Director of Public Prosecutions v Gordon (a pseudonym)
[2022] VCC 1059
•1 July 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL JURISDICTION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEREK GORDON (a pseudonym)[1] |
[1] The ensure that there is no possibility of identification of the complainant, this judgment has been anonymised by the adoption of pseudonyms.
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2022 |
DATE OF SENTENCE: | 1 July 2022 |
CASE MAY BE CITED AS: | DPP v Gordon (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1059 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - SENTENCE
Catchwords: Guilty plea – Sexual penetration of child under 16 – Rolled-up charges of sexual assault across two incidents – Cognitive deficits of the offender – Breach of trust – Absence of aggravating features – No criminal history – Opportunistic offending – Serious sex offender – Registered for life
Legislation Cited: Crimes Act 1958; Sentencing Act 1991 s 48M, s 18; Sex Offenders Registration Act 2004
Cases Cited:Worboyes v The Queen [2021] VSCA 169; DPP vSpottiswood [2021] VSCA 146
Sentence:4 years and 5 months imprisonment with a minimum non-parole period of 2 years and 8 months (across Indictment M11609766 and Indictment M1232112.1). S 6AAA: 6 years and 6 months with a minimum non-parole period of 4 years and 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Coombes | Solicitor for the Office of Public Prosecutions |
For the Accused | Mr C. Tom | Victoria Legal Aid |
HIS HONOUR:
1Derek Gordon[2], on Indictment M12321122.1 you have pleaded guilty to two rolled up charges of sexual assault of a child under the age of 16, and a charge of sexual penetration of a child under the age of 16. The maximum penalty for sexual assault of a child under the age of 16 is 10 years' imprisonment. The maximum penalty for sexual penetration of a child under the age of 16 is 15 years' imprisonment. The standard sentence for sexual assault is 4 years and the standard sentence for sexual penetration is 6 years.
[2] A pseudonym
2On a separate indictment, M11609766, you pleaded guilty on 25 March 2022 to four charges of sexual assault against Christy Blake[3], the sister of
Tina Blake[4], who is the victim in respect of this second indictment.[3] A pseudonym
[4] A pseudonym
3I sentenced you on 29 March 2022 to a combination sentence of imprisonment for 10 months with a community correction order to follow that period of imprisonment. At the time I imposed that sentence, the charges for this offending were not resolved, but resolution was reached not long after my combination sentence. The reality now is that the sentence I will impose for the offending against Tina Blake will preclude you from completing the Community Correction Order I imposed in March.
4At the plea hearing in this matter, I raised with your counsel Mr Tom, the desirability of an application for a variation of the Community Correction Order pursuant to s 48M of the Sentencing Act because of the impossibility of you completing the community correction component of that sentence. The variation application has been filed. I have the same powers on a variation in the legislation as I do on a breach of a community correction order.
5Consistent with the authorities in relation to breaching combination sentences, in my opinion, s 48M allows me to cancel the Community Correction Order, vacate the prison sentences I imposed, and re-sentence you afresh, just as I would be able to do on a breach of combination sentence.
6I will sentence you today for the offending against Tina and
Christy Blake together. I do not propose to repeat the facts that are set out in my sentencing remarks dated 29 March 2022[5]. These remarks today should be read in conjunction with the sentencing remarks from that date.[5]DPP v Gordon (A pseudonym) [2022] VCC 456
7There are obviously common features, between the offences against Christy and Tina Blake. The facts of this matter are set out in the Prosecution Opening which was tendered as an exhibit on the plea and read out by the prosecutor. I will summarise those facts.
Circumstances of the offending
8At the time of the offending you were living at an address in Newborough with your partner. The victim Tina Blake is your niece. She was 14 years old at the time of the offending. She lived in Churchill with her mother, Leanne[6] and her father, John[7]. Leanne Blake is your sister. Tina Blake has a younger sister, Christy Blake. The incident of sexual assault on Christy Blake took place in July 2021.
[6] A pseudonym
[7] A pseudonym
9Turning then to the circumstances. Tina Blake often stayed overnight at your house in Newborough, late in 2020 and in the early part of 2021. On two of those visits you committed sexual assaults against her, including penetrating her vagina with your fingers. These two incidents give rise to the three charges on the indictment.
10The first incident took place in December 2020 over a weekend before Christmas. Tina Blake was staying overnight at your house. You were up late together watching movies in the loungeroom. Your partner had gone to bed earlier in the night.
