Director of Public Prosecutions v Drowley

[2016] VCC 2009

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-00393

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK DROWLEY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:	15 December 2016
DATE OF SENTENCE:	15 December 2016
CASE MAY BE CITED AS:	DPP v Drowley
MEDIUM NEUTRAL CITATION:	[2016] VCC 2009

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Mahady	Office of Public Prosecutions
For the Accused	Mr G. Chisholm	John Sullivan Lawyers

Pages 1 - 8

 

 

HIS HONOUR:

1Mark Drowley, you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 between the dates, March 2002 and March 2003.  The charges are representative of other like conduct and importantly, the charges themselves relate to criminal conduct later in the one year timeframe.

2The victim was 15 throughout the period of cover the charges.  You came to know the victim when she moved into your family home in late December 2001.  She was a troubled young woman who, amongst other burdens she had or that she carried, she was deaf.  In many obvious ways, she was vulnerable.

3The victim moved out of your family home in August 2002.  That was when you too, moved out.  Your relationship with your then wife had come to an end. 

4You and the victim had commenced a sexual relationship prior to her moving out in August 2002.  That relationship continued for about another three or so years, ending in mid-2005.  During the time, you and the victim lived as husband and wife and had two children. 

5The first charge is one of oral penetration which occurred at your workplace in Yarram.  This charge represented another single time or single instance where this conduct occurred.

6The second charge was penile/vaginal penetration which occurred, that is the charge, in a hotel room in Moe when the complainant was living with another foster family and you were on your own.

7It was put that there were eight other occasions, some in the family home, in a shed on the property, hotel rooms and a caravan where you moved into after leaving the family home. 

8The full details of your offending were set out, as in the prosecution opening, for his plea, which was an exhibit in the proceedings.  I have just endeavoured to summarise, I hope accurately, pertinent matters from summary as to the conduct.

9What is clear is the sexual relationship while she was 15 did result in one pregnancy.  The relationship continued when she turned 16 and thus, was of an age to consent. 

10There can be no doubt the offending is serious; you were 32 years old at the time.  She was, as noted, a vulnerable child and as such, when the relationship started, she was in your home but not at the precise time of the charges.  You were, at the outset, in a position of trust but not at the precise time of the charges, so to speak.

11There are aspects of the breach of trust but they are not as plain as is usually the situation in offending of this kind and that must be factored into the equation appropriately.  With that said, the age difference was considerable.  You were the adult and thus, had the responsibility of ensuring she did not engage in sexual activity while immature.

12The laws role is to protect vulnerable children, at times, from themselves.  The ultimate harm caused to her is evidenced by her victim impact statement.  The presumption of harm is validated in this instance.  Notwithstanding that you ultimately continued a relationship when she was of an age to consent.  The first pregnancy is a matter making the offending more serious but again, it is different from what is usually the situation in serious offending where pregnancy results.

13The gravity of your offending needs to be properly understood.  While such offending is always serious in all the circumstances, this is not a particularly serious example of the offending.  As to your moral culpability, you should have waited and not exploited the immaturity of the victim at the time. 

14Her victim impact statement outlines the ongoing effect on her and she is now ten, 12, 14 years on from what occurred.  She says, "While I was staying at (indistinct) house, I was a young teenager who was craving some love and attention as I had conflictual relationships with my parents.  I trusted the family I was staying with.  I feel (indistinct) had manipulated my mind and thoughts by knowing how weak and vulnerable I was in taking advantage of me.  I resent not being able to lead a normal childhood in a sense, fell a sense of loss.  Part of me was taken and throughout my life I have been questioning my sense of identity and sense of self.  I feel this experience has shaped my foundation of what love and intimacy really is.  Intimacy with people has never been normal for me.  I find it difficult trusting people and forming close relationships.  I cannot trust people."

15As to your own circumstances, Mr Drowley, you are now 47, living alone on a disability pension.  You have a small number of friends, some who supported you in court.  You live, it seems, a very quiet life in Yarram. 

16Your prior criminal history involves drug offences and I do not consider those matters to have much, if any weight, in the sentencing process.

17To your credit, you had a stable working history until you suffered a workplace injury to your leg in 2003.  Thereafter you have been on a disability pension.  That serious injury was added to by cardiac disease, which saw you hospitalised for heart attacks in 2004 and 2006.  First you had a stent and then a bypass, a cardiac bypass.  Despite this, you continue to smoke tobacco and cannabis, drink alcohol, though much less than in the past.  Your health is an important matter or your poor health is an important matter in considering the ultimate submission on penalty made by your counsel. 

18You have a low intellect; your schooling was minimal and left you illiterate and innumerate.  These deficits have continued, these are enduring problems and I cannot ignore them. 

19You have a serious or have had a serious problem with alcohol since, probably, your teens.  Your ex-wife described your resort and reliance on alcohol in her evidence at the committal. 

20As stated, you have cut back of late, mainly, it seems due to financial constraints.  Your current financial circumstances mean that you have little, if anything, to contribute to your own children's welfare, that is the children that you had with the complainant. 

21You have a now adult son from your first wife.  He has a significant disability but is more independent now.  You have contact with him and a friendship with your first wife. 

22You were assessed by a forensic psychologist, Mr Ball as being an introverted, dependent man.  His assessment and opinion of your risk of sexual offending into the future is that you are a low risk.  The prosecution do not contend otherwise.  I agree on all the material, including and importantly that of Mr Ball, that you are a low risk of reoffending in like manner.

23Your plea of guilty is a matter of some weight, given the difficulties the complainant would have faced in giving evidence to a jury.  There was a committal but prior to the trial, further information that was provided led to the prosecution crystallising the indictment, as it were, to the two representative charges that you faced, which you have pleaded guilty. 

