Director of Public Prosecutions v Greene (a pseudonym)
[2023] VCC 1999
•2 November 2023
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY CRIMINAL DIVISION | Revised Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLIE GREENE (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE CHAMBERS | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 19 October 2023 | |
DATE OF SENTENCE: | 2 November 2023 | |
CASE MAY BE CITED AS: | DPP v Greene (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1999 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - sentence
Catchwords: Plea of guilty – indecent act with or in the presence of a child under 16 six incidents of offending – one rolled-up charge - grooming behaviours – demonstrable remorse – delay – good prospects of rehabilitation -general deterrence, just punishment and denunciation paramount sentencing considerations
Legislation Cited: Crimes Act 1958; Sex Offenders Registration Act 2002
Cases Cited:DPP v. Amaral (a pseudonym) [2018] VSCA 290; Moore (a pseudonym) v. The Queen [2018] VSCA 2; Cole (a pseudonym) v. The Queen [2015] VSCA 44; Sharman (a pseudonym) v. The Queen [2017] VSCA 241; DPP v. Edkins (a pseudonym) [2022] VCC 1328
Sentence: Total effective sentence of six months’ imprisonment combined with an 18-month Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R.B. Hammill | Office of Public Prosecutions Victoria |
| For the Accused | Ms E. Clark (plea) Ms K. McFarlane (sentence) | McFarlane Criminal Lawyers |
HER HONOUR:
1Charlie Greene[1], you have pleaded guilty to four charges of committing an indecent act with or in the presence of a child under 16 contrary to s47(1) of the Crimes Act 1958, the maximum penalty for which is 10 years' imprisonment.
[1]To avoid the possibility of identifying the victim of a sexual offence, the name of the offender has been anonymised by the adoption of a pseudonym.
2The offending giving rise to these charges occurred on six separate occasions between 1 February 2012 and 13 December 2014. The victim of your offending was your grand-daughter who was between the ages of five to six up to the age of eight years, between those dates. You were aged between 60 and 63 at the time.
3You were born in February 1951 and are now 72 years old. You have no prior or subsequent criminal history.
Circumstances of offending
4The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea dated 28 June 2023, which represents the agreed factual basis upon which you are to be sentenced.
5The victim was born in December 2006. At the time of the offending she lived with her mother and her father in South Gippsland. Her mother is your one of your five daughters.
6Before turning to your offending, it is necessary to set out some of the background to place your conduct in context.
7In July 2011, your wife of many years passed away after a brief battle with cancer. You were grief stricken as a result. You were then living alone in your home.
8To assist your daughter and son-in-law, you regularly babysat the victim at your home, picking her up from kindergarten and primary school. You would care for her at your house during the day and overnight on occasions.
9When the victim was around five or six years of age, you picked her up from school and she urinated on herself in your front yard. You assisted her to shower at your place, before changing her into clean clothes. Her father picked her up a short time later.
10Following this, you always joined the victim in the shower when she stayed at your house, even though she was able to shower independently at this age. When you were in the shower, you used a loofah to wash the victim's body and your own, and the victim would wash her genitals and chest in your presence. After showering, you would walk around in areas of the house naked, exposing your penis in the victim's presence.
11On other occasions, when the victim was watching TV in the loungeroom, you sat with her on the couch with your dressing gown partially open, again exposing your penis. Dressed in this way, you would pull the victim close to your chest, where she could see your penis through the gap in your dressing gown.
12You are not charged with any offences arising from this conduct. However, it is relevant as context to the offending that then followed.
Charge 1 – Indecent Act with a child under the age of 16
13Turning first to Charge 1. On occasions when the victim's brother stayed overnight at your address, he would sleep on the floor next to your bed. The victim would sleep in the bed with you.
14On a date between 1 February 2012 and 21 October 2014, when the victim was between six and eight years of age, she got into the bed with you. Her brother was sleeping on the floor beside the bed. You were naked in bed and were sitting upright against the bedhead with the covers pulled up to your waist.
