Director of Public Prosecutions v Downie
[2015] VCC 606
•8 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES DOWNIE |
---
| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 6 May 2015 |
| DATE OF SENTENCE: | 8 May 2015 |
| CASE MAY BE CITED AS: | DPP v Downie |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 606 |
REASONS FOR SENTENCE
---
Subject:Plea – sentencing
Catchwords: Sexual penetration of a child under 16 - persistent sexual abuse of a child under 16 - production of child pornography - indecent act with a child under 16
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited: Director of Public Prosecutions v DDJ (2009) VSCA 115
Sentence: 9 years and 6 months' imprisonment, non-parole period 6 years
---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr G. Hughan | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr M. Sharpley Mr R. Davis | Robert Davis |
HIS HONOUR:
1James Downie, you have pleaded guilty to two charges of sexual penetration of a child under 16, two charges of persistent sexual abuse of a child under 16, one charge of production of child pornography and one charge of indecent act with a child under 16.
– Sexual penetration of a child under 16 with the aggravating circumstance that the child, who was aged between 10 and 16 years, was under your care, supervision or authority (Charge 1) carries a maximum penalty of 15 years' imprisonment.
– Sexual penetration of a child under 16 (Charge 2) carries a maximum penalty of 10 years' imprisonment.
– Persistent sexual abuse of a child under 16 (Charges 3 and 4) carries a maximum penalty of 25 years' imprisonment.
– Production of child pornography (Charge 5) carries a maximum penalty of 10 years' imprisonment.
– Indecent act with a child under 16 (Charge 6) carries a maximum penalty of 10 years' imprisonment.
2You were born on 19 July 1985 and you were aged from 21 to 28 when this offending occurred between 18 December 2006 and 30 June 2014. You are now aged 29.
3You have a criminal record, about which I will go into more detail later.
4At the time of the offending you lived in North Melbourne with your mother. You previously lived alone in rental accommodation at an address in Churchill.
5There are four separate complainants in this offending. They are:
· Janet Trengove[1], who was born in 1995 and was aged from 11 to 14 years during the period of the offending;
· Barbara Trengove[2], who was born in 1999 and was aged from 13 to nearly 15 years during the period of the offending - Barbara is the younger sister of Janet;
· Claire Southgate[3], who was born in 1999 and was aged 14 years during the period of offending - Claire was a friend of Barbara Trengove;
· Michelle Barnett [4], who was born on 13 June 1995 and was aged 15 years at the time of the offending - Michelle was a friend of Janet Trengove.
[1] Janet Trengove is a pseudonym.
[2] Barbara Trengove is a pseudonym.
[3] Claire Southgate is a pseudonym.
[4] Michelle Barnett is a pseudonym.
6Nikki West is your mother. At the time off your arrest Ms West was living in Morwell.
7In 2006 you were living with your mother and other family members in a unit at an address in Moe. At that time you and your family made friends with your next-door neighbours, Helen Trengove[5] and her family, including two daughters, Janet and Barbara. At that time Janet was 10 years old and Barbara was 7 years old. Ms Trengove had earlier separated from the girls’ father, who was then living in the Melbourne area.
[5] Helen Trengove is a pseudonym
8Helen Trengove became close friends with your mother, Nikki West. Through this relationship you became close friends with Ms Trengove and her daughters. As that friendship developed you also began a sexual relationship with Helen Trengove, which brought you closer to her and closer to her daughters.
9
Around this time Ms Trengove and Ms West left their children at home when attending outings such as shopping, bingo and other social occasions. During these times you, who were the eldest child (then aged 21-22) were left in charge. On many occasions you were left to look after the other children, in particular Janet and Barbara Trengove.
10As to the offences, on Janet Trengove's 11th birthday in 2006, Helen Trengove and Nikki West were out. Janet was left in your care. That evening you purchased a slab of alcohol. You both drank some of the alcohol together, which resulted in Janet becoming intoxicated. You then took her to your mother's bedroom. There, on your mother's bed, you had sexual intercourse with Janet, penis/vaginal intercourse, for the first time. This conduct constitutes Charge 1, sexual penetration of a child under the age of 16.
