Director of Public Prosecutions v Finighan
[2020] VCC 1539
•25 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No CR-19-02019
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRY FINIGHAN --- |
JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 September 2020 | |
DATE OF SENTENCE: | 25 September 2020 | |
CASE MAY BE CITED AS: | DPP v Finighan | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1539 | |
REASONS FOR SENTENCE
Subject: CRIMINAL LAW – SENTENCE.
Catchwords: Four charges of indecent assault upon a male – Two course of conduct charges – Plea of guilty – Offender was a supervisor of both victims residing at a boy’s home – Relatively serious offending involving penetration – Offender between 20 and 22 at time of offending – Good character – Remorse – Approximately 45 years since offending – Offender recently diagnosed with cancer – No prior criminal history – Circumstances surrounding COVID-19 taken into account.
Legislation Cited: Crimes Act 1958 s 63(3A); Crimes (Amendment Act) 1967; Sentencing Act 1991 pt 2A, ss 6D, 5(2F), 6E, 6AAA; Sex Offenders Registration Act 2004.
Cases Cited:R v MWH [2001] VSCA 196; DPP v Buhagiar & Heathcote [1998] 4 VR 540.
Sentence: Imprisonment for a period of 3 years, wholly suspended for 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B Sonnet | Office of Public Prosecutions |
| For the Accused | Mr A Patton | Falcone & Adams Lawyers |
HIS HONOUR:
Introduction
Terry Finighan you have pleaded guilty to four charges of indecent assault upon a male, contrary to s 63(3A) of the Crimes Act1958 as amended by the
Crimes (Amendment Act) 1967, which carries a maximum penalty of five years imprisonment on each charge (Charges 1, 2, 3 and 4). Charges 2 and 3 are course of conduct charges.
You have no prior criminal history.
Circumstances of the offending
The prosecution opening was tendered on the plea and may be summarised as follows:
You were born on 20 February 1952 and were aged between 20 and 22 at the time of offending. The offending occurred at Blamey House located at 1267 Burke Road in Kew, a children’s home for boys 14 years and older which was operated by Legacy until 1977 when it closed. You were a former resident of Blamey House, leaving on
28 May 1971.
The two victims in this matter were residents of Blamey House: Roger Silva[1] was aged between 14 and 16 at the time of the offending, and Seamus Harvester[2] was aged between 14 and 15 years at the time of the offending.
[1] A pseudonym.
[2] A pseudonym.
Blamey House consisted of the main house, comprising of four dormitory style bedrooms downstairs with multiple beds in each, and a separate cottage where boys, who were generally older, had their own bedrooms.
Robert and Jane Wight, the superintendents in charge of the orphanage, occupied the premises upstairs. They had Wednesday nights off and you would stay overnight to look after the residents on these nights which is when the offending occurred.
Victim Roger Silva
Roger Silva moved to Blamey House when he was 14 years of age. The offending against him occurred on one of the nights that you were looking after the boys.
Mr Silva had a room by himself but one time when he returned from school holidays early and Blamey House was quite empty, he asked you if he could stay in a dorm with the other boys. You did not allow him to sleep with other boys and it was on this occasion that the offending against Mr Silva occurred.
Mr Silva was asleep and awoke from a dream to find you masturbating his penis. It is these facts that relate to Charge 1, indecent assault upon a male. Mr Silva was on his side facing away and your body was up against his from behind. Mr Silva knew it was you because you had really rough hands and were breathing really heavily like you were aroused. You had your right hand over the top of Mr Silva’s body as he was lying on his left side and you were masturbating his penis. The offending lasted approximately 10 seconds.
Mr Silva was horrified and said, ‘stop go away.’ You then got up and left and Mr Silva went back to sleep.
That morning you apologised and said, ‘please don’t tell anyone.’ Mr Silva walked away because he could not look at you. He told some of the other boys, including
Mr Harvester, what had happened because he wanted to feel safe.
Both you, Mr Silva and Mr Harvester were at a funeral in 2004. After the funeral,
Mr Harvester approached Mr Silva and asked to walk with him. Mr Harvester told Mr Silva that you had also touched him. Mr Silva was shocked and told Mr Harvester that he did not realise that he was also a victim.
