your wife apparently not coping well.
28 In 1984 your daughter was hospitalised with bad gastroenteritis. It was during 1983 and 1984 your offending occurred. As I discussed with Mr Gullaci, however, your offending commenced in November 1982, consistent with the charge on the indictment, well before your daughter’s birth. As such, the explanation given by you for your offending occurring when your daughter had been born and when ill, does not explain your offending prior to her birth. That reason remains unknown to me.
29 In 1987 your son was born.
30 Your marriage ended at the end of 1999 due to a number of factors set out in Exhibit 1.
31 In 2000 you met your second wife and moved in together at the end of 2000, marrying in 2002. She had children of her own, including grandchildren and I gather, in total, there are 12 grandchildren.
32 You described being carers for three of your elderly parents who live a few kilometres from you. Appropriately, Mr Gullaci did not rely upon that care as "family hardship" establishing exceptional circumstances. That has not impacted on the sentence I have decided to impose. There would be others available to undertake their care, should you be incarcerated.
33 You have had a solid work history since 1971.
34 In the past you had been keen on sport, basketball, squash and most recently, pennant racquetball.
35 You joined a Church Youth Group following having met your first wife. She apparently attended that youth group.
36 In 1990 you became disillusioned with the Anglican Church and were confirmed into the Uniting Church, later becoming a church elder and a Sunday School teacher.
37 In 1997 you left that church.
38 You referred to having been diagnosed with chronic depression after Form 6. You described depression at times in your life thereafter, including following your wife’s diagnosis with breast cancer, the subsequent Family Law mediation and divorce proceedings relevant to the end of that marriage. In 2015 you were diagnosed with depression, prescribed medication and were seeing a psychologist.
39 Mr Gullaci, who appeared on your behalf, prepared a written outline of submissions which he addressed during the course of your plea hearing and which I discussed with him at some length during it.
40 His ultimate submission was that, whilst conceding your offending was serious and required a term of imprisonment be imposed, he submitted that sentence should be wholly suspended.
41 Mr Gullaci conceded your offending occurred over a significantly prolonged period of time, 1982 to 1984. He conceded you were 25-27 years of age and Elizabeth between just 14-15 years of age at the time.
42 Your offending behaviour referrable to Charge 1, he conceded, occurred during church youth group activities and that you were the leader of the youth group.
43 Regarding Charge 2, he submitted that occurred in the context where both you and Elizabeth were working together. However, I note that that association initially commenced when Elizabeth was in the youth group and you a group leader.
44 Mr Gullaci conceded your offending had a significant adverse impact on the victim, as stated in her victim impact statement. He is correct.
45 He referred to your 34 years in the community since your offending, with no further offending. I am aware of that.
46 In particular addressing matters relevant to sentence, Mr Gullaci referred to your plea of guilty at the committal stage to appropriate charges. I discussed that with him and that it would appear that when the committal mention was arranged, at that time, you were facing a much larger number of charges, which were resolved prior to any witness needing to be called and cross-examined at a contested committal hearing. I accept, therefore, your plea of guilty to these charges before me was at the earliest opportunity and it has utilitarian value and has saved the victim, Elizabeth, from the need to give evidence upon your trial.
47 I discussed however, with Mr Gullaci, what I regard as and he conceded, minimisation of your offending in the interview with police. It was concerning that you attempted to suggest Elizabeth was the one who was flirtatious with you and that you engaged in the conduct currently before me at times, you said, in essence, at her instigation. You did, however, concede that you had offended against her in the offending currently before the court.
48 Mr Gullaci relied upon your plea of guilty as indicative of remorse. As I discussed with him, however, the level of remorse beyond that is tempered to a degree by your minimisation of your offending involving Elizabeth. I do, however, accept that you have shown remorse subsequently, as evidenced within the various characters references before me and also in the reports of Dr Walton and Ms Fraser, to which I shall shortly refer.
