Director of Public Prosecutions v Irving (a pseudonym)

[2020] VCC 218

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01987

DIRECTOR OF PUBLIC PROSECUTIONS

v

SEAN IRVING (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2020
DATE OF SENTENCE:	10 March 2020
CASE MAY BE CITED AS:	DPP v Irving (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 218

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:                   Sentencing Act 1991 (Vic)

Cases Cited:  R v Jobling-Mann [2000] VSCA 3; DPP v Twomey [2006]

VSCA 90; R v Verdins (2007) 16 VR 26
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J Malobabic	Office of Public Prosecutions
For the Accused	Ms T Skvortsova	Mr K. Elliott

HIS HONOUR: 

Introduction

1Sean Irving[1], you have pleaded guilty to one charge of sexual penetration of Claire Pye[2], occurring between 20 May 1991 and 19 May 1992.  At the time, Ms Pye was 14 years old and you were in your early 40s. 

[1] ‘Sean Irving’ is a pseudonym.

[2] ‘Claire Pye’ is a pseudonym.

2This offence carries a maximum sentence of 10 years’ imprisonment.

Circumstances

3The circumstances of your offending are set out in the summary of the prosecution opening, which was tendered on the plea and marked Exhibit A. Your counsel agreed with its contents insofar as it concerned the circumstances of your offending and it constitutes the agreed facts.  Nevertheless, I will summarise the important features.

4At the time of your offence, Ms Pye was the girlfriend of your youngest son. She met your family when her sister dated your oldest son.  Her sister and your eldest son lived together in a unit in Maryborough.

5On an occasion, Ms Pye stayed a few nights at that unit.  On the day of the offence, you visited.  Although Ms Pye intended to walk back to her mother’s house, she accepted your offer of a lift in your utility.

6When she realised you were taking her in the wrong direction and queried you, you offered to share a “joint” with her.  After some hesitation, she agreed.

7You drove to Timor, leaving the Timor Road, then along an unmade road until reaching some sand dunes.  You lit up the joint, offering it to her and she took a couple of puffs.  You finished it.

8You did not drive away.  Instead, you placed a hand on her thigh and squeezed. You tried to kiss her but she turned her head away, saying 'no'.

9You then pulled down her pants and underwear.  She started crying.  You penetrated her vagina with your penis.  You were not wearing a condom. Although you were thrusting and moaning, it is not said you ejaculated. Throughout, Ms Pye was tense and uncomfortable.  She was still crying.

10You drove her to her home.  She went to her bedroom and told no one what had happened.

Complaint

11When she was 16, Ms Pye told her boyfriend what happened and was upset when doing so.  When she was 24, she told her sister and your oldest and youngest sons what happened.  When your sons confronted you, you told them it was consensual.

12Ultimately, Ms Pye reported the matter to the police on 25 August 2016. You were arrested on 12 December 2017 and charged.  When interviewed, you made no comment to the allegations.

Victim impact statement

13The prosecutor read Ms Pye’s victim impact statement.

14She has suffered from depression and is uncomfortable with older men, especially if they are drunk.  She does not trust men and her few relationships have all broken down.

15In the past few years, her anxiety and depression have worsened.  During 2019, she was diagnosed with Graves’ disease.  She believes this disease is due to her long-term stress, which she links to your offence.  I do not know whether this is medically so but she believes it to be so.  She takes medications for the disease and expects to do so for the rest of her life.  The disease has had a large impact on her work and domestic life. 

Criminal record

16You have six court appearances between September 1966 and October 1988. You have been detained or imprisoned on three occasions; twice relating to offences of larceny from a motor vehicle and illegal use of a motor vehicle.

17The last sentence of imprisonment was in October 1967 for driving whilst disqualified when you were 19.  There were two court appearances afterwards. They were for minor matters where small fines were imposed.

18The record tells me you were bad when you were young and, except for this offence, have remained of good character. Your criminal record does not influence my sentence. 

Personal circumstances

19You are now 72.  You are the second eldest of four children.

20You are in a relationship.  Your partner has attended this hearing.  Both of you are pensioners, living in a caravan park. 

21You left school at 15.  You have spent your working life with cars.  You worked as a truck driver in your 20s.

