Director of Public Prosecutions v Early (a pseudonym)
[2020] VCC 832
•11 June 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALBERT EARLY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 June 2020 | |
DATE OF SENTENCE: | 11 June 2020 | |
CASE MAY BE CITED AS: | DPP v Early (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 832 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW
Catchwords: Plea of guilty – Five charges of committing an indecent act with a child under 16 – Offending against two biological granddaughters – Offending relatively serious example of the offence – No prior or subsequent offending – Genuine remorse – Circumstances surrounding COVID-19 taken into account – Offender aged 74 years and has complex chronic health issues – Offender sentenced as a serious sexual offender.
Legislation Cited: Crimes Act 1958; Crimes (Sexual Offences) Act 1991; Sentencing Act 1991; Sex Offenders Registration Act 2004.
Cases Cited:DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148; Clarkson v The Queen (2011) 32 VR 361; DPP v Buhagiar & Heathcote [1998] 4 VR 540.
Sentence: Total effective sentence of 3 years imprisonment, wholly suspended for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Office of the Public Prosecutions |
| For the Accused | Ms E Millar | Victoria Legal Aid |
HIS HONOUR:
Introduction
Albert Early[1], you have pleaded guilty to five charges of committing an indecent act with a child under 16 contrary to s 47(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991, which carries a maximum penalty of 10 years imprisonment on each charge.
[1] A pseudonym
You have no prior criminal history.
Circumstances of the offending
A prosecution opening was tendered on the plea and may be summarised as follows:
You were born in 1946 and were between 54 and 62 years of age at the time of the offending. You are currently 74 years of age.
Both victims in this matter are your biological granddaughters.
Rebecca Whitfield[2], the first victim, is the daughter of your son Timothy Early[3].
Ms Whitfield was born in 1992 and was 9 or 10 years of age at the time of the offending. Ms Whitfield is currently 28 years of age.
[2] A pseudonym
[3] A pseudonym
Alannah Early[4], the second victim, is the daughter of your son Max Early[5] and the cousin of Ms Whitfield. Ms Early was born in 1996 and was 10 to 12 years of age at the time of the offending. Ms Early is currently 24 years of age.
[4] A pseudonym
[5] A pseudonym
Your former wife, Amelie Early[6], is the mother of Timothy and Max Early, and the grandmother of both victims.
Offending against Rebecca Whitfield
[6] A pseudonym
During the school holidays when Rebecca Whitfield was about 9 or 10 years of age, she was sent to spend the night at your house in Preston. Ms Whitfield believes this occurred in the second school holidays of either 2001 or 2002.
Ms Whitfield attended your home with her two brothers and it was intended that they would stay the night and be collected by their father the next morning.
During the evening Ms Whitfield’s brothers were watching cartoons in the loungeroom. Ms Whitfield went to use the bathroom and walked past your bedroom. The bedroom door was open and Ms Whitfield could see you lying naked on your bed. You were sprawled out on your back with your hands behind your head lying on the pillow. You were looking at Ms Whitfield as she walked to the bathroom. Ms Whitfield’s grandmother was also in the bedroom and told you to put some clothes on or to shut the door. When Ms Whitfield came out of the bathroom the bedroom door was closed.
Ms Whitfield returned to the loungeroom and lay on the two seater couch by herself. About 10 minutes later you walked into the room and moved
Ms Whitfield’s feet so that you could sit next to her on the couch.
Ms Whitfield’s feet were resting on your lap. You then slipped your right hand up the inside of Ms Whitfield’s pants and began to stroke her vagina. You ran your thumb up the inside of Ms Whitfield’s leg and then used your fingers to rub her vagina. You moved your finger up and down Ms Whitfield’s vagina over the top of her underwear. You did not say anything to Ms Whitfield and continued touching her for around three minutes until her grandmother called out to you. You got up and left the loungeroom. It is these facts that relate to Charge 1.
About 5 to 10 minutes later, you returned to the loungeroom where
Ms Whitfield was still on the couch. You kissed Ms Whitfield on her forehead and said that you were sorry. Ms Whitfield recalls that your breath smelt strongly of beer.