Mr Silva made two statements to investigating police on 10 August 2018 and
8 September 2018.
Victim Seamus Harvester
Seamus Harvester first entered the orphanage in 1964 and moved to Blamey House at the age of 14 and remained there until September 1977. Mr Harvester shared a room with four boys. Mr Harvester described that quite soon after moving in, you started sexually assaulting him.
On the first occasion, Mr Harvester was asleep in bed and woke up because someone was having oral sex with him. Mr Harvester did not know what time it was, but it was dark and seemed like the middle of the night. Mr Harvester was lying on his back and felt someone’s mouth on his penis and his penis being sucked. It is these facts that relate to Charge 2, indecent assault upon a male, which is a course of conduct charge.
Mr Harvester had no idea who it was as he could not see. Mr Harvester had gone to bed in his underpants and he thought the person sucking his penis must have been kneeling next to the bed. It was not until the person whispered ‘come on upstairs’ that he realised it was you.
You then left the room and went upstairs. Mr Harvester stayed where he was and tried to ignore what had happened. A minute or two later, you came back in and Mr Harvester pretended to be asleep. You then put your hand on Mr Harvester’s shoulder, shook him to wake him and said ‘come upstairs’. Mr Harvester said your voice sounded harsh and urgent in its tone and he did what he was told, following you upstairs out of fear. You were only wearing underpants and you took Mr Harvester to the bedroom at the top of the stairs. There was a single bed in the room, and you got into the bed and told Mr Harvester to get in. Mr Harvester got into the bed and observed that you were no longer wearing any clothes. You started masturbating Mr Harvester’s penis, which gives rise to Charge 3, indecent assault upon a male, and then performed oral sex on him. You then asked Mr Harvester to suck your penis. Mr Harvester complied because he was scared of you.
Mr Harvester did not want you to ejaculate in his mouth, so he stopped sucking your penis and masturbated your penis until you ejaculated. As you ejaculated you rolled
Mr Harvester over onto his back and put your body on top of him. Mr Harvester was pinned down and you ejaculated on his stomach. It is these facts that relate to Charge 4, indecent assault upon a male. When you finished ejaculating on Mr Harvester, you rolled off him and Mr Harvester cleaning himself up by wiping himself with a sheet. Mr Harvester then got up and went back to bed and you did not say anything to him.
After this first incident the offending occurred approximately once a month for 12 months. You would come into Mr Harvester’s bedroom at night and Mr Harvester would wake up to find you fondling his genitals. After a while, you stopped fondling Mr Harvester’s genitals and would instead wake up Mr Harvester by shaking him by the shoulders. You and Mr Harvester would then go upstairs to the same bedroom. You would masturbate Mr Harvester and perform oral sex on him. Mr Harvester would then do the same to you, masturbating you and performing oral sex on you. The offending always included the same acts but sometimes the sequences would vary. On each occasion, it is the prosecution case that all the discrete acts followed one continuous episode.
On the last occasion that Mr Harvester can recall, you again came into his room at night and Mr Harvester said ‘no.’ You said, ‘come on, I’ll give you some money.’ Mr Harvester did not want this to occur in the bedroom, so he went with you and the same thing happened again, where you masturbated Mr Harvester and performed oral sex on him. Mr Harvester then did the same to you, masturbating your penis and performing oral sex on you.
The first person Mr Harvester told about the offending was his wife in around 2000, however he did not go into any detail. Mr Harvester made two statements to investigating police on 6 January 2017 and 1 September 2018.
Arrest and Interview
Police began an investigation into your offending in August 2018. You participated in a record of interview on 1 February 2019 and answered ‘no comment’ to the questions put to you.
Nature and gravity of the offending
Sexual offending against young people under the care of others is very serious offending. The victims of such offending are vulnerable and reliant on adults to care for them whether that be as a parent or, as was the case here, where you were in a supervisory position looking after boys left in your care for the evening. While it is acknowledged that you were relatively young at the time of the offending, you were still in a position of trust and the boys that you were responsible for were entitled to feel safe and secure.
The offence of indecent assault on a male relevant to the time in which the offence was committed, clearly covers a wide range of conduct some of which now attracts higher penalties. However, in general terms it remains a serious charge carrying a maximum term of imprisonment of five years. Here your conduct in my view represents relatively serious offending. Charges 2 and 3 are particularly serious as they are course of conduct charges representing repeated behaviour over a twelve month period. Further Charge 2 involved penetrative sexual offending.
