Director of Public Prosecutions v Gorman
[2017] VCC 1387
•26 September 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG AND MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No.CR-17-01278
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RAYMOND GEORGE GORMAN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 22 August 2017 (Geelong) and | |
DATE OF SENTENCE: | 26 September 2017 | |
CASE MAY BE CITED AS: | DPP v Gorman | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1387 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: 10 charges of unlawful and indecent assault of a female under the age of 16 years committed 36 to 39 years ago- Pleas of guilty – offender now 71 years of age with significant health issues.
Legislation Cited:
Cases Cited:
Sentence: TES 3 years and 3 months imprisonment with a non-parole period of 15 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Flynn | Office of Public Prosecutions |
| For the Accused | Mr P Flynn | Peter Flynn, Solicitor, 119 Murray Street, Colac, Vic 3250 |
HER HONOUR:
1 Raymond George Gorman, you have pleaded guilty to 10 charges of unlawful and indecent assault on a female under the age of 16 years. Each of these offences carries a maximum penalty of 5 years’ imprisonment.
2 Your offending occurred between the period of 1 January 1978 and 1 January 1981. At the relevant time, you were aged 31 to 34 years old and your victim was aged between 11 and 14 years. Your victim was the daughter of a close friend with whom you worked, who used to bring his family regularly on holidays and weekends to spend time at a farm which you had at Larpent, on the outskirts of Colac. All of the offending occurred whilst your victim was visiting your farm.
3 Charge 1 occurred when the victim was aged 11 and went spotlighting with you in your ute one night. You put your hand between your victim’s legs and touched her over her vaginal area on top of her clothing.
4 Charge 2 occurred when your family and the victim’s family were having dinner together. You moved your foot up between your victim’s legs and touched her over her vaginal area on top of her clothing.
5 Charge 3 involved you following your victim into the grain shed at your property which was quite dark. You groped her breasts on the outside of her clothes.
6 Charge 4 also occurred in the grain shed on the same occasion as charge 3. You put your hand inside her underwear and inserted your finger into her vagina.
7 Charge 5 involved you again putting your hand inside your victim’s underwear and inserting your finger into her vagina.
8 Charge 6 – also occurred in the grain shed. You grabbed your victim’s hand and placed it on your exposed penis and directed her to masturbate your penis.
9 Charge 7 involved you placing your hand between your victim’s legs as you walked behind her.
10 Charge 8 involved an occasion where you returned to your property where your victim was alone watching television. You exposed your penis and directed your victim’s head down towards it, put your penis in her mouth and made her suck it.
11 Charge 9 involved you entering the bathroom while your victim was having a shower, exposing your penis and again directing your victim to suck it.
12 Charge 10 occurred when you were hosting a Melbourne Cup Day function at your property. You coaxed your victim into a bush area at the rear of your property and exposed your penis to her and grabbed her hand and made her masturbate your penis.
13 The offending came to an end because your victim was upset and ran away from the farm for half a day. Soon after that she was in a caravan at the farm, angry and upset and, when you entered the caravan, she told you that she did not want you touching her anymore and threatened to take some of her mother’s medication. Soon afterwards, your victim declined to visit the property anymore.
14 When she was 14 years old, your victim disclosed to a school friend that she was being molested by a friend of her father. Around the same time she also told a boyfriend. When she told her mother that she was not going back to your property, her mother asked if you had done anything to her. However, your victim felt unable to disclose the offending to her mother. It was not until approximately 2012 that she felt able to tell her mother, and, even then, without great detail.
15 Finally, on 10 January 2017, by which stage your victim was 49 years old and you were 71 years old, your victim made a statement to the police detailing your offending. On 20 January 2017, with police assistance, she conducted a pretext phone conversation with you, indicating that she needed you to apologise to her for what you had done all those years ago. You told her that you were truly sorry and had thought about it over the years, that it was not the right thing to do and that the temptation was too much and you should not have done it.
