Director of Public Prosecutions v Evans

IN THE COUNTY COURT OF VICTORIA

Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION
CR 18-02095

DIRECTOR OF PUBLIC PROSECUTIONS

ALAN ROBERT EVANS

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	20 March 2019
DATE OF SENTENCE:	28 March 2019
CASE MAY BE CITED AS:	DPP v Evans
MEDIUM NEUTRAL CITATION:	[2019] VCC 401

REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Sentence – guilty plea – unlawful and indecent assault of a girl
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)
Cases Cited: R v MWH [2001] VSCA 196, DPP v Buhagiar and Heathcote [1998] 4 VR 540
Sentence: Total effective sentence of 2 years and 9 months imprisonment, sentence wholly suspended for a period of 3 years
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N Burnett	OPP
For the Accused	Mr D Sheales	Aitken Partners

HIS HONOUR:

Introduction

Alan Robert Evans, you have pleaded guilty to three charges of unlawful and indecent assault of a girl contrary to s 55(1) of the Crimes Act 1958, which carries a maximum penalty of three years imprisonment.
You have no prior criminal history.

Circumstances of the offences

A Prosecution Opening was tendered on the plea and may be summarised as follows:
Between 1964 and 1968, you were employed as the sole teacher at Boorhaman East Primary School, located in North East Victoria. Approximately 10 to 16 children attended the school during this time.
At the time of the offending you were responsible for teaching students between Prep and Grade 6 who were aged between six and 12 years. You were responsible for a range of other duties including cleaning the toilets, preparing lunch for the children and general school administration and maintenance.
The school was a small structure consisting of a single class room with a wood heater and a porch. There were approximately two tables and four double desks which allowed for two students to sit together in addition to the teacher's desk. No other teachers visited the school apart from an Education Department Inspector who attended annually.
Beverly Thomas[1] and Christine Washington,[2] the two victims in this matter, were both aged 11 at the time of the offending. Ms Thomas and Ms Washington attended the school between 1961 and 1967 when they were aged between six and 12 years. They both shared a desk at the back of the room next to your desk.
[1] A pseudonym name
[2] A pseudonym name
Both of the victims were in Grade 3 when you were appointed as a teacher at the school in 1964.

Beverly Thomas

Between 1 January 1967 and 7 November 1967, you approached Ms Thomas’ desk. You told Ms Washington to move to another desk and then sat down next to Ms Thomas. You reached your right hand over and started rubbing the inside of her legs on the inside of her shorts. You moved your hand up to her underpants and put your hand inside and started to feel around her vagina with your fingers. This continued for approximately three to four minutes. You then removed your hand from her vagina and patted her leg. This conduct constitutes charge 1, indecent assault, which is a representative charge relating to four occasions.
Approximately one week later, you approached Ms Thomas’ desk and again told Ms Washington to move to another desk. You sat next to Ms Thomas while she was reading. She was wearing a dress or shorts at the time. You reached your right hand across Ms Thomas and put your hand inside her underwear and touched the outside of her vagina with your fingers. You rubbed the outside of her vagina and moved your fingers in an up and down motion. You put your fingers inside her vagina and continued to move them up and down. You then took your fingers out and rested your hand on the top of her leg for approximately 30 seconds. This is the second occasion represented by charge 1.
A short time later you again put your fingers into Ms Thomas’ vagina and moved them up and down while she sat there scared and frozen. You took your fingers out and started doing your paperwork at her desk. After approximately five minutes you got up and went back to your desk. This is the third occasion represented by charge 1.
In the last week of Grade 6, Ms Thomas was sitting at her desk with Ms Washington. You asked Ms Washington to move and you sat next to Ms Thomas. You put your hand into Ms Thomas’ underwear and put your fingers inside her vagina. You worked your fingers up and down inside her vagina while she pretended to read. This continued for a short time. When you finished you remained seated next to Ms Thomas and completed some paperwork. Ms Thomas states that she was too scared to tell anyone about you apart from Ms Washington. This is the fourth occasion represented by charge 1.

