Director of Public Prosecutions v Gordon (a Pseudonym)

[2022] VCC 456

IN THE COUNTY COURT OF VICTORIA

AT LATROBE VALLEY

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEREK GORDON (A Pseudonym)[1]

[1] To ensure 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:	Latrobe Valley
DATE OF HEARING:	25 March 2022
DATE OF SENTENCE:	29 March 2022
CASE MAY BE CITED AS:	DPP v Gordon (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 456

REASONS FOR SENTENCE

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Subject:   SENTENCE - CRIMINAL LAW

Catchwords:  Four charges of sexual assault of a child under the age of 16 – Guilty Plea – Community Corrections Order – No criminal history – Standard sentence - Serious sexual offender

Legislation Cited:  Crimes Act 1958, s 49D; Sentencing Act 1991 s 44, s 18, s 6AAA; Sex Offender Registration Act

Cases Cited:   Worboyes v The Queen [2021] VSCA 169

Sentence:Convicted and sentenced to 10 months imprisonment, to be followed by a two-year Community Corrections Order

Section 6AAA Three years imprisonment with a non-parole period of two years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Tom	Victoria Legal Aid

HIS HONOUR: 

1Derek Gordon[2], you have pleaded guilty on Indictment M11609766 to four charges of sexual assault of a child under the age of 16.  The maximum penalty is 10 years imprisonment.  The standard sentence is four years imprisonment. 

[2] A Pseudonym

2The offences to which you have pleaded guilty are Class 2 offences under the Sex Offenders Registration Act.  As the offences occurred within 24 hours arising from one incident they are to be treated as a single offence.  The reporting period therefore for a single Class 2 offence is eight years.

Background

3You were born in October 1981, and you are now 40 years old.  At the time of the offending, you were living in Newborough with your partner Lisa Bernie.[3] 

[3] A Pseudonym

4The victim in the matter, Christy Blake[4], was born in May 2012.  She was 9 years old at the time of the offending.  She lived in Churchill with her mother, Leanne Blake[5], and her father, John Blake[6].  You are the victim's maternal uncle.

[4] A Pseudonym

[5] A Pseudonym

[6] A Pseudonym

5The victim had a close relationship with you, and she stayed over at your home in Newborough most weekends.  She said that on multiple occasions during these visits you put your hand down her pants and tickled her in the vaginal area, under her shirt, and kissed her goodnight on the lips.  She would pretend she was not ticklish in these areas.  The prosecution relies on this conduct as contextual to the charged offending. 

Offending

6On Friday 16 July 2021 you organised for the victim to stay over at your place for the weekend.  You picked her up from her parents' restaurant and drove her to your home.  The two of you stayed up late watching movies and then she went to bed in the spare bedroom.

7The next evening, Saturday 17 July 2021 you and the victim were watching TV together in the lounge room.  Your partner was in the house, but in another room.  The victim was wearing pyjamas. 

8You put your hand down the front of the victim's pants and tickled her on the vagina area over her underwear.  This is the basis of Charge 1.  You touched her vagina on the outside of her underwear. 

9You then put your hands inside her underwear at the front and used two fingers to tickle her vagina area.  This is the basis of Charge 2.

10You then put your hand under her pyjama top and tickled her breasts, touching her skin.  This is the basis of Charge 3.

11You then kissed her on the lips without using your tongue while saying goodnight.  This is the basis of Charge 4.

12The following weekend, being Friday 23 July 2021, you organised for the victim to stay over for the weekend again.  You went to pick her up from the house of her nan, Gale Gordon[7], who is your mother. 

[7] A Pseudonym

13When you arrived, the victim told your mother that she did not want to go to your house anymore.  She said she had her reasons as to why she did not want to stay at your place.  After you left, the victim told her nan that you tickled her, touched her inappropriately and kissed her.  Her nan told her that she would tell her mother, Leanne Blake, your sister. 

14The next day, 24 July 2021, the victim told her mother that you had put your hand down her pants and that she did not want to get into trouble or get you into trouble. 

15The next day, 25 July 2021, Leanne Blake and the victim reported the matter to the Morwell Police Station.  The victim made a VARE the day after that.

