Director of Public Prosecutions v Forsythe (a pseudonym)

[2016] VCC 1289

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER FORSYTHE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE ALLEN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 August 2016
CASE MAY BE CITED AS:	DPP v Forsythe (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1289

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr B. Bourke
For the Accused	Mr J. Lavery

HIS HONOUR:

1Peter Forsythe[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16.  That charge was a representative charge.  You will be sentenced in relation to the particular incident relied upon which occurred on 19 January 2015; but in the context of other similar conduct occurring on two other previous occasions which will be referred to in the summary of offending.

[1] A pseudonym.

2    You came before the court with a not insignificant criminal history.  Your prior convictions go back to 1968.  They cover a range of offending, including: driving offences; dishonesty offences; prior convictions involving violence; and, significantly a prior conviction in 1972 for assault of a child. This matter resulted in a sentence of six months' imprisonment which was wholly suspended for two years. More recently, in 1980 in the County Court of Victoria, you were convicted on three charges of carnal knowledge of a girl aged between 10 and 16 and on each charge sentenced to six months' imprisonment concurrent. The circumstances of that conviction were put before the court by way of a summary which has been obtained and was read to the Court; this summary was tendered as Exhibit D.  Briefly stated, as I understand it, that summary reveals that at the time of that previous offending you were aged 29. The victim in this matter was the 13 year old daughter of your de facto spouse, with whom you were living. This offending involved three incidents of what was described as consensual sexual intercourse, or sexual penetration with her.

3The circumstances of the offending before this Court were set out in the prosecution plea opening, which was read to the Court and marked and tendered as Exhibit A.  That document reveals that you are now aged 66.  The complainant was aged 15 at the time of the offending.  She was your grand-niece, that is, you were her great-uncle; put in another way, her grandmother is your sister, Angela.[2]

[2] A pseudonym.

4Detail of the family history and of the relationships within the family is all set out in the material.  It is sufficient to say that in October 2014, your sister Angela, that is the complainant's grandmother, moved in to live with you and another sister in your house, following your mother's death. There had been some estrangement within the family between Angela and her family. However, by late 2014, those relationships were being re-established and reconciled. In October 2014, the complainant, her siblings and their mother began to visit their grandmother at your home, where the complainant's siblings' grandmother lived with you.

5On one such occasion, shortly before Christmas 2014, an incident occurred at your house, when they were visiting. You sexually assaulted the complainant by inserting your finger into her vagina.  On Christmas day 2014, you attended at the complainant's home for family Christmas celebrations.  You stayed overnight at their place where an incident occurred after you entered the bedroom where the complainant was sleeping and, in the middle of the night, inserted your finger into her vagina.  On this occasion, the complainant alleges that she said to you, "What are you doing?  Please don't do that" or words to the effect of ‘I don't like it’. To which you responded words to the effect of, "I don't care.  I love it."

6On 19 January, the incident the subject of the charge on the indictment occurred.  Again, the complainant was visiting your home with her mother, they had come to visit the complainant’s grandmother.  It was a birthday celebration.  The complainant and members of her family stayed overnight at your place on this occasion.  The complainant slept in the lounge room on a mattress.  In the middle of the night you went into that room. The complainant was still awake, on her mobile phone. You came in to the room, stood over her and started pulling her clothes off her. Again, she objected saying, "What are you doing?  Please stop."   You said, "No. Come on… Shush. Just keep going."  She again objected saying, "I don't feel comfortable”. You pulled her clothes off, bent over and inserted your finger into her vagina.  As I have said, those circumstances constitute the charge to which you have pleaded guilty. The prosecutor has submitted this morning that the complainant’s clear objection to what you were doing, having asked you to stop, represents an aggravating feature of the offending. 

7You were subsequently interviewed by the police on 17 April 2015 and denied all of the allegations.  The matter proceeded through the court processes and came on for trial at Geelong before me.  After the initial submissions that were made concerning various aspects of the evidence, the matter was stood down and subsequently resolved; that is, you indicated your intention to plead guilty to this plea presentment containing this one charge.  That is to your credit and I will say more about that later.

