Director of Public Prosecutions v Holberry

[2016] VCC 625

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00064

DIRECTOR OF PUBLIC PROSECUTIONS

v

DOUGLAS HOLBERY

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2016
DATE OF SENTENCE:	17 May 2016 & 19 May 2016
CASE MAY BE CITED AS:	DPP v Holberry
MEDIUM NEUTRAL CITATION:	[2016] VCC 625

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 A. Loughnan	Office of Public Prosecutions
For the Accused	Mr J. Taaffe on 17 May 2016 Ms D. Giannopoulos on 19 May 2016	Doogue O’Brien George

Pages 1 - 10

 

 

HIS HONOUR:

1Douglas Holbery, you have pleaded guilty to three counts of indecent assault on a male person.  The circumstances giving rise to these charges arose between July 1976 and July 1980 when the complainant, to whom I shall refer as "W" for privacy purposes, was then under the age of 16. 

2Each charge is a representative charge of offending which occurred two or three times a month in each of the factual variations, that is, by the way of the nature of the indecency perpetrated in the period stated. 

3Briefly stated, in 1976 W was 10 and 11 in the relevant period, having been raised by his grandmother up until the time he was sent to live back with his parents when she died.  There he spent a lot of time roaming the neighbourhood at his young age.  He met another young man who told him about you, a man who would give W money to let him do things to him.  You had used a false name for this purpose. 

4You met W at South Melbourne beach and it was only after three months that you told him your real name.  You first sexually abused him six months after he met you.  It was in your car in various suburbs of Melbourne.  You would pick him up and take him for the whole day.  You let him steer the car from time to time while you sexually molested him.  You would buy him beer and get him to drink it and also buy him cigarettes to consume and the abuse continued until W was 14. 

5Each count relates to a particular type of offence against him.  Count 1 relates to you fondling his genitals.  Count 2 relates to you performing oral sex on him by sucking his penis.  Count 3 relates to making him fondle your penis to the point of ejaculation. 

6You gave W money and it was only after he turned 18 in fact that he began to understand and appreciate fully the extent of his own abuse.  He was not able to discuss this history of abuse until he told his wife in 2012 whereupon he spoke then to police in August 2013, in New Zealand, where he was residing.

7When you were interviewed, you acknowledged knowing W and that you kept company but refused to say anything about the nature of the relationship except to specify there had been no violence or force or any kind of anal penetration.  You said it was long ago and you were a different person, someone whose marriage had failed and you had found relating to boys at that time easier and somehow more conducive to your state of mind at the time. 

8The court heard and saw the victim, W, now a grown man, read his victim impact statement by way of video link from New Zealand.  He was there with his family.  His statement was a moving and clear reflection of the impact which your offending has had in his life.  It was a calm and dignified summary of the profound trauma which your behaviour had upon him.  This impact is still felt to this day and has over the years coloured every aspect of his life with a sort of shadow of pain and shame which this court so often witnesses when victims express their sorrow at the wrong that was done to them, even long ago.

9He correctly identified in his insightful statement that when an adult abuses a child "the unequal knowledge and unequal power” lies at the heart of the abuse beyond the interference with the physical integrity of a child. The emotional damage and humiliation is felt on the body, the mind and the soul, for years to come, while often the perpetrator moves on with his life.

10I accept that W believes that he will never fully recover from this.  His life has been blighted by broken relationships, drug and alcohol abuse, aggression and social disconnection.  He not only moved away from Melbourne and so away from his family but this history has driven him to self-harm, medication and difficulties with issues as to self-worth, his sexuality and his mental health.

11I received material about this last aspect which clarifies not only his psychological and psychiatric issues as serious depression and anxiety which require medication but are inextricably linked to his sexual abuse by you.

12The sexual abuse of children is behaviour abhorrent to our community and that community looks to the court to denounce such behaviour and to punish it justly.  At the same time the court's sentence must seek to deter others who would be likeminded to offend against the most vulnerable in this way.  Your behaviour was an exercise of manipulation and power over a vulnerable boy for your sexual gratification which left him degraded, humiliated and effectively at the mercy of your indulgence.  During this period you groomed this victim, enticing him to participate in your sexual acts. 

13Upon your plea an explanation was sought to be placed before me that as a result of what were termed "maladaptive attempts to feel valued and respected in your marriage which failed" you resorted to aberrant relationships with young boys which at first were platonic and which then led to a "regression to a childhood sexuality".  Relationships which echoed back to experimentations with similar aged male peers from a very young age which you had experienced until your mid-teens which was uncommon for its frequency, protracted nature and the performance of fellatio.  

