Director of Public Prosecutions v Garner
[2013] VCC 1699
•9 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00743
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID GARNER (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Trial: 30, 31 July 2013, 2, 3, 5, 6 August 2013 | |
DATE OF SENTENCE: | 9 September 2013 | |
CASE MAY BE CITED AS: | DPP v Garner | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1699 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords: Sentence – Jury verdict – Sexual penetration of a child under 12 – Victim aged 7 – Cousin of 15 year old prisoner – Inability to predict risk of sexual reoffending where offence is denied – Youth – Good character – Youth Justice Centre
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Flynn | Ms. M. Dunbar OPP |
| For the Accused | Ms K. Blair | Mr M. Brugman Michael Brugman Barristers & Solicitors |
HER HONOUR:
1 Seven year old Hunter Avery[1] would often get looked after at his grandmother’s house after school, until his mother was able to collect him and take him home. You, David Garner,[2] his 18 year old cousin, would often be there, as you lived in the same household as the grandmother. She was your grandmother, too. You would often be left in charge of Hunter.
[1] A pseudonym.
[2] A pseudonym.
2 On one such afternoon in February 2012, Hunter’s mother noticed his T-shirt was dirty when she came to pick him up. Some time that evening or the following day, as she was remonstrating with him for having dirtied his T-shirt, he said it was not his fault, and complained to her that you had made him suck your penis the day before and then wipes himself on the T-shirt, when he had been in your care at the time that his T-shirt became dirty. Hunter said it had happened before, and detailed an occasion the previous year when the same thing had happened. He said on the first occasion he had asked if he could play games on your telephone, something he was not normally allowed to do, and you told him to suck your penis first, which he did.
3 Shortly after Hunter’s disclosure to his mother, she spoke to her mother, the grandmother who I have mentioned at whose house Hunter said these events had occurred. You were confronted by your grandmother, and denied any wrongdoing. Hunter was eventually taken to the doctor, and the matter was eventually reported to the police. You were interviewed some weeks later, and denied any sexual misconduct with Hunter, although you did say that Hunter had once come across a pornographic movie on your computer, which you had left playing whilst you left the room for a short time, and that he had once seen you masturbating when he walked unexpectedly into your room.
4 Six months went by after Hunter's disclosure before a decision was made about whether to lay charges. Hunter’s mother was under pressure from family members to resolve the matter within the family. Eventually, she decided to proceed and you were charged with 2 charges of sexual penetration of a child under 16. On the day the trial was due to start, the earlier charge was withdrawn. Apparently it was only then that it was appreciated that you were under 18 at the time of the first act alleged by Hunter. It was too late by then to bring proceedings to have this court deal with that earlier charge, but evidence of it was relied on as context evidence at your trial on the remaining charge.
5 Before the decision to proceed with the charges was made, you visited Hunter’s mother, and according to her, said you were sorry for what you had done to Hunter. You denied having made such an admission, and it was put on your behalf that instead you had offered to apologise for something you had not done if the charges were not proceeded with and if that would that assist to resolve the matter, in effect, if that would assist to resolve the matter within the family.
6 After the trial, at which Hunter, his mother, and grandmother gave evidence, but you did not, the jury found you guilty of the one charge of sexual penetration of a child under 16 and with the added feature that the child was under 12.
7 So it is that you come to be sentenced by me for this offence. A measure of the seriousness of the offence can be taken in part from the maximum penalty, 25 years imprisonment.
8 This is a serious example of this serious offence. Hunter was only 7. He was a family member and a close family member in the way extended family was treated within your family and community. He had been left in your care and you were somebody who had been trusted to care for him. It is a serious abuse of the familial relationship, and of the difference in age and power between the two of you.
9 No victim impact statement was filed on Hunter's behalf, nor was one provided by his mother. It does not need a victim impact statement, however, to demonstrate that Hunter, and his mother have been affected by this. The evidence at trial was that Hunter was reluctant to tell his mother initially what had happened. I have seen his VARE and his special hearing evidence. He was a shy boy and obviously embarrassed in speaking about what had happened. Although he may have been too young to fully appreciate the nature and extent of the violation, he clearly knew it was wrong, as evidenced by his reluctance to tell his mother. The long term effect on him as he matures sufficiently to have that appreciation is unknown. However, that he may well suffer in the future is something I take into account.