11At the end of the movie Tina went to her bed in the spare bedroom. Soon after, you entered and laid down on the edge of the bed. You put your hands on her breasts over her pyjama top. You then put your hand down her pyjama top and groped her breasts. This is part of Charge 1, a rolled-up charge of sexual assault. You moved your hands down her body and rubbed her inner thighs before touching her vagina and rubbing her vagina. This is also part of Charge 1.
12You then inserted your fingers into her vagina and moved them in and out repeatedly. This caused her pain. You continued this for a few minutes before stopping and removing your fingers. This is the basis of Charge 2, sexual penetration of a child under the age of 16.
13You then took hold of Tina's hand and placed it on your penis over your clothing for a short time. This is part of Charge 1 as well. You leant over and kissed Tina on her lips before you left the bedroom. This was also part of Charge 1.
14Tina did not go to your house for approximately one month after this incident. She next stayed at your house overnight in January 2021. Again, you were watching movies with her in the lounge room, sitting together on the couch. You left for a time to have a cigarette and when you returned you sat closer to her. You leant over towards her and put your hand up her pyjama top grabbing her breasts. This is part of Charge 3, a rolled-up charge of sexual assault. You then moved your hands further down her body and began rubbing her vagina. This is also part of Charge 3.
15In late 2021, Tina tried to tell her father John about what you had done, but he was half asleep from taking medication and did not take in what he was being told. Tina also told her friend and her boyfriend, but she did not disclose the full details.
16This offending was ultimately reported to Morwell police on 5 November 2021. And the following day Tina made a VARE in which she detailed these incidents.
17You were interviewed on 9 November 2021 and you made a no comment record of interview.
18As I understand the material, you made an offer to resolve this matter on
17 February 2022. That offer was rejected and a counter offer was made by the prosecution, which you rejected. The initial directions hearing for these charges took place on 4 April and the matter was adjourned for further discussions between the parties.19In late April 2022, you made a further plea offer which the prosecution accepted. You were arraigned and pleaded guilty on 25 May 2022.
Guilty plea
20Whilst this was not a plea at the earliest opportunity, the utilitarian value of your plea is substantial. The victim has been spared the ordeal of having to give evidence and relive the trauma of this offending and that is significant. The court has been spared the time and the resources involved in conducting a trial for these charges. The utilitarian value of your plea is heightened in the current circumstances where the court faces a substantial backlog of trials because of the suspension of trials during the pandemic.
21This increased utilitarian value of the guilty plea was recognised by the Court of Appeal in the case of Worboyesv The Queen [2021] VSCA 169. I apply the principles set down in that decision.
22I accept your guilty plea indicates a level of remorse and insight into your offending and a willingness to facilitate the course of justice. The sentencing discount for your plea must be significant.
Personal circumstances
23I turn to your personal circumstances. You are now 40 years old. You were born in Morwell. You are the youngest child of three. Your older sister is the mother of the victim. Unsurprisingly you have had no contact with her since this offending. You do not have a relationship with your brother who is aged 46 and lives in South Australia. I have been told that you have a 13 year old son who lives in Central Queensland, but you do not have any meaningful relationship with him.
24After growing up in rural Morwell your family relocated to Rockhampton when you were 10 years old. Your father worked in the mines there and your mother looked after the children. You had a stable upbringing but you struggled at school and you needed extra support. You ended up leaving school in
Year 10 and attended a TAFE after that in Rockhampton. Your family remained in Rockhampton for about 18 years.25Notwithstanding your intellectual deficiencies, you have been able to hold down regular employment throughout your adult life. After school you were employed at Big W. You then worked at a tyre shop and in your father's trucking business in New South Wales from 2010. In 2018 you moved back to the Latrobe Valley and obtained employment as a sub-contracted labourer for a construction company. Recently though you have been unemployed and relying on benefits because of a pinched nerve in your neck which has rendered you unable to work. I am told that when you are released from the period of imprisonment you must serve in respect of these offences, you are hopeful of obtaining further employment.
26Your parents are now in their 70s and they live in Morwell. You have a good relationship with your parents but your contact with them and your wider family is less frequent because of this offending against your nieces.
