Director of Public Prosecutions v Eric Thompson

[2015] VCC 438

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ERIC THOMPSON[1]

[1] Eric Thompson is a pseudonym

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	15 April 2015
CASE MAY BE CITED AS:	DPP v Eric Thompson
MEDIUM NEUTRAL CITATION:	[2015] VCC 438

REASONS FOR SENTENCE
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Subject: Criminal law – plea - sentence
Catchwords: sexual penetration of a child under 10
Legislation Cited:
Cases Cited:
Sentence: Imprisonment for two years (wholly suspended for three years).    

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APPEARANCES:	Counsel	Solicitors
For the Accused	Ms O. Trumble
For the Director of Public Prosecutions	Miss S. MacDougall

HER HONOUR:

1Eric Thompson; you have pleaded guilty to one count of sexual penetration of a child under ten.  The offence took place between 16 June and 30 June 1982.  The maximum penalty for this offence is 20 years' imprisonment.

2The facts in this matter were outlined in the prosecution opening statement, which was tendered as Exhibit 1 on the plea, and I sentence you on the basis of the facts set out in that document.  Those facts may be briefly summarised as follows.

3You are currently 67 years old and were 34 years old at the time of the offending.  The victim is your daughter, the third of your four children.  She was nearly four years old at the time of the offending and is now aged 36 years.

4At the time of the offending you and your wife and three children lived together in the family home.  While your wife was in hospital - around the time of the birth of your fourth child - you were at home during the day with the victim while the two older children were at school.  The victim came into your bedroom while you were masturbating.  You continued to masturbate after she entered the room and stood in front of you.  You inserted your penis into her mouth and ejaculated into her mouth, with some ejaculate falling onto the front of her clothing.

5The victim married in 2001.  In 2008 she told her husband that she had memories of being sexually abused and nominated another family member as the perpetrator.  She then sought professional help.  After an interruption in therapy lasting 18 months she resumed therapy in 2012 and said that she had to tell her mother about the abuse.  She asked her mother to attend a therapy session, which her mother did, and she told her mother that she had been sexually assaulted by a family member.

6That night you and your wife visited her.  Your daughter's health deteriorated over the next two weeks.  You and your wife then visited your daughter and son in law.  You confessed to your daughter that you were the family member who had abused her as a child, not the person she had previously nominated.  She broke down and left the house.  After that visit you contacted your daughter's therapist and told her that your daughter had walked in on you whilst you were masturbating, and that was all that happened.

7In early August 2012 you asked your son-in-law to visit, and you told him in front of your wife that you had inserted your penis into the victim's mouth and had ejaculated into her mouth.  Your son-in-law reported this conversation to the victim at a therapy session they both attended.  You then spoke to the therapist and repeated the details of your offending and asked if your daughter would be all right.

8The matter was reported to the police on 4 February 2014.  On 8 May 2014 you were arrested and made full admissions in the record of interview with the police.

9A victim impact statement was tendered as Exhibit 2 on the plea and was read out in full at the victim's request.  The victim states that she remembers the incident, which she describes as horrific in detail and wishes that she did not.  She grew up always feeling confused, physically sick, and needing to confess her sins.  She would get strange feelings in different parts of her body, she would vomit frequently and suffered headaches.  She was frightened of her bedroom, of night time and of being alone.

10Some two years ago she was diagnosed with post-traumatic stress disorder, and she also suffers from depression, anxiety and panic attacks which have prevented her from working full time, and which have made her hyper vigilant about the safety of her children and mistrustful of adult males.  She has been paralysed with fear and the shock of what her father did to her, and the fact that he kept it secret for 30 years.  She cannot attend church as every man there reminds her of her past.  She said that she will deal with this every day for the rest of her life.  She is very upset that family members have continued to interact with you and allow you to have contact with your grandchildren, and that they have not chosen to exclude you from their lives and support her instead.

11Your personal circumstances were set out in a psychological report by Carla Lechner dated 20 February 2015, which was tendered as Exhibit A on the plea.  You are the eldest of four children and were raised in a stable family environment.  You completed school in Year 10 and became a building apprentice with your father.  You have worked in the building industry ever since.

12You met your wife at the local church group and have been married for 42 years.  You have four children and they each have children.  You have no history of trauma and no mental health issues.  You do not use illicit substances.  You take medication for blood pressure and a gout condition.  You have no history of prior or subsequent offending.

13The report described your offending as at odds with your usual functioning and noted that you expressed deep regret and shame about your offending, and that you have shown insight into the breach of trust and the impact on your family and your daughter.  Ms Lechner considered that you did not meet the criteria of a diagnosis of paedophilic disorder and concluded you are a low risk of reoffending.

14You have been attending counselling sessions with a counsellor whose report was tendered as Exhibit B.  The report describes you as having taken full responsibility for this one abhorrent act, as being very remorseful for your conduct, and as regretful, yet understanding, of your daughter's unwillingness to interact with you.  Overall, the counsellor notes that you have seen yourself as a loving husband and father and as having the respect of your community.

15I also note the six character references from your wife, one of your daughters, a close friend, two pastors from your congregation, and a former employee, which were tendered as Exhibit C on the plea, and I have read them in full.  In essence, these references describe you as a solid family man of good character, and your offending as out of character.

16You pleaded guilty at the first committal mention on 27 November 2014 and you have not spent any time in custody.  The prosecution submitted that your offending merits a custodial sentence, but said that the manner in which it is to be served is a matter for the court.  Your counsel conceded that this is a serious example of the offence and that a sentence of imprisonment is the only appropriate sentencing disposition.