8It is to be noted that this offending constitutes a class 1 offence under the Sex Offenders Registration Act, by virtue of the fact that you have that 1980 prior conviction for carnal knowledge.  As a result upon conviction of this charge before me, you will become registrable under the Sex Offenders Reporting Regulations and will be required to report for life under s.34 of the relevant legislation.  The maximum sentence for this offence is ten years.

9Victim Impact Statements were tendered and read to the court.  The Victim Impact Statement of the complainant was marked Exhibit B.  In it the complainant describes the usual consequences of this kind of offending upon children.  She says, as complainants often do, that in her opinion, what has occurred has not only ruined her life but ruined her relationships in her immediate family.  The victim is conscious of the fact that it has also ruined the relationship, which was being re-established, between her mother and her grandmother. She is left with the sense that she was taken advantage of.  She has problems with stress and depression, and she is undergoing counselling. 

10Exhibit C was a Victim Impact Statement from the complainant's mother. She describes an emotional reaction that is so commonly seen in mothers of victims, in the sense that she blames herself for what occurred; this is not a rational reaction but an understandable emotional reaction by her mother. The complainant’s mother explains that a significant impact has been that her extended family, including the complainant’s grandmother, aunts and other family members, has been torn apart by virtue of these charges having been laid, and the consequent proceedings.  She describes the impact upon her, that is the mother, of watching her daughter self harming and going through the emotional and psychological difficulties that she encounters.

11A comprehensive plea in mitigation was made on your behalf by Mr Lavery.  That plea commenced with an explanation that you had already served five months gaol in New South Wales, as a result of related charges; that is, charges involving another member of the family, as a result of allegations made by the same complainant in relation to alleged conduct in New South Wales.  These allegations were put to you in the same record of interview.

12The chronology reveals that after you were charged in relation to this matter before me, you were subsequently extradited to New South Wales. In June 2015, you were remanded in custody in New South Wales in relation to the other allegation made by the complainant.  You remained in custody before being released on bail in New South Wales, for approximately five months.

13I have been asked to take that into account in a very broad application of the so-called Renzella or totality principles.  I have given this matter careful consideration and revisited the authorities.  I agree with the previous prosecutor's submission, that this submission made by your counsel extends the Renzella,[3] or totality principles, to the limits.  I think that was a fair description. However, I respectfully say that my reading of the various authorities leaves me with the impression that those principles are extremely flexible and capable of being extended, as they have been in the past, to a remarkable extent, such that I am not prepared to dismiss your counsel's submission.  At the moment, whilst you are presumed to be innocent of those New South Wales charges, and whilst the outcome of those charges is completely unknown, I do give some weight, albeit limited weight, to the fact that you have spent five months in gaol in relation to allegations made by this complainant. 

[3]Renzella [1997] 2 VR 288

14The next matter that your counsel emphasised from the beginning was that you have pleaded guilty.  It was a very late plea but as was conceded by the learned prosecutor, in the context of this case, it was an important plea.  The complainant was never cross-examined and her Victim Impact Statement described the nightmares she had been experiencing in the expectation of suffering the trauma of cross-examination in a public place about these allegations. All of that was avoided by virtue of your plea and the proceedings were brought to a swift conclusion.

15I accept, as I made clear at the time I would, and as the prosecutor conceded, that you had a viable defence.  It was open to you to plead not guilty and I accept that, for people in the position that you are in, facing a word on word trial effectively, it is not common for a plea to be entered at that late stage, but you did.

16I accept your counsel's submission, which was conceded by the prosecutor, I think the prosecutor called it ‘a significant plea’, that you were entitled to a real discount by virtue of that.  As you will see in due course, I am according you a significant discount by virtue of your plea of guilty.