10 Hunter had to give an account of events in his VARE, watch his VARE again a number of times before being cross-examined at the special hearing, undergo cross-examination and in the course of that suffer the indignity of having it put to him he had made up the allegations. In addition, as the evidence at trial made clear, this has split the family apart. Your grandmother, who gave evidence at the trial, made clear her belief the matter should have been resolved, and kept within the family. Even Hunter’s father was, on the evidence, pressuring Hunter’s mother to resolve the matter within the family. The family has split into camps, with Hunter and his mother in one and the bulk of the family in the other. He no longer has the contact he used to have with extended family members. He and his mother are effectively isolated from the rest of the family. This too is an effect, sadly an all too common one, of the sexual abuse of children by a family member when the trust within the family circle is breached.
11 I should say this too, there appeared to be a sense of grievance on your part that the matter was unable to be dealt with or resolved within the family. Every child who makes an allegation of sexual abuse is subject to and entitled to the same protection of the law of this State as any other child. No matter what cultural or familial pressures may exist to keep it within the family, a child from such a family or community is no less entitled to the full protection of the law than a child from any other group, family or community. Hunter's mother in my view is to be commended for her courage in withstanding that family pressure and ensuring that Hunter had the full protection of the law.
12 It is clear that subject to consideration of matters personal to you, denunciation, just punishment, and deterrence must play a significant role in sentencing.
13 Children must be protected, and their right not to be sexually abused given force by the imposition of sentences which reflect the abhorrence a civilised community has for such conduct. The sentence must stand as a clear sign to those who seek to act in the way the jury has found you did, that they will, when detected, face punishment which reflects the seriousness of their conduct.
Personal Circumstances
14 You are now 19 years old, and you had only just turned 18 at the time of the offence of which the jury has found you guilty. You were six days past your 18th birthday.
15 You arrived in Australia at the age of 10, from a refugee camp in your home country. You were exposed on a daily basis to the effects of the breakdown of civil society, including poverty, deprivation and violence. It is hard to properly appreciate the effects that that must have on a young child for those who have grown up in a safer society, where civil society has not broken down. Although you were fortunate to have a supportive extended family, that does not detract from the significance for you of those terrible childhood experiences.
16 You came to Australia with your grandmother. She had brought you up from babyhood. You describe yourself as having been abandoned by your mother at the age of 2, and having had limited contact with your father. He, as you perceive it, chose to pursue his career, initially as a policeman, then as a journalist in his home country, over parenting. He is still living there.
17 You, your grandmother, and 3 of her daughters, including Hunter’s mother, came to Australia together, and the family immediately settled in the Geelong area.
18 Although your schooling in your home country was poor, and you had poor reading, writing, and numeracy skills on arrival in Australia, you had done well enough at school, once here, to be embarking upon your VCAL in 2012, just as you turned 18, at the time of the commission of this offence.
19 You described yourself as popular at school. By the time you turned 18 you had a part time job as a lifeguard at a swimming complex. You were involved in a church youth group and you played basketball and other sports. You had not been in any other trouble with the law. You did not have a problem with drugs or alcohol. There were no signs of antisocial behaviour, attitudes or friends.
20 The effect on you of the family disruption, having the prospect of being charged hanging over your head, then being charged, undergoing trial and being convicted has been significant. You struggled with your schooling, and ultimately did not complete your VCAL. You lost your job as a lifeguard, and had to withdraw from the youth group as a result of the allegations. The family was disrupted and divided. A DHS assessment following the making of the allegations resulted in a decision that you were not allowed to live in the same household with another child. This resulted in a further split in the family. Your 13 year old cousin, who was to all intents and purposes treated by everybody as your younger brother, had also been living in the house with you and your grandmother. She had been responsible for his upbringing too. As a result, a family decision was made to place him with other family members and you stayed with your grandmother. She, sometime after you were charged but before trial, left Australia for an extended stay in her home country, and you initially had nowhere to go. You were unable to live with most other family members because they too had small children. Eventually you were offered accommodation in a bungalow at the rear of a cousin’s home. Although that turns out to have been a satisfactory arrangement, and although many 19 year olds might like having that level of independence in their accommodation, the move has not been of your choice, and I accept has added to your sense of isolation. Your interest and motivation in sport, and in socialising has waned, and that has also compounded your sense of isolation. Although you appear to have significant family support still, that is not to detract from the withdrawal that you have felt as a result of the charges and the isolation you have experienced.
21 You became depressed, and anxious. The reports I have been provided with all indicate that that is directly related to what was then the pending hearing and the charge. You felt at one stage at risk of self harm, and one occasion were admitted to hospital following a suicide or self-harm attempt.
22 The consequences of the guilty verdict on your employment and future career hopes has been significant. You can no longer work with children. That put an end to lifeguard employment. You had had hopes of applying to become a police officer, just as your father had been. The jury verdict has dashed that hope. Your life has been on hold. You have done some short, hospitality-based courses but have not found employment in that field. You had expressed an interest in becoming a fitness instructor, but you were unable to start a course whilst the charge was unresolved. It would appear in any event that your depressive symptoms have resulted in passivity, a lack of energy and motivation which may have made it difficult for you to embark upon or commit completely to such a course.