27You have a stable relationship with your partner and you have been in that relationship for 10 years. Your partner is retired but volunteers at a local op shop. You met her in Townsville. She is well aware of your offending and attended court at both plea hearings for these matters. She remains supportive of you. You lived together in Newborough before you went to prison in March. I am told that when you are released you will return to your home address and live with her. I was provided with a letter of support from your partner and I take that into account.
Gravity
28Turning then to the gravity of this offending. This offending was obviously very serious. The gravity of such offending is reflected in the maximum penalties of 15 years and 10 years respectively and by the standard sentences. The offending here, features similar circumstances of aggravation to the offending against Christy Blake.
29It is the responsibility of all adults to keep children safe and to protect their innocence. The law presumes enduring harm from premature sexual activity between adults and children under the age of 16.
30It is apparent from the prosecution summary of these offences in relation to Christy that you caused significant psychological damage. Tina has not made a victim impact statement but there is a presumption of harm with respect to offending of the serious nature that you committed in this case.
31Your offending involved a substantial breach of trust. Tina Blake and Christy Blake were your nieces. Their mother, your sister, allowed you to look after them, and allowed them to stay overnight at your house.
Tina Blake should have been safe on those overnight visits but she was not. You had a duty to protect her, but instead you abused her. You abused her trust and the trust your sister placed in you for your own sexual gratification.32As I observed in sentencing you for offending against Christy Blake, your behaviour has undermined relationships and loyalties across your family generally. Without diminishing the serious nature of the offending against Christy, objectively assessed, the facts of the offending against Tina are more serious. This offending involves rolled-up charges of sexual assault across two incidents. Charge 1 for example, involves a total of four acts including rubbing the complainant's vagina and placing her hand on your penis. The serious offence of sexual penetration, which on these facts went on for some minutes, carries a higher maximum penalty and standard sentence.
33Mr Tom emphasised the absence of various aggravating features in the assessment of the objective gravity, and I take those submissions into account. It is true that such aggravating features as submitted are not present, but that does not detract from the serious nature of this offending. Mr Tom conceded that the breach of trust involved in your offending was significant and that the offending will have lasting consequences to the victims and all involved.
Psychological evidence
34Tendered on the plea was a psychological report from Ms Jane Lofthouse. She described that your ability to read common words was below average with a predicted reading age similar to that of a 10 year old. She found that your score of verbal and non-verbal abstract reasoning was varied, and your non-verbal reasoning was a relative strength. You do however, have a full-scale IQ of 80, which is in the low average range. Your particular weaknesses are in verbal reasoning.
35Ms Lofthouse offered the opinion that you have an intellectual impairment that is longstanding and was more than likely present at the time of the offending. She said that you demonstrate a moderate level of executive dysfunction for verbal material, which will at times impact on your ability to make reasonable and informed decisions and is more than likely a factor in the criminal offending that led to the current charges.
36It does seem to me, however, that you have been able to function in the community at a higher level than your verbal testing suggests, which probably reflects your strengths of non-verbal reasoning and your overall IQ of 80. It is clear for instance, you have been able to hold down employment through most of your adult life.
37Mr Tom did not submit that your lower cognitive abilities give rise to the application of the Verdins principles, and I have concluded the matters outlined do not have the requisite realistic connection with the offending to justify significant reduction in the assessment of your moral culpability, or any real reduction in general and specific deterrence. It is not suggested you did not understand the wrongfulness of your conduct. However, I accept your intellectual deficiencies are likely to have affected your decision making to some degree in the way suggested by Ms Lofthouse. I take into account the intellectual assessment as a relevant matter personal to you which has some significance in the assessment of your moral culpability.
38Your moral culpability though is nonetheless significant given the breach of trust involved, the fact there were two victims, and the overall gravity of the offending.
Custody
39I accept your time in custody will be more onerous due to prison restrictions in response to the pandemic which no doubt will be in place for some time, including periods potentially in isolation and lockdown. You are a person who has mild intellectual disabilities and you will be cut off from your elderly parents and potentially for some time at least your partner, who you rely on for support. I am satisfied this period in custody your first, will be a period that weighs heavily on you.
40I have been provided with a brief letter from Ms Ebony Kumnick dated 1 June 2022 indicating that the reintegration team through Prison Disability Support have been supporting your submission for the prison disability support initiative and you are on a waiting list. Mr Tom explained that you may become eligible for NDIS support ultimately.
