Director of Public Prosecutions v Gordon (a pseudonym)
[2019] VCC 673
•15 May 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALISTAIR GORDON[1] |
[1] A pseudonym
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February, 1 May 2019 | |
DATE OF SENTENCE: | 15 May 2019 | |
CASE MAY BE CITED AS: | DPP v Gordon (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 673 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Indecent Assault – Sexual Assault
Legislation Cited:
Cases Cited:Ryan v R (2001) 206 CLR 267, DPP v Toomey [2006] VSCA 90, Burgess v R [2017] VSCA 59
Sentence: TES: 8 months imprisonment and 30 months Community Correction Order. Registered Sex Offender for 8 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | OPP |
| For the Accused | Mr D. Dann QC with Ms F. Todd | Galbally & O'Brien |
HER HONOUR:
1 At the outset, I remind those listening that publication of anything likely to identify the complainants in this case is prohibited by statute[2]. For that reason in my published remarks, a pseudonym will be used for the offender.
[2] Section 4 Judicial Proceedings Reports Act
2 Alistair Gordon[3], you have pleaded guilty to one representative charge of indecent assault, an offence which has a maximum sentence of 5 years' imprisonment; and two representative charges of sexual assault, an offence which has a maximum sentence of 10 years' imprisonment.
[3] A pseudonym
3 I sentence you on the basis of the prosecution opening[4], which is an agreed summary. I will outline your offending.
[4] Exhibit A
4 The sexual offences were committed against three family members: your daughter, your daughter-in-law and your granddaughter. To preserve their anonymity as required by law[5], I will refer to them in that way in these remarks, but I mean them no disrespect in doing so.
[5] Section 4 Judicial Proceedings Reports Act
5 The offending against your daughter involved seven acts which occurred over four occasions between 1983 and 1987 when she was aged 13 to 16 years; against your daughter-in-law, there were three acts on the one day in December 2015 when she was aged 38 years; and against your granddaughter, there were also three acts on the one day, in January 2016 when she was aged 20 years. By your pleas of guilty, you have admitted all the offending took place in the way described by each of them.
6 Charge 1 is representative of the seven assaults you perpetrated against your daughter. The first two happened on the same day, in a brazen manner while an aunt and uncle were visiting at your house. You went to your daughter's bedroom and asked for a hug, embracing her from behind, and pulling your arms against her breasts (1). While in this position, you rubbed your penis against her buttocks and continued to do so as it became erect (2). You then returned to your guests.
7 The next two assaults also occurred on the one day. You again asked your daughter for a hug and wrapped your arms around her, this time from the front, pushing her into a corner of the kitchen. You then moved your hands down to rub her on the buttocks (1). While doing this, you rubbed your erect penis against her vaginal area (2).
8 The fifth assault occurred when your daughter was home from school because she was sick. You arrived home from work and sat next to her on the couch where she lay, wearing a nightie. You put her legs over your lap and said you would rub her stomach to make her feel better. Placing your hand under her nightie, after rubbing her stomach, you rubbed two fingers through her pubic hair (1). You did this brazenly, with your wife, the mother of your daughter, in the kitchen nearby. Your daughter pushed your arm away and went to the kitchen, but was unable to tell her mother what had just happened, which is a very common reaction to an indecent assault in such circumstances. Instead, your daughter went to the toilet and cried.
9 The last two assaults on her occurred on the one night. After returning from a Christmas function, you entered the bedroom where your daughter was asleep. You pulled up her nightie and began sucking her nipple (1). This act woke her up, but you continued and then began fondling her breasts (2). She made a noise indicating that she was awake and you left the room.
10 The following day you apologised for your actions, making the excuse that you had seen homeless people the night before and that made you feel sad. Your daughter was in shock. Of course, there was and is no excuse for your criminal acts against your daughter.
11 Your daughter did not want her victim impact statement[6] read out in court. I respect her wish for privacy but there is an aspect that must be shared in my view. In that statement, your daughter expressed the many, understandable, reasons why she felt unable to tell anyone what you had done. Amongst her many emotions, she expressed being wracked with guilt for not having told anyone, and that she thinks she could have possibly stopped the offences being committed against her daughter, being your granddaughter, and her sister-in-law, being your daughter-in-law.