11Following this act you continued to have sexual intercourse with Janet for approximately four years. Over that time Janet moved address to a number of different locations in the Latrobe Valley area, as did you. You and your family continued your close association with Janet's family. You and Janet continued to have sexual intercourse in excess of 30 times. These are uncharged acts, asserted as context only for the two charged offences.
12On an occasion in May or June 2010 you and Janet had sexual intercourse which resulted in Janet becoming pregnant. At the time Janet was approximately 14 and a half years old. You were almost 25 years old. This conduct constitutes Charge 2, sexual penetration of a child under the age of 16.
13Towards the end of Janet's pregnancy she ceased contact with you and your relationship ended.
14In March 2011 Janet gave birth to a child. You are the father of that child. However you were not aware of that fact until a DNA analysis was conducted in the course of the police investigation into these offences.
15As to Barbara Trengove, Barbara met you when she was 7 years old and living in the unit in Moe. For many years you were very involved in her life. Barbara Trengove often referred to you as "father", or "step-father". You regularly gave her gifts, brought her alcohol, bought and provided cigarettes for her and also paid for mobile phone credit. This largess was a regular feature of her relationship with you and it continued until your arrest.
16In 2012 Barbara Trengove was very close to you. One day she confided to you that she had fallen in love with a male friend and was contemplating having sex with that male. Barbara told you about this because she felt close to you and she felt she had your trust. You suggested that she should not lose her virginity to this male but that instead, if she trusted you, she should first have sex with you.
17On 16 November 2012 Barbara was with you in Morwell in your car. You drove her to a bush reserve near the Morwell Golf Club. Once you were at that location you began kissing her and biting her neck and you repeatedly tried to put your hands inside her pants and touch her vagina. Barbara stopped you from touching her vagina but she did not stop you from kissing her. From that day her relationship with you became a sexual relationship.
18After leaving the bush reserve you drove a very short distance and were intercepted for a routine check by a passing police patrol. You and Barbara Trengove were both spoken to at that time by Senior Constables McKay and Blanchard, shortly after 11 pm. At the time Barbara was aged 13 years and 4 months.
19Following the interception by police, you and Barbara returned to the address at Morwell, where at that time you were living with your then partner. During that night you all watched a movie together. Later in the night or in the early hours of 17 November 2012 you sent your partner out to get some takeaway food. While she was out Barbara and you had sexual intercourse.
20
You continued to engage in sexual intercourse with Barbara regularly after 16 November 2012 until mid-2014. Barbara estimated that she and you had sexual intercourse more than 200 times. On many occasions Barbara would visit you at your home and stay for short periods of time, during which you would have sex. You wanted to have sex with her most days.
21On occasions such as when Barbara was standing at the kitchen sink washing dishes, you approached and began to touch her, leading to sex. At other times when she was in the shower, you approached her, grabbed her and kissed her and then had sexual intercourse with her.
22In May 2013 Barbara had a contraceptive rod inserted in her arm at your request. Before then you were unwilling to ejaculate inside her vagina, so you asked that she get the rod inserted. You told her that sex would feel better for you if you do not have to withdraw to ejaculate. After the contraceptive rod was inserted you frequently had sex with Barbara during which time you ejaculated into her vagina.
23In early 2014 you were living at an address in Moe. Around that time Barbara began having minor arguments and clashes with her mother. You offered respite care. Barbara then lived with you for approximately three months, during which the sexual intercourse continued.
24In that time Barbara's cousin, Carol Draper[6], also commenced living at your home in Moe. Ms Draper lived at that home for a short period of time. Around April 2014 Barbara Trengove moved out of your home and moved in with friends.
[6] Carol Draper is a pseudonym
25Ms Draper left your home shortly after Barbara Trengove and then she stayed briefly with Barbara and Susan and Claire Southgate. Ms Draper then moved to a house in Churchill and shortly after you moved in with her at that address.