Prospects of rehabilitation
41Before I sentenced you in March, I ordered a community correction order assessment. A risk assessment was provided within that report, which indicated you are a medium risk of reoffending.
42In her report Ms Lofthouse said this:
'Mr [Gordon] should be afforded the opportunity to engage in programs that address the issue of appropriate sexual expression, and explore issues with sexual consent. If Mr [Gordon] is able to engage in such programs, it is likely his risk of reoffending will be reduced.'[8]
[8] Report of Ms Lofthouse dated 23 November 221 at page 13
43When I sentenced you to a community correction order back in March, I anticipated that as part of that correction order you would complete a sexual offenders’ program. The Community Correction Order is no longer an option, but I would anticipate that in order to obtain parole you would complete such a program.
44The fact that you sexually abused Tina Blake as well as Christy Blake is relevant to the assessment of your prospects of rehabilitation. The offending across both victims involves four incidents against two children, indicating a propensity to abuse female children if given the opportunity to do so. However, you had no prior convictions, and I would expect the prison sentence I impose to have a salutary effect on you.
45Moreover, I would anticipate the completion of the sex offenders’ program to be eligible for release on parole. The supervision of parole will operate as a protective factor. I take into account that in both your cases the offending was opportunistic. You also have support in the community. There is room for some optimism that you will not reoffend in the future, but you certainly remain a risk to do so.
Standard sentence
46As I mentioned earlier, the standard sentence for sexual assault is four years and the standard sentence for sexual penetration is six years. The standard sentence operates as a yardstick only and is applicable to an offence in the mid-range of seriousness having regard only to its objective factors. The standard sentence is not a mandatory sentence or the primary sentencing consideration, or the starting point in which to add or subtract time. It is only one of the many matters to be considered in the instinctive synthesis of all matters relevant to sentencing.
47The law requires me to identify fully the facts, matters and circumstances which bear upon my decision as to the appropriate sentence, including an assessment of the seriousness of the offending not limited only to its objective features. In these remarks, I have endeavoured to address all of these matters in some detail. The sentences that I will impose in this case are lower than the standard sentence. In arriving at the sentences in this case, I have taken all matters I am required to consider under the Sentencing Act including the standard sentence, and I have considered all of the mitigating factors which apply.
48Pursuant to s11A of the Sentencing Act in fixing the non-parole period for a standard sentence offence, I am constrained to impose a period of no lower than 60 per cent of the head sentence unless I consider it is in the interest of justice to do so. In this matter balancing the gravity of the offending, your prospects of rehabilitation and the fact that this is your first sentence, I have formed the view that I should impose a non-parole period close to that figure.
49In respect of current sentencing practices, I am required to only take into account sentences imposed where the standard sentence scheme applies.
I have considered the comparative cases discussed during the plea as indicators of the current sentencing practices, which are a guide, but not a controlling factor in sentencing. The cases referred to bear some similarities but there are also substantial differences. No two cases in sentencing circumstances are ever quite the same. The prosecution submitted that the case of the DPP v Spottiswood [2021] VSCA 146, a standard sentence case, was comparable to this case. I have read and considered that case and there are some similarities but some differences as well.50Current sentencing practices are one of the matters I am required to have regard to in imposing sentence. They are a guide but not a controlling factor.
Totality and concurrency
51The totality principle requires that the overall sentence I impose must be just and proportionate to the totality of your offending. It is necessary to moderate orders for cumulation between offences to comply with this principle. The two incidents on this indictment can be properly described as a course of conduct and Charges 1 and 2 are part of the one incident.
52The offending against Christy Blake was of a similar nature and occurred in July 2021, so not long after these offences. The totality principle applies to the sentences across both indictments. These are factors that generally dictate substantial concurrency; however, you fall to be sentenced as a serious sexual offender on the majority of the charges having regard to the sentences imposed for the offending against Christy.
53The consequences of the serious offender provisions are that I am required to consider protection of the community is the principal sentencing purpose and the totality principle is modified but not excluded by the statutory presumption of cumulation. I will moderate the orders for cumulation to comply with the principle of totality but keeping in mind the serious offender provisions. I indicate that a disproportionate sentence is not necessary, and nor was one asked for by the prosecution.
Serious sex offender provisions
54I have taken the view, because I have imposed a previous sentence, that the first two sentences with respect to the earlier indictment do not attract the serious sexual offender provisions, but all offences thereafter do. It is a bit unusual because I am sentencing afresh, but that is the approach that I have taken.