[6] Exhibit B
12 I want to say something to her, and to everyone in this extended family. The only person who could have prevented you from committing other offences is you. It is not your daughter's fault that you offended against two others, nearly 30 years later. It is your fault. It is not your daughter who should feel guilty. You are the one who has admitted you are guilty.
13 The crimes were committed by you against your daughter when she was aged between 13 and 16. She was a child. It is never, I repeat, never, a child's fault when a sexual offence is perpetrated on them. And the enormity of the betrayal of your daughter's trust when the sexual offences were committed by her own father is not only a factor that makes charge 1 more serious, but is fundamental to understanding why many children who are offended against, do not tell. The experience of the Royal Commission into Institutional Responses to Child Sexual Abuse was that the average time for a person to report sexual offences committed against them as a child is over 20 years[7]. Although dealing with the institutional context, the burden of disclosure and the power dynamics with authority figures the Commission referred to, are inherent in abusive familial relationships also. Some children grow up and never tell. That is what your daughter intended – to take your dreadful secret 'to her grave'[8]. That was her intention, until you re-offended and it was spoken of, almost 30 years later.
[7] Final Report – Volume 4, Identifying and disclosing child sexual abuse - Royal Commission into Institutional Responses to Child Sexual Abuse
[8] Exhibit B
14 Charge 2 is representative of the three assaults on the one day on which you offended against your daughter-in-law, then aged 38 years. In December 2015, she had just separated from your son, and it is a sign of the regard in which family members held you at that time that she came to your house to discuss the separation and financial matters with you, the father of the man from whom she had separated. At some point in your discussion, she stood up from the kitchen bench and you also stood up. You hugged her. You were apparently shaking and appeared distressed, but that is no excuse for what then took place.
15 As she attempted to guide you back to a seated position, you moved your hands onto her buttocks and with one hand on each cheek, squeezed them (1). Not surprisingly, your daughter-in-law felt uncomfortable and broke away from you. You then spoke to her in a completely inappropriate manner about sexual matters, as to whether she and her husband, your son, were separating because of their sex life and if your son was “pushing her for anal sex”[9]. Your daughter-in-law prepared to leave, so uncomfortable had you made her, but you again hugged her and again put your hands on her buttocks (2). Then you pressed your body against hers. When she moved away from you, you rubbed your hand over her pubic area (3).
[9] Exhibit A, [22]
16 Ten months later, she recorded a conversation where she confronted you about these assaults. You admitted that you had touched her buttocks, but denied the other touching. As I said earlier, by your plea of guilty, you have admitted that all the sexual acts took place.
17 Charge 3 is representative of the three assaults on the one day which you perpetrated against your granddaughter. She was aged 20 years and had been living with you and your wife since August 2015. On 3 January 2016, she went into the kitchen and found you looking sad. When she asked you what was wrong, you said “Sometimes I just need to hold you.” You then grabbed her, pulled her close and pressed your pelvis against her, such that she could feel your semi-erect penis against her thigh (1). You then told her how proud you were that she had lost weight and moved your hand down to her buttocks and squeezed them (2). You then complimented her on her attire for New Year's Eve, including commenting on her not wearing a bra. You moved your hand from her buttock to her breast and began stroking and squeezing it (3). You asked if she liked it, and not unexpectedly she said she did not. She found you too strong for her to get out of your grasp, and so she asked where your wife, her grandmother, was, saying that she was going to see her, whereupon you released your granddaughter.
18 Your granddaughter moved out of your house in March that year, and subsequently, and bravely, reported your sexual assaults on her to police. On learning of this, your daughter and your daughter-in-law also came forward with their reports. When questioned by police, you maintained your position with respect to your daughter-in-law, that you had only grabbed the cheeks of her backside as you described it, but denied any other offending against her, and all of the offending against your daughter and granddaughter. You made the comment to police that you thought your daughter-in-law may be a 'man hater' and that you were trying to get a reaction from her.
19 This is outrageous offending. While none of the acts is the most serious form of indecent or sexual assault, all of them were opportunistic, brazen, and in my view demonstrated an attitude of sexual entitlement. Each of the complainants should have received your love and protection when in your home, especially your daughter as a child. Instead, they were each the subject of your unwanted and criminal sexual attention for your own gratification on these occasions.