15Once the victim was in the bed, you removed the covers and the victim saw that you were fully naked and that your penis was partially erect. She describes it as being 'wet at the tip'. The victim felt uncomfortable, and asked you to wear some clothes. However, you said 'No', telling the victim you would get too hot, explaining this is why you slept naked.
16The victim felt so uncomfortable that she slept with her back to you. You then cuddled up next to her and hugged her from behind, 'spooning' her with your penis pressed up against her. This is the conduct that is the subject of the first charge of committing an indecent act with a child under 16.
Charge 2 – Indecent Act in the presence of a child under 16
17Turning to Charge 2. When the victim was around eight years old, she recalls staying the night on an occasion when it was a stormy night, and she slept in the spare room.
18She saw you enter the room, fully naked, with your penis exposed. In that state, you woke the victim to check on her because of the storm.
19The victim asked you if you would also check on her two cousins if you were naked, and you replied that you would put your dressing gown on.
20This conduct is the subject of Charge 2 – indecent act in the presence of a child under 16.
Charge 3 – Indecent act with a child under the age of 16 (rolled-up charge)
21Turning to Charge 3. You often gave the victim massages when she was staying at your house. Because she also received massages from her mother, the victim did not think much about this at the time. On each occasion, you would begin by asking the victim to take her top off before you massaged her hands, shoulders, back and feet. You would then progress to give her a full body massage.
22Charge 3 is a rolled-up charge based on three separate instances of committing an indecent act with a child under the age of 16, when the victim was between six and eight years of age.
23The first occasion occurred in the middle of the day. The victim had a sore back and you offered to give her a massage. She liked the idea because of the massages her mother gave her.
24You told her to lie down on your bed, and remove her top. She did this, and you began by massaging her arms, neck and back. You then worked your way down before pulling her shorts and underwear down to her knees to massage her bottom. You then kissed her bare bottom. The victim recalls feeling your wet lips.
25On the second occasion, you were naked. This massage occurred on the couch in the loungeroom, with you massaging the victim in the usual way while you knelt on floor. You then got onto the couch, and sat on the victim's thighs. From this position, you removed her pants and underwear and massaged her bottom and her legs. The victim could feel your penis pressed up against her bottom. After massaging her, you kissed the victim's bare buttocks again.
26The victim felt scared as this happened, but could not move because of your weight pressing down on her.
27You were also fully naked on the third occasion. The victim also had no clothes on and she could feel your penis pressing on the back of her legs and bottom while you gave her a massage.
Charge 4 – Indecent Act with a child under the age of 16
28Turning to Charge 4. During this period, the victim could see that you were grieving following the death of your wife. She had been close to her grandmother and did not want you to feel sad.
29At this time, you began to ask the victim for 'naked cuddles' that would often lead to a massage, telling her that this would make you feel happy. The victim felt compelled to do this, even though she was uncomfortable, as she wanted to help you feel better.
30On an occasion when she was eight years old, you were sitting naked on your bed, with your penis exposed. You asked the victim for a 'naked cuddle' and she climbed up onto the bed and hugged you around your neck. You then pulled her on top you, so that she was facing you. You hugged her around the waist, running your hands down to her bottom.
31You then placed your hands under the pink leggings and underwear, and squeezed her bottom hard. This action caused the victim pain, and she pushed herself off you, and ran into the loungeroom. This conduct is the basis of Charge 4 – an indecent act with a child under 16.
32The victim recalls this was the last incident, as she and her family travelled to the United Kingdom on 13 December 2014. The pink leggings she wore had been purchased for her to wear on this trip when she was eight years old.
Investigation and Arrest
33The victim first complained to her mother about your offending when she gave her a notebook journal to read in February 2022. The victim was 15 years old at the time.
34The victim participated in an audio-visual recording of her statement to police on 17 June 2022. You were arrested on 22 July 2022 and were interviewed by police. During that interview, you made a number of admissions to the police, including that after the death of your wife, ‘it felt nice to touch the [victim's] skin'; that the victim had already seen you naked, 'so it didn't matter' when you were exposing yourself through the dressing gown and that you engaged in 'grooming behaviours' with the victim and that she 'occasionally objected'. In response to the offending, you said you were a 'dirty old man'.
