Director of Public Prosecutions v Gough

[2014] VCC 2161

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN GOUGH (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE COTTERELL
WHERE HELD:
DATE OF HEARING:
DATE OF SENTENCE:	15 December 2014
CASE MAY BE CITED AS:	DPP v Gough
MEDIUM NEUTRAL CITATION:	[2014] VCC 2161

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Hill	Office of Public Prosecution
For the Offender	Mr A. Marshall

HER HONOUR: 

1Sean Peter Gough, you have pleaded guilty before me to one charge of sexual penetration of a child under 16.  The maximum penalty for that offence is 25 years' imprisonment.  The facts of the matter were opened by the prosecutor and a summary of the prosecution opening was tendered as Exhibit A on the plea.

2The offending occurred at your family home on 24 January 2011 when your granddaughter, Hannah Thomson[1], was left in the care of you and your wife for the afternoon.  She was aged nine years at the time.  She had been left at your home because her parents needed to work and she had been having problems at her normal day care centre.  Your wife left the home for a short time in the afternoon and you were left alone with Hannah.  You sat next to her on the couch.  You put your hand on her chest, under her clothing, and then you put your hand inside her underpants.  You touched her vagina and then inserted your finger in to her vagina.  Hannah described the penetration as deep.  You immediately stopped when Hannah asked you what you were doing.  You told her you were sorry and said that you loved her.

[1] A pseudonym

3You explained your behaviour in your record of interview by saying that you had “a bloody awful urge”.  When her parents collected her, Hannah disclosed that she had been sexually assaulted and the next day she was interviewed by police on a VARE tape.  You, yourself, were interviewed on 17 February 2011 and you made full admissions, except that you denied the penetration.  You said that you told your granddaughter not to tell her mother, because you knew that you would be in trouble.

4This is a very serious crime.  The Parliament has seen fit to impose a maximum penalty of 25 years' imprisonment and it is an offence which has devastating consequences both for the victim and the entire family constellation.

5You come before this court with no previous criminal history.  You were 81 when you committed this offence and you are now 83 years of age.  You are the only survivor of your family of origin.  Your father died when you were 12 and your mother in a tragic motor accident when you were in your 20s.  You and your four siblings were very close and none of you have ever come to the attention of the law until this time.

6You have been married to your wife Calleigh[2] for 62 years.  Your wife is currently 80 years of age and is suffering as a result of two strokes and severe arthritis.  She had worked before her marriage and subsequently part time, until about 1980, when machines were introduced to replace staff.  You have seven children still alive, ranging in age from 43 to 61.  You have 18 grandchildren and nine great grandchildren.  You worked most of your adult life and you were forced to retire at the age of 63, due to ill health.

[2] A pseudonym

7A report in the form of a letter written by Dr O'Brien was tendered as Exhibit 4 on the plea.  You have been his patient for some 35 years.  He confirms that you suffer a number of illnesses, which he lists as hyperlipidemia, gastroesophageal reflux, diabetes, osteoarthritis, diverticulitis, glaucoma, and postherpetic neuralgia.  The report also indicates that you have suffered from longstanding endogenous depression and have been on antidepressant medication since 1996.  An update of that information confirms you are still on antidepressant medication and are also suffering from anxiety, which has become more pronounced, leading to your court appearances.  I take the state of your health in to account in sentencing you.

8Tendered as Exhibit 3 on the plea is a psychological report authored by Jeffrey Cummins, clinical psychologist, together with an update report.  Mr Cummins indicates that you are at least moderately depressed and may be suffering from a major depressive disorder, that you expressed genuine guilt and remorse in relation to your offending.  You also acknowledged that you had a problem, in the form of being sexually attracted to underage, and in particular prepubescent, females.  In Mr Cummins opinion you would be diagnosed as suffering from paedophilia and perhaps hebephilia.

9Your offending is classified by Mr Cummins as opportunistic and he estimates the risk of further sexual offending to be in the low/moderate range.  His opinion is that you are in urgent need of appropriate offence specific treatment, as in the absence of such treatment this risk may increase if you are again in a situation of having unsupervised contact with potential victims.  I note that you have now been forbidden from having contact with any of your underage grandchildren.  It appears this offending and your attraction to underage females has been longstanding and you admitted other sexual offending against minors, historically, for which I am not of course sentencing you in any way today.  Your offending in this instance, against Hannah, was obviously a breach of trust and an abuse of power. 