20 I received statements from each of your victims, outlining the severe impact on each of them from your offending[10]. You heard two of them read in open court, and you should reflect on the impact your criminal acts have had on them, not on you, your wife or your extended family. The extended assessment report that I received from Corrections Victoria and the psychologist's report, both of which I will refer to later, suggested that you have begun this process of reflection. Those family members who have given references in support of you, which make not one mention of the complainants and their suffering, should also reflect on the impact your criminal acts have had on the complainants.
[10] Exhibits B, C and D
21 Whether child or adult at the time of the offending, the complainants felt confusion, guilt, and enormous betrayal of the trust and great esteem in which they had held you until the time you offended against them. Your daughter had to silently manage her emotions for years while still a child and living in the same house with you, and continuing a family relationship, which has taken a huge toll. Each of the complainants has also suffered greatly from the loss of family relationships following their reports to police. All of this impact, and the ripple effect on the extended family, which I do take into account, is down to the criminal acts of one person – you. I take the impact of your crimes on your daughter, your daughter-in-law and your granddaughter very much into account in deciding the appropriate sentence.
22 Apart from the matters that I earlier mentioned, the features that make your offending serious examples of indecent and sexual assault are:
· First, the betrayal of trust, which I find for all the complainants;
· Next, for charges 1 and 3, the biological relationship between you and your victims;
· Next, the difference in ages between you and your victims (27 years, 35 years and 51 years respectively);
· Next, you exploited a particular vulnerability that each had at the time of the offending (charge 1 – a child; charge 2 – a woman just separated from her husband; charge 3 – a 20 year old with low self-esteem needing somewhere to live);
· Next, all offending occurred in your own home, which was also the home of your daughter and granddaughter at the time you offended against each of them, and was a place in which they and your daughter-in-law were entitled to feel safe;
· Next, the severe impact on the complainants;
· Next, for charge 1, the length of time over which you persisted in offending against your daughter, and on two occasions did so when others were nearby in the house;
· Next, the charges are representative of a number of assaults you committed, and you were persistent in all the offending, committing multiple assaults on each occasion except one[11];
[11] The fifth assault in charge 1.
· Next, I am satisfied that the offences were committed for the purposes of you receiving sexual gratification when the opportunity presented itself; and
· Lastly, the fact that you offended again nearly 30 years after the first offences, and offended then against different victims, close together in time, in my view shows an ongoing unhealthy sexual attitude or sense of sexual entitlement towards females, particularly those related to you.
23 As was pointed out by senior counsel on your behalf, there are a number of mitigating factors that I must take into account.
24 The first, and most important, of these is the fact that you pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your pleas, the community has been spared the time and cost of a trial. Further, you have spared the complainants from the ordeal of giving evidence at a trial, which is always important in cases of sexual offending against family members. However, as your plea was entered after the case was committed to this court for trial, you did not spare them from ever giving evidence, because they were cross examined at committal. I am told by counsel that your attitude to the case changed dramatically after seeing them give evidence at the committal, particularly your daughter. To the extent that you wished to avoid her, and the others, having to give evidence again, and indicated your intention to plead guilty after the committal, I treat that as a sign of remorse. I accept that your plea shows a willingness to facilitate justice.
25 In the written submissions filed on your behalf[12], there is reference at paragraphs 8 and 9 to factors relating to the assessment of the value of the plea. These were not expanded upon orally, and as I am required to approach my sentencing on the basis of the agreed summary, I do not have sufficient information to make any findings about those factors. As to the strength of the prosecution case generally, while there could have been a tendency argument leading to cross-admissibility between the complainants, I have already stated that sparing them from giving evidence a second time is a most important factor and that in my view equates to the plea having considerable value.
[12] Exhibit 1
26 I do not find that much further remorse is established by your plea itself and your limited admissions, particularly in light of the facts that you have been unable to offer anything by way of instructions for your counsel to address me as to the circumstances of the offending, especially against your daughter, and that you continue to deny that there was any sexual gratification involved in the offending. Of course you are not obliged to provide such explanations, but a lack of explanation does not assist me in finding any additional remorse. As I will come to, you have since entering your pleas of guilty, denied some offending, and that is also not conducive to a finding of full and genuine remorse.
