Director of Public Prosecutions v Fatchen
[2013] VCC 981
•19 April 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-01966
Indictment No. C11734629
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONARD CHARLES FATCHEN |
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 April 2013 | |
DATE OF SENTENCE: | 19 April 2013 | |
CASE MAY BE CITED AS: | DPP v Fatchen | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 981 First revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Indecent assault (4 charges) – Historical offences - Older prisoner
Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Sex Offenders Registration Act 2004
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P O’Halloran | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms O Trumble | James Dowsley & Associates |
HER HONOUR:
1 Leonard Charles Fatchen, you have pleaded guilty to four charges of indecent assault. At the time that you committed these offences the maximum penalty was five years’ imprisonment.
2 You are now sixty years old and were aged between thirty and thirty-one years old at the time of the offending.
3 “TW”, the complainant in relation to Charge 1, was thirteen to fourteen years old at the time of your offending. The complainant, “GD”, who is the subject of Charges 2 and 3, was thirteen years old, and “HJ”, who is the complainant in relation to Charge 4, was aged between fourteen and fifteen at the time you offended against him. In using letters in place of the complainants names I mean no disrespect to them but it is out of the need to ensure their privacy that I use the initial or the letters that I have used.
4 Charges 1, 2 and 3 are all representative charges, whilst Charge 4 is not.
5 I was told that in relation to Charges 1 to 3 inclusive, the first occasion of the offending is relied on for the purposes of sentencing.
6 Your offending in relation to the complainants occurred between July 1983 and April 1985.
Charge 1 – Complainant: “TW”
7 On 8 June 1983, a local newspaper published a story in relation to the complainant’s bike being stolen. The article reported "HW's" age as being thirteen years old and further, said that the family could not afford to replace the bike. You did not know the complainant or his family. On or about 8 July 1983, you attended the complainant’s home and gave him a replacement bike with accessories worth over $400. The gifting of the bike was also reported in the local newspaper.
8 From this time onwards, you engaged ever increasingly with the complainant’s family. You visited the home regularly and were seen by the complainant as part of his family. You took the complainant on day trips, paid for all activities whilst away, and bought the complainant many gifts.
9 Between November 1983 and December 1983, when the complainant was thirteen years old, you organised to take him to Traralgon to pick up two bikes for his two younger sisters to later give these as Christmas presents. You and the complainant travelled to Traralgon by train and stayed overnight in a motel. You and he slept together in the only double bed within the motel room. During the evening, whilst in bed together, you, whilst naked, used your hand to stroke the complainant’s penis. This is the occasion upon which I sentence you in relation to Charge 1.
10 The following day, you and the complainant returned to Melbourne with the bikes which you had collected as presents.
11 On another occasion, when the complainant was aged between thirteen and fourteen years, he was in his bedroom at his home. Also in the bedroom on that night was his friend, “HJ”, who is in fact the complainant in relation to Charge 4.
12 When the complainant "TW" was lying on the bottom bunk and “HJ” was on the top bunk, you entered the room and approached “TW”. You stroked his penis for a short time. You then stopped and said goodnight to “HJ”.
13 On a separate occasion when the complainant "TW" was still aged between thirteen to fourteen, he stayed at a friend’s house. Whilst laying on the top bunk, you entered the room and sat next to him, placing your hand under the covers. You again stroked his penis for a short time. This is the third occasion of which Charge 1 is representative.
14 On a separate occasion, when the complainant was still aged between thirteen and fourteen, he was at his grandparents’ house, which was on the same street as his own home. You were playing a game with the complainant and as part of this, you took him “prisoner”. Once you had done this, you pulled his pants down and rubbed your penis on his back and upper buttocks until you ejaculated over his lower back and the top of his buttocks.
Charge 2 – Complainant: “GD”
15 In relation to Charge 2, where the complainant is "GD", I was told that in the late 1970s, “GD’s" sister attended the same dance school as the sisters of “TW”, who is the complainant in respect of Charge 1. “GD” met “TW” at the dance school and as a result, he spent a lot of time at “TW”’s home.
16 When he was thirteen years old, “GD” was at “TW”’s home and asked by “TW”’s mother to complete some chores at the home of “TW”’s grandparents. Whilst there, you arrived at this address and took the complainant, “GD”, into a bedroom which contained bunk beds, and kissed his face. This is the occasion for which I sentence you in relation to Charge 2, being again the occasion nominated by the crown for the purposes of sentencing. You then touched his genital area over his clothes. You then undid his trousers and rubbed and touched his penis and scrotum underneath his clothing. But it is the kissing on the face which is the basis for sentencing in relation to Charge 2 as nominated by the Crown.