49 Mr Gullaci submitted you did not have any prior court appearances, currently being 61 years of age.
50 Mr Gullaci relied on your lack of subsequent offending as relevant when assessing your risk of re‑offending and prospects for rehabilitation. I accept, on the reports of Dr Walton and Ms Fraser, that your prospects of rehabilitation are reasonably good. I am conscious also, there are no other matters pending or outstanding.
51 I am aware also that there has been a delay of 34 years since your offending ceased. Delay in itself, as I said, is not unusual, as the Courts have referred to delay in complainants making sexual allegations not being unusual, such referred to in DPP v Toomey[5], nor was the otherwise blameless life of an offender in the interim (paragraph 14).
[5] [2006] VSCA 90
52 There had, however, he submitted in particular, been a delay of approximately 11 months from the time this matter resolved into a plea of guilty on 15 June 2017. This has been the result of difficulty in listing this matter to be heard and dealt with at Ballarat County Court. You have, I accept, for approximately 11 months, had this matter hanging over your head, being aware that you could receive an immediate term of imprisonment. I accept that waiting, in particular over the last 11 months, has caused you anxiety and uncertainty, with you being aware that this matter could be called on at short notice.
53 Mr Gullaci submitted that, on the material before the court, you were unlikely to re‑offend. In that regard he relied upon the conclusion of Dr Walton, that “Mr Crosbie could not be described as a meaningful paedophile”. Whilst not specifically addressing the level of your risk of re‑offending, I accept that the contents and the tenor of the report tend to indicate that Dr Walton is of the opinion that you are a low risk of similar offending in the future.
54 Mr Gullaci relied upon your engaging in counselling with Jeannette Fraser, Psychologist, following being charged with this offending, which had enabled you to reflect on your offending and become aware of the impact on Elizabeth of your offending.
55 Mr Gullaci also relied upon your long history of depression, also referred to in the report of Dr Walton, which could become more acute in a custodial setting.
56 Mr Gullaci was not, however, relying on the principles in R v Verdins & Ors[6] in mitigation of your sentence and that concession, in my opinion, was appropriate, based on the material before me.
[6] (2007) 16 VR 269
57
Medical material was handed to me, prepared by your general practitioner,
Dr Marton (Exhibit 7). You instructed Mr Gullaci that you took much of that medication, if not on a daily basis, on an “if needed” basis. Mr Gullaci was not relying upon any medical condition as making your time in custody more burdensome for you, should you have medication available to you during your period of incarceration.
58 Mr Gullaci submitted you had good prospects for rehabilitation, referring to your good work record and that you maintained the support of your family. I note in court to support you during your plea hearing was your wife.
59 Mr Gullaci provided a table of recent sentences imposed in this court for similar offending. I have read those decisions and I discussed them with him. The very different circumstances and types of offending in each reflect just how difficult it is comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender. I discussed some of those differences with Mr Gullaci. For example, not only are some of the offences very different, they are not representative charges. There are serious sexual offender provisions that apply in some of the cases which do not apply here. There are differences in age and health of the offenders, most of them in their 70s and one at least in his 80s and some with very significant health problems, which you do not have. As I have said, that list of differences is not exhaustive.
60 Mr Gullaci submitted that, taking into account all the relevant material, his primary submission was you could be sentenced to a term of imprisonment wholly suspended for your offending.
61 His secondary submission, without abandoning his primary submission, was that a community corrections order could be imposed and as I have said, his tertiary submission, without abandoning his primary submission, was that a partially suspended sentence could be imposed for your offending.
62 There were a number of references before me. One from Ian Crosbie, your brother. You were also his work colleague and superior at Coles supermarket and Australia Post mail centres. He said you were very remorseful, ashamed and regretted your offending. You also regretted the anguish it had caused the ‘other party’, which I assume was a reference to Elizabeth Cameron.
63 When disclosing your offending you were extremely emotional, he said, and in a state of self-loathing and shame. He understood you were then undergoing treatment with a psychologist and taking medication for anxiety and depression. You had become withdrawn socially as a result being charged.