27 The references from supportive family members[13] do not, in my view, help to establish much further remorse felt by you; none of them refers to the complainants in any way when writing of the pain and angst caused to 'others'. I reiterate that this is not a case of a sexual offence committed once only against one victim; it involves multiple sexual acts committed on three related victims, with a return to the offending behaviour 30 years after it was first exhibited. For you to be in a frame of mind receptive to exploring the reasons for your offending, you must accept this, and it would be helpful to you if those who support you also recognised and accepted this.
[13] Exhibit 3
28 There is some expression of remorse to be found from an independent source; the extended pre-sentence assessment report for a community correction order makes reference to you pleading guilty due to the hurt you have caused your victims (although it adds, ‘and [your] family unit’). However, I note the conflicting material in the assessment report, some of which tells against genuine remorse, in contrast to your recognition of the hurt you have caused your victims. Senior counsel on your behalf advised me on the further plea hearing that this assessment report was discussed with you and you confirmed that your plea of guilty is based on the agreed Prosecution Opening, and did not instruct your counsel to act on any contrary assertions contained in the assessment report. Ultimately, I treat your acknowledgement in that report that you hurt your victims as a sign of some remorse.
29 I take into account your background and personal circumstances in deciding the appropriate sentence. You are now aged 75 years. You have been married to your second wife for 39 years and have a daughter (your first victim) and two sons. You also have a son from your first marriage, with whom you have had no contact for many decades. You have had an excellent work history, having completed dual apprenticeships in instrument-making and fitting and turning, and after completing further education, ultimately spent 28 years as a trade teacher at RMIT. You spent 10 years working in countries in Asia educating trade teachers through a United Nations Development Program and have many friends and contacts throughout the region that you and your wife have continued to visit.
30 You retired at age 62, and currently engage in volunteer work in the community, most recently at the Men's Shed in your neighbourhood where you have been accredited to assist members in the use of the machinery and equipment.[14] Apart from the international work I have already referred to, you have shown a commitment to voluntary work in the community since your 20's. Also, until these offences came to light, you were active in the lives of your eight grandchildren, but now you are estranged from some of them. Your wife and your oldest son and his new partner continue to offer you support.
[14] Exhibits 2, 6 and 7
31 From the reference provided by your oldest son[15], I note that people with whom you worked over the years considered you generous and caring, and apparently people tended to flock to you for all your good qualities. I accept that these people would find it hard to believe that the man they know has committed such offences. A niece of yours also provided a reference as to your good character and qualities[16]. I do not discount this valuable reputation, noting that the complainants have also said that they trusted and admired you.
[15] Exhibit 3
[16] ibid
32 You have never been charged with any offence until now, and so you are to be sentenced at the age of 75 as a person with no prior convictions. I also note that you are not alleged to have committed any offences between 1987 and 2015, nor since 2016.
33 Apart from the offending, I accept that you are otherwise of good character[17], highly regarded by many, and have contributed significantly to society both at home and abroad through your paid employment, and through your community work throughout your adult life, a contribution which you continue to make through the Men's Shed. These are matters that I take into account.
[17]Ryan (2001) 206 CLR 267, [23]-[25]
34 However, despite that reputation and character, serious offending has occurred, and the nature of those offences, including the breach of trust, means that your otherwise good character has less weight having regard to the fact that you have not rehabilitated between 1983, when you first offended, and 2015, when you committed the acts the subject of the offence against the second complainant, and within days, committed the acts the subject of the offence against the third.
35
I ordered that an extended assessment report for your suitability for a community correction order be prepared by Corrections Victoria. You were assessed as suitable and found to be a low risk of re-offending generally. Unfortunately, the assessment does not address your risk for sexual
re-offending, or factors leading to the offending for which you are to be sentenced. These are to be explored after sentencing and the report recommends that you be assessed for participation in the Sex Offender Program. However, the report does identify a medium need/risk for what is described as a 'pro criminal attitude/orientation', said to be due mainly to your offences occurring over a long period of time and your original denial of the offending in the interview with police. You were also assessed as a medium need/risk with regard to anti-social pattern. In my view, a further potential attitudinal problem is identified in the references in the report to you hoping that the family would sort the matters out privately over the kitchen table rather than, or before, a report being made to police.