17As far as your background circumstances are concerned, they are set out in the pre-sentence psychological report that I have obtained from Forensicare, dated 12 August 2016, which will be marked Exhibit E.  They were also summarised for me by your counsel.  Insofar as it is necessary for me to state what those circumstances were here, they may be briefly stated as follows.

18You were born in Shepparton, the second of nine children.  You were brought up in humble circumstances.  You told the psychologist that your family struggled financially.  That must have been the case.  Your father was an interstate truck driver and he had to look after a family of 11 people.  Your mother was no doubt very heavily engaged in home duties. You attended school only to form 2 level in Elmore.  During the years of your schooling, your father had to look for work in various locations and your family moved from place to place.  You attended many primary schools.  Upon leaving school, you started work immediately, initially as a labourer picking tomatoes, and cleaning trucks.  Eventually, you started working as a truck driver with the company your father worked with. You had a very good work history.  Most of your life you worked as a truck driver.  You were self employed as a truck driver for many years until you handed in your truck driving licence about five years ago.  Even after that, you continued to do some casual work and, as I understand the material, finally stopped working altogether about two or three years ago.

19In your retirement, you have continued to do voluntary work for your neighbours and members of your family, repairing bicycle for people, fixing cars and doing what you can.  That is borne out in the reference that was tendered as part of Exhibit 2, by one of your neighbours.

20You have had three significant relationships in your life.  The first, although I have called it significant, was short lived, a marriage that lasted only a matter of about four weeks, when you were in your early twenties. Subsequently, you had two de facto relationships, each of them for a period of some four or five years.  The last of them involved the mother of the victim in relation to the prior conviction in 1980. You have three children by those relationships but you do not have an ongoing relationship with any of those children.  You have had no contact with them at all over the years. 

21In recent years, as I have mentioned, you moved to live with your mother and you cared for her.  Upon her death a couple of years ago, you have continued to care for one of your younger sisters, who had been living with your mother and who has significant health difficulties.  According to her, she cannot walk.  She is in court and she has relied on you over the years for transport to and from the doctors, for shopping and for all sorts of other practical help in her life.

22In the last couple of years, your other sister, Angela, has also come to live with you and your sister Roberta[4].  Angela, in her reference, says that she does not drive, she has her own difficulties, although they are not as bad as Roberta's.  Angela also relies upon you for practical help, including taking her for medical appointments and hospital appointments. She says in her report that without you around, life will be a struggle.  Your sister Roberta, who is unable to walk, says that she depends upon you, and that life is going to be very difficult without you being around.  They are no doubt already struggling, but in country communities such as the one in which they are living, I am sure that they will receive the support that need, although it will, no doubt, still be very difficult.

[4] A pseudonym.

23Your counsel also asked me to take into account the fact that your two elderly sisters have relied upon you heavily for support and assistance over the years in practical and financial ways.  I reminded counsel of what is set out in paragraph 20 of a case called Markovic[5].  Whilst it was not suggested that the hardship your sisters will encounter could be categorised as exceptional, it was put before me that your custody will be made harder for you by reason of the fact that, as you sit in gaol, you will always be conscious of the difficulties that your sisters are encountering struggling in your absence. In other words, feeling a sense of guilt and responsibility for having abandoned them as a result of your own misconduct and finding yourself in gaol.  That is a matter I can take into account pursuant to that passage in Markovic,[6] and I do.  It is a circumstance that makes gaol harder for you than it would be for someone who had no such situation and was not sitting in gaol worrying about their elderly sisters.  So I do also give that some weight.

[5][2010] VSCA 105; 30 VR 589; 200 A Crim R 510

[6] Ibid

24The matters I have just enumerated are essentially the principal matters put in mitigation. I have read the report from Forensicare. It gives a history consistent with the history that you had given to Mr Lavery.  The very experienced and highly qualified forensic psychologist, who assessed you, performed several tests and used various assessment tools to come to a number of conclusions about you that enabled her to express opinions.