10Mr Cummins also reports that you have a dependent personality style and are extremely attached to your wife.  You told him you would commit suicide if your wife left you.  Mr Cummins also gives the opinion that if you were to be incarcerated your mental health would inevitably deteriorated and I take those matters in to consideration.

11Tendered as Exhibit 6 on the plea is a report of Dr Andrew Gibbs, a clinical neuropsychologist.  In that report Dr Gibbs indicates that there is a neuropsychological disorder present which may have arisen due to a period of past alcohol abuse or long term exposure to dry cleaning solvents or to hypertension, hyperlipidemia and diabetes.  Dr Gibbs reports that the neuropsychological disorder is related to memory disorder and features of frontal executive dysfunction.  That means that there is an increased risk of an individual with sexual attraction to female minors impulsively acting due to underlying disinhibition given the circumstances or opportunity, because of that neuropsychological disorder, and I take that into account.

12You have an educational background limited to 14 years of age and fall within the borderline range for a full scale intelligence quotient.  Tendered as Exhibit 5 were two reports from Dr Yvonne Simbalist, which set out the medical condition and difficulties of your wife.  She has no use of her left hand and requires assistance in dressing, is unable to perform more complicated tasks such as doing up her brazier or tying her lace up shoes.  She also suffers from severe arthritis and her left leg tends to give way, resulting in falls.

13A later report from the same doctor, in August 2014, indicates that following a fall, as a result of the matters I previously described, she has developed severe back pain requiring medication and heat packs and she has now a loss of strength in both hands.

14The doctor reports that you do all of the household tasks, including washing, ironing, and folding the wash, vacuuming, house cleaning, carrying any shopping, she has trouble steering a trolley in the supermarket, and you supervise her showering.  Given the tasks that you perform, and your supervision and presence, Dr Simbalist indicates that without you your wife would need to be placed into care.  I also take that into account.

15Tendered as Exhibit 2 was a bundle of letters from four of your children.  The overall effect of those letters is to plead that you not be sent to prison, that if you were to go to prison that would cause more hardship and unhappiness that the family could bear.  The letter of your daughter, Leena Mitchell[3], points out the devastating impact that your imprisonment would have on her elderly mother, her siblings, and herself.  She indicates that you have shown incredible remorse and regret and have sought to seek the family’s forgiveness.  She writes that you were devoted to your family during their childhood and growing up and worked three jobs in order to provide for all, that you had a great sense of humour and were a huge factor in creating a loving, sensitive, family.  She asks for leniency and compassion towards her mother.

[3] A pseudonym

16Your daughter, Fern Crawford[4], endorses her sister's plea for the same reasons, for your wife's sake.  Your son Stuart[5], and daughter Natasha[6], express similar attributes to you as a father while condemning what you have done but pleading that you not be imprisoned in order to prevent their mother, your wife, from going in to full time institutional care.  I have taken those letters in to account as far as I am able, in relation to hardship.

[4] A pseudonym

[5] A pseudonym

[6] A pseudonym

17I have also been provided with a list of all the things that you do for your wife, which includes anything she needs two hands to perform.  The list, prepared by your daughter, Natasha, concludes with the comment that, "Almost all of these things Mum could do three years ago.  Life has changed as Mum used to do everything for Dad, now she relies on him."

18I note that this offending occurred in 2011 and for no apparent reason there has been a delay of three years in bringing the matter to court, during which time you have had the pressure of the unresolved matter and your wife's worsening condition. I do take that in to account, because had this matter been dealt with promptly your wife would not have been in the same condition that she is now and you may well have received a term of imprisonment which would not have resulted in her going into permanent care.

19I take all of those matters that I have referred to into account, in particular the dependence between you and your wife, and also the opinion that if you were imprisoned you would suffer from your separation from your wife, but also knowing that you had left her in a position where she would have to go in to care.  I have formed the view that any period of incarceration and separation, which would result from a period of imprisonment, would render such a period of imprisonment more difficult for you because of your concerns for her and your feelings of guilt in association with her helplessness, than it would for any other member of the prison population who is not in that position.