Christine Washington

Between 1 January 1967 and 31 January 1967, Christine Washington was sitting at her desk reading in the afternoon. The weather was warm and Ms Washington was wearing a sleeveless dress. You sat down next to her and placed your right arm on the desk and leant forward. You put your left arm under your right arm and reached across and touched Ms Washington's left breast on the outside of her dress. You rubbed her breast and then slipped your hand inside the armhole of her dress and touched her breast with your fingers. This conduct relates to charge 2 on the indictment.
Around this same time, Ms Washington was sitting at her desk reading when you sat next to her. Within a few minutes you put your hand up her dress. She felt your fingers going through the leg of her underwear and touching her genitals. You then used your fingers to touch the outside of her vagina and explore around looking for her clitoris. Ms Washington pulled her body away and tried to get away from you. Ms Washington felt very uncomfortable, confused and disturbed. This conduct relates to charge 3 on the indictment.
On 1 February 2018 at approximately 9.43 am, Christine Washington contacted you to discuss the offending by way of a pretext conversation. The conversation lasted for sixteen minutes. During that conversation you stated as follows:
-that you remembered Ms Washington from the school;
-that you acknowledged committing the sexual assaults;
-that it had been on your mind for many years;
-that you were going through a bit of a time then with your own marriage and to this day you did not know why something like that would have ever happened;
-that you acknowledged the age of both victims at the time;
-that you just went through a stage but you taught right for 45 years;
-that you acknowledged the students were under your protection and you were the sole teacher of a small rural school;
-that you took advantage and it was totally your responsibility;
-that you did not want to speak to the police as it would destroy your life; and
-that you were deeply sorry and it is something you regretted.

Later that same day at approximately 1.19 pm, you were arrested at your residence in Echuca. You were interviewed and verified information provided by the victims but declined to respond to questioning.

Objective seriousness of the offending

At the time of these offences in 1967, you were the sole teacher at a very small primary school in a remote area of Victoria. As the sole teacher, not only were you responsible for teaching all the students between prep and grade 6 but you were required to perform all duties related to the school including general administration and maintenance. As such, because there was no other adult employed at the school, an enormous amount of trust was instilled in you by the students and indeed their parents. Thus, the children and in particular the two victims involved here, were very vulnerable.
Clearly you abused that trust and in my view, in the circumstances, your offending can only be viewed as very serious. Mr Sheales who appeared on your behalf, also conceded that the offending was serious and represented a breach of trust.
A report was prepared by Dr Matthew Barth, psychologist and tendered on the plea. He concludes that your behaviour on this occasion was the result of situational factors rather than because of some sexual deviancy. While that may be so, it cannot be said that the offending was merely opportunistic. You were a teacher in a position of trust and control. Further, the circumstances described by the two victims in this matter suggest there was a degree of planning involved in relation to charge 1, in that you moved Ms Washington in order for you to be able to sit next to Ms Thomas and commit the acts as described.
I also note that the offending occurred in the general classroom with other students present. Therefore in my view your offending was audacious and brazen.

Victim Impact Statements

Beverly Thomas and Christine Washington both prepared victim impact statements which were tendered and read on the plea.
Ms Thomas speaks of the anxiety, stress and depression she suffered as a result of the offending. She notes that when she was about 12 she tried to tell her mother on two occasions however could not get the words out because in her mind, she did not think that her mother would believe her. She states that no one knew the anxiety that she was going through at the time and that she learnt to cover up her feelings from a very young age. She also details the many physical conditions she suffered which she attributes to stress. Ms Thomas notes that she has always been confused in relationships and intimate relationships have often made her feel uncomfortable because she was touched inappropriately at such a young age.
Ms Washington states that your actions have had a significant impact on her life. She notes that the confusion and fear of not being believed led her to keeping your offending a secret and ultimately blocking out the memory. Ms Washington also speaks about the close relationship she had with Ms Thomas when they were at primary school together however the trauma that they both individually felt has had a negative impact on their relationship even though they have lived in close proximity to each other.