64 In the opinion of Ian Crosbie you were remorseful, acutely aware of the damage and hurt you had caused everyone concerned.
65 Also a reference from another brother, Craig Crosbie, dated 26 June 2017. He being youngest of the children, you the eldest. In his formative years you provided him with immense support and guidance, helping him with his academic studies and career choices. He continued to speak to you on a regular basis.
66 You had worked hard all your life to care for and provide for your family, he said, and had a loving and close relationship with your wife and children.
67 You had also provided significant assistance and support to your mother and elderly in‑laws.
68 Your offending, he said, was out of character. He was confident you would not re‑offend.
69 You had shown genuine remorse for the suffering you have caused all concerned. You were deeply embarrassed by what had occurred and felt disgraced within the family and wider community.
70 You suffered from anxiety and depression as a result of the charges. Your family, however, would continue to support you.
71 There was also a reference from Wendy Gooley, dated 14 May 2018. She has known you for 22 years, since you began a relationship with her mother. You were distressed by these charges and had expressed regret for harm you had caused. You were ashamed of your actions. These charges were out of character. She had no concern leaving her daughters with you.
72 There was a reference from Andrew Gooley, husband of Wendy Gooley, dated 14 May 2018. Concerningly, I note, much of the reference is in exactly the same wording as Wendy Gooley’s. The offences, he says, were out of character. You were sensible and trustworthy.
73 There was correspondence from Jeannette Fraser, Psychologist, dated 15 May 2018. You were referred by your General Practitioner to Mind Life Clinic in Ballarat when she was working as a psychologist. You attended an initial consultation on 3 March 2017 and thereafter, six therapeutic intervention sessions between 17 March 2017 and 14 December 2017.
74 You were referred by a general practitioner for symptoms of depression, anxiety and increased stress after being charged with this offending. You had been diligent in applying the practical strategies provided as part of a cognitive behavioural therapy program to address the severe symptoms of reactive depression, anxiety and acute stress. In her opinion you had developed insight into your behaviours and recognition of the difficulty and harm you may have caused to Elizabeth. You were extremely regretful for your behaviour. In the opinion of Ms Fraser, you displayed considerable empathy towards your victim.
75 In the sessions with Ms Fraser, you had never sought to minimise your offending. You displayed considerable remorse and compassion towards your victim. You have accepted your behaviour.
76 There was also a report before me from Dr Lester Walton, Consultant Psychiatrist, dated 9 August 2017 who examined you 3 August 2017.
77 In taking a history from you, you said you believed Elizabeth was over 16 years of age and despite being 11 years her senior, thought you could engage in legitimate sexual involvement. You were, according to Dr Walton, now thoroughly ‘disabused of that notion’.
78 You said your offending occurred when it was ‘a difficult time in my life’. You were married with your first child, lost your job, your wife was not coping with her maternal responsibilities and therefore you turned to Elizabeth for some attention. As I discussed again with Mr Gullaci, your offending between November 1982 and May 1983 if not explained by these matters and your chronology. You described Elizabeth as sexually mature, in the sense of physically developed and that you found her attractive.
79 Upon reflection you now felt ‘terrible’. You regarded yourself as being psychologically immature at the time and fantasised that you were only engaging in an ‘adolescent fling’.
80 You had a history of depression, which Dr Walton concluded had worsened since you were charged.
81 Turning to your background and history, you are 61 years of age at sentence. You described your childhood as ‘pretty good’. You were married for 27 years until your first marriage broke down, due to a number of reasons. You have a 34‑year-old daughter and a 30‑year-old son from that marriage.
82 You remarried approximately 15 years ago and described your relationship as ‘excellent’ and that your wife had three grown-up children and you got on well with them.
83 When you began your working career, you were initially in supermarkets then spent 26 years with Australia Post, becoming operations manager for Western Victoria until you retired approximately six years ago.