14Such regression was reported as having been the opinion of Dr Rose in 1976 whom you had seen when you were charged with offences of gross indecency with a male for your abuse of two other children.  For that matter you were sentenced to a three year good behaviour bond at that time, a bond which at the time of these offences was current.  This is an aggravation of your offence. 

15This regression is called a hypothesis by Dr Rachel MacKenzie, a clinical psychologist who wrote a report and gave evidence at your plea.  I do not accept that this hypothesis provides any acceptable explanation for your offending.  Dr MacKenzie is of the opinion that beyond being able to diagnose an adjustment disorder or a major depressive disorder, she cannot say much else with certainty.  When coupled with these disorders, your child experimentation or exploration may explain why you commenced in appropriate relationships.  But as she herself points out, it does not explain why you continued to offend in this particular way and for this duration of time. 

16In my view, the matters that brought you before the court in 1976 must have made it very clear to you that what you were doing was wrong and unacceptable, even if you denied it to yourself.

17Indeed, you continued to offend.  In 1981 you were fined $1,000 and placed on a bond at the Footscray court for assault and more relevantly in 1982 in this court you were convicted on two counts of indecent assault for which you were placed on another bond to continue psychiatric treatment.  On that occasion you spent six weeks in custody, on remand.

18It was said that it was upon recommencing therapy with Dr Rose that at that time you came to a better understanding of your cognitive distortions, delusional thoughts and perceptions which enabled you to appreciate the damage done by you as a result of which you expressed remorse for your actions.  I should also note that your other prior relevant was in 1960 when you were fined for behaving in an offensive manner in a public place.

19At the time of these offences you were between 36 and about 40 years of age.  The criminal convictions go to the aspects of your prospects of rehabilitation.  Of themselves they would indicate as of 1982 that you appeared on a descent into this type of criminal behaviour which made your prospects bleak back then.  However, the passage of time has demonstrated those prospects are probably good, in fact, by dint of your age now and the period which you have apparently remained offence free, as well as the effect of some therapy and the passage of time which has enabled you to develop some empathy, remorse, and the taking up of appropriate relationships in response to the difficulty in your other marriages, when that may have led you to revert to seeking out children, which did not occur.

20I take into account your plea of guilty.  I accept that it is accompanied by remorse.  And I also take into account the utilitarian value of a plea, which was offered at an early stage before committal, which resolved by way of a hand up brief.

21I take into account delay in this case.  Firstly there was procedural delay.  The complainant's VARE recording was taken in August 2013, and you were then interviewed in December 2013.  However, the charges were not laid until October 2015, which I consider to be somewhat inordinate delay.  This delay will ameliorate your sentence.

22These are matters often called historical offences, a term which in my view does not adequately reflect the reality of sexual offences, but merely highlights their age.  The passing of these many years must be taken into account, particularly where in the intervening years, the behaviour of the accused can be demonstrated to have changed in a significant manner by way of rehabilitation, and I will take this delay into account.

23I also take into account your personal history.  You were an only child, raised in a household where there was no abuse or violence, and you demonstrated a particular interest in music from an early age.  Your father left the family home when you were 18, although soon after he returned to the family home.  Following your mother's death, relations with your father improved, and you were educated at University High School, leaving school at 16, and you then found work with the SCC for several years.

24You had a job for an interim period with a paint company, and then obtained work with the Gas and Fuel Corporation.  Over the next ten years, you worked your way up into middle management, and at age 20 you got engaged and you were married in 1963.  Your first son was born in 1965.  You also joined the Navy Reserve as a musician, which you only left at age 15.  You played in concerts, tours, Moomba parades and military tattoos, playing the trombone and the piano in dance pants.

25In 1967, a second son was born and in 69 a daughter, followed in 1971 by another son.  In 1974, your wife became estranged from you, and at this juncture in your life you began to meet boys, at first platonically, then involving sexual activity.  You separated from her, and you met the victim in these proceedings.  In 1981, in the midst of more turmoil with your wife, you had an affair, but you also met another boy and the matter went before the County Court, as I have said. 

26In January 1983, your son was killed in a road accident, and your father died soon thereafter in 1984.  By this time you had a new partner, and you eventually divorced and remarried in 1988.  This marriage also was troubled by your infidelity, but you struggled on until you met Lucy, whom you married in 2008 until today.

27You have continued to play and arrange music.  You play in one of Melbourne's popular jazz bands, as well as an orchestra and a brass band.  All your children are happily married, and you have six grandchildren.

28Dr MacKenzie, to whom I have referred previously, in her helpful report was able to elicit a history of your involvement with the boys, and that the therapy in which you participated had helped you to identify the distortions you have employed in these experiences.  You reported that you were now able to see young boys as children, and that you were horrified at your behaviour.  You reported not feeling such intent or attraction to boys for over 30 years, and Dr MacKenzie's evidence clearly suggested that this re-evaluation had led to no further arousal or deviant thoughts for that long period of time.

