Director of Public Prosecutions v Findlay (a pseudonym)

[2022] VCC 235

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MICHAEL FINDLAY (A PSEUDONYM)

‑‑‑

JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2022
DATE OF SENTENCE:	24 February 2022
CASE MAY BE CITED AS:	DPP v Findlay (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 235

REASONS FOR SENTENCE

‑‑‑

Subject: Criminal law - sentence

Catchwords: pleas of guilty to 4 charges of sexual assault of child under 16 – stepdaughter aged 14 – offender aged 51-52 – seven month period of offending – brief episodes – difficult childhood – dysfunctional family life – harm to child and extended family including sibling – alcohol and steroid abuse – good work history – good prospects for rehabilitation – plea discount including Covid considerations – co-parenting offender’s own child – burden of imprisonment in this regard.

Cases cited: Lugo (a pseudonym) v R [2020] VSCA 75, DPP v Spottiswood [2021] VSCA 146

Sentence:                   12 months’ imprisonment with 2 year CCO.

N.B. Suppression Order applies           ‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	OPP
For the Accused	Mr A. Buckley	Gallant Law

HER HONOUR:

1Michael Findlay[1], you have pleaded guilty to four charges of sexual assault of a child under 16.  The complainant, Danielle Stockton[2], was your step-daughter.  You and her mother had been in a de facto relationship for five years and married in February 2020.  The offending occurred between February and August 2020, when you were aged 51 to 52 years and the complainant was 14.

[1] A pseudonym.

[2] A pseudonym.

2The first offence took place between February and April 2020 when the complainant was seated beside you in your car while it went through an automated car wash.  You kissed her on the lips and touched her left breast, an episode lasting about five minutes.  That is Charge 1.

3In May that year you went to the complainant's bedroom when she was in bed using her phone after 8 pm, contrary to a house rule.  She asked you not to tell her mother.  You left the room but returned a short time later.  You asked the complainant to undress and then you kissed her breasts and touched her vagina.  The complainant states that you were sexually aroused at the time.  This episode lasted for about 20 minutes.  The next morning you apologised to the complainant for your conduct.  That is Charge 2.

4Between 1 May and 31 July 2020, in the kitchen on a weekend, you offered the complainant a can of soft drink, something which was also against the house rules.  She accepted and you kissed her on the lips and then put your hand down her pants and touched her vagina.  She told you she was menstruating, so you desisted and told the complainant not to tell her mother.  Then you gave her a soft drink.  That is Charge 3.

5On 18 August 2020, you and the complainant were in a bedroom when the complainant asked you to buy her a new PlayStation game.  You told her she would have to give you some “loving”  first.  You then kissed her on the lips and touched her breast under her shirt but over her bra.  You also touched her vagina over her clothes.  This episode lasted for about five minutes.  That is Charge 4.

6You touched the complainant sexually, either by kissing her lips or touching her bottom regularly, up to five times a week throughout the offending period.  On occasions, you asked her to expose herself to you.  The complainant's mother observed you kissing the complainant on the lips and cuddling her, both for long enough to cause her, the mother, to feel uncomfortable.

7Similar instances of you kissing the complainant were observed via Facebook video chat in 2020 by a boy with whom the complainant had an online relationship.  The complainant disclosed your offending to this boy, who took part in a VARE on 22 September 2020.  She also disclosed the offending to a friend via Instagram messages on 18 August 2020.

8The complainant's mother found these messages on her daughter's phone, spoke to her daughter who disclosed the offending to her mother and a report to police was made the next day.

9Following the complainant's VARE on 19 August, you were arrested the same day.  You took part in a no comment record of interview but ultimately denied the allegations.  About three months later, you met the complainant's mother in order to discuss some conveyancing paperwork.  You asked her whether she would consider dropping the charges.  She said it was not just her decision and she would speak to the girls, by which she meant the complainant and her sister.

10The next day you rang the complainant's mother and asked her if she had spoken to the girls.  The witness answered that the charges would not be dropped.  You hung up and called back stating, 'Just letting you know, Danielle is not innocent in this'.  You said that the complainant had kissed you and had in other ways initiated sexual activity.  You said that these actions would be brought up in court.

Personal background and circumstances

11Turning to your personal background and circumstances, when you were married in early 2020 you became the step-father of your wife's two daughters aged 12 and 14, and you have a teenage daughter from your previous marriage with whom you have a close relationship as a co-parent.