16 On 24 January 2017, you were arrested and interviewed but denied all offending. You claimed that your victim had been a very flirtatious young girl and very well developed for her age and would often “flash her boobs” at you and flirt with you when her parents were not looking and you lapped it up. You claimed that you did not know why she had called you asking for an apology. A further statement was taken from the victim who denied that she had ever flirted with you or flashed her breasts at you and that all advances and actions had been at your instigation.
17 Charges were filed against you on 19 April 2017 and at the committal mention on 23 June 2017 you entered pleas of guilty to all charges and the matter proceeded by way of hand-up brief.
18 In a plea on your behalf by Mr Flynn, the Court was told that your expression of apology to the victim in the pretext call and your pleas of guilty had at least given your victim some “closure”. Also, your plea of guilty, without contesting a committal, had saved your victim the trauma of having to give evidence at a trial, as well as the cost of such trial.
19 Mr Flynn relied upon your good character as part of his plea in mitigation. You are now 71 years of age and come before the Court with no prior convictions, having not offended since the last occasion with the victim in or about 1980. He urged the Court to note that you had given community service without reward in the local Colac area. In particular, this had included 35 years (up until May 2017) as a leader of and volunteer for the Country Fire Authority. This had included educational campaigns teaching students about the work of the Country Fire Authority and you had been honoured with a life membership of that association recently. Tendered as Exhibit “4” was a bundle of documents relating to your lengthy service with the Country Fire Authority. In addition, you had given substantial time as a trainer for the Irrewillipe Football Club from 1982 to 1992 and had also served as an active member of the Larpent Hall Committee from 1980 to 2015. Larpent Hall is the focus of much community activity in the small settlement of Larpent and your work involved fundraising and facilitating grants from the Colac Otway Shire in order to effect community improvements. In addition, you had served as a school council member and president for the Larpent Primary School from 1979 until it closed in 2002. Mr Flynn submitted that this very high level of community service should be taken into account as indicative of a preparedness to put in a great deal of time for the benefit of the community, by whom you were apparently regarded highly.
20 Mr Flynn told the Court that you had been married for many years to your first wife, Joyce, who died of breast cancer in 1991. You had three children by that marriage, all of whom are now in their forties and have their own families and lead productive lives. In 2000 you married your current wife, Elizabeth, who had three children from her previous marriage. A reference from your current wife was tendered as Exhibit “1”. She states that she is appalled by your actions but believes that you are deeply sorry for what you did. She states that she has known you for 25 years and been married to you for 18 years and you have always been an amazing, loving and happy person. In particular, you helped her care for her terminally ill daughter, Sarah, who died 12 years ago. She states that she will stand by you in spite of your actions and notes that she has been your carer for many years now due to your failing health.
21 The Court was told that, after having become an apprentice motor mechanic and worked for four years in that trade, you joined the Metropolitan Fire Brigade and were employed as a fire officer from 1966 to 1976. However, you resigned due to a work injury. Your victim’s father helped you out by providing part time work for you to do lawn mowing and, then, in 1978 you bought your dairy farm at Larpent, which is where the offending occurred. Mr Flynn stated that all but 25 acres of that farm had been sold around the time of the death of your first wife in 1991 and the balance of 25 acres on which you and your current wife had lived, had been sold just this year as your declining health does not enable you to manage to even mow the lawns anymore. Mr Flynn detailed some of your health issues but did not have adequate material in support of them. As he relied upon your poor health as a significant plank of the plea in mitigation, the matter was adjourned to Melbourne for further hearing on 26 September 2017.
22 On the adjourned date a medical report was tendered from Otway Medical Clinic dated 29 August 2017 (Exhibit “5”). The report authored by Dr Pojani notes that you suffered an acute myocardial infarction in 2010 and a disc prolapse in your lower back in November 2015, which has left you with a significant left foot drop. It sets out a chronology of surgery which includes three laminectomies performed in 1978, 1980 and 2002. Apparently, there has been difficulty in controlling your severe back pain and neurological deficits and, in June this year, you underwent surgery to implant a spinal cord stimulator to try to reduce your chronic daily pain. The reports of the operation by Dr David Vivian were tendered as Exhibit “3”.