23 You have been referred to, and engaged with services: in particular Headspace, and Barwon Youth. Reports from Ms Debra Wilkinson and Ms Maree Watson attest to your symptoms and their relationship to the charges. They also attest to your politeness and to your preparedness to engage with them. They both report that you have shown some positive signs of benefit from your engagement with them.
24 Following the verdict you were referred for an assessment to Dr Julie Janev, psychologist.
25 Assessment of your risk of sexual re-offending is difficult, as you maintain your denial of the offence. Nonetheless, Dr Janev used commonly used assessment tools designed which are designed to test for deviant arousal. She reported your results were unusual. They indicated that your experience of exploratory fantasies is below the norm. That, she said, is uncommon amongst child molesters. However, your experience on the intimate, impersonal and sadomasochistic fantasies scales was almost two times higher than normal. She warned these findings need to be interpreted with caution because you denied deviant arousal toward children in the interview with her.
26 As a result of your denial of any arousal toward children, and the absence of a history of other sexual offending, or of many of the other risk factors normally identified with risk of sexual offence recidivism, she came to the view that you were at low risk of sexual recidivism.
27 Dr Janev reported that you described an almost immediate decline in your mental health following your arrest in 2011 and that, as I have said, is consistent with the reports. In her view, that was consistent with an active diagnosis of major depressive disorder. Underlying that she said seems to be a dependent depressive and negativistic personality style. She said that relates to your unresolved abandonment, neglect and trauma issues in childhood.
28 She considers that you are currently at high risk of mental decline including risk of suicide in custody, particularly adult custody, because you are young, inexperienced, and operating with reduced coping skills to the norm. In her view, it would be difficult for you to function without the support and guidance of your family given your dependent personality traits. She said that she considered you would be unable to effectively manage your psychological distress in prison. She said that was evidenced by your recent suicide attempt and the current psychometric test results which revealed on the DAS scale a level of depression in the extremely severe range. She also expressed concerns about the risk of contagion if you were imprisoned, because of the likelihood of attaching to prisoners manifesting more domineering and antisocial personality traits to compensate for the lack of familial support and by reason of your low risk status.
29 She recommended a treatment plan to reduce your risk of recidivism. As I read it, her recommendations relate to treatment for your reactive depression, and treatment to address the features of your underlying personality style which relate to your unresolved abandonment, neglect and trauma issues in childhood, and vocational issues.
30 I have had you assessed for suitability both for a Community Correction Order and for detention in a Youth Justice Centre. I am satisfied that if I come to the view that no sentence other than one of imprisonment or one involving loss of liberty is appropriate having regard to all the circumstances, that any such sentence should be served in a Youth Justice and not in an adult prison.
31 The difficult balance in your circumstances is between the seriousness of the offending and your youth. Had you committed this offence a week earlier you would have been within the Children’s Court jurisdiction, and sentenced under a very different regime where rehabilitation of the offender is the paramount concern. You clearly come to be sentenced, although just in the adult jurisdiction, as a young offender, and it is clear that you are a person to whom the principles set out in the case of Mills[3] apply. I am satisfied that your circumstances are such that considerable weight must be given to encouraging your rehabilitation. On the other hand the sentence must mark the seriousness of the offending and, to the extent appropriate for a young offender who sexually offended against a much younger and more vulnerable family member, significant deterrence.
[3]R vMills [1998] 4 VR 235.
32 Although Dr Janev assessed you as being at low risk of sexual recidivism I am concerned about the very high scores she reported attributed to you on the intimate impersonal and sadomasochistic fantasy scales on the sexual deviancy assessment tool she used. I am also aware that it is very difficult to assess the risk of sexual offence recidivism where a person has run a trial and continues to deny the offending.
33 On your own account, you engaged in conduct on 2 occasions which was clearly inappropriate in the presence of a 6 or 7-year-old child: once masturbating, and once leaving a pornographic film playing on your computer when you left it unattended and in circumstances where the child was in the house and could easily be exposed to such activities. I do not know, and cannot on the material before me, make an assessment about whether this account given by you is a truthful one, in which case it would be a cause for concern, or a false one, designed to provide some explanation for why Hunter made the allegations he did.
34 In my view your participation in a sex offender treatment program is imperative if your risk of sexual re-offending is to be properly assessed and managed. I am heartened by the material just put before me by Ms Blair that it would appear that if you were assessed to be suitable for participation in a Sex Offender Treatment Program that there is the means within the Corrections system at present to find a program that is suitable for you and tailored to your particular needs.