12You were one of four children of your parents, who separated when you were 10 years old in what appear to have been difficult circumstances, with the police removing your father from the house.  Your mother re‑partnered and your two older siblings were made to leave the house.  Your behaviour deteriorated and you were also made to leave when you were 14.  Thereafter you had no contact with your mother for many years.

13Your older brother became involved in substance abuse and with offending and you are no longer in contact, but you have a good relationship with your younger brother and your sister.  You left school at 14 and commenced full-time work in various unskilled jobs.  You became a qualified abattoir worker and later worked in a transport company, usually on the night shift.

14You had a long term relationship with and later married Rosie Findlay[3], the mother of your daughter who is now 15.

[3] A pseudonym.

15After moving in to live with and then marry the complainant's mother, you quickly began to feel like an outsider.  This arose from issues concerning the children's behaviour.  The relationship ended when the complainant went to the police.  You are now in a new relationship with Ms Angela Pepper[4] who is aware of the charges.  Although you spend time with her you were giving priority to your daughter.

[4] A pseudonym.

The gravity of the offending

16Sexual assault of a child is by definition a serious offence, punishable by 10 years' imprisonment and subject to the serious sex offender regime under the Sentencing Act.  The charges are also subject to the standard sentencing provisions, with the relevant standard sentence being four years' imprisonment, meaning that this is a factor to be taken into account in sentencing.   Those provisions require that I must assess the gravity of your offending without reference to your personal circumstances. 

17It is agreed between the parties that the offending can be classified as mid range in seriousness, and the combination of objective circumstances confirm that.  These matters include the relatively short duration of sexual touching, the absence of any physical violence or threats, the fact that the complainant was an older child and that she was not your biological daughter.

18The standard sentence and the mid-range classification are to be taken into account as a relevant factor in sentencing.  It is  intended as a guide and does not undermine the intuitive aspect of sentencing.  Despite the classification, your offending was a serious breach of the trust placed in you as a step-father. 

19You persisted with your offending over almost seven months when the complainant was a vulnerable teenager and you were a man of mature years.  You exploited her vulnerability, agreeing not to tell her mother of minor misdemeanours, while abusing her.  Your behaviour had the hallmarks of a man who had no regard for his victim, placing your own needs and wishes ahead of the child's safety and wellbeing. 

20Your approaches to her mother after your arrest indicate the lack of insight into the heinousness of your actions and the harm you caused to the child and her family.    Indeed, there is little evidence of any remorse on your part as you denied the offending and subjected the complainant to the process of a Special Hearing, where she had to be cross-examined.

21The complainant's mother read aloud to the court her victim impact statement in which she describes the shock she felt on learning of the allegations, accompanied by hurt and devastation of a degree she has never experienced before.  She has endured loss of her self-esteem, security, confidence and trust and feels extreme guilt for having allowed you into her children's lives.  Above all, she feels anger towards you for having taken away their innocence. 

22The aftermath of dealing with their emotional breakdowns and harrowing trips to the Royal Children's Hospital emergency department because of suicide attempts has brought her to despair. She has had to seek treatment for depression and stress.  She has had to adjust her financial commitments to allow for being a single mother, involving selling her house and furniture, moving house and paying for medication and therapy.  She has had to pay for the divorce proceedings without contribution from you, in the context of what she describes as concerted and incomprehensible efforts by you and your family to thwart her efforts.

23The complainant's victim impact statement conveys the angry and hurt feelings of a teenager who saw you, her step-father, as a father figure but who took away her innocence and ended her childhood.  Her desire for a normal family life was ended.  She feels betrayed also by your family's response of turning on her as a liar.  Her achievements at school have been effected and her grades have dropped exponentially.

24The complainant's younger sister was aged 12 when she learned what you had done and she was very traumatised.  Her pre-existing mental health problems worsened and she had six hospital visits because of self-harming and suicide attempts, and a one week admission to hospital.  She stated that your offending has caused distance between her and her mother and sister and of course she no longer sees her step-sister and step-cousin, which makes her sad.  She said that what happened to her sister is always on her mind and it is hard to stop thinking about it.

Mitigating factors

25The lack of remorse to which I referred earlier brings me to an analysis of your plea of guilty, which was entered at a relatively late stage, but when the  content of the indictment was agreed upon.  In any event, you are entitled to a discount on your sentence as your plea has avoided the need for a trial, which is of great importance at this time when a significant back log of trials has built up because of the pandemic.

