Director of Public Prosecutions v Garrick (a pseudonym)

[2016] VCC 1504

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM GARRICK (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	10 October 2016
DATE OF SENTENCE:	11 October 2016
CASE MAY BE CITED AS:	DPP v Garrick (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1504

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin
For the Accused	Mr S. Tovey

HER HONOUR: 

1Malcolm Garrick[1], you have pleaded guilty before me to one charge of committing an indecent act with a child under 16, and one charge of sexual penetration of a child under 16.  Both charges are representative.

[1] Malcolm Garrick is a pseudonym.

2The facts underlying your offending are as follows.  The complainant in this matter was the niece of your partner, Diane Hatty[2].  At the time of this offending, you were aged 33 and she was aged 15 years and nine months.  You had been with your partner Sharon Wilkins[3] for about 15 years and had four children together, and as a result of that relationship, spent a great deal of time with the complainant's family.

[2] Diane Hatty is a pseudonym.

[3] Sharon Wilkins is a pseudonym.

3At the time of the offending, the complainant was living in her family home.  You were viewed by her as an uncle.  The family is clearly a close one, and there were a large number of family occasions and extended family, it would seem, mixed on a frequent and regular basis.

4In about 2008 when the complainant was 14, she noticed that you starting treating her differently from other children in the family, that you spent more time with her, and constantly asked her to go camping with you.  At this time, you discussed her first boyfriend with her, telling her that that boyfriend was only interested in her for sex.

5In 2009, you and your family moved to a house in Lilydale, which was within walking distance of the complainant's family home.

6Charge 1, indecent act with a child under 16, relates to offending between 25 April and 8 June 2009.  Between those dates, the complainant went away with you and your four children and members of her family to the Nudgee camping ground.  You took the complainant for a ride on your quad bike for about five minutes away from the camp, stopped it, and kissed her with an open mouth, telling her that you loved her.  You asked her to meet you by the river that night, and when the two of you did, you kissed her with an open mouth in the scrub, at which time the complainant was aged 15.

7Following this, you and the complainant exchanged text messages expressing love for each other, and you would remind her to delete the messages.

8Charge 2, sexual penetration of a child under 16, relates to offending between 1 August and 31 October 2009.  In August 2009, Ms Hatty went away camping to Goulburn with you, your young son, who was six or seven, and a friend of yours, Johnny[4].

[4] Johnny is a pseudonym.

9On the first night, you drank Carlton Draught stubbies with Johnny whilst the complainant, Ms Hatty, went to sleep in a four person dome tent, with your son curled up asleep in the corner.  You came into the tent where Ms Hatty and your son were sleeping, and asked her to have sexual intercourse with you.  She agreed, and you inserted your penis into her vagina.  This is the first act comprising the representative offending under Charge 2.

10The next morning, you drove her and your son to the other side of the mountain in the Goulburn area in your four-wheel drive, your friend Johnny also attending.  You were drinking with Johnny again, and Ms Hatty fell asleep in the tent, again with your son.

11On the next day, you, your son, Johnny and Ms Hatty went camping up in Goulburn on the mountain, where it was snowing.  That night, you again stayed up late drinking alcohol with Johnny whilst the complainant went to bed in the same tent as your son.  You later went to that tent and told the complainant it was the last night the two of you would be together.  The two of you kissed and you then had sexual intercourse with her, inserting your penis into her vagina.  That is the second act comprising representative count two.

12After that camp and up to 31 October 2009, the complainant would go to your house on occasions when your partner was not at home, and on several occasions in that period, the two of you had sex in the back shed.  These are further acts underlying Charge 2 on the indictment.

13In early 2012, the complainant told a friend of hers about the relationship she had with you when she was 15.

14On 6 November 2013, police executed a warrant at your home, where during a search they located an Apple iPhone.  On 5 March 2014, that phone was analysed and the mobile texts between the two of you were discovered.

15An interview was held on 6 March 2013, during which you admitted to a sexual relationship occurring between yourself and Ms Hatty, stating that you believed she was 16 at the time.  You did, however, tell police that you had not really given any thought to how old she was.

16This matter proceeded as a contested committal, however it is clear that that committal concentrated primarily on the issue of your knowledge of age.  You were committed for trial, and the matter proceeded by way of trial on 22 August 2016, at which time the parents of Ms Hatty were cross-examined, again on a Basha but primarily in relation to your defence of belief in age.

17Ultimately on the second day, a plea was entered.  It is quite clear that that plea is entered on the basis that you had a belief, but an unreasonable belief, that Ms Hatty was 16 at the time of your offending against her.

18The maximum penalty for a charge of indecent act with a child under 16 is ten years' imprisonment.  The maximum penalty for sexual penetration of a child under 16 is ten years' imprisonment.

