Director of Public Prosecutions v Gore (a pseudonym)

[2019] VCC 754

IN THE COUNTY COURT OF VICTORIA Revised
Restricted
 Suitable for Publication

AT BAIRNSDALE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JEREMY GORE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Bairnsdale
DATE OF HEARING:	20 May 2019 & 23 May 2019
DATE OF SENTENCE:	24 May 2019
CASE MAY BE CITED AS:	DPP v GORE (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 754

REASONS FOR SENTENCE
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Subject:

Catchwords:  Sexual assault; General deterrence;  Denunciation; Specific deterrence; Position of trust and responsibility; Family violence; Complex mental health history; Burden of imprisonment;

Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	Office of Public Prosecutions
For the Accused	Ms J. Clark	Kurnai Legal Practice

HIS HONOUR: 

1Jeremy Gore[1], you pleaded guilty to one charge of sexual assault contrary to s.40 of the Crimes Act 1958. The maximum penalty for that offence is 10 years imprisonment.

[1] This sentence has been anonymised by the adoption of a pseudonym in place of the name of the accused.

2You pleaded guilty on the day of your committal proceedings, but prior to the calling of any evidence.  Your early plea has spared the victim of your offending, who is your son, the trauma of giving evidence against you.  It has also spared other witnesses of that burden, and the community the conduct of criminal proceedings.  It is a high value plea of guilty and I have taken it into account in your favour in mitigation of sentence.

3You have admitted an extensive criminal history involving, by my reckoning, eight court appearances for family violence and related matters.  You have been the subject of four Community Correction Orders and four suspended terms of imprisonment.  A number of these orders have been breached by you.  It is of significance in this instance that four days prior to your offending, you were placed on a Community Correction Order for two years in relation to offences of criminal damage, contravention of a family violence intervention order and theft. In my opinion, specific deterrence is an important sentencing consideration in this case, a matter I will return to below. 

4A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

5Your son was born female in 2000 and at the time of the offending was 18 years old.  He had been placed in State care with his grandparents as an infant.  From the age of 15 he lived in various temporary homes, until coming to live with you in July of 2018.  He was then in the process of transitioning from female to male, but had not undergone genital surgery and had female genitalia.  Plainly, he was at an extremely vulnerable time in his life, which to that point had also been one of dislocation and disadvantage.  As his father, you were in a position of trust and responsibility in relation to him.

6Prior to the day of your offending, you stated to your son that he had:  'A great body' and that you could not understand why he wanted to:  'Get rid of it' by transitioning to male.  In my opinion, these remarks were a serious breach of your responsibilities to your son as his parent and no doubt they caused him great distress and confusion.

7On the evening of 7 or 8 September 2018, you smoked cannabis and methylamphetamine with your son, which was again, in my opinion, a breach of your responsibilities to him.  Following this, you put a pornographic film on the television and then sat next to your son on a couch.  While holding your own penis outside your pants, you rubbed your son's leg, stomach and breasts.  You then put your hand down his pants and rubbed his vagina for approximately four minutes.  Your son was so shocked by your conduct that he passed out.

8The following morning, you told him that you believed that he had enjoyed what you had done.  Your son reported the matter to police on 18 September 2018 and following a pretext conversation, during which you made a number of admissions, you were arrested and interviewed by investigating police.  In that interview, you denied your offending and when asked about the pretext conversation, you claimed that you had been entrapped.

9A Victim Impact Statement of your son was tendered in evidence and it details the profoundly traumatic effect your offending has had upon him.  He suffers from severe depression, flashbacks, suicidal ideation and ongoing distress.  Having been placed in care as an infant, he has now again separated from his family by reason of your criminal conduct.

10In my opinion, your offending is a serious example of the offence you have pleaded guilty to.  Whilst the act that you performed may not be of the higher end of seriousness, the attendant circumstances make it so.  You sexually assaulted your vulnerable son, after using illegal drugs with him and then exposing him to pornography.  You knew then that he was vulnerable and transitioning from female to male.