26You continued your sexual relationship with Barbara Trengove, who regularly visited you at the home in Churchill where you lived with Ms Draper. This continued until June 2014. The last occasion of sexual intercourse between you and Barbara was at this home in Churchill in June 2014. This conduct is represented by Charge 3, persistent sexual abuse abuse of a child under 16.
27As to Claire Southgate, through your association with Barbara Trengove you met her friend Claire Southgate. At the time you met Claire she was 14 years old and was living with her mother, Susan Southgate, in Morwell. At this time Susan Southgate was single.
28In early 2014 Claire Southgate introduced you to her mother. Shortly after that introduction you began a sexual relationship with Susan Southgate.
29Through your relationship with Susan Southgate you became close to Claire Southgate and, as was the case with Barbara Trengove, you gave Claire cigarettes and alcohol.
30Claire Southgate began having regular clashes with her mother and, as with Barbara Trengove, you offered respite care for her and to have Claire stay at your home. At that time you were engaged in a sexual relationship with Claire's mother, Susan Southgate.
31In April 2014 you spoke with Susan Southgate and made arrangements to take Claire out for the day from Morwell to Melbourne. On Wednesday 2 April 2014 you drove Claire in your car to various locations in the Melbourne metropolitan area. You took Claire shopping and bought her shoes and clothes before later that day returning to Gippsland.
32Upon returning to Gippsland you drove to Moe where you booked into a motel room and stayed the night with Claire Southgate. During that night, you purchased and consumed alcohol and then discussed having sex with Claire. You had penile/vaginal sexual intercourse with Claire that evening in the motel.
33
During the evening Susan Southgate phoned you. You stated that you had not been able to make it all the way back from Melbourne and that you had decided to stay overnight due to it being late. In fact the motel at which you were staying with Claire is only 20 kilometres from the Southgates’ home.
34From that date you continued to have sexual intercourse with Claire. At that time you were living in Churchill with Ms Draper.
35Shortly after staying at the motel in Moe overnight on 2 and 3 April 2014, Claire stayed with you at your home. During the days immediately after staying in the motel, in early April 2014, you again had sexual intercourse with Claire Southgate at your home.
36During this period your former partner was living in Morwell. You arranged with Claire to meet her at your former partner’s home on occasions when she was not present. On these occasions, you again had sexual intercourse with Claire.
37While Claire was staying at your home in respite from her mother, you told Claire that her mother had sent you text messages telling you that she wanted Claire to continue to stay at your home. You told Claire that her mother no longer liked her and no longer wished to see her. These were lies which Claire believed to be true, resulting in her continuing to reside at your home for longer than she otherwise would have done. You used this added stay to continue to engage in sexual intercourse with Claire.
38Claire eventually suspected she was being misinformed about her mother's text messages. When she visited her home, she accessed her mother's phone and read through the text message threads between her mother and you. She saw that the texts were not consistent with what she had been told by you.
39Your sexual abuse of Claire Southgate commenced on 2 April 2014 when you stayed overnight in the motel at Moe, and continued until late May 2014. Claire Southgate estimated that you had sexual intercourse more than 20 times. This is represented by Charge 4, persistent sexual abuse of a child under 16.
40On an occasion when Claire Southgate was staying at your home in Churchill, during an act of sexual intercourse you set up a laptop computer to capture video images of you two together. The computer was set up beside your bed and depicts you and Claire on that bed having sexual intercourse at the time. Your laptop computer captured digital video footage of that act, and the file was later saved and stored on the computer.
41On another occasion you used your mobile phone in your bedroom to take photographs of Claire Southgate in her underwear. This conduct in combination - the video and the still photographs - is represented by Charge 5, produce child pornography. So this is a representative charge for the two acts.
42As to Michelle Barnett, Michelle Barnett is a close friend of Janet Trengove and her family. Through her association with the Trengove family, Michelle met and became friends with you.
43Michelle first met you in 2010 when she was 15 years old. At that time Michelle was living with Helen Trengove and Janet and Barbara in Morwell. At that time you were in an intimate relationship with Helen Trengove. You "came onto" Michelle and tried to get her more experienced with sex.