20Tendered as Exhibit B were the victim impact statements of Leyton Thomson[7], the father of Hannah Thomson, Amie Thomson[8], her mother, and Hannah Thomson herself.  The parents' documents are testimony of the devastation one criminal act, such as yours, can cause in a family.  The pain and suffering of Hannah is obvious and the effect of that on her parents is patent, in addition to the strain on all the family loyalties and relations that have resulted from your actions.

[7] A pseudonym

[8] A pseudonym

21I now turn to the other matters I must take in to account in sentencing you.  Firstly, specific deterrence, I must ensure that any sentence I impose will deter you from committing such an offence again.  Given your express remorse and the situation you find yourself in as carer for your wife and your position in the family from whom you've had to seek forgiveness, together with the precautions taken by your family in preventing your access to your young grandchildren, or great grandchildren, I consider that you have already been significantly deterred and the possibility of you reoffending is considerably reduced.

22I also take into account the principle of general deterrence, that is, that others in the community be deterred from taking advantage of children in their care as you did.  I do not regard you as a vehicle for general deterrence, given your age, lack of prior history, your physical and psychological health, and the ongoing responsibilities that you have for your wife.  I also take into account the fact that you have no previous criminal history and that the offending is isolated to one incident.  Given all those matters, although of course general deterrence is normally one of extreme importance, I find in your particular circumstances that I've given that less importance than I otherwise would have.

23I am then required to denounce your behaviour on behalf of the community and I do so.  You have engaged in criminal offending that strikes at the very heart of our community, the family unit.  You have abused your granddaughter to satisfy your own sexual urges.  Your behaviour has resulted in maybe irreparable damage to your granddaughter and to your children, in particular the parents of your granddaughter.

24Indeed the courts have taken a very serious view of the abuse of children by people entrusted with their care.  As was stated by Appeal Justice Hedigan in the case of R v Weir:

"A society which fails to protect its children from sexual abuse by adults, particular by those entrusted with their care, is degenerate.  Clearly a child is defenceless in the face of an offender if the child has a natural affection for, and trust in, that person."

25That is the situation in which Hannah found herself on that day in January 2011.

26That brings me to the final matter which I am to take in to account, that is I am required to impose just punishment in all the circumstances.  In so doing I must take into account the seriousness of your offending, current sentencing practices, your plea of guilty, and the delay in prosecuting the matter, plus all the matters put in mitigation on your behalf, the state of health of yourself, and your wife.  That renders this a very difficult sentencing exercise, as I have had to balance all those matters in deciding whether or not to impose a custodial sentence which would most certainly generally be imposed for such an offence.

27In balancing all of those matters I have reached the conclusion that you should be subject to a community corrections order.  I therefore intend to impose such an order, having had confirmation that you are suitable, and that order will enable you to receive the treatment which counsel for the Director of Public Prosecution has rightly asserted is necessary, as is also asserted to in the various reports.

28There has been difficulty in this matter because of your refusal to attend the sex offender treatment program and that has resulted in considerable delays.  I accept, having received further documentation, that is a report by Alex Foster, which is tendered as Exhibit 7 on the plea which is a pre-sentence clinical assessment report and an affidavit in response to that from Mr Malcolm Garnett, a psychologist, which also follows on from an earlier report that was tendered to the court, those two documents from Mr Garnett will be Exhibit 8 on the plea.

29So, I am now assured, from the combination of those documents, and from hearing from Ms Barnes, who is from the Office of Corrections and is present in court by video link, that the matter can be worked between the Office of Corrections and Mr Garnett, they will know through their monitoring, that is the Office of Corrections will know, what is the frequency of consultations and they will be in control of your attendance.

30So the conditions of the order will be that you will be required to attend for treatment with Mr Garnett as directed by him and/or the Office of Corrections.  He will be working in coordination with Corrections and thus your attendance will be communicated to Community Corrections.

31I am also going to require that you attend for judicial monitoring and I am going to require that you attend for an initial judicial monitoring on 28 May 2015, at which time I will receive a report both from the Office of Corrections and at least a limited report from Mr Garnett.