19You have a prior criminal history which, however, I do not regard as relevant to the sentencing exercise before me.  It relates to an old burglary charge, for which you received a six month community corrections order without conviction; and a 2009 theft, which was a very minor incident and was dealt with by way of an adjournment without conviction.

20I now turn to your personal circumstances.  You are now aged 44.  You were the youngest of two children born to your parents.  The family remains supportive.  You had a fairly difficult upbringing.  Your parents had a conflictual relationship.  There was a fair amount of argument, and when you were ten, they separated.

21You told psychologist Dr Matthew Barth, whose report dated 19 September 2016 was tendered on the plea, that you were distressed by the separation and had difficulty adjusting.  You lived with your father and your sister lived with your mother.  You developed a close relationship with your father, although you were resentful, you told Dr Barth, and had difficulties with your father's various partners.  You had a more distant relationship with your mother, which, however, ultimately resolved after the death of your father in 2006 of prostate cancer.

22You had a disruptive education, being moved to several different primary schools, having trouble therefore in maintaining relationships, and were bullied in secondary college due to your slight stature, and generally disliked school, leaving halfway through year eight.

23However, you then went on to compile a fairly impressive and stable work history, primarily as a welder.  For 11 years, you worked for Australia Automotive Air and Air Conditioning, a car air conditioning company, and then worked for seven years to 2014 in a firm called Powerpax, which was in a similar industry.

24You left that job when your offending and charge in this matter became known via your partner's sister, who also worked for the same company.  You were subjected to a great deal of harassment, and on one occasion physical assault.  You developed mental health difficulties, which have meant that you have been on work care for the past two years.

25When growing up, you had a one year relationship with a woman, before becoming involved with Ms Wilkins.  As I said, you have been together for 15 years and have four children of that relationship.  It ended in 2013, when this offending was reported to police.

26That relationship was apparently beset by personality difficulties between the two of you, and there had been a separation about 12 months before the offending that has brought you before this court.  At the time of that offending, due to financial difficulties, you and Ms Wilkins were living together, but were living separately under the one roof.

27According to Dr Barth, you have longstanding, deep-seated feelings of inadequacy, failure and self-loathing.  At the time of this offending, you were depressed and lonely.  You told Dr Barth you had always got on well with Ms Hatty, spent more time with her, started discussing personal issues with her, and welcomed the attention, and felt a connection with her.

28Your counsel submitted to me that it was evident that the sexual contact that you had with Ms Hatty was more than that.  That is, that it was a relationship, albeit an inappropriate one, where you had discussions about your future lives together.  He pointed to the pretext conversation carried out between you and Ms Hatty, prior to you being aware that Ms Hatty had gone to police, in which you told her that the relationship you had with her was not just about sex, and showed concern for her situation.  You believed unreasonably that she was 16 years old.

29Additional to your problems, you have a long-standing history of alcohol abuse, which began when you were about 18, starting with binge drinking, but escalated in your early 20s to nightly drinking, you consuming three 500 ml Jim Beam cans a night, and drank even more heavily on the weekend.

30You told Dr Barth you used it to alleviate the depression and loneliness in your relationship.  Your drinking was apparently particularly heavy in the lead-up to your relationship with the complainant, and you also told Dr Barth that much of the offending occurred when you were intoxicated.

31You have now reportedly reduced that intake, but still drink several nights a week.  Dr Barth found that your alcohol consumption met the DSM-5 criteria for alcohol use disorder.

32You reported to Dr Barth depressive mood disorders throughout your relationship with Ms Wilkins, and said that you were particularly distressed in the aftermath of the separation in 2009, and again as I have said, turned to drinking as a means of coping with this.

33You did express remorse to Dr Barth, stating:

"I am remorseful for her and her family.  I know that this would tear them apart.  It's a mess that no one had to go through.  I know it has affected her a lot".

34This is certainly the case, Mr Garrick. Ms Hatty wrote a brief but telling, in my view, victim impact statement, in which she stated that after the offending, she could no longer handle school and abandoned plans to go on to tertiary education and become a kindergarten teacher.  She still battles anxiety.

35Diane's parents, Alexa[5] and Garry[6] Hatty, wrote of the general trauma your offending caused to their family as a whole.  They felt they had let their daughter down; that they had failed to protect her, a heartbreaking situation for any parent.  They suffer continuing mistrust, anger, sorrow and heartbreak.  They stated:

"Every person that enters our children's lives is looked at differently, because we are concerned that the same thing may happen to them".

[5] Alexa Hatty is a pseudonym.

[6] Garry Hatty is a pseudonym.

36Both her parents gave evidence, as I have said, on the Basha hearing at trial before this matter settled.  I found them to be impressive characters generally, clearly devoted parents whose lives centred around their children and family.  The effects of your offending have clearly devastated them, ruptured a family, and deeply emotionally injured their daughter.