Charge 3 – Complainant: “GD”
17 In relation to Charge 3, where the complainant again is "GD" on this same occasion, you then grabbed the complainant’s hand and rubbed it over your penis over the top of your clothing. This is the occasion on which I sentence you in relation to Charge 3 or the incident I should say that I sentence you on in relation to Charge 3.. You then undid your own trousers and placed the complainant’s hand directly onto your genitals. You also kissed the complainant around his legs, stomach and hip areas before then leaving the room.
Charge 4 – Complainant: “HJ”
18 In respect of Charge 4, which is not a representative count, “HJ” and the complainant of Charge 1, “TW”, became friends when they attended the same high school in 1983. From this time on, “HJ”, would stay at “TW”’s house fairly regularly. When he was between fourteen and fifteen, he stayed the night at “TW”’s house, sleeping on a mattress on the floor of his friend’s bedroom, whilst “TW” slept in a bed within the same room. The following morning, you entered the bedroom and squatted down next to “HJ”, placing your hand under the cover and into his underpants, grabbing his penis. You then masturbated his penis, rubbing it up and down with your hand. You continued doing this for “less than a minute” then stopped when the complainant rolled away from you. You then left the room.
19 “TW” disclosed the offending by you against him in a statement to police on 4 December 2011. “HJ” disclosed your offending concerning him in a statement on 18 January 2012, whilst “GD” disclosed offending pertaining to him in a statement dated 25 March 2012.
20 You voluntarily attended the police station on 11 April 2012, where you were arrested and cautioned. You gave a “no comment” record of interview.
21 Victim impact statements were completed by each of the complainants. Your offending has affected them most significantly.
22 In his Victim Impact Statement, “TW” said that he experienced difficulties at school as a result of the offending and he left home when he was 15 and lived on the streets. He turned to drugs and is estranged from his family. He finds it difficult to work near older men and so has found it hard to hold a job down. He said that he carries the burden of guilt for friends who you abused and has suffered psychologically. He is afraid for his own children and suffers nightmares. He does not trust anyone and he feels that he could have been a lot more if not for your offending.
23 In his victim impact statement, “HJ” said that upon disclosing your offending to his father, he did not provide him with the support that he needed. He came from a broken home and had sufficient difficulties in his own life before you offended against him. After his father’s failure to support him, he internalised and suppressed what you had done to him. He has found it difficult to trust people and, in part, he attributes his resort to alcohol and drugs as being due to your offending. He has encountered terrible difficulties in his life, including a suicide attempt and heroin overdose – all in a bid to get away from his situation. Fortunately, he has found a partner and appears to be recovering from drug addiction. However, he still finds it very hard to talk about his feelings, and since reporting your offending to the police, he says that everything has come back to him about that dreadful time. He suffers sleep difficulties and nightmares. He is being treated for anxiety and depression.
24 In his victim impact statement “GD” said, that as a result of your offending his schooling turned sour-he distanced himself from his friends, and he dropped out as he was unable to concentrate. He developed trust issues with authority figures and became homeless. He also turned to substance abuse and now has long term health issues. He says that each time a conversation arose with his teenage peers in respect of first sexual encounters he felt guilt and shame because of what you had done to him.
25 Mr Fatchen these are the very real and lasting devastating effects that you have had upon these three victims whom you chose to offend against.
26 Your offending in relation to each of the complainants, especially “TW”, was a gross breach of trust. You had been welcomed into the family home of “TW” and whilst I am not in a position to find that your offending was premeditated in relation to him or the other complainants, it certainly was opportunistic and somewhat predatory. Also, in relation to “TW”, you treated him to a number of gifts and financial benefits in circumstances where his family was financially deprived. It was through “TW” that you offended against his friends as well. Therefore, this was not even a situation where you were infatuated with one individual, which would have been bad enough – but you were prepared to offend against him as well as his friends, in circumstances where they were entitled to feel secure in their environment and in your adult company.
27 Two of the complainants were barely teenagers whilst the third was not too much older than they. There was also a significant age difference between you and each of the complainants.
28 Insofar as your prior convictions are concerned, these are limited and of little relevance.
29 On 16 October 1978, you were granted a Good Behaviour Bond for a shop theft. On 1 April 1980 in the Melbourne County Court, you were granted probation for twelve months in relation to one charge of theft and three charges each of forge and utter.