35 In the assessment outcome report for the Community Correction Order it was noted that you were assessed as a low risk offender according to the VISAT, the Victorian Intervention Screening Assessment Tool. However, as the report noted, that is a tool used to determine an offender’s general risk of re-offending, and the level of risk does not equate to the risk of sexual re-offending. The authors of that report say to determine the risk of sexual recidivism an assessment by specialist sex offender programs would need to be conducted.
36 The report also said this:
"...while Mr Garner indicated his consent to the order conditions, he did disclose that he believed that the order conditions may be a considerable undertaking on his part and he felt that the matter had already dragged out in court and he wanted to 'get on with his life.”
37 Whilst in one sense this may be consistent with maintaining your denial of the offence, it also carries with it a failure to accept the jury verdict, and to accept responsibility for your conduct as the jury has found it to be. It does not bode well in my view for your commitment to committing yourself to the obligations of a Community Correction Order. However, that is not a determinative factor in my decision.
38 Ultimately I have come to the view that the importance of, and weight to be given to encouraging your rehabilitation is not such as to justify a sentence other than one which does not involve immediate detention. I simply do not consider a Community Correction Order, even for a person only one week outside the jurisdiction of the Children’s Court, who has a low general risk of recidivism but in my view an unascertainable risk of sexual recidivism, is sufficient to mark the seriousness of this offence, and to reflect the other sentencing considerations that I have identified, namely denunciation, deterrence, both general and specific and just punishment.
39 If I have not already made it clear I should add that the Verdins[4] considerations raised by your depression and the underlying personality features relating to your childhood trauma and neglect are not in my view such when combined with the other features to justify the imposition of a non-custodial sentence. They are, however, clearly relevant to the length and type of sentence to be imposed and that is the way I have applied Verdins.
[4] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269.
40 I recommend that you be assessed for and if considered appropriate, participate in a sex offender treatment programme. I note also in Dr Janev's assessment of 21 August that you were then exhibiting extremely severe levels of depression and that you have in the recent past posed a risk of harm to yourself and that will certainly be noted on the record. All the materials provided to me will be provided to Juvenile Justice immediately.
41 David Garner, on the charge of which the jury has found you guilty of sexual penetration of a child under 16 – a child under 12, you are convicted. You are sentenced to be detained in a Youth Justice Centre for a period of 2 years. As I have indicated, I direct that you are to provide a forensic sample. I do so having regard to the seriousness of the offence and to the fact that you denied the offending. I must advise you, Mr Garner, that in order to provide that forensic sample I am directing it to be taken provided by way of a buccal sample. That requires the rubbing of the swab on the inside of your cheek until a sufficient sample is provided. If you do not cooperate with the provision of that sample the police are authorised to use reasonable force and it is likely that they will use the more invasive method available for the taking of a forensic sample, namely taking a blood sample. If you do not understand that Ms Blair will explain that to you later.
42 Pursuant to the provisions of the Sex Offender Registration Act the mandatory effect of that is that you must be placed on the Register and required to report for a period of 15 years. I will now have my associate give Ms Blair a copy of the sex offender reporting conditions and hand them to you. I am required to have them handed to you. I am going to ask you to sign a receipt acknowledging that you have received them. You do not have to sign that receipt but I have to ask you whether you will sign a receipt. The court record will note in any event that you have been provided with it. You can take a seat while those last things are being done.
43 I note that you have signed the receipt. There are some reports that need to accompany Mr Garner. Can I ask that he not be removed from the cells until those reports along with the order have been provided?
44 OFFICER: Yes absolutely, Your Honour.
45 HER HONOUR: Thank you. He is a young person, first time in custody and at risk of self-harm so he will need to be looked after from the time he is taken downstairs.
46 OFFICER: Not a problem - - -
47 HER HONOUR: Thank you. Can you take Mr Garner down, please?
48 Ms Blair, I know you are in the next matter before me. If you need some more time than 10.30 so you can see Mr Garner properly and then find your way up here you will get that.
49 MS BLAIR: Thank you, Your Honour. Yes, I will go down and see him. I am not sure how long they will take to process him as well so that may add - - -
50 HER HONOUR: Yes. If you could keep us informed I would appreciate that but you will get any extra time you need.
51 MS BLAIR: Thank you, Your Honour.
52 HER HONOUR: Thank you. No further orders, I assume?
53 MS FLYNN: No, thank you, Your Honour.
54 HER HONOUR: Can I thank you both, it was a hard trial because of the youth of Mr Garner and Hunter. Can I thank you both for the way you conducted it.
55 COUNSEL: Thank you, Your Honour.
- - -
0
1
0