44On an unknown date when Michelle was still 15 years old, she was at the Trengove home with you, Helen Trengove and a person known only to her as "Mark". During the evening you drove Michelle and Mark to McDonald's to get a coffee. You left for McDonald's at approximately 9.30 pm.
45After going to McDonald's you parked your car in the grounds of a school only a short distance away from Ms Trengove's home. You told Mark to go for a walk and leave you alone with Michelle, which Mark did. While you were alone in the car parked in the school grounds, you asked Michelle to sit in the front of the car with you. When she moved to the front seat you placed your hand on Michelle's thigh and began rubbing it while you were talking to her.
46You spent what seemed to Michelle a “long time” sitting in the car in the school grounds before Mark returned and you drove back to Ms Trengove's home. You arrived there at approximately 11 pm.
47Mark then went to watch television. You told Ms Trengove to stay in her bedroom. You then took Michelle into Janet Trengove's bedroom and lay with her on a mattress on the floor. Janet was not home at the time. You lowered your tracksuit pants exposing your erect penis. You lay on top of Michelle and rubbed your penis on the outside of her vagina. While you were doing this, Helen Trengove walked into the room. This act is represented by Charge 6, indecent act with a child under 16.
48You then jumped up, pulled up your tracksuit pants and left the room to speak with Ms Trengove. A short time later you left Ms Trengove's home.
49In May 2014 you ceased your relationship with Susan Southgate. Around that time Ms Southgate found a handwritten letter in her daughter Claire's bedroom. It appeared to Ms Southgate that this letter was written by both Claire and you, as she was familiar with the handwriting of both of you. The letter suggested that you and Claire had been having sex. Ms Southgate then phoned you and told you of the existence of the letter.
50Following the telephone call you attended Ms Southgate's home and asked to see the letter. You took the letter on the understanding that you were going to “find out about it”. You never returned the letter. You denied to Ms Southgate that you had written any part of the letter and denied that you had had sex with Claire.
51In July 2014 police commenced to investigate you for the alleged sexual abuse of Claire Southgate. In the course of the investigation the police received information about the alleged abuse of the other complainants.
52
On 29 August 2014 police arrested you at your mother's home in Morwell. The police later searched your address in relation to the letters referred to by Susan Southgate.
53In a preliminary interview prior to the execution of a search warrant, you indicated knowledge of the letter referred to by Susan Southgate; however you stated that you had thrown it out. You also stated that you had not taken any photographs of Claire Southgate and that your laptop computer had recently broken and was also thrown out.
54During the search of your home, police located handwritten letters consistent with Susan Southgate's claim. The letters were located in your bedroom.
55When interviewed you admitted that you knew the first three complainants and admitted to the intimate relationships with their mothers: Helen Trengove and Susan Southgate. You admitted to a long history of involvement in the lives of the first three complainants, to providing financial assistance to each of them, consistent with their statements. However you denied the allegations in relation to sexual assaults of them and denied ever having had sex with the complainants.
56During that interview, you consented to providing a forensic DNA sample. DNA samples were later obtained from Janet Trengove and her child. The result of the forensic analysis of those samples indicates that you cannot be excluded as being the biological father of her child. The DNA results provide extremely strong support for the proposition that you are the biological father.
57During a search of Ms West's home police seized a number of items including the laptop computer you claimed had been disposed of.
58In October 2014 the laptop computer was subject to a digital forensic analysis. Police located images on this computer consistent with Claire Southgate's complaint. These images depict Claire in underwear only and are taken in a sexual context. The digital forensic analysis indicates that these images were taken with your phone and then transferred and saved to your computer.
59The first three complainants have each made a victim impact statement.
60Janet Trengove has written of her loss of trust in males, particularly older males, how she felt used and the psychological damage and its consequences that she has suffered and continues to suffer.
61Claire Southgate also has written of her consequent emotional distress and depression and recounted how her education has been affected.
62Barbara Trengove has written of her loss of trust, particularly as she referred to you as her step-dad, how she has become scared of males and that she suffers depression.
63I now turn to your personal circumstances. As I noted earlier, you were aged from 21 to 28 when this offending occurred, you are now aged 29 and you have a criminal record.