30 However, although not alleged as prior convictions, you were sentenced by his Honour Judge Fricke on 23 March 1988 in relation to fourteen counts of indecent assault, four counts of sexual penetration of a person between the ages of ten and sixteen and one count of attempted sexual penetration of a person between ten and sixteen. The offending giving rise to these charges occurred in 1986 and 1987 and one offence was committed in 1984. I have perused and I take into account his Honour’s sentencing remarks in relation to those matters. You pleaded guilty to those offences which took place in the context of you being a camp leader at a boys’ camp. You committed the offences in circumstances where you were found to have used your position of trust to create and utilise opportunities for sexual exploitation, they being remarks of his Honour in the sentence that he imposed. You were found to have breached the trust of the parents in circumstances where you were found to have ingratiated yourself with the victims and their parents.
31 In his brief sentencing remarks, his Honour noted that you had an appreciation at the time of sentencing that you had ‘apparently’ recognised that you had jeopardised the victim’s “developing sexuality”. His Honour took the view that a substantial custodial disposition was warranted.
32 In respect of each of 3 charges of sexual penetration, being Counts 15, 17 and 18, he sentenced you to three years’ imprisonment. He sentenced you to two-and-a-half years’ imprisonment in relation to Count 7, which was a further charge of sexual penetration. In relation to attempted sexual penetration, you were sentenced to one year’s imprisonment, and in relation to each indecent assault being Counts 1 to 6, 8 to 14 and 16, he sentenced you to one year imprisonment. He made orders for cumulation, such that one year from Count 7 was to be served cumulatively on the sentence for Count 15. In relation to each of the indecent assaults, he made orders for cumulation of two months upon the sentence on Count 15. This produced a total effective sentence of six years and four months, and he ordered that you serve three years and nine months before becoming eligible for parole. He recommended that you receive treatment for paedophilia and depression, and other mental states as may be appropriate, in prison. I was told that you did undergo a Sex Offenders Program and other rehabilitative programs in gaol and in the community.
33 You have not committed any further sexual offences since being released on parole and I was told that you were released on parole at the time of the expiration of your non-parole period, such was your behaviour in prison. However, you have committed other offences, as follows:
In 1992 you were convicted of 8 charges of ‘unlawful possession’ in respect of 8 wallets which you had found. You were ordered to undergo a CBO with 50 hours unpaid community work.
In 1993 you were convicted of Aggravated burglary and theft. You were sentenced to 3 months imprisonment which was wholly suspended for 2 years. I was told that this involved you entering a shop with a butter knife and stealing $20.
In 1992 you were convicted of theft of a wallet you found in a casino. On appeal you were convicted and received a wholly suspended sentence. That same year you were convicted of theft of $14.00 worth of groceries and FTAB. This was your most recent conviction, so your subsequent offences are somewhat dated.
34 I take into account your background, which is set out in the report of Dr Lester Walton and referred to in submission by your Counsel, Ms Trumbull.
35 In his report dated 14 March 2013, Dr Walton said that on 17 December 1987, you were admitted to Mont Park Psychiatric Hospital in his care, as you had become acutely suicidal. By March of the following year, you had returned to jail and remained in the psychiatric section of the prison. He examined you for medico-legal purposes on 24 November 1992 whilst you were in G Division of the Metropolitan Reception Prison. In fact I was told that you have made suicide attempts on two occasions in the past.
36 Dr Walton says that his understanding is that you had been sentenced on two previous occasions in relation to paedophilic behaviour. However, this is at odds with what I was told at the plea hearing, so it would appear that Dr Walton is incorrect about this and I put this aspect of his report to one side.
37 The offending for which I sentence you is similar in nature to some of the sexual abuse activities in which you engaged which are the subject of the 1988 sentence. According to the history you gave to Dr Walton, you were sexually abused when you were eight years old by a fourteen-year-old male neighbour. At age thirteen, you were engaging in mutual masturbation with boys of a similar age. You did not regard the conduct in either instance as being in the nature of abuse.
38 You have suffered a good deal of sadness and tragedy in your life, with the untimely death of your fiancée in 1979, and the deaths of your parents, who died within a short time of each other.
39 You embarked on a heterosexual relationship for about four years with a longstanding female friend but when this ended, you began to commit offences against teenage victims. For the last sixteen-and-a-half years, you have been happily married. Your wife is aware of your past and current charges. In 1996, your wife suffered a stroke and you are now her full-time carer.
