Director of Public Prosecutions v Findlay (a pseudonym)

[2016] VCC 155

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01949

DIRECTOR OF PUBLIC PROSECUTIONS

v

SANDY FINDLAY (a pseudonym)

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2016
DATE OF SENTENCE:	19 February 2016
CASE MAY BE CITED AS:	DPP v Findlay (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 155

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Sexual penetration of a child under 16 – Indecent act with a child under 16 – Autism spectrum disorder – Prospects of deportation

Sentence:Convicted and sentenced to Total Effective Sentence of 12 months’ imprisonment – No non-parole period set – s.6AAA Sentencing Act 1991 declared – 143 days pre-sentence detention declared as already having been served – Ancillary order Sex Offender Registration

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C.M. Burnside	Solicitor for Public Prosecutions
For the Accused	Ms F. Todd (Plea) Ms E. Clark (Sentence)	Stary, Norton and Halpen

HER HONOUR: 

1Sandy Findlay, you have pleaded guilty to one charge of Indecent act with a child under the age of 16 years and one charge of sexual penetration of a child under the age of 16 years.

2Each of the offences has a maximum penalty of ten years' imprisonment and that reflects the seriousness with which Parliament regards these offences.

3I was told that each of the charges is a composite charge which is equivalent to a rolled up charge. This means that in sentencing you for each charge, I can factor in each of the pieces of sexual misconduct involved.

4Your offending was opened by Ms Burnside for the prosecution as follows:

5I was told that you sexually assaulted a 15 year old male at Fountain Gate Shopping Centre on 1^st June 2015.

6On that day the victim, who had been reluctant to attend school, went to the shopping centre, taking his scooter with him.

7He stole a drink and some shoe laces and he then scooted around a basement car park at the shopping centre, looking for cigarette butts to smoke.

8You saw the victim smoking and you began talking with him. In your record of interview to the police, you said that you realised that the victim was homeless and was without parent support. The victim went with you to Big W and he repeatedly asked you for a cigarette. You asked the victim about masturbation and whether he had been to strip clubs.  The victim replied that he was too young for either of these activities.

9You told the victim that you had cigarettes in your car and so you took him to your car.  You put the victim’s scooter in the boot of your car and you sat with him in the back seat. While the victim was smoking a cigarette, the victim started rubbing your leg, according to you in your record of interview with the police. You then kissed the victim on the lips, despite the victim’s efforts to stop this.

10You told the victim to take off his jumper. So he did.  You then started to masturbate yourself, then you took the victim's hand and placed it on your penis so that the victim continued to masturbate you. You then placed your hand under the victim’s pants and masturbated him. Charge 1 comprises each of these sexual acts.

11Immediately after this conduct , you placed your mouth over the victim’s penis, performing oral sex.  You then caused the victim to perform oral sex on you for a short time until you ejaculated into a tissue.

12The victim then said that he had to go and you drove him to the Narre Warren railway station. The victim took his scooter, his clothes and your jumper. The victim spoke to a railway station employee as soon as you drove away, telling her that he had been sexually assaulted and asking her to call the police. He was observed to be shaken and scared. After this, he complained to his case worker.

13You took part in a record of interview, with the help of an interpreter, and you were co-operative with the police. You admitted that you kissed the victim and you admitted to the acts comprising Charge 1. You also admitted to the conduct comprising Charge 2, in circumstances where the victim had only told police of one of the sexual penetrations involved.

14You referred to the victim as "the child" but you also said to the police that you thought that the victim was between 17 and 20 years old. You acknowledged that the victim was alone at the shopping centre without parental supervision and you made other observations which were consistent with you being aware that the victim was a child.

15Although you were not in a supervisory position in respect of the victim, you took advantage of his wish to smoke cigarettes  and lured him to your car with the promise of supplying these. Although you are, and you were somewhat immature, you were about 15 years older than the victim and you were supposed to behave as a decent, responsible adult toward him. I was told by Ms Todd, who appeared on your behalf at the plea hearing, that you are somewhat naïve. However, you exercised a degree of cunning on this occasion to get what you wanted. While you made significant admissions in your record of interview, there was a slight taint of blaming the victim for your offending, saying that you committed the sexual acts involved after he made an advance to you.

16Mr Findlay, your conduct is deserving of a punishment which is just in all of the circumstances and your conduct must also be denounced.

17I must give strong weight to general deterrence in a bid to deter others who are tempted to offend in the way that you have.

18I take into account the impact on the victim.

19He said that he now feels unsafe around his home and when he is out. He has had flashbacks of this incident and he has tried to self-harm. He has questioned why this has happened to him.

20These are the very real effects of your actions.

21You have no prior convictions and I accept that you are of otherwise good character, which is evident from the character references tendered at the plea hearing and from the family support in Court at that hearing. Further, although your offending was serious, it was of brief duration and was not accompanied by any use of or threat of force.

22I allow for a significant discount in the sentence you would otherwise receive because of your early pleas of guilty, which has saved the witnesses, especially the victim, the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings. I make a further allowance in your favour because you admitted to conduct which would not have otherwise been known to the police. Therefore, you have facilitated justice to a greater extent than would otherwise be the case. In this regard, I have also factored in your co-operation with police from the outset, including the fact that you attended the police station by appointment.

23In a general sense, I factor in the report of Mr Aaron Cunningham, psychologist, dated 12^th February 2016. He diagnosed you as presenting with Autism Spectrum Disorder. Consistent with the disorder, you lack insight into your offending behaviour. This condition is a relevant factor in assessing your prospects of rehabilitation, as it is a contributing factor to your risk of re-offending.