Ms Whitfield remained on the couch in shock. Sometime later that evening
Ms Whitfield’s brother became upset and wanted to go home. Ms Whitfield’s grandmother called their father who came to pick up all three children and take them home.
After this incident Ms Whitfield stopped going to your address. She also stopped going to her father’s house as she was scared that if she did, she may be taken to see you.
Over the following years Ms Whitfield disclosed being sexually abused by you to her two sisters, a high school friend and some work colleagues. Ms Whitfield disclosed the abuse to her step mother, Natasha Burrows[7], on
26 November 2018.
Offending against Alannah Early
[7] A pseudonym
In around 2004 when Alannah Early was eight years old her family moved to Bendigo. Shortly after, you and your former wife also moved to Bendigo and rented a white weatherboard house in the bush.
In 2006, less than a year after you had moved to Bendigo and when Ms Early was around nine years old, she stayed at your house for a sleepover with her cousin Molly Heath[8].
[8] A pseudonym
Ms Early and Ms Heath were sleeping in the same room and shared a double bed. When it was dark, they got changed into pyjamas and got into bed. While they were lying in bed you came into the room to tuck them in. Their grandmother had already said goodnight and had gone to bed. You knelt down on the floor next to Ms Early’s side of the bed and started to tuck her in. While you were tucking her in, you put one of your hands under the blankets and up her top. You started to touch Ms Early’s breast area, using a waving and rubbing motion. You continued this motion for about 5 or 10 minutes. You were also pinching and squeezing Ms Early’s nipples and it began to hurt. While you were touching Ms Early you were talking to her, saying things like ‘you’re a good girl.’ It is these facts that relate to Charge 2.
While you were touching Ms Early, she did not feel like she could do anything to stop you and just froze. Ms Early did not say anything while you were touching her until it began to hurt. Ms Early then made up an excuse to get up and leave the room. When she returned to the bedroom, you were kneeling next to the bed and tucking Ms Heath in. Ms Early got back into bed and you left shortly after. Once you had gone, Ms Early asked Ms Heath if you had just touched her too. Ms Heath said yes.
Around a year later you and Amelie Early moved house and began living in Ironbark. Ms Early and her family would visit you there occasionally. On about three occasions Ms Early stayed the night with you and her grandmother at this address.
When Ms Early was around 10 or 11 years old between 2006 and 2008 she attended the Ironbark address to stay the night by herself with her grandparents. Sometime during the day, Ms Early was sitting on the floor in the loungeroom playing with her toys. You were sitting in a chair and your former wife was in another room or outside. You said ‘come and sit on Poppy’s lap’. Ms Early sat on your lap and started watching TV. You placed one of your hands up Ms Early’s top and began rubbing her chest area, using a backwards and forwards motion and pinching her nipples. It is these facts that relate to Charge 3.
You continued to touch Ms Early’s chest for a few minutes. Ms Early tried not to think about what you were doing and was focused on watching the TV. You then removed your hand from Ms Early’s top and put it down her shorts inside her underwear. You began rubbing the outside of Ms Early’s vagina, using a backwards and forwards motion and then started using a pushing motion on top of Ms Early’s vagina near her clitoris. You did not say anything to Ms Early. Ms Early wanted you to stop but felt powerless to do anything and continued focusing on the TV. When Ms Early felt you begin pushing on her clitoris, she said something like ‘I want to go play with my toys’ and got off your lap. It is these facts that relate to Charge 4.
Later that day, you were again sitting in a chair in the loungeroom and asked Ms Early to come back and sit on your lap once more. Ms Early went to sit on your lap and you immediately put one of your hands up her top. You started rubbing Ms Early’s chest area using a backwards and forwards motion and pinching her nipples. This continued for a few minutes before Amelie Early made a noise somewhere in the house and you quickly pulled your hand out of Ms Early’s top. It is these facts that relate to Charge 5.
Ms Early did not tell anyone about the offending until she was between 13 and 16 years old when she told her friend Maya Kopsen[9] that her grandfather had molested her. On 23 November 2018, Ms Early’s aunt, Jade Early[10], asked
Ms Early if you had ever touched her. The following day Ms Early disclosed details of the offending to her mother and in January 2019 Ms Early disclosed them to her father. On 7 January 2019, Ms Early reported the offending to the Central Victoria Sexual Offences and Child Abuse Investigation Team.
