Director of Public Prosecutions v Garland (a pseudonym)

[2015] VCC 1267

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

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

OSMOND GARLAND[1]

[1] Is a pseudonym

---

JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Bendigo
DATE OF HEARING:	7 September 2015
DATE OF SENTENCE:	9 September 2015
CASE MAY BE CITED AS:	DPP v Garland (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1267

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr K. Freshwater

HIS HONOUR: 

1Osmond Garland[2] on 7 September 2015 you pleaded guilty to a charge of assault with intent to unlawfully carnally know and abuse a girl under the age of 10 years. 

[2] Is a pseudonym

2The maximum penalty for this specific offence is 10 years' imprisonment.  The offence occurred approximately 57 years ago when you were 17 years old.

THE CIRCUMSTANCES OF THE OFFENCE

3The prosecution summary of agreed facts for sentencing purposes were set out in Exhibit A on the plea.  I will refer to that now.

4The complainant in this matter is Jennie Linzi Trengove[3] nee Garland, is 64 years of age.  At the time of this offending she was approximately seven years of age.  You were born on 6 May 1940 and are now 75 years old.  At the time of the offending you were 17 years of age.  You are the uncle of the complainant in this case.

[3] Is a pseudonym

5The complainant lived on a farm at Girgarre known as "The Garlands[4]".  On the farm was a disused dairy.  She states he remembers a day when you took her in to the disused dairy.  She said that her uncle, that is you, told her to lay down on the floor and take her underpants off.  You then proceeded to put your hand on her vagina.  You then said that if it hurt she was to tell you.  She said it was hurting, but you continued to try to put your fingers in to her vagina.  She doesn't know whether you fully penetrated her, "but it must have been close because I remember it really hurt", she said.  She states she does not remember much else of the incident except that it was daytime and she believed that the family were all at the farm at the same time.

[4] Is a pseudonym

6You then told her not to tell anyone or she'd get in to trouble.  The matter was not disclosed by her for many years.  When she was about 30 years of age she disclosed the assault to her two sisters. 

7In October 1990 she reported to the matter to the Goulburn Valley CASA.  The complainant also states in approximately 2006 she confronted you about this matter.  Whilst initially denying the allegations you subsequently began crying and saying you were sorry.  She told you that she had forgiven you. 

8In August 2014 a complaint was made to police and in September you were formally interviewed.  You admitted the assault but denied placing your penis inside the complainant.  Your memory was that you had “just had a feel around” and that your fingers touched the inside of her vagina.  You remembered her saying that it was hurting her and thought that your fingernails may have caused that pain.  You admitted that you knew it was wrong to assault your niece but that you were young and inquisitive and “having a play around”.

9A closer reading of the record of interview with police shows that you have little or no empathy for your victim and express only concern for your wife, Edna[5], and what will happen to you at this Court stage.

[5]Is a pseudonym

YOUR PERSONAL CIRCUMSTANCES

10You are now 75 years old.  You grew up on the dairy farm at Girgarre where this offence occurred.  You were educated at the Girgarre primary school.  You left school to work on the family dairy farm.  You, your wife Edna, and a business partner worked in a business, as a battery manufacturer.  Some 18 years ago your partner absconded with the business funds and your business collapsed.  At about the same time, that is when you were 55 years old, you were put on a disability pension as a result of a back injury.

11You and your wife Edna have five children aged between 43 and 57.  You reported to Mr Bernard Healy psychologist (which is Exhibit 1 on the plea) that you thought your marriage was reasonably happy and harmonious.  You are both regular attenders at your local Assembly of God Church.  Mr Healy in his report dated 12 August 2015 assessed your intelligence in the borderline capacity, where 94 per cent of the population would do better than you.  He has diagnosed you as suffering from depression and anxiety.  Mr Healy noted that you had poor memory functioning.  Mr Healy's tests and the brain scan result indicate you are in the early stages of Alzheimer's disease. 

12Your offending was 57 years ago.  At that time you were 17 years old and would have been sentenced and a young offender.  Between 1957/58 and 2005 you had no other offending.  Sometime in 2005, the date is not clear, you offended in a sexual assault manner. Four charges of indecent act with a child under the age of 16 were heard at Echuca Magistrates' Court on 12 January 2006 and you were sentenced to a total effective sentence of two years, six months, a non‑parole period of nine months was fixed by the court. 

13Your counsel submitted that you in fact served 15 months imprisonment for that sentence before being released on parole.  You were placed on a sexual offenders register for life.  You now appear in court to be sentenced for offending which occurred many years ago.  You are a man in poor health.  You are treated for bipolar spectrum disorder, anxiety induced tachycardia.  You suffer from early dementia.  You have skeletal deterioration which results in physical pain and mobility problems.