22When 16, you were sexually abused by another male over a period of a year. He avoided punishment by committing suicide.

23You have had three significant relationships.

24You were married at 20 and are the father of two boys and a girl.  Your marriage broke down.  For five years afterwards, you drank beer excessively and used marijuana.  This offence occurred during that period.  In fact, Ms Pye smelt alcohol on your breath.  Although Ms Pye did not consent to intercourse, you did not see it that way.

25You then met another woman who restored you financially and brought your drinking under control.

26Rebecca[3] is your partner now.  She met you 14 years ago.  Both of you are pensioners, as I have said, and are living in a caravan park. 

[3] ‘Rebecca’ is a pseudonym.

27Your sons’ confrontation about the incident in 2001 detrimentally affected your family’s relationship with you.  The effect on you saw your profitable car towing business decline.  Ultimately, it was sold at an undervalued price.

28Since 2011, you have been treated for depression.  You are treated by a general practitioner, who prescribes an anti-depressant, Zoloft, 200 mg each day, which is a large dose.  You are resistant to psychological counselling.

29Six years ago, your daughter committed suicide due to the breakdown of her relationship.

30Your right leg is affected by arthritis and tendonitis.  You had come to the court using a walking stick and wearing a “moon boot”.  In your case, a “moon boot” is meant to treat an injury to your ankle or foot. 

31You contribute to your community you live in by assisting an elderly person each week.

Plea of guilty

32A sentencing consideration is your plea of guilty and the stage of the proceedings you pleaded guilty or indicated an intention to do so.  In terms of the processes of the court, your indication of an intention to plead guilty came about mid-way between the first appearance following charging and the potential trial.

33In March 2018, you were charged.  After a two-day hearing in September 2018, you were committed for trial.  In May 2019, you offered to plead guilty to this charge, which was accepted.  You first pleaded guilty to this charge in September 2019.

34By pleading guilty to the offence, a trial has been avoided.  A trial would have involved the prosecution calling seven persons as witnesses. The most important witness would have been Ms Pye.  No doubt, she is relieved to be spared the ordeal of giving evidence.  Your plea of guilty has spared her and the six other persons from giving evidence.

Current sentencing practice

35Neither your counsel nor the counsel for the prosecution drew my attention to current sentencing practice for this offence.  However, your counsel referred to five sentences of judges of this Court where sentences of imprisonment were imposed for this offence but then wholly suspended for varying periods. 

Discussion

36Your counsel submitted that I should impose a sentence of imprisonment but wholly suspend its operation for a period of time.  She referred me, as I have said, to five sentences of judges of this Court involving this charge, alone or with others, where the sentence of imprisonment was wholly suspended.  I do not consider such a sentence appropriate in your case and I will explain why.

37The first thing I must do is determine whether a sentence of imprisonment is appropriate and its length and then decide whether it is appropriate to suspend the sentence wholly or, even, partly, although your counsel did not seek a partial suspension. There are factors which I must consider[4].  

[4] S 27A of the Sentencing Act 1991.

38The section creating your offence and earlier similar provisions have been considered by the Court of Appeal.  In one case, the Court said the manifest purpose of the offence is to protect young children from the predatory actions of adults[5].  In another, it said the absolute prohibition on this and other forms of sexual activity by an adult with a child under the age of 16 is to protect children from the harm caused by premature sexual activity and protect them from their own sexual immaturity.  This latter observation applies where the sexual activity is consensual.  However, it underlines the potential effect of such activity, consensual or non-consensual, upon the victim.  As can be seen from

[5] R v Jobling-Mann [2000] VSCA 3 at [2].

Ms Pye’s victim impact statement, the harm caused to her by this offence is enormous. 

39As I have said, the prohibition of such activity is absolute.  Accordingly, general deterrence is a very important sentencing factor in these cases.  General deterrence is deterring other persons from committing offences of the same or similar character to this offence.

40At the time, you were a mature adult, aged in your early 40s and the victim aged 14.  The offence is aimed directly at your behaviour.  It is worsened by the victim not consenting to your action of penetration, even though you are not being charged with rape.  The victim has been, and still is, profoundly affected by your actions.  The need to denounce this offence is very strong: children must be protected. 