[9] A pseudonym
[10] A pseudonym
Pre-text phone calls
On 18 January 2019 Ms Whitfield conducted a pre-text phone call with you. When questioned about the offending, you stated the following:
· ‘Well, I can’t remember I - you know, I’m not - if I did do it, you know, it was just - we were playing, mucking around until I was tickling into the groin, you know, but I'm terribly sorry if this has occurred and that's how it's affected you’; and
· ‘I feel so terrible and shit about it, about how it's affected you in that case and everything like that. You know, I'm just so sick with it, I am and I'm sorry you've had to go through all that, you know.’
On 20 August 2019 Ms Early conducted a pre-text phone call with you. When questioned about the offending, you stated the following:
· ‘Yeah well, I’m struggling to recall. I’m - if it happened I’m very sorry and I don’t know what I can say really but – to make you feel better’;
· ‘I’m sorry I can’t recall and I’m having trouble with my memory, I’m sorry, not that that’s an excuse’;
· ‘I’m terribly sorry if that did happen.’
Record of interview
On 20 February 2019 you participated in a record of interview at the Bendigo Police Station in relation to offending against Ms Whitfield. You made the following statements:
· ‘I don’t even recall the incident. You know what I mean? No sense me saying "no" if I did, but I don’t recall that’;
· ‘I mean, she wouldn’t – she wouldn’t make that sort of thing up, you wouldn’t think, you know, but I - but no, I didn’t. I didn’t do that’;
· ‘I feel a bit upset about that and - and, I mean, I can't answer. You know, I don't recall the incident, don't recall doing it, you know, and that - and that's a strong accusation and I feel something must have happened, I suppose, to - she seems to be so precise with the statement, what happened, but I don't recall any of that whatsoever’; and
· ‘I don't recall doing that and I wouldn't do anything like that intentionally'.
On 21 August 2019 you undertook a Record of Interview at the Bendigo Police Station in relation to offending against Ms Early. During the interview, you continually referred to your poor memory and made the following statements:
· ‘I don’t ever – ever recall tucking ‘em in and I certainly don’ recall ever touching Alannah, like, putting – up her dress and touching her breast or anything like that, no’;
· ‘No, I wouldn’t touch ‘em inappropriately’; and
· ‘I might have rubbed her tummy I’m saying, you know. Yeah, nuh, I’ve not touched her, like, other parts inappropriately'.
Nature and gravity of the offending
Sexual offending against young people under the care of adults is very serious offending. The victims of such offending are vulnerable and reliant on adults to care for them whether that be as a parent or, as was the case here, where you are the grandfather of the two victims. Children are entitled to feel safe in circumstances such as those presented here where the victims were engaged in a very normal family activity of sleeping over at their grandparents’ home.
What you did was take advantage of the trust your young granddaughters had in you as their grandfather. In each instance when engaging in simple activities such as sitting on a couch with them or tucking them into bed, you took advantage of the situation and sexually assaulted them.
The seriousness of the offence of indecent act with a child under 16 is also recognised by the maximum penalty imposed by Parliament which is 10 years imprisonment.
Further, it is well settled that the absolute prohibition on sexual activity with a child is founded on a presumption of harm. The significance of violence and harm which such conduct entails cannot be overstated.[11]
[11] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148 at [47], referring to Clarkson v The Queen (2011) 32 VR 361 at [3].
Ms Millar who appeared on your behalf, sensibly conceded that offending was serious. Further, while accepting that the offending relation to both victims covers a period of approximately five years, Ms Miller submitted that it was restricted to three discrete occasions and in each case the offending was opportunistic, of short duration and did not involve any threats at the time in terms of the offending or by attempts to silence the victims.
Victim impact statements were prepared by both victims and tendered on the plea.