17It was submitted that given the unusual circumstances of this case, and the factors raised in mitigation, an immediate custodial sentence is not the only, or most appropriate, option available.  In this regard your counsel relied on the fact that the offending was confined to a single incident, your lack of priors - or subsequent offending - your early plea of guilty, your reported low risk of reoffending, your remorse and insight into your offending and your engagement with counselling - which suggests that you have excellent prospects for rehabilitation.  In addition, it was submitted on the authorities that you deserve additional leniency in sentencing because you voluntarily disclosed your offending, and without such a disclosure no prosecution would have eventuated.

18Objectively your offending is indeed serious; particularly as it concerned your youngest daughter, who was only three at the time of the offending.  I note the serious impact your offending has had on the victim.

19The sentencing considerations of denunciation, just punishment and general deterrence loom large in this case.  A reduced need for specific deterrence and good prospects of rehabilitation do not diminish the need for appropriate punishment, which in this case, and others like it, requires a custodial disposition.  The courts have recognised that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long term effects on their victims, should be severely punished.

20The courts also acknowledge that delay in these cases is not unusual, nor is the otherwise blameless life of the offender.  A sentence in this case signifies the recognition by society of the nature and significance of the wrong that has been done to effected members, and the assertion of its value and the public attribution of responsibility for that wrongdoing to the perpetrator.

21However, I accept that in this case there are powerful mitigating factors.  Your offending was limited to one incident against one victim which occurred some 33 years ago.  You have otherwise been of good character, with no prior or subsequent offending.  You voluntarily disclosed your offending and without this disclosure the matter may never have come to light.  This is, of course, a most important factor.

22You pleaded guilty at the earliest opportunity.  You have been assessed as being at low risk of reoffending.  Given the time since your offending, your recent engagement with counselling and your insight into your conduct, along with your remorse for it, I consider that you have excellent prospects for rehabilitation.  However, in the light of all that I have said, I consider that the only appropriate disposition is the imposition of a term of imprisonment.

23Having taken all these matters into account, I sentence you on Charge 1 to a term of imprisonment of two years.

24Your counsel submitted on your behalf that even though general deterrence is important, the reduced need for specific deterrence in your case permits me to wholly suspend the prison sentence I impose.

25I have concluded that it is appropriate, in view of the mitigating factors I have taken into account, that the term of imprisonment I impose be wholly suspended.  The operational period of the suspended sentenced will be three years.

26I must advise you that should you offend again during the period of suspension in any way which would attract a prison term, you will have breached the suspended sentence I am imposing, and then must serve the sentence which I have imposed today unless there are exceptional circumstances as to why you should not.

27I indicate that pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty I would have imposed a term of imprisonment of five years.  Are there any other matters?

28MISS MacDOUGALL:  Yes, Your Honour.  There was the application for a forensic sample?

29HER HONOUR:  All right.

30MISS MacDOUGALL:  Your Honour, I can hand up - my instructing solicitor needs to fill out a couple of details, Your Honour.

31HER HONOUR:  All right.  And is that consented to?

32MS TRUMBLE:  Yes, Your Honour.

33HER HONOUR:  Just while you're preparing the documentation I will note that a forensic sample order application has been made by the prosecution, and Mr Thompson, this means that application has been made for the provision of a forensic sample by taking a scraping from your mouth, or a blood sample.

34Having regard to the seriousness of the circumstances of the offending I find that the granting of the order is in the public interest and that you have consented to that order.  I will make the order and sign it shortly.

35I am required to warn you that if at the time that you are requested to supply a sample of your DNA by a scraping from the inside of the mouth under supervision by an authorised member of the police force, then the sample would be taken in that way, but if, when requested by the police officer to provide the sample in that way, you either fail, or refuse to provide the sample, the officer is authorised to obtain a blood sample, and to use reasonable force to obtain that blood sample.  Do you understand?  Thank you.  Yes?

36MISS MacDOUGALL: Your Honour, there's also the issue of the consequential order pursuant to the Sex Offenders Registration Act 2004.

37HER HONOUR:  Yes, that wasn't dealt with, unfortunately, for some reason, that I recall at all.  So, that's all right, it's that the reporting period is life, isn't it?

38MISS MacDOUGALL:  No, Your Honour, the reporting period is 15 years.

39HER HONOUR:  Fifteen years?  All right.

40MISS MacDOUGALL:  Does Your Honour wish me to take the court to the provisions?

41HER HONOUR:  No, that's all right.

42MISS MacDOUGALL:  Fifteen years, Your Honour, because it's a single Class 1 offence.

43HER HONOUR:  All right.  So under the Sex Offenders Registration Act, Mr Thompson, I am required to inform you that having been found guilty of a single Class 1 offence, you will be registered under that Act and there will be a mandatory reporting requirement of 15 years.  I think that is ‑ ‑ ‑ 

44MS TRUMBLE:  That's sufficient, Your Honour.

45HER HONOUR:  All right.  Apart from that, no other matters?  Mr Thompson, you will need to remain in court for a little while while you sign the acknowledgement under the Sex Offenders Registration Act, so in a moment we will adjourn, but I would ask you to remain in court for a few moments.  Do you want to get him to sign?

46MS TRUMBLE:  I'll do that now.  Thank you, Your Honour.

47HER HONOUR:  Mr Thompson, having signed that document you will be able, once we have adjourned the court, to be released directly the dock.  So I will adjourn now and leave that to take place.  Thank you.

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