64Your first court appearance was at the age of 22 when you were fined without conviction at the Melbourne Magistrates' Court for possessing a prohibited weapon.
65The relevant past matter for the purpose of this sentence is a conviction you received on 24 June 2014 for committing an indecent act with a child under 16 for which you were sentenced in the Latrobe Valley County Court to a Community Correction Order for twelve months, with conditions including treatment and community work. For this matter you were released on bail on 8 January 2014, the day you were committed to the County Court for a plea of guilty on those charges. You had been on summons prior to that date.
66That plea resulted in you being sentenced by this court on three charges of committing an indecent act with a child under 16, as I said, to a Community Correction Order with appropriate conditions for a period of twelve months.
67Section 16(3C) of the Sentencing Act 1991 requires that every term of imprisonment imposed on a person for an offence committed while on bail in relation to any other offence must, unless otherwise directed by the court, be served cumulatively on any uncompleted sentence of imprisonment, whether before or at the same time as that term.
68Part of the latter date range for Charge 3 includes 8 January 2014 onwards, when you were on bail. The date ranges for Charges 4 and 5 are all post 8 January 2014, so this section applies directly to those two charges on the indictment.
69You had a very disrupted and disadvantaged upbringing, your parents separating when you were an infant and you being raised initially by your single mother who had her own personal difficulties. After a very short time, your early care was shared among family members and in particular your maternal grandparents as well as in foster arrangements. As a child you never knew your father and believed you were born as a result of your mother having been raped by him. Your only meeting with him, when you were aged 18, resulted in a fight.
70You were placed in State care just short of your fifth birthday in 1990. You were discharged when you were almost six and for the next two years you lived with your mother interspersed with your maternal grandparents.
71At the age of six you recall hearing voices and being prescribed medication to block the voices. Subsequently, you were diagnosed with Attention Deficit Hyperactive Disorder and prescribed Dexamphetamine. Later, you were also prescribed Dilantan, an anticonvulsant, for what was described as petit mal fits.
72You were admitted to Kilmany House, Sale under a guardianship order in 1994, your mother having been assessed as incompetent to care for you. The order lapsed in July 1996, but you remained there from the age of eight years, eight months until ten years, four months.
73Significantly, in the time you spent at Kilmany you were subjected to sexual penetrative abuse by older female residents and another teenage inmate would hit you and burn you with cigarettes. You were home-released in November 1995 at the age of ten on a graded basis until your mother was fit to care for you.
74You left home at 17 and spent some time in South Australia before returning to the Morwell area.
75Your education ended halfway through Year 10. Since then your employment has been sporadic; however shortly before your arrest you were working as a warehouse assistant manager and this employment remains open for you upon your eventual release.
76You developed a relationship with the woman who was to become the mother of your three children when you were 22 and she remains supportive of you and was present at your plea hearing. This has been your only serious relationship and it has been unstable and intermittent at times.
77You were prescribed medication for ADHD in childhood, antidepressants through adolescence and into your adulthood. You have had periods from your adolescence where you have abused alcohol and illicit drugs with times of remission and relapse. In the absence of the dulling effect of drugs, you experience flashbacks to the abuses you suffered as a child.
78In mid-adolescence you were referred for psychiatric intervention due to suicide ideation and attempts, and most likely psychotic episodes. There still remains some concern of underlying disturbance of a psychotic nature regarding the occasional presence of intrusive voices and visual hallucinations.
79Mr Healey, clinical psychologist, who provided a comprehensive report for the court also notes that you experience shame and humiliation over your conduct and have had regular discussions with the Prison Chaplin. The letter from the Prison Chaplin confirms the discussions you have had with her and steps taken by you to improve yourself.
80Your recent employer has confirmed your employment with him as assistant warehouse manager.
81The crimes of sexual penetration and indecent act with a child under 16 are serious, and in the case of penetration often result in immediate imprisonment and for a significant term. The crime of persistent sexual abuse of a child under 16 is particularly serious. Its serious nature is partly reflected in the maximum penalty of 25 years’ imprisonment imposed by Parliament. The production of child pornography, being clearly further exploitation of children, is also regarded seriously by the courts.