55On Indictment M1160976, Charges 1 and 2 do not attract the serious sexual offender provisions but Charges 3 and 4 do. On the second indictment, all charges attract the serious sexual offender provisions. That is the approach that I have taken. I should have checked this at the beginning, do you agree with that approach or not?
56MR TOM: I do Your Honour, because at that point that - - -
57HIS HONOUR: Because I have already sentenced on those matters even though, I am vacating those sentences.
58MR TOM: That's right.
59HIS HONOUR: Do you agree with that?
60MS COOMBES: Yes.
61HIS HONOUR: Yes, all right. Now, turning then to sentences in this matter,
Mr Gordon.
Sentence
62On the application for variation of the Community Correction Order, pursuant to s48M of the Sentencing Act, I allow that application. I cancel the Community Correction Order, and in accordance with the authorities in relation to breaches of combination sentences, I also vacate the prison sentences that I imposed on that day, on 29 March 2022.
63I therefore re-sentence you on all charges for that indictment, namely M11609766 as follows:
· Charge 1, of sexual assault, I sentence you to be convicted and sentenced to be imprisoned for 6 months.
· Charge 2, sexual assault, imprisonment for 10 months.
· Charge 3, sexual assault, imprisonment for 4 months.
· Charge 4, sexual assault, imprisonment for 2 months.
64On that indictment 2 months of the sentence on Charge 1, 2 months of the sentence on Charge 3, and 1 month of the sentence on Charge 4 are cumulative with each other and the base sentence of 10 months on Charge 2, making a total effective sentence on that indictment of 15 months. So that is the total effective sentence for M11609766.
65Turning then to the sentences on M12321122.1:
· Charge 1, of sexual assault, mainly the rolled-up count, 18 months.
· Charge 2, of sexual penetration, 2 years and 8 months.
· Charge 3, of sexual assault, a rolled-up count, 12 months.
66I order the base sentence is Charge 2. I order that 6 months of the sentence on Charge 1 and 6 months of the sentence on Charge 3 are cumulative, which makes a total effective sentence on that indictment of 3 years and
8 months.67I order that 9 months of the sentence on Indictment M11609766 is cumulative on Indictment M1232112.1, making a total effective sentence across both Indictments of 4 years and 5 months. I fix a minimum non-parole period of 2 years and 8 months.
68Pursuant to s18 of the Sentencing Act, I declare that 100 days is to be reckoned as a period of imprisonment already served for the overall sentences on both indictments.
69Pursuant to s6AAA, I indicate that but for your plea of guilty I would have imposed a sentence of six years and six months with a minimum non-parole period of four years and eight months.
70With respect to the Sex Offenders Registration Act, there is a Class 1 offence and two Class 2 offences on Indictment M12322112.1. You will become a registered sex offender where the reporting period is for life. You will be provided with documentation in relation to that. That acknowledgement will need to be signed and returned. I don't think there is any need to remake SORA orders from the last occasion. There were no ancillary orders, were there?
71MS COOMBS: No, Your Honour there were not. Your Honour can I just confirm on the last occasion, whether or not there were any - in relation to SORA, the order made.
72HIS HONOUR: Yes, well I made an eight year order last time. I'm not vacating that order, so I don't think I need to remake it.
73MS COOMBS: Well, no, the new order is for life, so - - -
74HIS HONOUR: Yes it is.
75MS COOMBS: - - - that would - if he served any previous order in any event. Yes, Your Honour I think that would suffice.
76HIS HONOUR: Yes, I mean the order I made back in March is still operative, because I haven't vacated that. I've vacated the prison sentences I imposed and the Correction Order, but I haven't vacated that order. So I've taken the view I don't need to make that order again, but I do need to make an order on this fresh indictment.
77MS COOMBES: Of course, Your Honour, yes.
78HIS HONOUR: So, I don't know, it raises some complications but that's the view I have taken and no doubt SORA will tell me very quickly as they tend to do so, if that's wrong.
79MS COOMBES Yes, Your Honour.
80HIS HONOUR: All right, are there any queries about any of that?.
81MR TOM: No, Your Honour.
82HIS HONOUR: All right, thank you Mr Tom, thank you Ms Coombes, what time is it? All right, I'll adjourn until 11 o'clock.
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