11In my opinion, your offending was partly motivated by your own sexual gratification, fuelled by methylamphetamine consumption and also it was intended to somehow dissuade your son from transitioning his gender.  As I have said, this was a gross breach of your responsibilities as a parent and your offending must be denounced unequivocally by this court.  Vulnerable people must be protected from offending of this type and the sentence I impose must be calculated to deter others from preying on their children in this manner.  Furthermore, your offending is another act of family violence committed by you whilst on a Community Correction Order for such offending.  For this reason, as I have said, specific deterrence is an important consideration in your case.

12I now turn to your personal circumstances. 

13You were born in July 1975 in Mooroolbark and are now aged 43.  You are of Aboriginal descent and the oldest of seven children.  Your language group is Murrindindi from central Victoria.  Your family life appears to be a relatively stable one, although your parents separated when you were an adult. 

14You were educated to Year 10 level at Mooroolbark Technical School and thereafter worked in various unskilled occupations with your father.  It was not submitted on your behalf that you suffered disadvantage by reason of your Aboriginal heritage, but I accept nevertheless that you were bullied as a child and no doubt your family experienced discrimination.

15You were a CFA volunteer for 12 years, until 2006.  You have been in a long term marriage with your wife and have two adult children.  Your marriage has been characterised by family violence, as I have already noted.  You also have a longstanding history of substance and alcohol abuse disorder.  I have received in evidence a psychological report of Ms Carla Lechner, setting out your background and psychological profile.  Your history to her reveals the sexual abuse by you as a child by your paternal uncle and family violence occurring in your home as you were growing up.  Ms Lechner also concluded that you suffer from post-traumatic stress disorder, following your attendance at a murder/suicide whilst volunteering for the CFA.

16I accept the history you have provided to her and her further conclusion that you are suffering from depression.  It became apparent during the plea hearing that the evidentiary material regarding your psychiatric history referred to by Ms Lechner was incomplete and steps were taken to obtain your medical records from your general practitioners in Bairnsdale. 

17These records reveal that you have a history of the diagnosis of schizophrenia, which has responded to treatment.  It is not a current condition according to the records, but you are nevertheless psychiatrically vulnerable and require ongoing medication and treatment.  You also suffer from epilepsy and a range of other physical ailments, including asthma. Yours is a complex mental health history and whilst it was not submitted on your behalf that there is a link between this and your offending, I accept that your psychiatric history will increase the burden of imprisonment upon you. 

18Your counsel submitted that it would be open to me to impose a further Community Correction Order upon you and she further submitted that your prospects for rehabilitation may be regarded as good.  She submitted that there had been substantial compliance with court orders in the past.

19Whilst it is true that you have complied with Community Correction Orders in the past to some degree, in my opinion, your prospects for rehabilitation must be approached with a significant degree of caution.  You have also repeatedly breached court orders and I do not detect real insight or remorse for what you have done in this instance.  You initially denied your offending to investigators and suggested to Ms Lechner that you were disinhibited due to drug use. 

20I do not accept that the imposition of a Community Correction Order would be appropriate in the circumstances of this case, or proportionate to the gravity of your offending.  I also do not accept that a combination sentence would be an appropriate proportionate sentence in this case. In arriving at this conclusion I have also had regard to a summary of sentences for the offence of sexual assault provided to me by the prosecution. 

21Whilst you have, as I have said, an extensive criminal history for offences of family violence, I nevertheless accept that your personal circumstances, and in particular your complex mental health history, has in part contributed to this. I also accept, as I have said, that your mental health will compound the burden of imprisonment upon you, warranting the moderation of the sentence I propose to impose in your case. 

22In the result, the sentence of the court is as follows –

23In relation to the charge of sexual assault, you are convicted and sentenced to be imprisoned for 18 months.  I fix a non-parole period of nine months. 

24I declare that you have served 169 days by way of pre-sentence detention, not including today. 

25But for your plea of guilty I would have imposed a total effective term of imprisonment of two years and six months and imposed a non-parole period of one year and six months. 

26Are there any further orders required?

27MR HAYWARD:  A sample order, Your Honour.

28HIS HONOUR:  Yes.  Is that opposed, Mr Taylor?

29MR TAYLOR:  Not opposed, Your Honour.

30HIS HONOUR:  I'll make the forensic sample order sought by the prosecution.  Mr Gore, the police are entitled to use reasonable force to obtain that sample from you.  It'll simply be a sample of your saliva.  It's a simple process.  You're required to cooperate with them. Thank you.

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