24Thus, your plea will be given weight and the sentence I am about to impose will be much less than it otherwise would have been had you gone to trial and been found guilty of the offences. 

25There has been delay in the case, that is, from the offending until such time as the complainant had the strength to go forward to the police.  That is not an uncommon feature of sexual offending against children or sexual offending generally.  But in the years that have passed, you have left the complainant well alone and have not reoffended or acted inappropriately in any like way for the last decade or so.

26Important sentencing purposes are denunciation of your sexual offending with a vulnerable child.  There needs also to be a clear message of deterrence mainly to others that sexual offending against children will not be tolerated.  I need also to establish conditions, if I can, to facilitate your rehabilitation but you have taken significant steps yourself although I am concerned that you continue to use cannabis. 

27You counsel acknowledged the importance of all these sentencing purposes but he submitted that in the unusual circumstances of this case, those sentencing purposes could be met by the imposition of a term of imprisonment which was wholly suspended.  Importantly, in this regard, the prosecution contended that such a sentence would be a just and appropriate one.  That was said in the sense that it was within the range of what would be the proper exercise of my sentencing discretion, given all the particular circumstances of the case. 

28While I am mindful of meeting community expectations in respect of sexual offending against children, I consider that by the imposition of a sentence of imprisonment which is wholly suspended, I can still meet all sentencing purposes in what, on any view, would in the end be a merciful outcome for you.  It should not be considered that anything other and all the unusual circumstances of the case allow for this rare result.  It is, in the end, desirable that I wholly suspend the lengthy term of imprisonment and that is what I intend to do.

29On Charge 1, the representative charge of oral penetration, you are sentenced to 14 months' imprisonment. 

30On Charge 2, being the representative charge of sexual penetration of a child under the age of 16 by penile penetration of her vagina, you are sentenced to two years and four months.

31I order that six months of the charge of Charge 1 be cumulative on Charge 2.  My calculations are that is a total effective sentence of two years ten months, which I wholly suspend.  The operational period of the suspension is three years from today. 

32I will explain to you what that means, mainly in terms of what happens if you breach the suspended sentence that I have just imposed.  Had you pleaded not guilty to the offence and been found guilty of it, I would have imposed a sentence of four years imprisonment with a minimum term of two years, that would have been two years at least served inside a prison had you gone to trial and been found guilty of these matters.  You and the community can understand what benefits flow by a plea of guilty.

33There are other orders that are automatic about a retention of a forensic sample but another order that I must impose, I have no choice in the matter, is that you will be placed on the Sex Offenders Register for life. 

34The process in this court is that you will be given a document shortly - your barrister will help you with this - that says, essentially, here are the particular circumstances or responsibilities that you have in getting yourself registered and complying with registration.

35They are very onerous responsibilities, there is a lot you have to tell the police and keep telling them as things go on.  But what happens in the court is that I give you document that you sign, that essentially is acknowledging that I have given you the document.  I then sign a document that says I did give it to you.  There it is.  Apparently transcripts not sufficient.  We will go through that process.  The document will be produced in a minute. 

36What I need you to understand, Mr Drowley, is that you have received a sentence of imprisonment, a lengthy one, two years ten months but it has been wholly suspended for three years.  Should you commit any offence, it is punishable by imprisonment in the next three years.  Then you will come back before me for breaching the suspended sentence and unless you can establish exceptional circumstances and show that it is in the interest in justice, unless you can do that, then I have little choice but to make you serve each and every day of the two years and ten months, do you follow?  Which is actually more than you would have got on a baseline of two years before a parole.  But that is the sentence that you will confront, do you follow?

37Now, you have to understand that almost every offence you can think of is punishable by imprisonment, even if a magistrate saw it and said, "Well, I'll fine him", or something like that; that is not the point.  It is that you have committed an offence that is punishable by imprisonment. 

38Right, well you would well understand that theft or something, that is punishable by imprisonment so you would understand that.  But please understand that drug offences do lead to the capacity for a magistrate to impose a sentence of imprisonment, so it is a crime punishable by imprisonment.  If you possess cannabis, that is a crime punishable by imprisonment.  While there might be use or possession of small amounts, it might not be.  Do not take the punt on all of that, do you understand?  For your health for goodness sake, put it to one side.  Easier said than done but you do not have much choice anymore. 

39Ms Mahady and Mr Chisholm, I have not done the suspended sentences as most of us do not for a long long time.  Does that cover what I have got to tell him about the consequences?

40COUNSEL:  Yes, Your Honour.

41HIS HONOUR:  Thank you.  Is there anything else required in terms of orders or the like?

42MS MAHADY:  No, Your Honour.

43HIS HONOUR:  The thing that I have just signed is the document indicating that I have given you a document.  It is what the document says that is critical and it sets out all your obligations.  Do not doubt for a moment that they are many many obligations that you have got to meet about all sorts of things. 
Mr Chisholm will go through them with you but you have got to sign a document saying that I have given you the document.

44MR CHISHOLM:  Your Honour, may I be excuse just to approach the dock and provide that to him?

45HIS HONOUR:  Yes.

46MR CHISHOLM:  Thank you, Your Honour.

47HIS HONOUR:  Thank you.  This acknowledgement that he got the documents in the meaning of the Sex Offenders Registration Act will be provided to the chief commissioner of police.  Thank you very much for your assistance,
Mr Drowley - Mr Chisholm ‑ ‑ ‑

48MR CHISHOLM:  Yes, Your Honour.

49HIS HONOUR:  ‑ ‑ ‑ over the course of this matter.  Ms Mahady, thank you.  If there is nothing further, I will ask that Mr Drowley can leave the dock. 

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