82Sexual assaults against children are unfortunately not uncommon and are to be deplored. The courts are expected to protect the rights of children. The victims in this case were vulnerable young teenage girls who, despite their apparent willingness to engage with you in sexual activity, have to be understood as needing to be protected also from themselves at a time of emerging emotions and understanding of sexual activity and its consequences, both physical and emotional.
83Furthermore, your offending was perpetrated by your grooming of three of the girls with gifts and providing them with alcohol. In respect of Charge 1, your victim was under your formal supervision or authority. In respect of Charge 2, your victim gave birth to your child shortly after she turned 15. In respect of Charge 3, for a time the victim was staying at your place for respite care and in respect of Charge 4, your victim was also staying at your place for respite care, part of which was extended by your deception of the true circumstances to your victim.
84These are each grave examples of breach of trust. In essence your conduct was predatory, grossly exploitive and was protracted over a number of years involving multiple victims. Whilst there is no evidence of coercion by threats or violence, your approach remained sinister by force of its subtle seduction and abuse of power imbalance.
85In mitigation, I take into account the matters urged on your behalf by your counsel, including:
· your early plea of guilty, sparing the victims the necessity of the further anxiety and stress of protracted court proceedings and challenges to the truth of their testimony;
· your very disadvantaged and disrupted childhood which denied you the stability, nurturing, protection and example that you might otherwise have had;
· the corrupting and exploitive sexual abuse you suffered yourself as a vulnerable child which is likely to have affected your normal development;
· your psychological difficulties which continue to this day and for which you continue to require medication as outlined by Mr Healey;
· the shame you have expressed concerning your conduct;
· the support you still have from your partner despite your behaviour; and
· the manner in which you have applied yourself to rehabilitative courses whilst in prison.
86The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
87On balance, in the particular circumstances of this case, the purpose or purposes for which the sentence is imposed clearly cannot be achieved by a sentence that does not involve your immediate confinement in prison and for a significant period.
88I have received submissions on and have taken into account current sentencing practices by the courts in cases of this kind. I have been particularly assisted by the Sentencing Snapshots and Sentencing Overviews publications for the overviews they provide, limited though they may be. I have also been assisted by the judgment of the Court of Appeal in the decision of the Director of Public Prosecutions v DDJ (2009) VSCA 115 for the guidance that decision provides.
89Within the context of other cases, ultimately each case must be decided on its own particular circumstances. Here there is a need to balance very serious sexual offending committed upon vulnerable young girls in the context that the perpetrator of those offences was himself the victim of a disrupted and dislocated childhood, corrupted by serious sexual abuse.
90I note that under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offence charges, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order to achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
91This means that the sentencing task in respect of Charges 3, 4, 5 and 6 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose sentences may be imposed longer than that which is proportionate to the gravity of the offences considered in light of the objective circumstances. However, because of the circumstances and the particular mitigating factors in your case, I do not propose to do so.
92Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charges 3, 4, 5 and 6 the sentences I impose are to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that which I have ordered.
93I note here that the Crown did not call for a disproportionate sentence as contemplated by s.6D of the Sentencing Act.
94As mentioned previously, Charges 4, 5 and part of the offending on Charge 3, were committed whilst you were on bail. Because of your personal circumstances and for reasons of appropriate totality, I do not propose to apply that cumulation. The sentences on Charges 4 and 5 may still be regarded having been aggravated by the fact that you were on bail at the time. I do not propose to apply that aggravation to Charge 3 because of the lack of particularity in that charge. In light of what is now known, I regard that circumstance, that is, the circumstances of you committing the offences whilst you were on bail, as particularly egregious given that the conduct continued over the period leading up to the date of your hearing in this court on 4 June 2014 on other sexual offences against a child.