23 Dr Pojani’s report states that you are administered pain medication Tapentadol (Palexia) for your severe pain. This is a drug for which a DHS Schedule 9 permit is required. You have also undergone surgery on your knees and shoulders and suffer severe osteoarthritis. She notes that you also suffer depression and amongst the significant list of medication included in her report is the anti-depressant, Mirtazapine, 45 milligrams, one at night. The other medications taken by you are Aspirin, 100 milligrams, one daily; Elucon cream, .1 per cent, daily; Endone, 5 milligrams, three times a day if required; Hydrozole cream, twice per day; Lipitor, 40 milligrams daily; Nexium, 40 milligrams daily; the Palexia, which I have already mentioned, 100 milligrams, twice per day; Panadol Osteo, 665 milligrams, two to three times a day; and Zopiclone, 7.5 milligrams at night. Unfortunately, although I had made it plain at the earlier hearing that it would be helpful if the reason for each medication was explained by a medical practitioner, this has not occurred. Nevertheless, you have significant health issues and your general practitioner has indicated that you require regular general practitioner monthly review and ongoing specialist involvement for ongoing renal impairment, severe osteoarthritis, depression and chronic pain. Your general practitioner expresses concern for your physical and mental health should you be sent to prison and asks that it be taken into account, and I do so.
24 Mr Gorman, you must be left in no doubt as to the seriousness of your offending against your victim. It involved a terrible breach of trust. Her now deceased father had been good to you and your family and her family obviously socialised regularly. For a child of eleven, which she was at the date of your first offending, your grossly inappropriate behaviour must have been deeply confusing and distressing. She was on the cusp of puberty and in a situation where she knew that you were a trusted and loved family friend, who gave hospitality to her and her family on a regular basis at your farm. It is little wonder that she felt that she could not complain to anyone.
25 Your conduct was both brazen and clandestine. Charge 1 involved you putting your hand between her legs in the front of your ute out spotlighting whilst your own son was beside her in the passenger seat and her own father was in the rear of the ute. Charge 2 involved you moving your foot up between the victim’s legs and touching her on the vagina area where both your family and her family were seated together at the dinner table. Your conduct was persistent and escalated in seriousness over the three year period of offending to include digital penetration of her vagina, compelling her to masturbate you and also to give you oral sex. These acts of penetration would nowadays be classified as an offence with a far greater penalty than the maximum penalty of 5 years which applied at the time of your offending, but of course I must sentence you in accordance with the maximum penalty at the time of the offending.
26 Mr Flynn asserted that the pretext conversation “gave your victim closure”. However, it is plain that your crimes have had a profound and enduring effect upon your victim as detailed in her Victim Impact Statement (Exhibit “B”). The very fact that she complained as a mature woman in her forties, so long after the events is, in itself, an indication of the depth of the depth of the damage caused by sexual offending, particularly persistent offending over a number of years like yours. It is now well understood that there are good reasons why a victim of sexual offending, particularly a child, does not complain or may ultimately not have the psychological fortitude to complain until after a long delay. In her Victim Impact Statement, your victim stated that she has suffered severe anxiety and chronic insomnia. Both of these require medication. She developed dysfunctional relationships with men who were physically and emotionally abusive to her. She has struggled for years trying to not allow the impact of your offending to impact upon her life, but she has not succeeded. She has felt psychological distress and isolation and it has impacted upon her ability to work. She feels ashamed at living on a disability benefit from the government. She states that she has forgiven you but not forgotten what you have done and expresses her view about how appalled her father would have been, given what a dear friend he was to you and all the time that you had spent together as families, painting fences and helping with the calves on your farm. She has nursed deep hurt for decades because of your selfish acts in pursuit of sexual gratification, which are all the more astonishing given that you have children who are not so very much younger than your victim. You should feel very deeply ashamed.