Personal circumstances

You are now 76 years of age and were aged between 24 and 25 at the time of the offending. Therefore up to 52 years has passed since the offending occurred.
You are one of five children with two older brothers and two younger brothers. You were raised in country Victoria initially in Benalla and then Alexandra. You had a relatively uneventful childhood and normal development without any physical illnesses or difficulties. You state that you had a particularly close relationship with your mother who was your main source of emotional support through your childhood years. You state that your father was a domineering man and quite chauvinistic but nonetheless you recalled your relationship with him in positive terms.
You effectively had a falling out with your father when you were in your
early 20s. This was due to your father's disapproval of your wife and the fact that she was a Catholic and your father was not. Your father did not speak to you for several years. It was only when your father was near to death some ten years ago that you reconciled with him and you regretted that you had lost that time with him. Your mother passed away approximately 15 years ago as a result of cancer and your older siblings have also passed away although you remain in contact with your younger brothers.
You attended local schools around the Alexandra area. You were a good student and performed well academically. You were very active in your sports pursuits. You completed form five and then studied at the Burwood Teachers College. You completed a two year degree and commenced work as a teacher initially in the area where you grew up. You then moved to a very small school in Boorhaman where you taught for approximately four years. It was at that school that the offending occurred. Following your placement at that school you taught at several other rural schools in north-eastern Victoria before you and your wife settled in Echuca. You mainly taught in junior grade levels until you retired in 2001.
You do not suffer any mental health conditions other than reporting to Dr Barth that you had experienced periods of social anxiety largely driven by feelings of inadequacy. Since being charged with these offences you have had understandably an intense emotional reaction including suicidal ideation as a result of feeling ashamed of what you had done. You sought assistance from a psychologist in Bendigo in early 2018 to assist you in dealing with the depressive and anxiety related symptoms you have experienced as a result of this prosecution. Further, as noted in the report of Dr Barth, you have also attended four sex offender treatment counselling sessions with Mr Jeffrey Burroughs, an associate of the practice where Dr Barth consults.
You have no criminal history or involvement at all with the criminal justice system. Tendered on the plea were two personal references. The first was from Barry Higgins who was a past District Governor of the Lions Club International. He has known you for some 30 years as your neighbour. He has also worked with you in the educational setting as he ran a company in Echuca that chartered school buses that transported children to the school where you were employed. Most particularly he speaks of your commitment to the Lions Club and that you have worked in a voluntary capacity in the Echuca Lions Club for more than 30 years. He notes that you have been awarded the International Association of Lions Club life membership in recognition of your outstanding service to the Lions Club and the Echuca community. He notes you also have been given other awards as a result of your commitment to that club and the community. You have held office bearing positions with the Lions Club including being president from 1991 to 1992. You were a Board Director for eight years and the Committee Chairman in relation to a number of projects undertaken by the Lions Club including the Youth International Exchange program as an organiser and as a host family. You have been involved in organising youth camps for troubled young people for some 15 years. You have also been the Catering Chairman which involved running a catering van, one of the primary fund raising activities of the Lions Club, attending approximately 40 fund raising events in a year.
Mr Higgins also notes that you have been the secretary and treasurer of the local Probus Club. In general terms, having known you for the period that he has, Mr Higgins states that you have been a genuine hard-working man and an invaluable asset to the many community clubs and charities that you have been committed to.
The second reference tendered was from Leanne Picone. Ms Picone has known you for 21 years and worked with you at Echuca Primary School from 1998 to 2008. She states that you are an extremely honest, reliable and hard-working colleague. She notes that you are held in high esteem by all who have worked with you. She also states that her own children thrived during the years in your classroom. While acknowledging the charges that you are facing, she maintains that she has only ever seen you work in a proper and respectful manner to all staff, students, parents, friends and neighbours. Significantly, she notes the remorse that you have shown concerning the charges.
As noted, Dr Barth made observations of your reaction to being charged with these offences and the depressive and anxiety-related symptoms. He formally assesses you as having an Adjustment Disorder with Mixed Anxiety and Depressed Mood.
Relevantly, Dr Barth conducted a risk assessment in relation to the risk of recidivism for sexual offending. Dr Barth used two separate tools in order to assess your risk. Having reviewed the results of those two tools he formed the opinion that your overall risk of recidivism for sexual offending would fall in the low risk category stating as follows:
A final protective factor of relevance to the evaluation of Mr Evans' risk of recidivism is the extended period that has ensued since the offending: a period of over 50 years. During this time, he has been at liberty in the community, occupied positions of authority and had unfettered access to other potential victims. Nevertheless, he has faced no allegations of impropriety, misconduct or further offending; to the contrary, he has maintained good behavioural adjustment for a sustained period. This suggest that any risk of re-offending is now substantially reduced. On the basis of the historical, dynamic and protective factors considered in this review, I concluded that Mr Evans' overall risk of recidivism for sexual offending would fall in the ‘Low-Risk’ category.
That said, Dr Barth also notes that you are an individual at the formative phases of gaining insight into your offending and recommends that you participate in further counselling. To that end, as noted, you have indicated your commitment to continuing the counselling session with Mr Burrows.

Sentencing considerations

I take into account your plea of guilty which self-evidently is a plea at the earliest opportunity. A plea of guilty in these types of historical cases is not common and it is a sign that you have accepted criminal responsibility for your conduct. The plea of guilty has also saved the need for a trial and most importantly, the need for witnesses to give evidence and to relive the trauma of these events. As such, you have facilitated the course of justice and in the circumstances presented here, I attribute significant weight to your plea of guilty.
Over and above the plea of guilty I take into account that you have demonstrated genuine remorse. In the pretext conversation on 1 February 2018 you immediately acknowledged committing the sexual assaults when they were put to you by Ms Washington. You acknowledged the offending in relation to both victims and that the students were under your protection at the school. You admitted to Ms Washington that you took advantage of her and you took responsibility for your actions. You also demonstrated in that call that you are very sorry for what had occurred. Further, in the report of Dr Barth, you conveyed to him your remorse and shame by stating that "What I did horrified me. It's just disgusting. They would have been devastated that I hurt them."
As to the use of good character before the commission of the offence, s 5AA of the Sentencing Act 1991 was discussed during the plea as to whether that provision is engaged in this instance. Section 5AA came into effect on 5 April 2018 in order to give effect to recommendation 74 of the Royal Commission into Institutional Responses to Child Sexual Abuse and states:
5AA Court not to have regard to previous good character or lack of previous findings of guilty or convictions in certain circumstances
(1) Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender’s previous good character or lack of previous findings of guilty or convictions if the court is satisfied the offender’s previous good character or lack of previous findings of guilty or convictions was of assistance to the offender in the commission of the offence.
(2) Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the commission of the offence.
(3) In this section –
child sexual offence means a sexual offence within the meaning of section 3 of the Criminal Procedure Act 2009, committed in relation to a person under the age of 18 years.