Gravity of offending and victim impact
35I turn now to the objective gravity of the offending. It is well established that all offences relating to the sexual abuse of children are inherently serious and that factors personal to an offender carry less weight than those considerations of general deterrence, denunciation and community protection. The courts recognise that significant lifelong harm is often caused to children who are sexually abused.
36There are a number of aggravating features associated with your crimes.
37Firstly, the victim was so very young. The age disparity was significant.
38Secondly, you had been entrusted to care for the victim by her mother, your own daughter, yet you breached that trust in the most fundamental way by sexually abusing your granddaughter. The Court of Appeal has made it clear that the 'sexual abuse of children by those in positions of trust or responsibility with respect to them calls for severe punishment'.[2]
[2]DPP v Amaral (a pseudonym) [2020] VSCA 290, at [33]
39Thirdly, this was not one-off offending, but rather consisted of multiple, separate incidents of offending against the victim. You had time to stop and consider the wrongfulness of your conduct, and desist, but you did not. You persisted, despite the victim asking you at least on one occasion to put some clothes on in bed.
40Charge 3 is a rolled-up charge representing three separate incidents where you exploited the opportunity that presented when you were giving the victim a massage, to offend against her. On two of those occasions, you were fully naked when you climbed on top of her and pressed your penis against her buttocks, and her upper thighs, having first removed her pants and underwear. Although one maximum penalty applies to this charge, the sentence I impose must reflect the criminality of the three incidents of offending reflected in that charge.
41Fourthly, your conduct first involved engaging in grooming behaviours with the victim to normalise activities such as showering together and sitting with her while you were partially undressed, exposing your penis. The last incident of offending involved you manipulating your granddaughter's concern for your grief by asking for 'naked hugs', then pulling her on top of you and placing your hands under her underwear to squeeze her bottom.
42Counsel appearing on your behalf, Ms Clark, concedes this was serious offending but highlights the offending was not aggravated or accompanied by force or threats of any kind. While such features would further aggravate the offending, here the gravity of your conduct is signified by the vulnerability of the victim by reason of her age and her relationship with you, the multiple instances of offending, and the breach of trust, which was significant.
43You breached the trust placed in you by your daughter to care for the victim at times she could not. The victim was entitled to be safe in your care, and in your home, but she was not. Understandably, the impact of your offending on the victim and your daughter has been significant, as is borne out by the victim impact statements read by the prosecution at your plea hearing.
44The victim's impact statement reveals the conflicting emotions she confronted as a child because of your offending. She describes fearing getting into trouble herself, and of suppressing those feelings of fear, sadness, guilt and anxiety, which she says weighed heavily upon her. She speaks of difficulty trusting people, particularly fearing older men who may resemble you. The victim's statement reflects upon her being manipulated 'to get what [you] wanted', without regard for her wishes, her wellbeing, or her safety.
45Your offending has had an equally profound effect on your daughter, the victim's mother. She speaks of her disbelief in your actions, and of feelings of guilt - that she somehow contributed to your offending. She states she never contemplated you would abuse her daughter in this way. She reflects on the breach of trust and her sense of betrayal. She too speaks of conflicting emotions: of the anger she feels for a father she loved, and how she is unable to grieve for the loss of that relationship because of your offending.
46Mr Greene, there is no doubt your offending has impacted significantly on the lives and wellbeing of your daughter and granddaughter. I have taken that impact into account in sentencing you.
47Your offending could not be characterised as being at the lower end of offending of this kind, particularly given the abuse of trust. It was neither spontaneous offending nor one-off, or short-lived offending.
48Your moral culpability for your conduct is considerable however this is also informed by your personal circumstances to which I now turn.
Personal circumstances
49You were born in Melbourne in 1951 and have three brothers and two sisters. Your father worked as a farmer and a landscape gardener. Your mother also worked on the family farm in Strzelecki. Your parents are now both deceased.