27 In accordance with the authority of Stalio v R,[1] it is clear that in applying with s5(2)(b) of the Sentencing Act 1991, I am to sentence you having regard to current sentencing practices. This means according to sentencing practices at the time of sentencing. However, as was made plain by the Court of Appeal in that case:
[1][2012] VSCA 120
“… this will not necessarily render irrelevant the question of what sentencing practices were at the date of the offence. More particularly … such practices may raise a question of equal justice.”[2]
[2]Paragraph 34 page 17
This is based on the need for consistency in punishment and the Court noted:
“It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.”[3]
[3]Paragraph 54 page 23
28 In sentencing you, this Court must denounce your conduct. As I have said, it was a terrible breach of trust committed over a three year period and only came to an end when your victim, at the age of fourteen years, told you that she would not put up with it any longer and refused to visit your farm. Your conduct was bewildering for her and deplorable by community standards. Your moral culpability was high. The Court’s condemnation of your conduct must be shown by punishing you for the wrong done and the harm caused. The sentence must also give emphasis to general deterrence. This means that a message must go out to others who think they may take advantage of children who are vulnerable because they do not understand what is happening or are constrained by such factors as the offender being a family friend or generally bewildered because they do not have an adult’s understanding of sexual matters. The message is that they will be punished no matter how long the delay might before the offending comes to light.
29 In all of the circumstances, there can be no appropriate punishment other than a term of imprisonment on each of the charges. As you will be sentenced to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3 to 10 pursuant to the provisions of s6B of the Sentencing Act. Thus, pursuant to s6D, in sentencing you on Charges 3 to 10, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. In order to achieve that purpose, it is permissible to impose a sentence longer than that proportionate to the gravity of the offence, however, the prosecution has not submitted that this latter principle should apply in your case and I am of the same mind.
30 In arriving at an appropriate sentence, I bear in mind that s6E of the Sentencing Act states that, where imposing a sentence on a serious offender, that that should be cumulative upon any other sentence unless otherwise directed. In my view, to apply total cumulation in sentencing you would lead to an excessive and unjust sentence, particularly bearing in mind that some of the offending (namely, Charges 3 and 4) occurred on the one occasion. Accordingly, I have applied moderate cumulation in order to ensure that the principle of totality is observed.
31 I asked your counsel, Mr Flynn, to address me on the issue of delay and he stated that he did not understand what I meant. Nevertheless, I take into account that a period of over 3 ½ decades has occurred since your last offending and there is no evidence that you have reoffended in that time. Hopefully, that means you have resisted your aberrant tendencies to seek sexual gratification from underage girls. I note your community service and take that into account. However, unhappily, it is not uncommon for people with no prior convictions, who are regarded well in the community to come before courts on sexual offences. For this reason, not as much weight as usual is placed on prior good character.
32 I do take into account your pleas of guilty. After a shameful denial of the offending and an aspersion on the character of your young victim as a flirt, you did plead guilty to the offences and, hence, saved her the trauma of having to relive her humiliating and confusing experiences at your behest. Ultimately, I consider it appropriate to regard your pleas of guilty as an indication of remorse. As they were early pleas, you are entitled to a high discount on the sentence which, otherwise, would have been imposed.
33 I have considered the material concerning your various physical health issues, particularly the recent serious spinal operation conducted by Dr Vivian as detailed in his reports. It is clear that you have a number of health issues in addition to your low back problem, including generalised osteoarthritis and a past history of a myocardial infarction. Your general practitioner makes mention of depression. However, there is no indication of how long you have been treated for depression or to what extent your depression is reactive to your current legal situation. Nevertheless, you are on a significant regime of medication, overall, and I do take into account that serving a term of imprisonment with such health problems is likely to be far more onerous for you, particularly given your age of 71 years, than for someone who does not have such health problems. I have taken these factors into account in arriving at the sentences to be imposed and, in particular, by directing a shorter than usual non-parole period.