40 You told Mr Walton that your offending with the male victim was not principally driven by a sexual desire but because you were feeling lonely. You said that you wanted to share a feeling of being wanted. In circumstances where “TW”’s family effectively made you a part of their family, it is rather puzzling that you felt lonely, and compensated for this through offending against “TW” and his friends. Perhaps this explanation is more a rationalisation that comforts you, rather than the reality of the situation. It is not as if you offended against one victim in a bid to find solace for your avowed loneliness. You were able to express to Dr Walton concern that your conduct may have harmed the children. Dr Walton said that this “was a significant contributor to the major depressive episode which emerged”. This appears to be a reference to the breakdown which you experienced some years ago whilst you were in jail. It may be that you felt remorse for the victims for which I now sentence you at that time but not to such an extent that you were forthcoming about them at that time. You told Dr Walton that over the years on a daily basis, you had been mindful of your previous offending. I take this into account on the question of remorse.
41 It is significant that you have not been charged with any further sexual offences involving children since your release on parole in 1991 or 1992. You have participated in sex offender treatment and rehabilitation, completing the Sex Offenders Course and then attending the outpatient service of State Forensic Psychiatry. Your time in gaol was most difficult for you and a salutary experience-although not so salutary would appear that you did not commit any further offences. However, in the circumstances your subsequent matters are not of the most serious nature.
42 I take into account your family background, including the fact that you keep up a contact with one of your brothers; unfortunately another of your brothers died last year. You have the support of your wife and your neighbour to look to in the future. I was also told that when gaoled you were largely abandoned by much of your family and friends.
43 I take into account your level of education and your efforts to further this in the past, including an attempt at a bachelor of Arts degree.
44 You have something of a work history, although have struggled to sustain jobs since being released from gaol. According to Dr Walton’s report, you are medically well and have been largely free of depression but there has been a resurgence of anxiety and lowered mood with the emergence of these charges. You are of normal intelligence with no significant cognitive deficit.
45 In terms of your health Ms Trumble told me that you have stomach ulcers which are being medicated and you have been experiencing tremors; that recently you had experienced some bleeding from the bowel which is being investigated and the cause of this had not yet ascertained. I take all of these matters into account in sentencing you and in view of these matters I'm of the view that gaol will be somewhat harder for you than for someone without your difficulties. I return to this aspect in other contexts in a moment.
46 Dr Walton said that you have significant personality problems with tendencies towards dependency, feelings of inferiority and inadequacy, as well as previous difficulties sustaining enduring relationships with age-appropriate partners. While the majority of your sexual involvements over time have been with age-appropriate females, Dr Walton said that you did not become involved with children at moments of stress. He said that there were multiple victims over an extended period of time, such that you would properly be described as a paedophile. However, he said that there was no reason to doubt your account that you were mainly driven towards comfort and intimacy to overcome loneliness in the context of several deaths, rather than simply seeking self-indulgent sexual gratification. As I have previously said, I find this somewhat puzzling. Dr Walton said that the overall picture that you presented was somewhat atypical of paedophilia.
47 Dr Walton said that the recent scientific literature on the prognosis for paedophiles was now somewhat more optimistic. In your case, he referred to the lengthy passage in time since you had offended in this way and he also referred to the fact that you were in a long-term marriage which you insisted was thoroughly satisfactory, in every respect. Dr Walton remarked that this tended to underscore that you were in a somewhat unusual position for someone with your diagnosis. He said that he did not see you as being in need of any further sex offender treatment.
48 Dr Walton said that he would not see Verdins’ considerations as weighty in your case. He said that you were a rather vulnerable man psychologically and would be at risk of a further frank depressive episode if incarcerated again. Insofar as I can I have taken this into account in sentencing you. For this and other reasons gaol will weigh more heavily upon you.
49 You entered a plea of guilty at an early stage, saving the trauma and time of witnesses giving evidence – in particular, the victims. You have also saved the community the time and expense of giving evidence. I am also satisfied that as at this time, your pleas of guilty signify remorse on your part, as is reflected in some of the things that you said to Dr Walton. In relation to your pleas of guilty you are entitled to a substantial discount in a sentence that you would otherwise receive.
50 It is significant that you have not offended in a relevant way since being incarcerated all those years ago. I do factor in that you have committed other offences; however, these are also somewhat dated and not overly relevant, although it does show that you were prepared to risk for a time at least further incarceration by committing these. However, as I've said they are not overly relevant to the sentence which I impose.