29Her comprehensive testing discloses that you are now in the moderate to low risk category for sexual recidivism, and the risk of sexual deviancy is simply not currently applicable.  In this sense, I accept that you have rehabilitated yourself, posing a low risk of reoffending to the community.

30Although you would have met the diagnostic criteria for paedophilia at the time of your offending, the period which has followed your offending suggests that diagnosis was restricted to a particular period of time.  The second episode of treatment appears affective, so that when conflict arose in your marriage again, you were able to seek valid alternatives to seeking out children.

31I accept also that you have now, and have had for a long time now, protective factors which include the support of your wife and family, and absence of antisocial traits or substance abuse problems, and have insight into your offending and the impact of this form of abuse on the victims.  I take these matters into account in ameliorating your sentence.

32I also must give weight to the passage of time, because of the consequential impact of your current age, 76.  Your age and the various medical conditions you have, as well as reliance on medication, will make any reclusion more difficult, and make you more vulnerable in prison to difficulties inherent in a custodial setting.  I take that matter into account.

33I consider, therefore, that both the need for community protection from you, and specific deterrence, while still somewhat relevant, may play a much less significant role in this sentence.  I repeat that the delay between disclosure and charge was unexplained and inordinate, a time during which these matters hung over your head without blame on your part, given the relative confessional nature of your interview.

34The longer delay, of course, between offences and report is something which the court witnesses regularly and is to be noted in the context of victims being naturally loath to come forward with this kind of allegation.  However, I must clearly state that when I regard your age and state of health as relevant factors, together with the applicable principles concerning delay, these factors appears to me to be not as significant as the gravity of your offending.

35I take into consideration also the maximums applicable at the time of the offending, and the sentencing practices as they applied at the time, whilst being aware that it is current sentencing practices that I must apply, pursuant to s.5(2).  See also Stalio [2012] VSCA 120.

36I received medical reports in relation to your health from November 2015 from Dr Krawczyszyn in relation to your heart, and an early report of Dr Garra of May 2014.  The latter reports that sad past history, as well as a list of medication you were taking.  The later report deals with your cardiac situation which shows mild ischemic cardiomyopathy, and other ailments like gout and back pain, which are now abated.

37Finally, I received a letter from a number of persons on your behalf.  Dr Opperman, who was in the Navy Reserve band with you; Mr Kenny, a semi-retired forensic psychiatrist who has been your friend and has played music with you; and Mr Davey, who is a jazz musician, who has known you for many years.  They all attest to your generosity, trustworthiness, and considerate nature.  Your wife also has written, and in her letter writes of your love and care for her and your family.

38I received a reference to a number of authorities, which I have read.  Brown, Morgan, Andrews, Bayer, and written submissions from counsel in relation to the matters in mitigation which I have mentioned, with specific reference to MWH in the context of delay, as well as White and Schwabegger with Shelley and O'Brien.  In these submissions, a total suspension of your sentence was advanced, given that such a sentence could still be available, given the time references involved.  It was said that in all the circumstances of this case, it was desirable that term be imposed, which counsel conceded must be imposed, should be wholly suspended.

39I have considered all the factors which I have outlined in deciding whether it is desirable to so suspend, and although the inherent tension within the applicable sentencing principles make this a difficult decision, I am of a view that suspension is not desirable in all the circumstances, because in my view, the mitigatory factors of your plea, remorse, apparent rehabilitation, age and health, and the consequences of delay do not overcome the gravity of your offence upon a vulnerable boy over a significant period.  Please stand, Mr Holbery.

40On Count 1 of indecent assault, you are convicted and sentenced to one year imprisonment.

41On Count 2 of indecent assault, you are convicted and sentenced to two years' imprisonment.

42On Count 3, you are convicted and sentenced to 18 months' imprisonment.

43I order that three months on Count 1 and nine months on Count 3 be cumulative on Count 2, making a total effective sentence of three years.  I will suspend two years of that sentence, leaving 12 months to be served immediately.

44But for your plea, I would have sentenced you to four-and-a-half years, with two years and nine months.

45The sentence means automatically that upon the Sex Offenders Registration provisions, you become eligible to be registered as a sex offender.  The period of your registration is for life.  When you are released, you will be under a significant number of obligations under that registration.  You will be given some paperwork, which I advise you should read and take into consideration carefully, because it requires a significant amount of compliance on your part.  Take a seat.

46I do not think, Ms Loughnan, that there were other orders that were required.

47MS LOUGHNAN:  No, Your Honour.

48MR TAAFFE:  There was a forensic sample order, Your Honour.