41In DPP v Twomey Buchanan JA said this[6]:  

'The lapse of time since the commission of these offences is not unusual. Nor is the otherwise blameless life of the offender. The crimes themselves and their consequences demanded a significant sentence. General deterrence and denunciation of the respondent’s conduct are of the first importance.'

[6] [2006] VSCA 90 at [14].

42In the same case, Vincent JA said[7]:

'Often such victims, experiencing unjustified feelings of embarrassment, shame and guilt that have been induced by the behaviour of the perpetrator, will continue to remain so for many years.  Accordingly, and very frequently, as in this case, the commission of the offences will not be exposed until long afterwards.  Considered in this light, it is my opinion apparent that the principle of general deterrence must assume very considerable significance as a sentencing consideration.  Further, it is incumbent upon the courts, however long ago the offences were committed, to express the denunciation of the community of such behaviour, through sentences imposed on perpetrators. They must be seen to vindicate the values of the society that they represent, fundamental to which is the protection of its children.'

[7] At [17].

43There has been a long delay between the commission of the offence and this hearing.  Often offenders do not use the time profitably in that they re-offend in the intervening period.  You have used the time profitably and, by doing so, have rehabilitated yourself.  There is no risk of you re-offending generally unless in a very minor way.  As such, there is no need for specific deterrence to figure in my sentence.

44I accept your plea of guilty as evidence of remorse. 

45Although your son was married to the victim’s sister, I do not consider you were in any position of trust in relation to her.  However, she did not complain because you were her sister’s father-in-law.

46I would not consider there was any premeditation.  You took advantage of a situation you found yourself in.  Further, it was not the case you were entrusted with the responsibility of driving your victim to her home.  You offered to do so on this occasion.

47Although your counsel pointed to your current condition of depression, there was no reliance upon the propositions in the case of Verdins[8]. 

[8] (2007) 16 VR 269.

48You did not use a condom.  However, it is not alleged you ejaculated.

49Your counsel acknowledged that a sentence of imprisonment was appropriate. However, she pointed out the ability to suspend such a sentence, which existed as a sentencing option at the time of your offending.  As I said, she drew my attention to five separate cases where judges of this Court have wholly suspended sentences of imprisonment involving the same charge you face.

50Pausing there, I must point out that the prosecution does not support her submission, which is the entire suspension of a sentence of imprisonment.

51During the course of two Parliaments, laws were passed removing the suspended sentence of imprisonment as a sentencing option.  Much of what was said in Parliament seemed to assume that there was only one form of suspended sentence, namely the wholly suspended sentence.  In truth, there is the ability to partially suspend a sentence of imprisonment.  That results in the serving of a period of actual imprisonment, followed by the suspension of the rest for a period of time.  However, your counsel did not seek that particular disposition and, in my opinion, rightly so.

52Despite the matters in mitigation, I do not consider a wholly suspended sentence of imprisonment appropriate.  It does not properly recognise the nature and circumstances of your offence, the profound impact of the offence upon your victim, the need to denounce your behaviour and to adequately deter others from committing offences of the same or similar character.

53I remain conscious of the matters submitted in mitigation, your age, your mental state, your ill-health and the tragic aspects of your life.

Sentence

54I will sentence you to 28 months' imprisonment and will set a non-parole period of 14 months' imprisonment.

S 6AAA

55If you had not pleaded guilty to this offence, I would have sentenced you to 36 months' imprisonment with a non-parole period of 18 months' imprisonment.

Sexual offenders registration

56The Sex Offenders Registration Act applies to you.  You will be placed on the Sex Offenders Register and I must advise you that you will be required to report your details to the police for a period of 15 years.  You will be given a form to sign in relation to that shortly.

57Is there anything else, gentlemen?

58COUNSEL:  No, Your Honour.

59HIS HONOUR:  My associate will go down with the document.  Do you want to go down with him to your client?  This is in relation to the sex offenders registration.  While you are down there, you might want to speak to your client whilst he is available.

60MR ELLIOTT:  Yes.  Thank you, Your Honour.

61HIS HONOUR:  All right, we will adjourn this court temporarily.

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