36 Let me make it clear to you and to anyone else who may share that view: criminal offences are not private family matters. A criminal offence is prosecuted by the State as an offence against the whole community as well as the victim. The community has an interest in perpetrators being brought to justice and subject to just punishment if offences are proved or admitted. Keeping things in the family, which is far too common for family violence and sexual offences, is not in the interests of the victims of such offending, nor in the interests of protection of the community.
37 Since August 2018, you have been attending a psychologist who is apparently experienced in assessing and treating sex offenders. After discussion on the second day of the plea, I was provided with a report from your treating psychologist[18].
[18] Exhibit 8
38 Encouraging aspects of that report are that as at the date of the report, January 2019, you have attended appointments in a Sex Offender Treatment Program (SOTP) with the psychologist more than 10 times, and wish to continue, and that through this program you have apparently developed a more realistic view of your past behaviour, have demonstrated a good understanding of the invasive nature of sexual offences in general, and have expressed a desire to apologise to your victims and atone for the hurt you have caused them. I accept that expression as a sign of emerging remorse.
39 Your treatment began with a need to contain your emotional distress and symptoms of anxiety and depression on being charged with these offences. Your psychologist states that your progress has been mixed, and overall, he classes it as limited progress. While there are the encouraging aspects I just referred to, your understanding of the offence process remains fragmented and you told your psychologist that in some instances you have no recollection of the offending itself. Your progress has been considerably slowed by your failure to identify what is called your offence process, which failure the psychologist says inhibits the development of insight and restricts the extent to which you could apply skills to your own personal situation.
40 There are three outstanding treatment needs according to your psychologist, being your reactive anxiety and depression, your issues specifically related to your offending, and what is described as your unstable family situation. Despite the limited progress so far, your psychologist is of the view that some of your engagement gives rise to optimism about your capacity to benefit from appropriate future interventions.
41 I am concerned by your attitude that seems to condone sexual entitlement, as expressed in your interview with police, in the assessment report, and in the psychologist's report. I will return to this concern when I deal with the question of rehabilitation.
42 To complete the consideration of your personal circumstances, I take into account that you have a number of health issues, unsurprisingly for a man of your age, and you are prescribed various medications to thin the blood, lower your cholesterol and blood pressure, as well as to treat glaucoma, a benign enlarged prostate, nervous rash, anxiety and depression[19]. You sought treatment for suicidality shortly after you were charged and have a mental health plan with your general practitioner. An eye injury suffered as a child has caused you lifelong vision problems. You have tinnitus and some deafness but do not use hearing aids, and had stents inserted following a heart attack in 2016[20]. Your wife is currently undergoing treatment for breast cancer and is receiving clear results during her course of radiation therapy.
[19] Exhibit 5
[20] Exhibit 4
43 Next, I take into account that there has been unexplained delay of about 6 months in the matters coming before the court, which is no fault of yours. You were interviewed in July 2016, but not charged until April 2017. Then, there was further delay, which is explained, by the fact that as you were charged on summons, the matters were originally listed in the Ringwood Magistrates' Court, and when the prosecution decided to proceed in this court, the charges had to be transferred to the Melbourne Magistrates' Court, with a filing hearing not occurring until November 2017. The matters resolved within about two months of committal, and the plea and sentence have proceeded before the trial date originally allocated of 29 July 2019. I take both periods of delay into account.
44 Returning to the question of your rehabilitation, your previous good character, excellent work history and the remaining support of your wife and oldest son would generally point towards good prospects for rehabilitation. However, as I have said, you have not rehabilitated following the first series of assaults committed against your daughter, because you re-offended years later against two other family members. As outlined earlier, I am concerned about your 'pro criminal attitude/orientation'. As a result of the lack of rehabilitation between 1987 and 2015, the limited progress in your rehabilitation since August 2017, and the concerning attitude revealed in the materials before the court, including the assessment report, I consider that without further treatment to deal with this attitude, and progress in that treatment, as well as exploration of and treatment for the unexplained reasons for your offending, your prospects for rehabilitation are compromised, and therefore guarded.
45 I find that the likelihood of you re-offending against the same three victims in the same way, or at all, is low, as you have no contact with them, and there is no risk to those other grandchildren and family members with whom you no longer have contact as a result of your offending.