Mr Sonnet who appeared on behalf of the Director of Public Prosecutions, submitted that as Charges 2 and 3 represent offending over a 12 month period, involving offending once per month, they in all the circumstances may be classified as mid-scale offending. As to Charges 1 and 4, which are since occasion offending, and not involving penetrative conduct, Mr Sonnet submitted that they may be classified as falling towards the lower end of the scale. While acknowledging the limitations of employing this type of terminology to classify the seriousness of the offending, I accept the submission. Further, Mr Patton who appeared on your behalf did not take issue with this characterisation of the offending.
Victim impact statements
Victim impact statements were prepared by both victims and tendered on the plea. Both statements were read at the plea hearing and I have taken the contents of the statements into account.
Roger Silva states that although some 45 years have passed since the offending occurred, he still has a vivid memory of the incident. He speaks of the very real impact the offending has had on his relationship with his wife and how it has impacted on his sense of intimacy. He also notes that the offending in general terms has affected his confidence in his work and in his ability to form new friendships.
Seamus Harvester provides some background as to how he came to be at Blamey House which gives context to the offending. He had come from a neglected background. His father had passed away when he was three and his mother did not visit him in Blamey House. Thus, he explains that at the time of the offending he was in an emotionally vulnerable state. He states that at the time he felt that he could not tell anyone of the abuse and that if he did, he would be told to leave with nowhere to go. Since the offending he speaks of the anxiety, shame and guilt he has had to endure and that this has affected most of his relationships.
Personal circumstances
You are now 68 years of age. At the time of the offending you were between 20 and 22 years of age.
When you were three years of age your father left, and you remained living with your mother and three older siblings. When you were five years of age your mother passed away as a result of kidney failure and you initially lived with one of your older sister’s parents-in-law and then with your sister and her husband from the age of eight. Two of your sisters have passed away however your elder sister is alive, and you enjoy a close relationship with her. She is aware of the charges and she remains supportive of you.
While living with your sister and her husband you were subjected to physical and emotional violence at the hands of your sister's husband. This continued until you were approximately 12 years of age when you were moved initially to a family friend’s home and then to the Burwood Boys Home. At age 16 you moved from the
Burwood Boys Home to Blamey House in Kew.
At 17 years of age you commenced a carpentry apprenticeship and at the age of 19 you left Blamey House and moved into private rental accommodation. You completed your apprenticeship and remained working with your employer as either an employee or subcontractor until the early 1990s. In 1991 you established your own business with a partner which was a business that focused on the building of stadium seating. Before establishing the business, you worked for a short period for Legacy where you supervised adolescents in care. You are now semi-retired after a series of medical events including a hip replacement in 2016 and having undergone a quadruple bypass in 2017.
You have remained single throughout your life. You also stated to your psychologist that you acknowledge that you had repressed your sexuality because of your fear of becoming involved in a long term intimate relationship which would place you in a circumstance of vulnerability, or you could lose a loving relationship as you had already experienced having lost your father and mother.
You currently live alone in a home in Heathcote and continue to work in your business part time. In recent times, the COVID-19 restrictions have significantly reduced your work. In addition to the hip replacement and quadruple bypass you have recently had surgery to remove a number of melanoma and you suffer sleep apnoea. You are also undergoing investigations as to cancer of the oesophagus, which will be discussed further below.
A report dated 24 August 2020 prepared by Jeffrey Cummins, forensic psychologist was tendered on the plea. Mr Cummins has seen you on eight occasions after an initial consultation on 23 January 2019. In a very comprehensive report, Mr Cummins provides a detailed history together with his clinical opinion, including reporting on the results of a number of psychometric tests he conducted.
Mr Cummins states that you conveyed to him that the conduct the subject of the charges was your first sexual experience. At that time, you had received no form of sexual education through your education or from the institutions that cared for you.
Mr Cummins is of the opinion that at the time of your offending you had problems with self-awareness and were significantly psychosexually immature and also psychosocially immature. As such Mr Cummins also formed the view that your offending was situationally motivated.
Mr Cummins formed the opinion that in addition to your offending being situationally motivated and reflective of your psychosexual immaturity, you were at the time of the offending, suffering from post traumatic stress disorder (PTSD) triggered by your history of emotional abuse from your brother in law.