34 No psychological assessment has been tendered to the Court on your behalf. I can only assume that, given that there is no further alleged offending since 1981, and that you are now in reduced health compared to what you were at the time of the offending, your risk of reoffending is not high. It is a positive factor that your wife, Elizabeth, is prepared to stick by you and, in that respect, I am hopeful that your rehabilitation will continue.
35 On Charge 1, you are convicted and sentenced to be imprisoned for a period of 3 months.
36 On Charge 2, you are convicted and sentenced to be imprisoned for a period of 3 months.
37 On Charge 3, you are convicted and sentenced to be imprisoned for a period of 2 months.
38 On Charge 4, you are convicted and sentenced to be imprisoned for a period of 12 months.
39 On Charge 5, you are convicted and sentenced to be imprisoned for a period of 12 months.
40 On Charge 6, you are convicted and sentenced to be imprisoned for a period of 9 months.
41 On Charge 7, you are convicted and sentenced to be imprisoned for a period of 2 months.
42 On Charge 8, you are convicted and sentenced to be imprisoned for a period of 12 months.
43 On Charge 9, you are convicted and sentenced to be imprisoned for a period of 12 months.
44 On Charge 10, you are convicted and sentenced to be imprisoned for a period of 9 months.
45 The sentence imposed on Charge 4 is the base sentence. I direct that 1 month of the sentence imposed on Charge 1; 1 month of the sentence imposed on Charge 2; 6 months of the sentence imposed on Charge 5; 3 months of the sentence imposed on Charge 6; 1 month of the sentence imposed on Charge 7; 6 months of the sentence imposed on Charge 8; 6 months of the sentence imposed on Charge 9; and 3 months of the sentence imposed on Charge 10, be served cumulatively upon the base sentence and upon each other. Save for such cumulation, all sentences are to be served concurrently.
46 The total effective sentence is 3 years and 3 months’ imprisonment. I direct that you serve a period of 15 months’ imprisonment before becoming eligible for parole.
47 Pursuant to s6AAA of the Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 5 ½ years with a non-parole period of 3 ½ years.
48 Pursuant to s6F of the Sentencing Act, I cause to be entered in the records of the Court that you have been sentenced as a serious offender in relation to Charges 3 to 10, both inclusive.
49 Pursuant to s6 of the Sex Offenders Registration Act 2004, by reason of your plea of guilty to 10 Class 2 offences, you become subject to mandatory registration under that Act. As you have been found guilty of more than three Class 2 offences, the length of your registration with the accompanying reporting obligations is for the remainder of your life.
50 Pursuant to s464ZF, I order that you provide a sample of saliva for placement on the database. I consider this order to be warranted by reason of the seriousness of the circumstances of the offending and the fact that you have consented to it. This involves putting a cotton swab inside your cheek in order to enable the sample to be obtained. Mr Gorman, you need to understand that if you do not cooperate with this, then the police may use reasonable force to obtain such a sample.
51 I will now have my Associate hand to you a document which sets out your obligations under the Sex Offenders Registration Act. I will ask that you please acknowledge receipt of such document with your signature.
52 Mr Flynn, I will endorse my orders with the following Custody Management issues:
“71 year old. No prior convictions. First time in Custody. Multiple health issues including back injury which has been the subject of multiple surgical procedures including the implantation of a spinal cord stimulation on 26/6/17.
The prisoner also has a history of myocardial infarction (2010) and generalised osteoarthritis and depression. He is on an extensive list of medication. Please see attached reports of Dr Pojani of Otway Medical Clinic dated 29/8/17 together with attached medication summary.
Please medically assess as a matter of priority and ensure safe custody.”
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