51 I must impose a sentence which denounces your conduct and serves to justly punish you in all of the circumstances. I must also place significant weight on general deterrence in order to seek to deter others from behaving as you have. Protection of the community is also an important consideration in your case as was conceded by your Counsel but in view of your behaviour since your release from gaol, especially in more recent times, I place fairly moderate weight upon this.
52 I take into account that prison will weigh more heavily upon you because of your concern for your wife, who is very much dependent on you as her carer. In this regard, I have factored in the report from Dr Rosen who speaks of your wife’s stroke in 1996, and of the fact that she suffers from diabetes. You assist her in many ways on a daily basis. It was not submitted that your wife will suffer exceptional hardship if you were imprisoned. I also take into account that in the delay between the offences being committed and sentencing you, you have used this time to largely rehabilitate yourself especially insofar as sexual re-offending is concerned. You and your wife had practised your religious faith at your local Church until such time as you brought these charges to your Minister’s attention and you were then banned from attending Church thereafter. I was told that you have and continue to rely heavily on your faith.
53 In assessing your prospects of rehabilitation, I have also borne in mind the character references from a long term friend and from your brother in law. Both speak very highly of you. In all of the circumstances, I place fairly moderate weight on specific deterrence, and I find that your prospects of rehabilitation are fairly good.
54 I bear in mind that, had the offences for which I now sentence you, come to light at the time of the sentence of his Honour Judge Fricke, you would have been dealt with in such a way as to reflect the principle of totality. In being sentenced now you have lost the chance of levels of concurrency in respect of these offences with other sentences imposed at that time. I have regard to the sentence imposed by his Honour, including levels of cumulation and individual sentences insofar as indecent assault is concerned, although I have not been provided with precise details of these offences. I do know that they were in the nature of the offences for which I now sentence you however. I also bear in mind that in relation to the sentences which I impose they deal with separate victims altogether to those for which you were sentenced by His Honour Judge Fricke. I have also borne in mind that at the time His Honour sentenced you, the matters in mitigation were not as strong as they are before me.
55 Ms Trumble submitted that a wholly-suspended sentence would appropriately address all sentencing considerations. The Prosecution submitted a range of 2 to 3 years imprisonment with a non-parole period of 12 to 18 months was appropriate in your case.
56 In the end, taking into account all relevant considerations and attaching appropriate weight to relevant sentencing principles, I am afraid that I am of the view that you ought serve a further term of imprisonment. However, in the circumstances, I am prepared to sentence you to a term which does not involve a non-parole period and is slightly less than the Prosecution range insofar as the non-parole periods are concerned.
57 Please stand up Mr Fatchen.
Ancillary Orders
58 Firstly, I make the order pursuant to s.464ZF(2) Crimes Act 1958 that you undergo a forensic procedure for the taking of a sample by way of a scraping from the mouth in accordance with the order I have signed. I make the order because of the seriousness of the offences, because it is in the public interest to do so and because you do not oppose the order. I should warn you that if you fail to co-operate with the authorities in providing the sample the authorised officer may use reasonable force to enable that procedure to be conducted.
59 Under the Sex Offenders Registration Act 2004, by reason of your convictions on these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is, report, after your release from custody. Details in writing of these reporting conditions will be served shortly upon you by my associate. I will ask your counsel to attend to an acknowledgment of that notice and have you sign it.
60 As you have previously been convicted of sex offences for which you were sentenced to imprisonment you fall to be sentenced as a serious offender in relation to all of these matters. This means that there is a presumption of cumulation, in effect after count 1 of the indictment before me. However, it is not submitted that you receive a disproportionate sentence in order to protect the community.
61 In relation to all charges, you are convicted and sentenced as follows:
Charge 1
62 Eight (8) months’ imprisonment
Charge 2
63 Two (2) months’ imprisonment.
Charge 3
64 Seven (7) months’ imprisonment.
Charge 4
65 Eight (8) months’ imprisonment.
66 Charge 1 will be the base sentence.
67 I direct that one (1) month from the sentence imposed on Charge 3 and one (1) month from the sentence imposed on Charge 4 be served cumulatively with the sentence imposed on Charge 1 and with each other, producing a total effective sentence of ten (10) months’ imprisonment.
68 The indication for 6AAA purposes is rather artificial as I have sentenced you for representative charges; some of the conduct relied upon by the Crown for the purposes of sentencing you was not the most serious in respect of occasions relied upon. If not for your pleas of guilty, I would have sentenced you to a total effective sentence of 4 1/2 years imprisonment with a non-parole period of 34 months
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