50You attended primary school in Poowong in South Gippsland, completing Year 10. After leaving school, you worked as a farm hand in northern Victoria, eventually purchasing a 160 acre dairy-farm. You operated the farm for 10 years, before selling it in 2000. You worked in the funeral industry for a period before commencing a home renovation business through which you employed your son-in-law and a nephew. Your nephew now runs this business, and you have worked for him on the odd occasion.
51You have had two significant relationships in your life. You married when you were 22 years old, and together you and your wife had five daughters. In 2011, your wife was diagnosed with an aggressive from of cervical cancer and passed away in July 2011, only weeks after being diagnosed.
52For the last 12 years you have been in a relationship with another woman with whom you live and who remains supportive of you.
53You are now 72 years old. You have no history of poor mental health and are in good physical health for your age. You have never used illicit substances and only drink socially.
54Since the offending was disclosed, with the exception of one of your daughters, other family members have distanced themselves from you. After you were arrested, the victim's parents requested that you leave the area you lived in, where they also live with the victim. At their request, you sold your home, and now live elsewhere. You and your partner are living in a caravan, and hope to travel once this matter has finalised.
Matters relevant in mitigation
55A number of matters operate in mitigation of your sentence.
56Significantly, you pleaded guilty to these offences at the earliest opportunity. In doing so, you saved the court and the community the time and resources associated with a trial. You also saved the victim and her family the ordeal of giving evidence in court, which is a matter of significance in a case such as this. The utility of your plea also attracts a more pronounced sentencing discount, even if only modest at this time, due to pandemic-related delays in the justice system.
57I accept that your plea is indicative of remorse. Over and above your plea, your remorse is further reflected in reference material provided on your behalf and in your apology letter to the court, to which I have had regard. The sale of your home, and decision to move away from the area in which the victim and her family live, is a further acknowledgment of your responsibility for this offending.
58You are entitled to, and shall receive, a clear sentencing discount in light of your early guilty plea.
59Your previous good character is also a matter that carries weight in mitigation of your sentence. Up until the age of between 60-63 you had led a law-abiding life, with a consistent work history and had enjoyed a close relationship with your wife and five daughters.
60In a reference provided by your local minister, you are described as a dedicated family man, who he considers is highly regarded in the wider community. You have contributed to the church through voluntary maintenance work and with music. He states the offending is out of character. Your current partner speaks of you as kind-hearted and compassionate, but says the past few years have weighed heavily upon you. You retain the support of your partner, and her wider family, as demonstrated by their attendance at court for your plea hearing.
61Moreover, the last incident of offending occurred in 2014 and you have not offended in close to 10 years since that time.
62You were assessed for the purposes of the plea by psychologist, Mr Jeffrey Cummins on 7 August 2023. During that assessment, you discussed your offending with Mr Cummins, stating you knew that what you were doing was inappropriate at the time, and say you apologised the victim at one time. In his report dated 25 August 2023, Mr Cummins assessed that your offending was characterised by 'chronicity, diversity and escalation' and involved a breach of trust and abuse of power. Mr Cummins assessed you as a low-moderate risk of future offending.
63At the time of your offending, Mr Cummins considers you were suffering from acute and chronic grief, with a specific diagnosis of a Persistent Complex Bereavement Disorder, following the sudden death of your wife from cancer. However, Mr Cummins does not attribute your offending to that disorder and no reliance is placed on your impaired mental health as enlivening any of the principles enunciated in the case of Verdins[3] to reduce your moral culpability for your offending, or to moderate the need for the sentence to operate as a general deterrent.
[3]R v Verdins (2007) 16 VR 269
64Nonetheless, I accept that the acute and chronic grief you experienced following the death of your wife was the context in which you offended. Mr Cummins opines that your offending was ‘situationally motivated and opportunistic’, exacerbated by problems with self-awareness. Although your profound grief does not explain or justify your behaviour, it is relevant as context to your offending against the background of an otherwise unblemished life, and reduces your moral culpability to some extent.