Arrest and record of interview

16On Monday 26 July you were arrested and taken to Morwell Police Station.  When you were interviewed you said that:

·   Christy is aged 10.[8]

[8] VARE transcript, Q 718

·   It was only touching.[9] 

·   Every time an ad came on TV you would become a tickle monster.[10]

·   It was around the leg, under armpits and on the belly.[11]

·   You did not kiss her, go towards her breasts trying to tickle, might brush your hand past her vagina when you tickle her.[12]

·   There was tickling and touching on Saturday the 17 July 2021.[13]

·   There was some tickling and you ended up between her legs, and you did touch her vagina but over clothes.[14]

·   The kiss goodnight was a quick kiss on the lips, no tongue.[15]

·   You did go towards her breasts trying to tickle, she told you she didn’t like the feeling.[16]

·   She was wearing winter pyjamas.[17]

·   It shouldn’t have happened, you shouldn’t have touched her in the vagina area, and you didn’t know why you did do it.[18]

[9] Ibid, Q 27

[10] Ibid, Q 195-196

[11] Ibid, Q 197-200,203

[12] Ibid, Q 710-715

[13] Ibid, Q 770-773

[14] Ibid, Q 856

[15] Ibid, Q 515,553,794

[16] Ibid, Q 710,870-872

[17] Ibid, Q 540

[18]Ibid, Q 662-664

Victim impact statements

17Two victim impact statements were tendered and read by the prosecutor Mr Batten on the plea.  The victim detailed feeling sad, scared, and mad by what you did.  As a result of your offending, she now feels scared to sit on the knees of people. 

18Your sister and the mother of the victim, Leanne, said your offending had impacted the whole family.  Before your offending she said you were a tightknit family.  Ms Blake described having to tell her children why they cannot spend time with you anymore.  Her children can no longer go freely to visit your parents because you might be there.  She says they live in constant fear of running into you.

19Ms Blake said her daughter had gained significant weight since the offending and this has resulted in her being bullied at school.  She said that the victim had lost self-confidence and had lost interest in things she previously enjoyed.  Ms Blake has contemplated moving interstate to give her children a fresh start. 

20The consequences to the victim and to her mother are significant matters to be taken into account in this case.

Guilty plea

21You pleaded guilty at the committal mention stage which was the earliest opportunity.  The victim was saved the ordeal of being required to give evidence in this case, and that is a significant matter. 

22By your plea you have accepted responsibility for the offending, and you have facilitated the course of justice in this case. 

23The utilitarian value of your guilty plea is heightened having regard to the backlog of trials in this court resulting from the suspension of trials during the pandemic.  In accordance with the decision in Worboyes v The Queen [2021] VSCA 169, the sentencing discount for your plea must be palpable.

Remorse

24Additionally, you made partial admissions during the record of interview and expressed remorse to the psychologist Ms Lofthouse who provided an assessment that was tendered as an exhibit.

Personal circumstances

25I turn to your personal circumstances.  You are 40 years old.  You were born in Morwell.  You are the youngest child of three.  Your older sister is the mother of the victim.  You have had no contact with her since this offending.  You do not have a relationship with your brother who is 46 and lives in South Australia.  I have been told you have a 13-year-old son who lives in central Queensland, but you do not have any meaningful relationship with him.

26After 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 needed extra support.  You ended up leaving school in Year 10 and attended a TAFE thereafter in Rockhampton.  Your family remained in Rockhampton for approximately 18 years.

27Notwithstanding your intellectual deficits you have been able to hold down regular employment throughout your adult life.  After school you were employed at Big W.  You then worked in a tyre shop and also at 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 subcontracted labourer for a construction company.  Recently though you have been unemployed and reliant on Centrelink because of a pinched nerve in your neck which has rendered you unable to work.  I am told though 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.

28Your parents are now in their 70s and live in Morwell.  You have a good relationship with your parents, but your contact with them and the family unit has reduced because of this offending.

29You have a stable relationship with your partner Lisa, and you have been in that relationship for 10 years.  Lisa is retired, but volunteers at a local Op Shop.  You met Lisa in Townsville.  She is aware of your offending and attended court at the plea hearing in this matter.  She remains supportive of you.  You live together in Newborough.  When you are released, you will be able to return to your home address.

Seriousness

30Sexual assault of a child under 16 is a serious offence as reflected in the maximum penalty and the standard sentence.  Such offending breaches the responsibility all adults have to keep children safe and protect their innocence. 

31Offending such as this is likely to cause ongoing psychological damage to the victim. 

32Your offending involved a substantial additional breach of trust given the victim was your niece.  She should have been safe in your company; she was not.  You had a duty to protect her, but instead you abused her.