IMPACT ON THE VICTIM

14Your niece prepared a comprehensive victim impact statement dated 22 August 2015.  She did not want it read out in court.  As a result of your offending, she has been on antidepressant medication for many years.  She sets out how the impact of your offending has not allowed her to enjoy intimacy with her husband.  She expresses her grief at the loss of a normal life.  It's beyond doubt your offending in 1957/58 had a detrimental effect on the ability of your victim to enjoy her life to the full.

15Your selfishness and brashness took that from her. 

SENTENCING CONSIDERATIONS

16The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions and the protection of the community.

17In sentencing you I must have regard to a range of factors such as the seriousness of your offence and your culpability for them, your personal circumstances and those of your victim.  I am required to balance those interests with the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible you are rehabilitated and reintegrated in to society. 

18In your case I am not going to imprison you for this offence.  Firstly the offence is now 57 years ago.  Secondly at the time of your offending you were 17 years old, a young offender.  Thirdly at the time of your offence you had no prior convictions and fourthly you have lived some 50 years without offending, that is between 1957/58 and 2005.

19In relation to this charge you have pleaded guilty.  Your plea of guilty has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea also allows for the preservation of important police resources to deal with other matters.  Your plea of guilty vindicates the public confidence in the legal process set up to protect the community.

20In short, it does not matter how long ago you offended, you will always be brought to account.  You have, by your plea, relieved your niece from giving evidence against you.  It facilities some closure for her.  Your plea of guilty also indicates and demonstrates some remorse on your part.  Your plea is also a clear acknowledgement by you that you accept responsibility for your criminal behaviour in this case.  Your plea also recognises that you are prepared to facility the course of justice in the community.

21I now have to deal with the issue of delay.  There is delay between the period of offending and the time of this Court hearing.  The act of the offending occurred in 1958/59.  In effect there are some 48 years delay from that time to now.  A delay of this magnitude is a mitigating factor in sentencing you, based on the principles of fairness and rehabilitation.  I have dealt with the considerations with the delay, the hardship on your wife and the reflected ‑ if I can put it like that, the hardship on you, that is your concern for her care in the future. 

22I have taken into account your age, health and the burden of imprisonment of a man of your age.  I have also taken into account there is a diminished need for specific deterrence in your case, given that you are 75 years old.

23In your case you have been sentenced for terms of imprisonment for four charges in 2006. This means the serious offender provisions apply to you in this case. Under the serious offender provisions of the Sentencing Act your conviction and sentence for a term of imprisonment, whether suspended or not for two sexual charges in Echuca Magistrates Court, I am required on the sexual offences charges here to deal with you as a serious sexual offender.

24I am empowered under s.6 D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence. This means that the sentencing task in respect of this charge is to be undertaken on the basis that the protection of the community from you is the principle purposes for it to be imposed to achieve that purpose on some occasions a sentence may be imposed longer than it is proportionate to the gravity of the offence considered in the light of the objective circumstances of the offence.

25I note here that the Crown did not call for a disproportionate sentencing disposition contemplated in s.6 D of the Sentencing Act. I direct that under s.6 F of the Sentencing Act that it be entered into the records of the court that I have sentenced you in respect of this charge as a serious sexual offender within the meaning of the Act.

26Pursuant to the provisions of the Sexual Offenders Registration Act 2004, it is discretionary for the court whether to impose an order in this instance. In view of the fact that you are already on reporting conditions for life under the Sexual Offenders Registration Act, I will not make an order under the Sex Offenders Registration Act in this case ‑ it would be superfluous. I have had you assessed for a Community Corrections Order. You are suitable. Would you stand please.

27On Charge 1 you are convicted and ordered to serve a Community Corrections Order for one year.  The condition of the Community Corrections Order are that you be supervised and that you are to attend on a corrections officer on a monthly basis for the duration of the order. 

28I also order a forensic sample and have already signed that, that is you have to supply a forensic sample to the police.  If you do not supply such a sample they have the power to exercise reasonable force to obtain a sample do you understand that? 

29OFFENDER:  Do I have to go to a police station? 

30HIS HONOUR:  Yes you will have to Tongala Police Station.

31OFFENDER:  But are there different arrangements (indistinct).

32HIS HONOUR:  Mr Garland, you will sort that out.

33OFFENDER:  Okay.

34HIS HONOUR: Thanks. Under s.6 AAA of the Sentencing Act but for your plea of guilty I would have sentenced you to six months imprisonment.

35Thank you.  When you sign the Community Corrections Order you can leave the court, Mr Garland.