49HIS HONOUR:  Just pardon me for a moment.  I might have that draft here in fact.  Having imposed a partially suspended sentence, I should make clear that if, during the duration of that suspension you are not of good behaviour or you commit further offences, it is likely that that suspended sentence will be revived.

50I am also making an order under s.464ZF of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from the mouth, which is not a painful procedure.  If at the time that a request is made from you for such a sample, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then police may use reasonable force to enable to obtaining of a blood sample from you.  Do you understand?

51OFFENDER:  Yes, Your Honour.

52HIS HONOUR:  The operational period of the suspension will be two years.  Yes, I will sign that order.

53MR TAAFFE:  Your Honour, might my instructor approach?

54HIS HONOUR:  Yes, certainly.  I have another matter at 10.30.  I will stand down.

55UPON RESUMING AT 9.44 AM ON 19 MAY 2016:

56MS LOUGHNAN:  Your Honour, I apologise the other day for not bringing to your attention the fact that Mr Holbery stands - falls to be sentenced on Charge 3 as a serious sex offender.

57HIS HONOUR:  How does that arise?  Is it something that was part of the sentencing regime at the time that the offences were committed or should I more properly say is the serious sexual offender provisions - capture this particular matter, how does it do it?

58MS LOUGHNAN: That's right, Your Honour. Well, by virtue of s.6B (1) and (2) of the Sentencing Act and Schedule 1, Clause 1(d) - and my roman numerals are terrible, (xx).

59HIS HONOUR:  Twenty.

60MS LOUGHNAN:  Thank you.

61HIS HONOUR:  Right, yes.  I was remiss myself, having made a notation at the bottom of my sentence with a question about serious sexual offences.  I omitted to say anything at the time once I passed the sentence and once nothing had been said during the sentence so - in any event, I understand in relation to this that the Crown is not making a submission that I should impose a sentence that is disproportionate - - -

62MS LOUGHNAN:  No, no.

63HIS HONOUR:  - - - in relation to these matters and this particular application only refers to the third count.

64MS LOUGHNAN:  That's right, Your Honour.

65HIS HONOUR:  In relation to this sentence then - sorry, I should hear from you, Ms Giannopoulos, do you have anything to say about this matter?

66MS GIANNOPOULOS:  No, Your Honour.

67HIS HONOUR:  Yes, thank you.  Mr Holbery, you're at the MAP - there's no need to stand, you can take a seat.  Do you understand the reason why we're back here this morning?  Can you hear us?

68OFFENDER:  Yes, Your Honour.

69HIS HONOUR:  All right, well, I will try and explain it.  There is an Act in this state which is an Act which goes hand in hand with the Sentencing Act which regulates the sentencing of offenders, and the effects of that Act is that once a person has been convicted of two sexual offences upon any other charge that he is convicted of, he is sentenced as a serious sexual offender.  That applies in your case in relation to the third count on the indictment, that is the indecent assault for which I apportioned a sentence of 18 months and made nine months of that sentence cumulative on the other charges, do you understand?

70OFFENDER:  Yes, Your Honour.

71HIS HONOUR:  So I need to announce in open court and indeed declare that in relation to that third charge, I am sentencing you as a serious sexual offender.  The provisions which make this possible also require in that situation for me to take into consideration the protection of the community as a primary principle to be applied in sentencing in relation to that third charge, and under normal circumstances make any sentence in relation to that third charge cumulative on the other sentences unless I state otherwise.

72It also enables the Crown, the prosecution to seek a disproportionate sentence in order to effect the protection of the community.  In this case the prosecution does not seek a disproportionate sentence and given all the matters which I have outlined in my sentence and the principles that I have applied in that sentence, I consider that I should not make the totality of the period for that third charge cumulative but should be satisfied that the cumulation that I have ordered in relation to Charge 3 is sufficient for the purposes of the Sentencing Act and the sections from the Serious Sexual Offender legislation.  All of that means, Mr Holbery, is that there is no change to your sentence as a result of this particular matter but it is - - -

73OFFENDER:  Thank you, Your Honour.

74HIS HONOUR:  - - - but it is important that I say and announce in the course of this correction that in relation to that charge, you are formally being sentenced as a serious sexual offender.  All right.

75MS GIANNOPOULOS:  As Your Honour pleases.

76HIS HONOUR:  I think that that's all that's required.

77MS LOUGHNAN:  Thank you, Your Honour.

78HIS HONOUR:  Thank you for attending, Mr Holbery.

79OFFENDER:  Thank you sir.

80HIS HONOUR:  If - I don't know how long that link's going to last but if your counsel - if you need to ask your counsel for any clarification, she's in court and perhaps you can do that whilst you've got the opportunity.  Otherwise, I'll adjourn.

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