95I note that on that occasion, His Honour Judge Parrish gave significant concessions in his sentencing remarks to remarks that you had made at the time to the consulting psychologist Mr Healey, expressed by Mr Healey in his report to the court in the following terms. Speaking of you Mr Healey said,
"He felt he would be highly unlikely to be attracted to a female child or to initiate behaviours perpetrated upon him as a child; the only possible explanation for his apparent deviancy was in the context of his disturbed mental state at the time and the cocktail of prescribed medication, illicit drugs and alcohol. He is bewildered over these matters and particularly upset that he, under any circumstances, could have behaved in such a way in view of his own experiences.”
96You, of all people, understood the possible consequences of childhood sexual abuse. Your recognition of that is given further illustration by the fact that you had made your own application for compensation for sexual and physical abuse perpetrated upon you whilst in State care.
97Mr Downie, could you please now stand.
98On Charge 1 of sexual penetration of a child under 16, you are sentenced to 3 years’ imprisonment.
99On Charge 2 of sexual penetration of a child under 16, you are convicted and sentenced to 2 years’ imprisonment.
100On Charge 3 of persistent sexual abuse of a child under 16, you are convicted and sentenced to 7 years’ imprisonment.
101On Charge 4 of persistent sexual abuse of a child under 16, you are convicted and sentenced to 5 years’ imprisonment.
102On Charge 5 of production of child pornography, you are convicted and sentenced to 12 months’ imprisonment.
103On Charge 6 of indecent act with a child under 16, you are convicted and sentenced to 18 months’ imprisonment.
104Charge 3 is the base sentence. I direct that one year of the sentence imposed on Charge 4, six months of the sentences imposed on each of Charges 1 and 2 and three months of the sentences imposed on each of Charges 5 and 6 be served cumulatively on the sentence imposed on Charge 3 and upon each other.
105The total effective sentence is nine years and six months’ imprisonment.
106I direct that you serve a minimum term of six years’ imprisonment before being eligible for parole. The sentence starts today.
107Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 252 days, not including today, be reckoned as time already served under the sentence and I direct the fact of this declaration and its details be noted in the records of the court.
108Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty the total effective sentence over all charges that would have been imposed is 12 years’ imprisonment, with a minimum period of 8 years and 6 months to be served before eligibility for parole.
109Now there are some further matters to which I need to attend; you may take a seat for the moment.
110The offences to which you have pleaded guilty are registrable offences pursuant to the provision of the Sex Offenders Registration Act 2004 and by reason of your being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
111Pursuant to s.50 of that Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case is for life.
112My associate will shortly hand you the Notification of Reporting Obligations form, which I have already signed, through your counsel. Your representative in court today will ensure that you understand the requirements set out in this Form and I will ask you, once it is given to you, to sign the Acknowledgement that you have received the Notification Form and to return the Acknowledgement to my associate.
113That Sex Offenders Registration material may now be provided to Mr Downie's solicitor. Thank you Mr Davis, if you could take that to Mr Downie and ensure that he understands it and signs it.
114MR DAVIS: Yes, Your Honour. Your Honour, he's signed the Acknowledgement. I've left the other documentation with him which he acknowledges that he has received.
115HIS HONOUR: Thank you. Are there any matters arising from either counsel?
116MR HUGHAN: Your Honour, we did seek forfeiture of the computer and the phone. Did we hand Your Honour a draft forfeiture order on the plea hearing? I thought we did.
117HIS HONOUR: Yes, that is so. At the plea hearing, the Crown sought a forfeiture order as to the Hewlett Packard laptop computer and the Samsung mobile phone to which you consented and I have made that order today.
118MR HUGHAN: As Your Honour pleases.
119HIS HONOUR: Apart from that, any other matters from either counsel?
120MR DAVIS: No, thank you.
121MR HUGHAN: No, Your Honour.
122HIS HONOUR: All right, thank you very much. Thank you Mr Davis for your assistance in this case and other matters on the circuit.
123MR DAVIS: Thank you sir.
124HIS HONOUR: Thank you very much, Mr Hughan, for your co-operation and assistance throughout the whole of the circuit.
125MR HUGHAN: That's very kind of you, thank you, Your Honour.
126HIS HONOUR: All right, 10.30 at Melbourne, thank you.
- - -
0