46 Senior counsel on your behalf submitted that there was not very great weight to be placed on the need for my sentence to deter you from sexual re-offending, because you have no prior convictions, and because there is no remaining context for sexual offending. The prosecutor submitted that while your progress in the Sex Offender Treatment Program is mixed, and your prospects of meaningful engagement and change in attitude are guarded, there remains a risk of you re-offending against vulnerable people in your home, taking advantage of relationships and physical proximity for your sexual gratification. He submitted that there remains a need to protect the community from you, and a need for my sentence to deter you from re-offending.
47 I am of the view that there does remain a need to protect the community from you while your prospects for rehabilitation remain guarded, which I have found. I also consider that my sentence needs to deter you from re-offending, for the reasons I have already expressed as to your risk of sexual re-offending and prospects for rehabilitation.
48 As well as those matters personal to you to which I have referred, I must also take into account the need for my sentence to deter other men from taking advantage of children and vulnerable family members. This is called general deterrence and your counsel has conceded that, together with denunciation and acknowledgment of the seriousness of the crimes, being of the utmost importance in sentencing for sexual offending against children, and remains of importance in sexual offending generally.
49 Senior counsel on your behalf conceded that this is serious offending, with a betrayal of trust and serious consequences to your victims. He submitted however, that this should be set against the rest of your life and that should result in a view that there is an alternative to an immediate term of imprisonment on all charges and that alternative is a lengthy community correction order with conditions.
50 In summary, he submitted that as charges 2 and 3 each relate to a single incident of touching an adult over clothing, it could not be said for either that a sentence of imprisonment is the only option, taking into account the matters in mitigation of penalty. He conceded that was a more difficult submission for charge 1 where your victim was a child and your daughter, but submitted that even given your daughter's young age, there is an alternative to imprisonment because of the type of touching involved, together with the maximum sentence applicable to charge 1 at the time of the offending being lower than that for charges 2 and 3, committed in a different time period.
51 The prosecutor submitted that given the need for denunciation, general and specific deterrence, protection of the community, your guarded prospects of rehabilitation, the impact on your victims, and the breach of trust, the only sentence open on those charges 1 and 3, was a term of imprisonment. He conceded that the offending in charge 2 was at the lower end of the range of seriousness for sexual assault, but submitted that on all charges, it was open to me to sentence you to a term of imprisonment with some time to serve in gaol, combined with a release on a community correction order.
52 Numerous courts have dealt with the sorts of offending that I am dealing with here and I adopt with respect, some of those remarks. In a case called Toomey[21], two earlier judges were cited as saying:
'A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate'[22].
[21] [2006] VSCA 90
[22] Ibid, [18]
53 I also adopt the following from that case:
'This notice of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system. It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime, can be impeded or facilitated by the responses of the courts. The imposition of a sentence often constitutes both a practical and ritual completion of a protracted, painful period. It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator. If the balancing of values and considerations represented by the sentence, which of course must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted. If not, there will almost certainly be created a sense of injustice in the community generally, which damages the respect in which our criminal justice system is held and which may never be removed. Indeed, from the victim's perspective, an apparent failure of the system to recognise the real significance of what has occurred in the life of that person, as a consequence of the commission of the crime, may well aggravate the situation'[23].
[23] Ibid, [21]
54 And I add the further quote:
'It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator'.
55 I can only sentence you to a term of imprisonment if that is the only alternative open to me. I have taken into account that if you receive a prison sentence, you would be going into prison for the first time at the age of 75, with no criminal history, with some health issues associated with your age, and reactive depression and anxiety, as well as a concern for your wife should you not be available to her as she continues her radiation therapy. All of these factors would make imprisonment more burdensome for you.
56 Before I turn finally to the sentence, there are three further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the sample that will then be taken is a blood sample and the police may use reasonable force to enable such a procedure to take place.
57 The second matter is that as a result of my sentence today on charge 1, you become a registrable sex offender. You will be required within 7 days of today, or your release from custody, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for a period of 8 years.
58 The third matter is that if you are sentenced to a term of imprisonment on charges 1 and 2, you are to be sentenced as a serious sexual offender on charge 3, with all that entails.