Rebecca Whitfield states that she has battled with ongoing anxiety and trauma that she feels will remain with her for the rest of her life. She notes that your conduct has affected the relationships with her father's side of the family. As the crime remained undisclosed for many years, Ms Whitfield remained guarded with relatives thereby restricting the development of relationships with certain family members. Further, she states that the crime has affected the relationship with her own child, as she would not leave him in the care of anyone else including her own parents.
Alannah Early speaks of her anxiety and depression she has suffered as a result of your crimes. She too laments the significant effect on her extended family and the negative way some members have treated her since disclosing the offending, so that she feels regretful about speaking up. Ms Early speaks of the difficulties she has in trusting men with the consequent impact on her relationships. She states that she feels too afraid to seek relationships with men as a result.
The two victim impact statements are eloquent and in general terms express the common and very serious ongoing consequences sexual offending like yours has on young people as they try to navigate their lives following a sexual assault. I have taken the contents of both victim impact statements into account.
In all the circumstances I asses your offending as a relatively serious example of indecent act with a child under the age of 16.
Personal circumstances
You are now aged 74 and were aged between 54 and 61 at the time of the offending.
You had an uneventful but happy childhood. Your parents remained together, and you had good relationships with your two older sisters, one of whom has passed away.
You left school at the age of 15 and started an apprenticeship with the Melbourne Metropolitan Tramways Board painting trams. You spent two to three years in that employment however you did not complete the apprenticeship as a result of a skin allergy.
Following that employment, you worked as a labourer and then commenced a bricklaying apprenticeship however again you did not complete that apprenticeship as a result of allergic reaction suffered in relation to concrete. You worked then as a truck driver for a period of time before joining the Victorian Ambulance Service where you worked as what would now be called a paramedic. You stayed in that employment for about five years however you left following a tragic accident where your three year old son was killed after being struck by a car. It was this incident combined with the many other traumatic accidents you were required to attend that prompted you to ultimately leave the job.
You then worked at the Hilton Hotel initially as a laundry assistant manager and progressed to becoming a manager. You stayed in that employment for 10 years however you left when you were required to have triple bypass surgery which resulted in an 18 month recovery period. You then obtained employment in the earthmoving industry for eight or nine years which also involved work in Western Australia where you had a managerial position until you retired.
You married your wife when you were 18 and you were married for some 46 years before separating. The breakdown of the marriage was partly to do with the charges that you now face however there were other issues that contributed to the breakdown. With your wife Amelie, you had six children, one of whom is deceased.
You are estranged from some your children however you remain close with one daughter who has provided a letter to the court. Your daughter confirms that you see her children, pick them up from school and have looked after them in recent times when their parents were away. You have some contact with another daughter and you still see one of her children, your granddaughter.
A letter was tendered from your general practitioner, Dr Ratnavalli Subendran which summarises the many health issues you suffer. You have coronary artery disease and had bypass surgery in 1993 and further stents have been inserted. You suffer from atrial fibrillation, high blood pressure and elevated lipids. You continue to suffer chest pain and you require regular visits to the doctor and hospital admissions. A letter from your cardiologist
Mr Voltaire Nadurata states that your chronic condition will likely worsen with time particularly with the normal ageing process together with stress. He is also of the view that you require further stenting in the future.
You suffer chronic obstructive lung disease and emphysema which has also resulted in you having a chronic cough. You are also prone to recurrent chest infections. You suffer neck pain due to degenerative disease of the cervical spine and you have had ongoing psychological issues including anxiety and depression for which you have been receiving counselling since 2019.
As a result of the many health issues you suffer, you take numerous medications on a daily basis which are outlined in Dr Subendran’s report.
Dr Subendran is of the opinion that as a result of your multiple morbidities, your health will deteriorate if you were required to serve a term of imprisonment.
In relation to your mental health, you refer to a time as a young child when you were molested by a family friend. You state that you told your parents what occurred but no action was taken. A further incident occurred when you were 13. You have never had any counselling in relation to these matters and there is no material that has been tendered that identifies any impact this may have had in relation to the current offending.
In relation to the counselling referred to above, you have seen psychologist Darian Winspear. You have engaged in six sessions with Mr Winspear who states in a letter tendered to the court, that you present with acute symptoms of anxiety and depression which appear to be reactive to your current family circumstances and the pending charges. Mr Winspear is of the view that if you received a term of imprisonment it would have negative impacts on your physical and mental health.