37That offending was self-indulgent and immature.  Indeed, Dr Barth's view of you is that you are an immature person who is also naïve and dependent.  He stated:

"During the assessment with me, his mannerisms and demeanour were more in keeping with those of a much younger man, and his views on major life issues remain more at adolescent level, rather than that of a mature adult".

38Overall, he says that you suffer prominent features of a dependent personality disorder.  However, detailed examination by him did not reveal any sexual deviancy in you.  You have re-partnered with a mature woman who is aware of your offending and continues to support you.

39On specific risk testing, you were found to generally be a low risk of reoffending in this way again, which is important for sentencing purposes.

40Dr Barth was concerned that, whilst you have a limited insight into your offending, your personal issues and significant alcohol abuse do remain risk factors if you remain untreated.  He described a specialist sex offender treatment program as imperative in your case.

41Specifically, he stated:

"A detailed examination of Mr Garrick's sexuality did not reveal and frank signs of deviant sexuality or paraphilic tendencies.  Notwithstanding these comments, some concerns regarding Mr Garrick's sexual adjustment were identified.  The main issues relate to Mr Garrick's persisting immaturity, significant interpersonal dependency, noteworthy difficulties with intimate adult relationships, and his lack of understanding of the normative emotional and sexual development of teenager females.  These factors were exacerbated during a period of depression and disillusionment with his relationship with Sharon, ultimately culminating in the offending behaviour.  A comprehensive risk assessment, utilising the Static 99 and the RSVP indicate a low-moderate risk of sexual recidivism.  However, this assessment is provisional until Mr Garrick has had the opportunity to participate in a specialist sex offender treatment program, and his progress had been evaluated."

42Dr Barth believed that your immaturity and naivety would make you a vulnerable person in prison.  He noted that you suffer significant anxiety and depression in relation to your current legal situation and personal situation, which, however, had been based on more long-term mental difficulties such as those I have already described.

43You reported prominent suicidal ideation in the aftermath of being charged, which you continue to experience on a transient basis.  Dr Barth believed that if you were gaoled, you would be a significant risk of further mood deterioration in the immediate aftermath, and would require close monitoring by mental health staff.

44He had guarded optimism in relation to your future, stating:

"Provided that the risk factors which have been identified in Mr Garrick’s case can be addressed in a comprehensive and sustainable manner, his ultimate long-term risk of sexual recidivism is likely to be reduced.  This, together with his stable employment history and strong family support, suggest that there would be some grounds for guarded optimism in Mr Garrick’s case, provided he receives the specialist treatment he requires."

45I received a number of references from family and friends, to all of whom you have been completely open about your offending, which is to your credit.  You have also expressed remorse to each of those persons.

46Your counsel submitted that it was significant that you have never denied your offending, and I do agree with this submission.  It is the unfortunate experience of this court that most sexual offenders completely deny their actions, and pleas of guilty in these cases are infrequent and deserve encouragement.  Of particular significance in my view was the information contained in your sister's letter, where she wrote that in 2009 you told her of your offending with Ms Hatty.

47I do accept your counsel's submission that you were expressing remorse well before you were charged by police, and that this is a matter over which you have felt guilt and concern for a number of years.

48Of course, this is small comfort to Ms Hatty, who continues, as I have said, to suffer from your actions against her, as do her family.

49It was submitted by your counsel that I should deal with you by way of a community corrections order.  That is, that I should not sentence you to a term of imprisonment at all.

50I do take into account a number of very strong mitigatory factors in your case, but ultimately, Mr Garrick, I have determined that you must serve part of the any sentence I am about to impose by way of a sentence of imprisonment.  However, because of the following mitigating factors, which I am going to outline, it will be very much reduced, and you will be released on a community corrections order.

51The mitigatory factors that I take into account in sentencing you are as follows:

52You entered a plea of guilty, and although that was not at a particularly early stage, I do accept that you are remorseful, and note that your defence was limited to one of a reasonable belief in age.

53You have never denied your actions to police, and this is particularly significant in sexual offending against children, and I regard this as a significant mitigatory factor in your case.

54I accept that, as I have said, you are not only remorseful, as indicated by your plea, but you have been remorseful over a period of years.

55I accept that your actions, self-indulgent and damaging as they were, arose out of immaturity and psychological difficulties, as outlined to me by Dr Barth.

56You have been open with family and friends about this offending, as I have said, from an early stage, and have been assessed as a low risk of reoffending, although somewhat guardedly on this point.  I do not regard you as being a threat to the community, and I do share Dr Barth's guarded optimism as to your prospects of rehabilitation.

57I accept that a sentence of imprisonment will be more difficult for you than the ordinary prisoner because of your mental health difficulties.

58There has been delay in this matter, delay in reporting, and then delay in the matter being finally dealt with, which, although of less significance in cases of this kind, still has a mitigatory role to play. 