24I also take into account that your deportation seems to be inevitable in all of the circumstances.

25I have factored in that your time in custody has been harsh, and will be harsh, for the following reasons.

26First, you were detained for about 13 days in police cells rather than in a proper remand centre. As an aside, I wish to record my serious concern that this occurred in your case and that this is apparently a commonplace event for some people on remand.  It simply should not happen and I express the strong wish that the appropriate authorities do what they can to ensure that it does not happen.

27Second, you suffer from Autism Spectrum Disorder which impacts on your ability to appropriately interact in the prison environment, placing you at greater risk of being victimised in the prison environment.

28Third, you have been subjected to racist slurs and threats whilst on remand.

29Fourth, you have limited English skills and limited family contact which has and will make your time in gaol more isolating in circumstances where the language that you speak is not commonly spoken in that environment.

30Fifthly, the burden of your concern for your mother’s financial stability and well-being and your worries about being deported with nothing to show for your time in Australia except a sense of shame and a large debt.

31Sixth. this is your first time in prison and you are experiencing a high degree of fear, humiliation and distress.

32You are now 31 years old and have no prior convictions, which is a matter in your favour as it is relevant to your prospects of rehabilitation, specific deterrence and protection of the community.

33You had a good upbringing and you were well cared for by your mother and father. Sadly, your father died of cancer seven years ago, which caused great financial instability at home. In India, you had obtained a Bachelor Degree in commerce and accounting but struggled to find work.

34You came to Australia in 2013 in order to pursue further studies to improve your situation and that of your mother’s, as she is widowed and financially dependent upon you. As the only son, you are expected to provide for your mother. She and you incurred substantial financial debt in order for you to study here.  You had been undertaking a welding and construction course at Holmesglen TAFE, but you indicated through your Counsel that the $25,000 expended for this has now been lost.  I had understood that these studies were ongoing.  However, this appears to be at odds with the report of Mr Cunningham in some way, as he seemed to be of the understanding that you obtained your qualification from Holmesglen in 2015.  In any event, I take into account that you have incurred debt and have effectively lost a large sum of money which you cannot put to use in furthering job opportunities in Australia.  I accept that you have a good work history and work ethic.

35In view of your offending, your limited insight into it and Mr Cummins diagnosis, but also bearing in mind your age and lack of prior convictions, your experience of prison as well as your family support and your otherwise good character, I find that you have fairly good prospects of rehabilitation and I place fairly minimal weight on specific deterrence and protection of the community.

36Ms Todd submitted that a sentence of imprisonment of no more than 12 months as an immediate term was warranted in your case in view of the matters in mitigation and the lack of aggravating features of your offending. She submitted that this need not be reflected in a head sentence and non-parole period. She also submitted that because the instances of offending were so close in time and were of such a brief nature, that total concurrency was warranted, or else, there should be minimal cumulation. Ms Burnside indicated that the prosecution accepted the defence’s position, whilst not being at liberty to descend into figures as such.

37In all of the circumstances of your case, including your harsh experience of gaol and all matters put in mitigation, I am persuaded by defence’s submissions and I will impose a sentence in keeping with them. In view of the fact that you will inevitably be deported, I can see no utility in setting a head sentence in your case, especially in view of your harsh experience of gaol and the ongoing risks associated with this.

38Would you please stand up.

39     I first make an order under the Sex Offenders Registration Act 2004. By reason of your convictions for these offences, you are to be recorded as a registrable offender for 15 years. You must report your personal details to the Chief Commissioner of Police annually for the next 15 years. You must first do so, that is, report, within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you now by my associate, and I will ask Ms Clark to help you with the acknowledgement of that notice. Thank you, Ms Clark.

40You are convicted in respect of each of the charges and I sentence you as follows:

41Charge 1, 8 months' imprisonment.

42Charge 2, 12 months' imprisonment.

43These terms are to be served wholly concurrently with each other, producing a total effective sentence of 12 months' imprisonment.  As I have said, I am not going to set a non-parole period.

44If not for your pleas of guilty, and all that went with those in this case, I should add,  I would have sentenced you to a total effective sentence of four years' imprisonment with a non-parole period of three years’ imprisonment.

45I declare that you have already served 143 days by way of pre-sentence detention, which will be reckoned as having already been served in respect of the sentence of 12 months that I have just imposed.

46Take a seat for a moment please, sir.  Is there anything further, counsel?

47COUNSEL:  No, Your Honour.

48HER HONOUR:  Thank you for your assistance, counsel.

49COUNSEL:  As Your Honour pleases.

50HER HONOUR:  Do you want to speak to your client up here or do you want to speak with him in the cells?

51MS CLARK:  I'm content to go down to the cells, thank you, Your Honour.

52HER HONOUR:  Thank you, Ms Clark.  If you could please remove the prisoner, thank you.  Yes, Madam Interpreter.

53INTERPRETER:  I have a question please.

54HER HONOUR:  Yes.

55INTERPRETER:  Will my 143 days will be removed from the 12 months?

56HER HONOUR:  Yes, that's right.  You've already served 143 days of that 12 months, so that will be taken away from the 12 months.  Thank you.

57INTERPRETER:  Thank you.

58HER HONOUR:  You may now leave the court with the officer.  Thanks for your assistance, Madam Interpreter, we will now adjourn.

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