65You also expressed regret and remorse for your offending during your assessment with Mr Cummins, which he assessed as genuine. I accept that finding.
66Mr Cummins further states that you report symptoms of anxiety, depression and worry, and assesses these as reactive to your offending behaviour and concern regarding the outcome of these proceedings, in addition to a concern for the welfare of the victim of your offending. Although you are not diagnosed with any defined mental illness, I have regard to these matters as impacting on your likely experience of custody, particularly as a first time offender.
67You have endured some immediate consequences as a result of your offending coming to light. You are now estranged not only from the victim and her parents, but from all save for one of your daughters. You told Mr Cummins that this was, itself, a significant punishment. You also accepted the need to sell your house in Romsey and resettle in Kilmore in order to remove yourself from the area where the victim and her family live. Your decision to remove yourself from the area was a significant ramification of your offending and is also indicative of your remorse.
68These factors, combined with the fact you have no prior or subsequent criminal matters, and are otherwise of a person of good character with a supportive partner, lead me to conclude that you have good prospects of rehabilitation. In making this assessment, I note Mr Cummins' opinion that you pose a low-moderate risk of re‑offending, and consider that you would benefit from engagement in offence specific treatment to further reduce that risk. On a positive note, you have indicated a preparedness to do so. The need for the sentence to specifically deter you from future offending is correspondingly reduced by my assessment of your positive rehabilitation prospects.
Sentencing considerations
69For offending of this nature, the sentencing considerations of general deterrence, just punishment and denunciation are to be given prominence.
70The maximum penalty of 10 years' imprisonment for the offence of committing an indecent act with or in the presence of a child under 16, is a reflection of the seriousness with which Parliament, on behalf of the community, considers this offence. In addition, if sentenced to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender on Charges 3 and 4. The protection of the community is then to be regarded as the principal purpose for imposing sentence on those offences. The prosecution does not seek and I do not intend to impose a disproportionate sentence in order to meet that objective.
71On your behalf it was submitted that all relevant sentencing considerations could be met by the imposition of a lengthy community correction order.
72The prosecution submissions highlighted the objective gravity of your offending marked by a gross breach of trust, accompanied by 'calculated grooming' conduct. Mr Hammill contends that the only available sentence is one of immediate imprisonment with a non-parole period fixed.
73In sentencing you, I am required to have regard to current sentencing practices whilst noting that the offending occurred close to ten years ago. I was assisted in this regard by cases to which I was referred by both parties, which I have considered. The prosecution referred me to the case of Brad Moore (a pseudonym) v The Queen[4], in which the Court of Appeal resentenced the offender, following a guilty plea, to 30 months' imprisonment with a non-parole period of 18 months for committing two indecent acts with his partner's daughter, then aged six. The offender was 47. The offending was more serious than in your case, consisting of having the victim masturbate his penis until he ejaculated on two separate occasions.
[4][2018] VSCA 2
74In contrast, the prosecution fairly referred me to the case of Cole (a pseudonym) v The Queen[5], where the Court of Appeal resentenced the offender to a two-year community correction order for committing three indecent acts with his 12 year-old step-daughter. In that case, the offending was described as 'short-lived' consisting of putting his hand down her top and touched her breast on two occasions, and touching her inner mid-thigh on another. In that case, there had been a five year delay between the complaint and the finalisation of the charges.
[5][2015] VSCA 44
75I have also had regard to the decision of Sharman (a pseudonym) v The Queen[6], where the Court of Appeal resentenced the offender to 16 months' imprisonment with a non-parole period of 10 months for committing an indecent act with the offender's seven to eight year old granddaughter, by rubbing her vagina when she and her brother slept over at his house, and in separate offending two years later, rubbing and kissing the vagina of his grand-niece. The offender also possessed child pornography in that case.