Relevant sentencing considerations
I take into account your plea of guilty which was entered at the committal mention stage and as such can be considered to be a plea at the earliest opportunity. Your plea has utilitarian value and most importantly, in a case of sexual offending against two victims, has avoided the need for the victims to give evidence. Therefore, your plea in the circumstances has facilitated the course of justice.
It was submitted on your behalf that over and above your plea of guilty there is evidence of genuine remorse. In the pretext telephone calls you apologise to both victims despite not appreciating or remembering the detail of the offending. You have, since those pretext calls, cooperated with the police and have not attempted to blame the victims in any way taking full responsibility for your actions. In the circumstances I accept that there is evidence of genuine remorse.
I accept that given your complex physical health issues and your mental health concerns, imprisonment will be more onerous for you. You have a number of health professionals that you are required to visit on a regular basis which has involved and will continue to involve procedures and modifications to treatment and medication. Further, as result of your anxiety and depression I accept that a term of imprisonment would have a deleterious effect on your health, both mental and physical.
General deterrence is a prominent sentencing consideration together with denunciation of your conduct. Specific deterrence in this instance need not be given weight in the sentencing discretion. You have no prior convictions, and there has been no subsequent offending. I am also of the view that for similar reasons together with the fact that you have accepted responsibility, shown insight and remorse, your prospects of rehabilitation are very good.
I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and prisoners are experiencing increased lockdown periods. In your specific circumstances where your needs are high and you would require consistent and regular medical support, these matters have relevance.
As you are being convicted of two or more sexual offences, each of which you will be sentenced to a term of imprisonment, you fall to be sentenced as a Serious Sexual Offender pursuant to Part 2A of the Sentencing Act 1991.
Section 6D of the Sentencing Act 1991 provides that when sentencing you as a Serious Sexual Offender I must have regard to the protection of the community as the principle purpose for which the sentence is imposed. However, for the reasons stated above, I find that you do not pose a risk to the community.
Section 6E provides that, unless otherwise directed by the court, every term of imprisonment imposed on a serious offender be served cumulatively. In all the circumstances I do not consider that a disproportionate sentence should be passed, and the prosecution does not seek a disproportionate sentence.
Further, as you are being convicted of three or more Schedule 2 offences, you will be required to comply with the reporting requirements imposed by the
Sex Offenders Registration Act2004 for the remainder of your life.
While conceding that a term of imprisonment is warranted, Ms Millar submitted that in the circumstances, the imposition of a wholly suspended sentence is an appropriate disposition that is able to meet the applicable sentencing considerations. Mr Devlin who appeared on behalf of the Director of Public Prosecutions submitted that in all the circumstances a suspended sentence is within range.
In DPP v Buhagiar & Heathcote[12] Batt and Buchanan JJA made the following observations in relation to suspended sentences:
Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending. In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of mercy to which King CJ referred in R v Osenkowski (1982) 30 S.A.S.R. 212 or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed.
[12] [1998] 4 VR 540 at 547 (citations omitted).
In my view a term of imprisonment is warranted on each charge. However, weighing the various considerations, the applicable sentencing considerations are able to be met by the imposition of a wholly suspended term of imprisonment.
Sentence
Mr Early, can you please stand.
Albert Early, on Charges 1, 2, 3, 4 and 5, indecent act with a child under the age of 16, you will be convicted and sentenced to a period of 2 years imprisonment on each charge.
I direct that 3 months of the sentence imposed on Charges 2, 3, 4 and 5 be served cumulatively on each other and on Charge 1 making for a total effective sentence of 3 years imprisonment. That sentence will be wholly suspended for a period of 3 years.
I am required to warn you that if you commit any offence punishable by imprisonment whether in or outside of Victoria during the period of suspension, you will be brought back to this court to be dealt with. In that circumstance, unless you are able to provide exceptional circumstances, that sentence will be restored and served.
Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 3 years and 6 months imprisonment with a non-parole period of 1 year and 9 months.
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