26The complainant still had to give evidence but the court process has been brought to an end by your plea and the criminal justice system allows credit for that.  Therefore the plea is accepted as a mitigating factor, as are other aspects of your life which indicate that you are a hard worker, with a good work history and a good father to your daughter. 

27This is confirmed by your ex-wife and mother of your daughter with whom you share co-parenting, as I mentioned earlier.  Letters written by her and by other members of your family describe you as a good family man in other respects, and confirm that you have given up alcohol and that you attend AA meetings regularly.

28Despite the absence of remorse, your prospects for rehabilitation are good in view of your commitment to overcoming the abuse of alcohol and the cessation of the use of steroids, as well as your background generally.    However, the need for a sex offender program is apparent and should be undertaken.

29Your time in custody will be under continuing COVID restrictions which may or may not change for better or worse as time goes on.  You are likely to be subject to some form of restrictions for the duration of your sentence, as well as exposure to infection if and when it occurs in the prison system, and whatever isolation procedures might be imposed from time to time.  I take those anticipated difficulties into account in sentencing.

Sentencing discussion

30Mr Terry submitted on your behalf that there was little in the way of authority to establish current sentencing practice, because there are very few cases in which charges of sexual assault of a child under 16 is the primary charge before the court.  Mr Terry referred to several County Court cases which he submitted were so dissimilar as to be of no assistance.  Mr Sonnet for the prosecution referred to a discernible pattern emerging from the cases but conceded the lack of similar cases.  The sentences and decisions in Lugo(a pseudonym)  v R[5] and DPP v Spottiswood[6] also have some relevance in relation to individual sentences for these offences. 

[5] [2020] VSCA 75

[6] [2021]VSCA 146

31An appropriate sentence must take into account the need for general and specific deterrence.  The long term and perhaps permanent harm caused to children by sexual offending is presumed, although in this case actual harm to the complainant has been established.  Sexual abuse of children is regarded with abhorrence by the community and appropriately harsh sentences are expected.  This is partly because of the fundamental breach of trust involved.  In this regard, Mr Sonnet, for the prosecution, quoted from the sentencing remarks of the court in Lugo v R[7], as an indication of the approach to sentencing required in these cases, thus the need for general deterrence is clear.    

[7]Ibid, at [6]

32As for specific deterrence, the prosecution conceded that your prospects are good and so therefore specific deterrence can be modified given your personal circumstances. The prosecution also conceded that your experience of imprisonment will be made more burdensome by reason of your separation from your daughter, in the knowledge that she will suffer the loss of your parenting of her.  I have already referred to the ongoing COVID restrictions, which will also have an adverse effect on prisoners in the foreseeable future.

33I have also referred to the standard sentencing provisions which apply and the serious offender provisions of s6D and E.  In that regard, the prosecution has not sought a sentence that is disproportionate in order to protect the community.  The principle of totality also comes into play to mitigate against an overly harsh sentence.

34Taking into account all these factors, I have concluded that a term of imprisonment in combination with a Community Correction Order is appropriate and that in this case it provides for both general and specific deterrence in proper measures.  You have been assessed as suitable for a community correction order and I sentence you as follows.

35Would you stand now, please, Mr Findlay.

For each of Charges 1 and 2, six months' imprisonment. 

For each of Charges 3 and 4, nine months. 

The sentence for Charge 3 will be the base sentence for the purposes of cumulation and one month of each of the other sentences is to be served in cumulation upon the base sentence.  That results in a total effective sentence of 12 months.

The Community Correction Order will begin when you have served that sentence.  That order will last for two years.  You will be under supervision and must perform one hundred hours of unpaid community work.  You must also be assessed for treatment for drug and alcohol abuse and take part in a sex offender program.  The hours you spend completing these programs will be credited against the hours of community work.

Any offending by you during that two year period may breach the order and bring you back to court to be re-sentenced.  Mr Findlay, do you agree to be bound by the conditions?

36OFFENDER:  Yes, I do.

37HER HONOUR:  You will be required as soon as you are released from custody after serving your sentence to attend the Geelong Corrections Office within two working days and  it will be explained to you what your obligations will be following that.

On charges 3 and 4 you are sentenced as a serious sex offender.

Charges 1 – 4 are standard sentence offences.

You will also be on the Sex Offenders Register and that means you will have to notify police of your details for the rest of your life. 

If you had pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment with a non-parole period of two years.

38Now, the Community Correction Order is available for Mr Findlay to sign.  Do you want to accompany my associate to the dock for that purpose?

39MS BUCKLEY:  Thank you.

40HER HONOUR:  Adjourn the court, please.

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