Mr Cummins conducted a risk assessment test which based on the testing tool ultimately assessed your risk as very low. That testing in combination with
Mr Cummins’ clinical observations resulted in him forming the view that the risk of you committing further sexual offences against underage males is low.
Mr Cummins states that in the ongoing assessment and treatment that he is conducting with you, you have repeatedly and spontaneously conveyed confusion, guilt, shame and remorse regarding the offending behaviour.
Based on the assessment of your estimated psychosexual immaturity and psychosocial immaturity and naïveté together with trauma symptoms you were suffering at the time, Mr Cummins is of the view that your moral culpability was impaired. Further, he is of the view that by virtue of that psychosocial immaturity you regarded the two victims at the time as being your equals noting also that you stated in interview that you were not specifically attracted to either the victims due to their age. In evidence at the plea hearing, Mr Cummins estimated that while you were 20 to 22 at the time of the offending, your maturity was more that of a 16, 17 or 18 year old.
Because your risk of committing a further sexual offence was assessed as low,
Mr Cummins is of the opinion that it is not clinically necessary that you engage in a course of offence specific treatment.
A number of references were tendered on your behalf representing a cross section of friends and colleagues. The writers provided evidence of your otherwise good character and all acknowledge that they were shocked and surprised upon hearing of the charges. Many of the writers have known you for considerable years and speak of the care and compassion you demonstrate towards others when they are in need.
Your business partner and friend, Gerry Sheean gave evidence on the plea. He confirmed the matters in his written reference that in addition to being business partners, you have become an integral part of his family. You were a close friend and support of Mr Sheean’s father and you have played an active role in the lives of
Mr Sheean’s children including babysitting them when they were young.
The daughter of Mr Sheean, Rebecca Sheean states that she considers you as part of her family and as a reliable, kind and caring person who made a mistake a very long time ago. She also notes (as do others) the remorse you expressed to her when disclosing the offending which is consistent with the expressions of shame and remorse you conveyed to Mr Cummins.
A further reference was tendered from John Wallis, a recently retired barrister and solicitor who has known you since the mid 80’s initially as a client and then as a friend. Consistent with the other references, he has observed your remorse and regret in relation to your conduct. Further, and consistent with the other references he states, ‘Terry is a kind, compassionate and caring man and nothing I have seen in the more than 30 years I have known him would suggest that this offending is anything other than out of character for him’.
Also tendered on the plea was a letter from your general practitioner, Dr Noel Siapno listing the current medical conditions you are dealing with including heart disease, osteoarthritis of both hips, melanoma and other skin cancers. You are also currently undergoing investigations in relation to intramucosal carcinoma of the oesophagus.
Following the plea, you were required to undergo further medical examinations and as such the sentence was adjourned for that to occur.
On 24 September 2020, I received addendum written submissions attaching results from two medical examinations. In short, you have been diagnosed with early stage cancer of the oesophagus and asbestos has been detected in your right lung. As a result of these findings you have been referred for further treatment by specialists, however at this stage it is uncertain as to what treatments you may be required to undertake.
Relevant sentencing considerations
You entered pleas of guilty to the charges on the indictment at the Magistrates' Court and you did not conduct a contested committal hearing. Your pleas therefore can be considered as pleas of guilty at the earliest opportunity. A plea of guilty to charges involving sexual offending is significant as it avoids the need for the victims to have to experience the trauma of giving evidence and reliving the events. Your pleas have also saved court time and expense and therefore in all the circumstances have facilitated the course of justice.
Over and above your pleas of guilty it was submitted on your behalf that you have expressed genuine remorse. Having considered the report of Mr Cummins and the references tendered, it is clear that you have taken full responsibility for your conduct and that your expressions of remorse are genuine.
Mr Patton submitted that while you were in your early twenties when the offending occurred, your conduct must be considered together with the fact that you were also psychosexually and psychosocially immature at the time and thus developmentally much younger. As you said to Mr Cummins, you did not consider the conduct as illegal at the time rather as sexual exploration. Further, at the age of 20 to 22 you would in today's sentencing language be considered a youthful offender.