84 At interview you described your main source of anxiety as this outstanding offending. In the opinion of Dr Walton, you were a man of normal intelligence and remained cognitively intact.
85 In the opinion of Dr Walton, it was possible you were psychologically immature at the time of your offending, in a stressful situation as the father of a newborn, when your wife was not coping and you were unemployed. Although, as I have said, I have some difficulty with the ‘timeline’, based on your self-report. Dr Walton thought it was highly likely you suffered from significant depression during the period of the offending. It was not unlikely, in that state of despair, you might turn to another for comfort and affection inappropriately. He would not describe you as a paedophile. Despite the chronological age gap between you and Elizabeth, it would be “less in reality because of [your] psychological immaturity”.
86 Mr Gullaci was not relying upon the principles in Verdins and such, in my opinion, was an appropriate concession.
87 You impressed as remorseful.
88 You were currently prescribed anti-depressant medication and had (at the time, August 2017), that is the time of the report, resumed psychological counselling. That, in the opinion of Dr Walton, was an appropriate intervention.
89 There is a victim impact statement read to the Court by Elizabeth. She has suffered considerably in the manner described in her statement. It is difficult to do justice to that eloquent statement in these brief sentencing remarks. But I have, however, also read that statement myself.
90 Elizabeth described your offending as affecting her teenage years, her young adult years and lots of aspects of her life since. She tried to push the memories of your offending away, because it upset her and she did not want it to influence the rest of her life.
91 Approximately six months after your offending stopped, she met a person she thought would be the ‘love of her life’, who would be able to help her forget what had happened. She felt she could not tell anyone if she felt uncomfortable about her relationship. That was how her teenage years were played out. She thought that was what she was meant to do. She often relived memories of what was done to her earlier by you and she panics. That affected her relationship with her husband.
92 Elizabeth went to therapy and thought she was getting over everything, but was wrong. Her emotions had become worse because she has really never let herself understand what had happened until she had children of her own. She became very protective of them, petrified this would also happen to them. She worried about who she could and could not trust.
93 Your offending had not only affected her, but also her whole family. She described how difficult it was to tell her parents what had happened.
94 She felt she had lived a double existence for most of her life, having lied to herself about what happened, then acting like it never happened, because she was ashamed. She kept hearing you say “you can’t say anything to anyone 'cause I’m married” or “people won’t believe it if you say anything 'cause I’m married”.
95 She tried to remember if there was anything she said or did for your offending to have happened and says you should have known better and been the adult.
96 She suffered depression and anxiety and was taking medication. She wanted to start her healing and hoped one day she would have a life without flashbacks and nightmares.
97 Regarding statement of victims, the courts have referred to the notion of social rehabilitation. In DPP v Toomey[7], His Honour Justice Vincent referred to social rehabilitation, citing DPPv DJK[8]:
“With respect to those statements, I repeat comments I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would, of necessity, have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general, but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my viewthey play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[7] [2006] VSCA 90
[8] [2003] VSCA 109
98 The effects upon a victim are a relevant sentencing consideration (see s.5 Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.
99 Regarding your rehabilitation prospects, in my opinion, they are good. I am comforted in that regard by the conclusion of Dr Walton that you are not a ‘paedophile’.
100 Mr Sharpley, who appeared on behalf of the prosecution, referred to the seriousness of your offending. Also, your reference in the record of interview to the complainant “consenting” to this offending.
101 Mr Sharpley submitted that the prosecution position was that a term of imprisonment was appropriate for your offending, however, it was a matter for me as to how that was to be served.
102 Mr Sharpley submitted that a community correction’s order on its own would not be an appropriate disposition, however, a combination disposition of a community correction order and a term of imprisonment would be within the range of appropriate dispositions, should I be so minded.
103 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account general deterrence, which is of particular importance in a case such as this involving sexual offending against children. The seriousness of such offending has been frequently stated by the Courts over many, many years. (See Burnett[9], Roosmalen[10], Wayland[11], Parente[12], recently DPP v DJK, DPP v CPD[13] and Clarkson v The Queen[14]. That list is by no means exhaustive.