33You also breached your sister's trust who allowed the victim to spend most weekends with you and to develop a close relationship which you abused for your own selfish sexual gratification. 

34Of course, your behaviour will erode the level of trust the victim and her mother will be prepared to place in any other adult males likely to associate with the victim.  As is clear from Ms Blake's victim impact statement your behaviour has also undermined family relationships and loyalties across your family generally. 

35A further aggravating feature of the offending is that the victim was just nine years old at the time you offended against her.

36You are not to be punished for the earlier conduct relied on as context, but your offending cannot be categorised as an isolated incident. 

37That said, I accept Mr Tom's submission that the offending here lacks some of the more serious aggravating features often present in offences such as this.

Verdins

38Tendered on the plea was a psychological report from Ms Jane Lofthouse.  Ms Lofthouse 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. 

39She further opined that it appeared you have an intellectual impairment that is long standing and was more than likely present at the time of the offending. 

40She said this: 'Mr Gordon demonstrates a moderate level of executive dysfunction for verbal material which will impact at times on his ability to make reasoned and informed decisions and is more than likely to factor in the criminal offending that led to his current charges.'

41It does seem to me however that you have been able to function in the community at a higher level than the intellectual testing suggests.  It is clear you have been able to hold down employment throughout most of your adult life, and you have been able to maintain a stable relationship for a period of 10 years.

42Ultimately, I have concluded that the matters outlined do not have the requisite realistic connection to the offending to justify any significant reduction in moral culpability or significant moderation of general deterrence or specific deterrence. 

43However, I accept you have intellectual deficiencies and I take those matters into account as matters personal to you, relevant to your moral culpability and the other sentencing considerations.

Standard sentence

44The standard sentence for sexual assault of a child under the age of 16 is four 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 features.  A standard sentence is not a mandatory sentence or the primary sentencing consideration, or the starting point from which to add or subtract time.  It is one of the many matters to be considered by a court in the instinctive synthesis of all matters relevant to sentencing.

45The law requires me to identify fully the facts, matters and circumstances which bear upon my decision as to the appropriate sentence.  In these remarks I have endeavoured to do that in some detail. 

46The sentences I will impose in this case are lower than the standard sentence.  In arriving at the sentences in this case I have taken into account all matters I am required to consider under the Sentencing Act, including the standard sentence, and I have considered all mitigating factors which apply in this case.

Character reference

47I have had regard to the letter tendered from your partner Lisa Bernie dated 25 March 2022.  As I said earlier, she remains supportive of you.  She describes you as a good person who is always there for her and makes her feel safe.  She also outlined the work you do around the house for your parents and says you help them out nearly every day from mowing the lawns to helping your father with the cars.

Custody

48I accept your time in custody will be more onerous due to the prison restrictions in response to the pandemic, 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 your partner who rely on you for support.  I am satisfied that this your first period in custody will be a period that weighs heavily on you.

Totality and concurrency

49The offending in this case occurred within a relatively confined period on one evening involving one victim.  In the circumstances Mr Tom submitted that a significant degree of concurrency was 'just and appropriate looking at the prisoner's criminality as a whole.'  I accept that submission. 

50However, you fall to be sentenced as a serious sexual offender on Charges 3 and 4 because you will be sentenced to a term of imprisonment on Charges 1 and 2.  The consequences of the serious offender provisions are that I am required to consider protection of the community as the principal sentencing purpose, and the totality principle is modified by the statutory presumption of cumulation in respect of Charges 3 and 4. 

51I indicate that a disproportionate sentence is not necessary here, and nor was one asked for by the prosecution.  The orders for cumulation in this case will be moderated to comply with the principle of totality. 

Current sentencing practices

52I take into account the comparative cases referred to and discussed during the plea as indicators of current sentencing practices which are a guide but not a controlling factor in sentencing.

Submissions

53Both parties submitted that a combined order of imprisonment and a community correction order was within the range of available sentences.  I therefore had you assessed for a community correction order to commence on your release from custody.  The report indicated that you are suitable for a community correction order with supervision and offending behaviour programs.  A risk assessment provided indicates you are a medium risk of offending.  Given the nature of the offending in this case I am not surprised by that assessment.

54Your counsel, Mr Tom, submitted that with appropriate treatment on release you have good prospects of rehabilitation. 

55You do not have drug and alcohol issues and you have no prior convictions.  You also have stability in your personal circumstances.