Ms Burnett who appeared on behalf of the Director of Public Prosecutions, argued that the section has operation in this instance as you were employed as a teacher in a position of trust, however did not point to any evidence directly as to whether your previous good character was of assistance to you in the commission of the offence.
While the section is clear in its language that good character must be shown to have been ‘of assistance to the offender in the commission of the offence’, the Second Reading Speech suggests that application may be wider. The then Attorney General stated:
This change will ensure that those who take advantage of their good reputation to commit sexual offences against children cannot then rely upon that reputation to argue for leniency in sentencing.
Mr Sheales submitted that there was no evidentiary basis that would enable the court to be ‘satisfied’ that your previous good character was of assistance to you in committing these offences. In other words, there is no evidence to demonstrate that your lack of prior criminal history or good character assisted you in gaining or maintaining the position you had as a teacher in the 1960s in the time leading up to these offences.
In my view for this section to be properly engaged there would need to be some evidence that enabled a finding that good character assisted in the commission of the offence by allowing you to become a teacher or maintain your teaching role. That evidence has not been led and as such, I am of the view that the section is not engaged.
That said, as I understand the way in which the point was put by the prosecution in this instance, even if s 5AA is not directly engaged, the weight that might be given to any previous good character is reduced by the breach of trust inherent in this offending which was the common law position before the introduction of s 5AA. I accept that submission.
Your good character post the commission of the offence is however of some significance and I take it into account. As noted above, in the 50 years following the commission of these offences, your career and your contributions to the community have been exemplary.
When these offences were committed you were aged between 24 and 25 and thus a relatively young man. In R v MWH[3] the appellant pleaded guilty to a number of sex offences that occurred between 28 and 38 years earlier when he was aged between 18 and 28. At the time of the appeal he was aged 57. After reviewing a number of the authorities in relation to the effects of delay in these circumstances, Callaway JA noted that principle and common sense sustain the proposition that there has been reformation. In other words, in your case you have not reoffended for some 50 years and have been a contributing member of the community without any evidence of impropriety or misconduct. I take those matters into account.
[3] [2001] VSCA 196 at [19].
For the same reasons in my view specific deterrence has little role to play in the sentencing discretion and further, based on the 50 years that have passed without any further offending, I accept that your rehabilitation has been largely achieved. I further accept the opinion of Dr Barth that your risk of recidivism is low.
Ms Burnett properly submitted that general deterrence and denunciation of your conduct are primary sentencing considerations given the gross breach of trust and the fact that your offending occurred within a classroom where children are entitled to feel safe. I agree. Mr Sheales conceded that these principles are applicable.
While also conceding that a term of imprisonment is warranted, Mr Sheales submitted that in the circumstances the imposition of a wholly suspended sentence is the appropriate disposition. Ms Burnett submitted that a suspended sentence is not open and submitted that an immediate term of imprisonment is the only available sentencing option.
In my view, a period of imprisonment is warranted on each charge. However, weighing the various considerations, including the maximum penalty for these offences being three years, in my view the applicable sentencing considerations are able to be met by the imposition of a wholly suspended term of imprisonment.
In DPP v Buhagiar & Heathcote[4] 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.
[4] [1998] 4 VR 540 at 547 (citations omitted).
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 one Class 1 offence and two Class 2 offences, you will be required to comply with the reporting requirements imposed by the Sex Offenders Registration Act 2004 for the remainder of your life.

Sentence

Mr Evans please stand.
Alan Robert Evans on charge 1, indecent assault of a girl (the representative charge), you are convicted and sentenced to 2 years imprisonment.
On each of charges 2 and 3, indecent assault of a girl, you are convicted and sentenced to 15 months imprisonment.
I direct that 6 months of the sentence on charge 2, and 3 months of the sentence on charge 3 be cumulative on each other and on charge 1. That makes for a total effective sentence of 2 years and 9 months 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 total effective sentence of 3 years and 4 months imprisonment with a non-parole period of 18 months.

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[2019] VCC 401

28 March 2019