[6][2017] VSCA 241
76I have also considered the decisions of this Court to which I was referred by your counsel, in addition to the sentencing statistics published by the Sentencing Advisory Council. Most particularly, I have considered the case of Edkins[7] where a 70-year-old was sentenced to a three-year community correction order for committing an indecent act with his four-year-old granddaughter, also in his care, by touching and looking at her vagina. He was also sentenced for possessing child pornography. In that case there was also a lengthy delay in reporting the offending, during which the offender had not further offended.
[7]DPP v. Edkins (a pseudonym) [2022] VCC 1328
77As always, each case turns on its facts and current sentencing practices are only one factor in the sentencing synthesis. These cases demonstrate that the offence of committing an indecent act with a child under 16 encompasses a wide range of offending. Current sentencing practices do not fix the boundaries of the appropriate range.
78I have concluded that the aggravating features of this offending warrant the imposition of a term of imprisonment, but combined with a therapeutic community correction order. In my view, the fact the offending consisted of multiple instances of offending against your granddaughter, then between six and eight years of age, and was a gross breach of the trust, requires that a sentence of imprisonment be imposed to give effect to the need to deter others from like offending and to denounce your conduct.
79I have also balanced the significant matters that you are able to call upon in mitigation of your sentence in determining the appropriate period of imprisonment and the length of the community correction order. You have been found suitable for a community correction order and have consented to such an order being made. I have been mindful to ensure that the combination sentence reflects the totality of your offending conduct, while further promoting your rehabilitation and the community protection that will naturally follow.
Sentence
80Balancing the matters to which I have referred, I sentence you as follows:
81On Charge 1 – indecent act with a child under the age of 16 – you are convicted and sentenced to three months' imprisonment.
82On Charge 2 – indecent act in the presence of a child under 16 – you are convicted and sentenced to one month's imprisonment.
83On Charge 3 – a rolled up charge of an indecent act with a child under 16 – you are convicted and sentenced to five months' imprisonment. This is the base sentence.
84On Charge 4 – indecent act with a child under 16 – you are convicted and sentenced to four months' imprisonment.
85I order that one month of the sentence imposed on Charge 4 be served cumulatively upon the sentence imposed on Charge 3. I direct that all other sentences are to be served concurrently.
86This gives a total effective sentence of six months' imprisonment. Following the completion of that sentence, with conviction, I impose an 18-month community correction order with conditions that you be subject to supervision, and that you be assessed for and complete any mental health and offence-specific treatment and counselling to reduce the risk of further offending.
87In respect of Charges 3 and 4, I declare that you have been sentenced as a serious offender.
88Pursuant to s 6AAA of the Sentencing Act 1991 I indicate that had you not pleaded guilty, the sentence I would otherwise have imposed is a sentence of 18 months' imprisonment with a non-parole period of 10 months.
89Finally, Mr Greene, your offending attracts the provisions of the Sex Offenders Registration Act 2004, and you are subject to the mandatory registration provisions of that Act as a registrable offender. Pursuant to s34(1)(c)(iii) of the Act, your reporting obligations are for life. Please have a seat.
90Ms McFarlane, other than noting that your client will be serving his first sentence of imprisonment, are there other custody management issues that should be noted by the court?
91MS McFARLANE: No, Your Honour.
92HER HONOUR: Thank you. Ms McFarlane, if you could accompany my associate - - -
93MS McFARLANE: Yes Your Honour.
94HER HONOUR: - - - to Mr Greene, to provide – as he is provided with the Sex Offender Registration Act requirements, to sign and also the community correction order to sign. Thank you.
95MS McFARLANE: Thank you, Your Honour. Your Honour, I can confirm that they've been explained and signed.
96HER HONOUR: Thanks Ms McFarlane. Ms McFarlane, do you want an opportunity now to speak with your client, or have separate arrangements been made?
97MS McFARLANE: Separate arrangements have been made, Your Honour, thank you.
98HER HONOUR: Thank you. Do either counsel have any further matters to raise?
99MR HAMMILL: No, Your Honour.
100HER HONOUR: No?
101MS McFARLANE: No, Your Honour.
102HER HONOUR: Thank you. If Mr Greene could please be removed and the court adjourned. Thank you.
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