56Ms Lofthouse in her report said, 'Mr Gordon should be afforded the opportunity to engage in programs that address issues of appropriate sexual expression and explore issues of sexual consent.  If he is able to engage in such programs it is likely his risk of reoffending will be reduced.'

57Given the nature of the offending in this case there is a risk of reoffending.  However, the factors outlined by Mr Tom are in your favour, and in my opinion supervision and participation in a sex offender program will reduce the risk considerably, as will a period of imprisonment by bringing home to you the consequences of your offending.

58I have decided in this case that a combination sentence of imprisonment with a community correction order best reconciles the need for general deterrence and denunciation of the offending with the need to facilitate your rehabilitation.  A period of imprisonment followed by a lengthy period of supervision also in my opinion satisfies the need for specific deterrence.

Sentence

59I impose the following sentences in this case. 

·           On Charge 1 you are convicted and sentenced to four months imprisonment.

·           On Charge 2 you are convicted and sentenced to eight months imprisonment. 

·           On Charge 3 you are convicted and sentenced to three months imprisonment. 

·           On Charge 4 you are convicted and sentenced to one month imprisonment. 

60Two months of the sentence on Charge 3 will be cumulative on the sentence for Charge 2, making a total effective sentence of 10 months.

61In relation to Charges 3 and 4 you are sentenced as a serious sexual offender, which will be noted in the records of the court. I also pursuant to s 44 of the Sentencing Act on all charges impose a community correction order for a period of two years with special conditions of supervision and offending behaviour programs as directed, and I have in mind that you will have to participate in the sex offenders’ program pursuant to that community correction order.

62I should say this to you, Mr Gordon; the sentences here are considerably less than they would have otherwise been, because what I have done is to impose a combination sentence.  If you breach the order that I have imposed, that is the community correction order, then all orders would be vacated, and I would then have to potentially re-sentence you on all charges and you could expect a period of imprisonment with a non-parole period.  So you need to comply with the conditions of the community correction order that I intend to impose.

63Any non-compliance with the order or any offending by committing an offence subject to a period of imprisonment would amount to a breach of that community correction order.  You could be brought back before me, and as I just said re-sentenced in respect of the charges in this case.

64We will get that order printed out. The sex offenders registration reporting period will be eight years. Pre-sentence detention to be deducted from the sentence that I have imposed pursuant to s 18 of the Sentencing Act is four days. Pursuant to s 6AAA of the Sentencing Act I indicate that but for your plea of guilty I would have imposed a sentence of three years with a minimum of two years.

65There is a series of core conditions of any community correction order, Mr Gordon.  I will just get it printed out and I will read those to you.  This documentation will have to be sent through to the Moorabbin Police Station as will the documents relating to the sex offenders registration.  Do you understand all that, Mr Gordon?

66OFFENDER:  Yes, I do.

67HIS HONOUR:  Yes, all right.  Mr Gordon, you have to consent to the community correction order.  When I read you the terms I will ask you if you consent.  These are the conditions, Mr Gordon.  You cannot commit an offence punishable by imprisonment whether in or outside Victoria.  That would be a breach of your order.  You have to comply with any obligations or requirements as required by Corrections.  You have to report to and receive visits from Corrections during the period of the order and it is a two year order.  You have to report to Community Corrections within two working days of your release from prison, because that is when the order will commence.  You cannot leave Victoria other than with the permission of Corrections.  You have to comply with any directions of Corrections and in this case you have to undergo supervision and any offending behaviour programs as directed.  Do you understand those conditions?

68OFFENDER:  Yes, I do.

69HIS HONOUR:  And are you prepared to consent to a community correction order in those terms to start after you have finished a period of ten months in prison?

70OFFENDER:  Yes, Your Honour.

71HIS HONOUR:  All right.  That document will be sent through to Moorabbin and you will have to sign it and I will sign it and the order will be in force from the time you are released from prison in 10 months.  All right, you understand?

72OFFENDER:  Thank you, Your Honour.

73HIS HONOUR:  Mr Tom, any questions about all of that?

74MR TOM:  No, Your Honour.

75HIS HONOUR:  All right.  Mr Batten?  All right, thanks, Mr Batten, you're on mute.

76MR BATTEN:  Yes, nothing else, Your Honour.

77HIS HONOUR:  All right.  Thanks, Mr Gordon, that documentation will all be sent through.  All right?

78OFFENDER:  Yes, Your Honour.

79HIS HONOUR:  That concludes this matter.

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