25The most important thing that she noted is that you appear to display limited insight into the nature of your offending both back in 1980 and again more recently.  In particular, in relation to the recent offending, you stated that you did not believe that your actions would have an adverse effect upon your victim.  You were emphatic that you did not commit the offences, you were not guilty, that you had only pleaded guilty in order to receive a lesser sentence.  You spoke negatively about the victim, claiming that she had been demanding and it had ruined your life and the life of your sisters.

26Although you reported a willingness to engage in treatment, you were unable or unwilling to identify any possible treatment goals that might be achieved.  You engaged in what the report writer described as, "victim blame".  She assessed you in relation to the risk of you re-offending and found that on a bald application of the Static-99 risk factors, you were placed in the category of high risk of sexual offence recidivism.  However, when taking into account the broader picture and other factors in your life, she concluded that a more appropriate assessment would be that your risk of re-offending was in the moderate range.  She noted that there was:

"Partial evidence of a number of dynamic risk markers associated with sexual recidivism, particularly significant denial and minimisation of the offence, attitudes supportive of sexual violence, possible sexual deviancy, poor self awareness, poor consideration of future risk mitigation, though he does have a number of protective features."

However, she found that you did not meet the criteria in relation to ongoing psycho-sexual - any psychiatric condition including major mental illness or personality disorder and she recommended that you undergo psychological intervention, "targeting challenging of attitudes supportive of his offending behaviour".  Secondly, that you undergo psycho-sexual education; and, finally, she noted that you did not appear to meet the criteria for any ongoing psychological or psychiatric condition.

27Having considered all these matters carefully and weighed in the balance the objective gravity of your offending on one hand, together with its aggravating features, bearing in mind that the courts have said time and time again about the need to impose serious sentences upon those who commit sexual offences against children. Weighing those factors against the mitigating matters that I have just summarised and taking into account the maximum sentence that is applicable, alongside the Crown's concession, that although serious, your offending falls somewhere near the lower end of the range for the type of offending that is covered by this charge. I have concluded that the appropriate sentence is a sentence of three and a half years' imprisonment, with a minimum term of two years. I declare, pursuant to s.6AAA of the Sentencing Act that, but for your plea of guilty, that is had you been tried and found guilty on the trial indictment, I would have sentenced you to a total effective term of five years with a minimum of three.  Thus, as you can see, you have received a significant discount by virtue of your plea.  You can sit down now.

28I need to make it clear that the important factors that I have taken into account in determining that this is the appropriate sentence are the need for specific deterrence, in your case, community protection and denunciation.  Those three particular sentencing objectives carry significant weight in the circumstances of this case given your history and given the contents of the psych report.  I think I have made that clear enough. 

29I declare that you have already served 85 days by way of pre-sentence detention which will be taken into account as time served under the sentence. I order, pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a buccal swab from your mouth in order that a sufficient sample is obtained for placement on the data base; that is, a DNA sample. If you do not cooperate when that procedure is carried out, the authorities may use reasonable force to obtain a blood sample.  I have made that order in light of the seriousness of your offending and bearing in mind that it is not opposed.  It is not opposed, Mr Lavery, is it?

30MR LAVERY:  No, it's not opposed.

31HIS HONOUR:  A notice under the Sexual Offenders Registration Act will now be given to you and I repeat that you will be required to report under the Sexual Offenders Registration Rules for life.  This notice will set out your reporting obligations and you will be asked to sign a form acknowledging receipt of the notice.  Anything else, Mr Bourke?

32MR BOURKE:  No, Your Honour.

33HIS HONOUR:  Your counsel will bring this notice down to you now and get you to sign it.  Do you need a break, Mr Forsythe?

34OFFENDER:  Just with my two sisters, Your Honour.

35HIS HONOUR:  All right.  I will leave the Bench briefly and if the prison officers are content for you to briefly say hello to them, I have got no problem with that.  You will not be able to touch them in any way but they will be able to speak to you.  You need to sign this form first, Mr Forsythe.  Anything else, Mr Lavery?

36MR LAVERY:  No, Your Honour.

37HIS HONOUR:  Thank you. 

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