32A condition of the order will be for treatment and rehabilitation and a condition that you be subject to supervision of the Office of Corrections.  I am also imposing an order that you not associate with any child under the age of 16, unless it is in the presence and under the supervision of an adult approved by the Office of Corrections and that will be organised through the Office of Corrections.

33The order I impose will be for a period of two and a half years and you will be required to attend the Office of Corrections within two working days of today.  I am going to inform you, Mr Gough, that if you breach the conditions of the order, or if you are to commit further offences for which you could be imprisoned, you will be brought back before the court and you may be re-sentenced in relation to this offence.

34So would you stand for me, please, Mr Gough?  Did you understand what I indicated to you, that you will be on a community corrections order for a period of two and a half years, which will commence from today.  You will be under the supervision of the Office of Corrections.  You will be required to attend for treatment with the psychologist, Mr Malcolm Garnett, as directed by him and/or the Office of Corrections.  You are not to associate with any child under the age of 16 except under the supervision of an adult approved by the Office of Corrections.  You are to attend for judicial monitoring and the first occasion for that will be on 28 May 2015 at 9.30 am.

35As a result of you being sentenced today, you become a registrable sex offender, and the reporting obligations are for a period of 15 years, and I will have documentation sent to you which will inform you of those reporting obligations.

36Also, I intend to make an order, pursuant to s.464ZF of the Crimes Act, that you undergo a procedure for the providing of a sample from your mouth.  That will involve the taking of a mouth scraping.  I do that, given the seriousness of your offending, the fact that the order is not opposed on your part and that the order is in the interests of justice.  I have to inform you that at the time of there being a request made for the order, which will be carried out at a police station.  If you were to refuse then an authorised police officer is entitled to use reasonable force to ensure that the procedure is carried out.

37Then, pursuant to s.6AAA of the Sentencing Act, I declare that but for your plea of guilty I would have sentenced you to three years' imprisonment with a minimum non-parole period of 16 months to serve.  I think that has covered everything.  You can take a seat there, Mr Gough, did you understand all that?

38OFFENDER:  Yes, I did.

39HER HONOUR:  Thank you, would you take a seat?

40MR MARSHALL:   The only other matter, Your Honour, I perhaps ask, and my friend properly reminds me, if Your Honour could merely mention in sentencing remarks that Mr Garnett will not return until 19 January.  So any attendance upon him will not take place until subsequent to that.

41HER HONOUR:  Yes.  I note that your treating psychologist, Mr Garnett, will not be available to initiate treatment with you until February 2015.

42MR MARSHALL:  Thank you, Your Honour.

43HER HONOUR:  Anything ‑ ‑ ‑

44MS HILL:  No, Your Honour.

45HER HONOUR:  ‑ ‑ ‑ from your point of view?  I will reserve the right to correct some of that.

46MS HILL:  As Your Honour pleases.

47HER HONOUR:  I hope I made enough of the question of the delay which I thought was very important in this matter, I think I did refer to that.

48VOICE:  Your Honour, Ms Barnes just wanted to address about the payment for the treatment.

49HER HONOUR:  Yes, what do you want to say about the payment of treatment?

50MS BARNES:  I just wanted to confirm, Your Honour, that your comments were in relation to Mr Gough being responsible for the payment of the treatment.

51HER HONOUR:  Yes.  There is no order otherwise and I do not know that I can - who could I order to pay for that?

52MS BARNES:  I think it would be sufficient, Your Honour, that we at least have a comment in relation to that so that we can reiterate that as required.

53HER HONOUR:  Further, I note that the treatment with the private psychologist, being at the choice of Mr Gough is at his expense.  Thank you.  Now, the order will have to be - are you going to fax it through?  We will email the order through for signature and then I will sign it on the way when it returns.  The Community Corrections Services to provide a report as to Mr Gough's progress every - if I make it four months?  Ms Barnes, is there any ‑ ‑ ‑

54MS BARNES:  Four months or at the judicial monitoring, Your Honour.

55HER HONOUR:  The first one - unless there were any difficulty, in which case you would bring the matter back anyway, I will leave it - if I say as required by the court?

56MS BARNES:  Yes and we would be supplying one at judicial monitoring.

57HER HONOUR:  As ordered by the court.  Thank you, I think that completes the matter, the orders will now be sent through and the reporting obligations will also be sent through.  Thank you.

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