Mr Patton submitted that as a result of you suffering PTSD at the time of the offending together with the identified social and sexual immaturity, Verdins principles 1, 3 and 4 are enlivened. He submits that your level of development at the time caused you to view the offending as experimentation and thus coupled with your PTSD your moral culpability is able to be reduced. Mr Sonnet accepted that Verdins principles are enlivened however he submitted that this does not mean you did not appreciate the wrongfulness of your conduct noting that the offending was carried out in secret and involved an imbalance of power. As such he submits that while you are entitled to some mitigation in this regard, it should not be substantial. I accept that position.
As Mr Cummins was of the view that a period of imprisonment would lead to a deterioration of your mental health, due in part to the anxiety you would suffer concerning your physical health deteriorating, it was submitted that Verdins principles 5 and 6 are also enlivened. It was submitted that your anxiety over this issue would be further exacerbated in circumstances where there is the risk of contracting COVID-19. I accept that submission.
In that regard I note that the recent test results identifying oesophageal cancer and asbestos in your lungs will undoubtedly add to your anxiety for two reasons. First, you would likely be assessed as being in a higher category of risk if exposed to COVID-19, and secondly, your access to appropriate specialist services would be restricted.
It was submitted that the delay since the offending has been some 45 years. While with this type of offending that is not an uncommon situation, it was submitted that the delay is still able to be taken into account in circumstances where you have not offended further and have lived an otherwise exemplary life.
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 your case you have not reoffended for some 45 years and have been a contributing member of the community without any evidence of impropriety or misconduct.
[3] [2001] VSCA 196 at [19].
For similar reasons in my view specific deterrence has little role to play in the sentencing discretion and further, based on the 45 years that have passed without any further offending, I accept that your rehabilitation has been achieved. I further accept the opinion of Mr Cummins that because the risk of you reoffending is low, it is not necessary for you to engage in any offence specific treatment.
Mr Sonnet properly submitted that general deterrence and denunciation of your conduct are primary sentencing considerations given the breach of trust and the fact that your offending occurred in an environment where you were in a supervisory role with some power imbalance.
While also conceding that a term of imprisonment is warranted, Mr Patton submitted that in the circumstances the imposition of a wholly suspended sentence is the appropriate disposition. Mr Sonnet submitted that a suspended sentence is open in relation to Charges 1, 3 and 4 however Charge 2 requires the imposition of an immediate custodial sentence either by way of a partially suspended sentence or a head sentence with a non-parole period.
I take into account the current circumstances surrounding the COVID‑19 pandemic. From information provided by Corrections Victoria, it is clear that personal visits to prison have been suspended, there has been a reduction of services and programs, and some prisoners are experiencing increased lockdown periods. Those circumstances cause additional stress for prisoners and their families and also affect the programs and supports in prison designed to assist in rehabilitation and transition into the community. In your specific circumstances, as noted above, the restrictions in relation to medical services you will require, in circumstances where COVID-19 is continuing to pose a risk, are a matter which I accept may give rise to further anxiety and I take it into account.
A period of imprisonment is warranted on each charge. However, weighing the various sentencing considerations, including the maximum penalty for these offences being five years, in my view the applicable sentencing considerations are able to be met by the imposition of a wholly suspended term of imprisonment in relation to all charges.
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 Act1991.
Section 6D of the Sentencing Act1991 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.
Charges 2 and 3 are ‘course of conduct charges’ and as such, pursuant to s 5(2F) of the Sentencing Act1991 I am required to impose a sentence that reflects the totality of the offending but must not exceed the maximum penalty.
Further, as you are being convicted of one Class 1 offence (Charge 2) and three
Class 2 offences (Charges 1, 3 and 4), 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
Terry Finighan on Charge 1, indecent assault on a male, you are convicted and sentenced to 9 months imprisonment.
On Charge 2, indecent assault on a male (course of conduct charge), you are convicted and sentenced to two years and 6 months imprisonment. This will be the base charge.
On Charge 3, indecent assault on a male (course of conduct charge), you are convicted and sentenced to 15 months imprisonment.
On Charge 4, indecent assault on a male, you are convicted and sentenced to
9 months imprisonment.
I direct that 4 months of the sentence on Charge 1, and 1 month of the sentence on Charges 3 and 4 be served cumulatively on each other and on Charge 2. That makes for a total effective sentence of 3 years 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 Act1991, if not for your plea of guilty I would have sentenced you to a total effective sentence of 3 years imprisonment with a non-parole period of 20 months.
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