59A community corrections order is seen now, as per the Court of Criminal Appeal decision in Boulton as carrying both punitive and rehabilitative features, and therefore allows me in the circumstances to impose, as well as for the mitigatory reasons that I have already outlined, a far lesser sentence than would otherwise have been the case.

60Could you stand up, please, sir?

61On Charge 1, you are sentenced to three months' imprisonment, and are then to be released on a community corrections order for a period of three years.

62On Charge 2, you are sentenced to six months' imprisonment, after which you will be released on a community corrections order for a period of three years.

63What that means is, you will serve six months, Mr Garrick, and then you will be released on a community corrections order.  I can only place you on this order if you agree to being placed on it, so I need to outline the conditions that it involves.

64You must report to a Community Corrections within two days of the order coming into effect, which will be after you have served the six months.

65Secondly, whilst you are on the order, you must not commit another offence punishable by imprisonment.

66Third, whilst on the order, you may not leave Victoria without the permission of a Community Corrections officer.

67Fourth, you must report any change of address or employment to the Community Corrections office within 48 hours of that change.

68Fifth, you must not attend upon the Office of Corrections whilst under the influence of drugs or alcohol.

69Sixth, you must report to and receive visits from the Community Corrections office.

70And finally, you must obey all lawful directions of the Community Corrections office.

71I am going to order that you undertake 200 hours of unpaid community work.  You are to be assessed and treated for mental health difficulties, and you are to be assessed and treated for alcohol use.  Do you agree to enter in this order?

72OFFENDER:  Yes, Your Honour.

73HER HONOUR:  Thank you.  Have a seat, we will prepare the documentation.

74Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a term of imprisonment of three years and 18 months, and ordered that you serve a minimum term of two years.

75Mr Devlin, in relation to the first sentence that I have imposed?

76MR DEVLIN:  Yes, Your Honour.

77HER HONOUR:  It will simply be that the community corrections order cannot commence, and I will make an order to that effect, until the six months has been served.  They run concurrently.

78MR DEVLIN:  They run concurrently.  That's the way I understood it, Your Honour, yes.

79HER HONOUR:  Thank you.  I am sorry, the other condition is, you are to undergo a sex offender's program.  Thank you.

80MR DEVLIN:  And Your Honour, there was an application in relation to forensic sample, and there was the SORA, the Sexual Offence Registration.

81HER HONOUR:  Yes.  You will be placed on the Sex Offenders Register for eight years.

82MR DEVLIN:  Sorry, Your Honour.

83HER HONOUR:  It is 15, isn't it?

84MR DEVLIN:  I'll check my opening.  I did do the calculations.  I beg your pardon, Your Honour, it's life.

85HER HONOUR:  Yes.  You will be placed on the Sex Offenders Register for life, and your counsel will explain the conditions in relation to that.

86MR DEVLIN:  And it's a matter for Your Honour whether you declare that he's being sentenced as a serious sexual offender.

87HER HONOUR:  I am not going to, no.

88MR DEVLIN:  Thank you, Your Honour.

89HER HONOUR:  Thanks, Mr Devlin.  All right, we will just wait for the material, and I need to sign these.  Do you have anything to say about the s.464ZF application?

90MR TOVEY:  No.  Your Honour, just in relation to the findings that Your Honour's made on sentence about not being a risk to the community, and being a low level of risk of recidivism in the future, and not being a need for community protection, those are usually the same sorts of matters that fold into a consideration under 464, so I'd simply raise those in Your Honour's consideration.

91HER HONOUR:  They do, and I understand the application that you are making.  There is a guarded optimism, however, and I do not always grant them, but I do think it is appropriate in this case.  But I appreciate what you are saying.

92MR TOVEY:  As Your Honour pleases.

93HER HONOUR:  Thank you very much, Mr Tovey.

94MR DEVLIN:  As Your Honour pleases.

95HER HONOUR:  I need to tell you, Mr Garrick, that police will obtain a forensic sample from you, which will simply be a swab from your mouth, and if you do not allow them to take it, they may use reasonable force in order to obtain that sample.  Thank you.

96MR TOVEY:  Your Honour, Mr Garrick will be signing the documents.  If I could approach.

97HER HONOUR:  Of course.

98MR TOVEY:  With Your Honour's associate.

99HER HONOUR:  Thank you.  Yes, thank you.  I am sorry, Mr Tovey.  I have got some other matters to attend to.  I apologise to you.

100MR TOVEY:  As Your Honour pleases, my apologies.

101HER HONOUR:  You will need to see your client down in the cells.  Yes, thank you.  Take Mr Garrick down, please.  Thank you.  Counsel are excused.  I thank you very much for your assistance in this matter, thank you.

102MR DEVLIN:  Thank you, Your Honour.