59 The court must impose a sentence that is just in all the circumstances, and that reflects the community's abhorrence of sexual offending, particularly against children and family members, with the grave breach of trust and damaging effect on family relationships that is caused. These principles apply, no matter how long ago the offending occurred.[24]
[24]DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59
60 I have found this a most difficult sentencing exercise. In all the circumstances, I have decided that I have no alternative to a sentence of imprisonment on charge 1, despite the factors in mitigation. Although it is one charge, it is representative of seven instances of sexual offending against your daughter, including touching and sucking her breasts and touching her pubic hair under her clothes.
61 After further careful consideration, I have decided that I do have an alternative to a sentence of imprisonment on charges 2 and 3, despite the fact that this offending underlines concerns as to your risk of re-offending and prospects for rehabilitation, and that each charge is representative of a number of sexual acts, although committed on the one day. In the end, the nature of those acts is less serious than those you perpetrated on your daughter and are such that a term of imprisonment is not the only option.
62 I have decided that an appropriate sentence on these two charges, 2 and 3, is a community correction order. It follows that I have also decided that an appropriate sentence of imprisonment on charge 1 is less than 12 months with release on a community correction order thereafter on charges 2 and 3.
63 Because you must agree before I can release you on a community correction order, I need to tell you what the conditions are. The core conditions attached to every community correction order are that you must report to and receive visits from Corrections Victoria; must notify Corrections Victoria of any change of address or employment; must not leave Victoria without permission of Corrections Victoria; and must comply with any direction given by Corrections Victoria to ensure compliance with the order.
64 I will also order that you comply with other conditions during the period of the order: that you be under supervision by Corrections Victoria; that you undertake 100 hours of unpaid community work over the period of the order; and be assessed for and if found suitable, undertake and complete the Sex Offender Program. I also order that any hours of treatment and rehabilitation be counted towards your hours of unpaid work. Yes, stand up please, Mr Gordon.
65 Do you agree to being released on a community correction order on charges 2 and 3 with those conditions attached?
66 ACCUSED: Yes, Your Honour.
67 HER HONOUR: I add that I recommend in the strongest possible terms, that any Corrections Victoria personnel who may be working with you, pays great attention to your treating psychologist's report.
68 You are convicted and sentenced on charge 1 (representative) – indecent assault – 8 months' imprisonment;
69 On charges 2 (representative) and 3 (representative) – sexual assault – you are convicted and released after imprisonment on a community correction order for 30 months with the core and special conditions I have outlined.
70 If you do not complete any condition of the community correction order, you will be brought back before me to be re-sentenced on charges 2 and 3 and also be dealt with for not complying with the community correction order. Do you understand what will happen if you do not complete any condition of the order?
71 ACCUSED: Yes, I do, Your Honour.
72 HER HONOUR: I should also tell you the community correction order can be changed or removed by the court if your circumstances change. To do that, you should get legal advice.
73 You will now be asked by my Associate to sign two documents. The first is to show that you agree to abide by the conditions of the community correction order. The second is a form notifying you of your reporting obligations under the Sex Offenders Registration Act, which I told you about earlier. Mr Dann, would you or Ms Todd accompany my associate to assist Mr Gordon with those forms.
74 MR DANN: Yes, Your Honour.
75 HER HONOUR: Thank you. You can take a seat, Mr Gordon, while we are just completing this. I have signed a copy of the community correction order and a copy of that will be made available to you, Mr Dann and Ms Todd, to be provided to your instructors.
76 MR DANN: As Your Honour pleases.
77 HER HONOUR: I note that because I have not imposed a sentence of imprisonment on charge 2, Mr Gordon is not sentenced as a serious sex offender on charge 3.
78 Lastly, Mr Gordon, if you had not pleaded guilty, but had been found guilty after a trial, the sentence I would have imposed is difficult to estimate because you have pleaded guilty to representative charges. Doing the best I can, if you had been convicted after a trial on all incidents as single charges, the sentence would have been a total of 5 years' imprisonment with a non-parole period of 3 years 6 months.
79 Are there any other orders required?
80 MS VINGERHOETS: No, Your Honour.
81 HER HONOUR: I will just indicate that the list of medications that was provided previously will be sent through to the Corrections authorities.
82 MR DANN: Thank you, Your Honour.
83 HER HONOUR: And could I finally as well as acknowledging the assistance of counsel, could I acknowledge that in these difficult cases, that all present in court have conducted yourselves with dignity and I appreciate that. Thank you. I will adjourn. Mr Gordon may be removed.
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