[9] (1993) 70 A Crim R 469
[10] (1989) 43 A Crim R 358
[11] 14/9/1992 CA Victoria
[12] 20/2/1996 CA Victoria
[13] [2009] VSCA 114
[14] [2011] VSCA 157)
104 There is also an element of specific deterrence required when sentencing you. Whilst I am conscious you do not have any prior matters or anything subsequent or pending, your offending did, however, occur on more than one occasion and involved multiple occasions over a period from November 1982 to October 1984.
105 I must also consider protection of members of the community from you and bear in mind the likelihood of your re‑offending and I am comforted in that regard by the report of Dr Walton.
106 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
107 I have considered whether a community corrections order would be an appropriate disposition and I have concluded it would not. The conditions normally attached to a community corrections order would not be appropriate in your case.
108 Had you pleaded guilty to any forms of penetration, I would not have entertained a term of imprisonment, wholly suspended.
109 Ultimately, however, I have determined the appropriate disposition in your case is to accede to the submission of Mr Gullaci, that is, that a wholly suspended term of imprisonment be imposed. Having said that, that is not in any way to diminish the adverse impact of your offending upon Elizabeth.
110 I sentence you as follows:
111 Charge 1, convicted and sentenced to 20 months’ imprisonment.
112 Charge 2, convicted and sentenced to 14 months’ imprisonment.
113 Charge 1 is the base sentence and I direct 8 months of Charge 2 be served cumulatively upon Charge 1.
114 That results in a total effective sentence of 28 months’ imprisonment, which I wholly suspend for a period of 3 years from today’s date.
115 That means, if you breach that order by committing any offence punishable by imprisonment in the next 3 years, you will be back before me and you will be re‑sentenced and you can expect that it is likely, you will have to serve those 28 months that I have suspended.
116 Pursuant to s6AAA Sentencing Act 1991, had you pleaded not guilty to these two charges and been found guilty of them by jury verdict, I would not have imposed a sentence and suspended it. Rather, I would have sentenced you to 6 years’ imprisonment, with a non-parole period of 4 years 6 months. Any trial would not have involved a representative charge.
117 Pursuant to s18(4) Sentencing Act 1991, I declare you have not spent any days in custody by way of pre-sentence detention. I simply note this in these sentencing remarks at this stage, should I need to revisit this sentence in the future, which of course I hope I do not.
118 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. This was consented to by counsel on your behalf and I make the order in the terms sought. It will be for a saliva sample. I do so on the basis of the seriousness of your offending. I must advise you, the authorities may use reasonable force in order to obtain that sample.
119 As previously stated, by virtue of your pleas of guilty and being sentenced on the two charges before me, you are required to be registered, pursuant to the Sex Offenders Registration Act for a period of 15 years, such being mandatory. Mr Gullaci agreed such classification and duration applied to you.
120 Following sentence in just a moment, my associate, will ask you to sign, acknowledging receipt of the paperwork relevant to the Sex Offenders Register. You are not being asked if you want to be on the Register, I have already made that order, you are simply being asked to acknowledge receipt of the paperwork.
121 Now, were there any other orders?
122 MR SHARPLEY: No, Your Honour.
123 HER HONOUR: My associate is just going to wander down the back there. Do you want to go with her?
124 MR BRYAN: Yes.
125 HER HONOUR: You do not have to, it is up to you. It is - he is being asked to sign for paperwork in relation to the Sex Offenders Registration Act.
126 MR BRYAN: Yes, Your Honour.
127 MR SHARPLEY: It does, Your Honour.
128 HER HONOUR: Yes. No other orders I have missed?
129 MR SHARPLEY: No other orders.
130 HER HONOUR: All right. Mr Crosbie, free to leave. Do not come back. All right?
131 MR BRYAN: Thank you, Your Honour. If I may be excused?
132 HER HONOUR: Yes thanks for that. Yes, all right.
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