Director of Public Prosecutions v James

[2018] VCC 189

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

AT WANGARATTA
CRIMINAL JURISDICTION

CR 17-01401

DIRECTOR OF PUBLIC PROSECUTIONS

v

RICKY JAMES

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Wangaratta
DATE OF HEARING:
DATE OF SENTENCE:	9 February 2018
CASE MAY BE CITED AS:	DPP v James
MEDIUM NEUTRAL CITATION:	[2018] VCC 189

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	Mr D. Cordy
For the Accused	Mr G. Clancy

HIS HONOUR:

1In 2003, Mr James, you were in a relationship and lived with the first victim's mother.  At that time, the victim was 13 turning 14.  She turned 14 in October 2003.

2One night when the victim was having her shower, you snuck into the bathroom, and penetrated her vagina with your finger.  You then told her to, "Get down and suck my dick now."  She complied.

3After three to four minutes, you withdrew and walked out as if nothing had happened.  The victim was distraught; she told her sister, and thereafter the two girls would go into the bathroom together, so as to protect the victim from you.

4The victim told her mother, but it seems nothing was done.

5A week later, you grabbed the victim as she was walking past your bedroom.  You told her to pull her pants down, you turned her around, bent her over, and penetrated her vagina.  She told you that, "You are hurting me" but it made no difference to you, and you continued this gross violation of her.

6You then withdrew, got onto your bed and watched television.  The victim was crying and continued to do so in her own bedroom.

7The victim moved out to live with a boyfriend's family.  You and her mother separated in 2004.

8A notification from the child protection staff to the police led them, that is the police, to making appointments for the victim.  But at that time, she could not make a formal statement.  She decided she was not ready to do so at that time.  She was still only 14 years of age.

9I will return to the assessment of the gravity of this plainly dreadful criminality shortly, but I must first deal with your next set of sexual crimes against a child.

10You had a friend who was the father of the second victim.  She referred to you, that is the second victim, she referred to you as Uncle.

11On the afternoon of 15 February 2008, you were outside the unit where the victim lived with her mother.  The victim was walking home and politely approached you to talk.

12You moved close to her and as you did, you asked, "What would you do if a guy did this?" and then you put your hands down her shorts, inside her underwear and put first one and then two fingers in her vagina.  This caused her great pain and shock.

13You repeated the question you had just asked, but this time you put your hand down her top, grabbing her breasts forcefully.  You kissed her on the lips.

14She was able to run inside the unit, crying.  She told her mother what you had done.  Police were called.

15You were interviewed, and denied the offending.  You were charged, but sadly as it was too often the case in the past, the charges were not authorised for prosecution.

16The victim was 12 years old.

17The first victim was able, at a later point, to make a statement to the police.  That was in November 2012.  You had moved to Queensland.

18You denied the allegations when you were interviewed in Queensland.  Ultimately, you were charged with sexual crimes against both victims in February 2015 or thereabouts.

19You were in custody in Queensland in 2014, and I will say more about your offending in Queensland shortly.

20On your release from prison, you were extradited from Queensland to Victoria.  You were remanded in Victoria from 8 February 2017.

21After having a committal listed, you did not proceed with any cross-examination, but indicated you would plead guilty.  You have pleaded guilty on arraignments two days ago to four charges; that is sexual penetration of a child under 16, and one charge of an indecent act with a child under 16.  In fact, that was yesterday.

22In relation to the first victim, the sexual penetration of her and forcing her to give you oral sex, are especially grave examples of this crime of sexual penetration of a child under the age of 16.

23You were in a position of trust as someone in a relationship with her mother.  You grossly abused that trust.  Your acts were vile, painful, and degrading of a 13 or 14 year old child.

24Your conduct would disgust and bewilder right-minded members of our community.  It was conduct that brazenly put your own perverted sexual pleasure ahead of the feelings of a child, who was entitled to feel safe in the privacy of her shower or house, and within her own family.

25This type of conduct is destructive of family life, and it diminishes our community.  As our courts have been forced to say sadly too often, those who sexually abuse children must be sternly punished, and proper values must be reasserted.

26Your offending with the second victim was not as prolonged or repeated, but it was brazen and shameful.  Penetrating a child in the front yard of her house as she arrived home is dreadful conduct.

27You again abused the relationship you had with her and her family.  Although it may be said that the conduct was brief, the real impact on the victim is the fact of the penetrations and the molestation of her.

28You abused her as long as you wanted to, it seems to me, and she was the powerless one at the time.  Again, your conduct must be seen as serious offending, warranting stern punishment.

29Neither of the victims has provided a formal sworn written victim impact statement.  I was told and accept in respect of the first victim, that her endeavour to do so caused her to get to a position, where she just could not do it.  That in itself, gives some insight into the enduring impact of your crimes upon her.

30The courts have learnt over the years and are now, in a much better position to fully appreciate the grave impact on victims who are sexually abused as children.  That impact is often lifelong.

31I will move shortly to your background and prospects, but first, as regards matters personal to you, is your concerning criminal history, including relevant sexual offending.

32You were first before the courts for offenses of violence, burglary, in your teenage years.  You later were too often before the courts for driving offences and public drunkenness.  For many of these driving offences, some involving excessive use of alcohol, you were given community orders and suspended sentences, which were later breached.

33You have no prior sexual offences, but two subsequent offences, which have resulted in substantial gaol terms in Victoria and Queensland.  The subsequent matter in Victoria was an indecent assault of a child under the age of 16, which led to a sentence of three years, with a minimum of 20 months.  In fact, I was the sentencing judge, and the sentence was imposed on 29 January 2010.

34The circumstances were set out in the reasons for sentence, and are highly relevant to these, to the sentencing task before me now.

35On 7 February 2009, you were staying over at a friend's house in Mooroopna.  You got up and said you were going for a swim in the backyard pool.  Rather than go outside, you went into the bedroom of the very young daughter of your friend, removed her pyjama pants and licked her on the vagina.  She awoke frightened and confused; she became hysterical and told her father.

36You denied the allegations.  Ultimately, after the cross-examination of the child at a special hearing before your trial or before a jury is empanelled - but after that cross-examination, you in fact pleaded guilty to that charge.

37You maintain that you were affected by alcohol at the time, but I found that there was no evidence to support that, save for your long history of regular daily abuse of large volumes of alcohol.

38As at the time, this was the only sexual offence alleged against you, that had as I say at that time been prosecuted.  I included the following remarks in my reasons for sentence based on, and I should indicate, that I had at the time, the report of Mr Ball, the psychologist which was tendered on the plea before me then and was again, tendered on the plea here.

39What I said in those remarks at paragraph 23 was,

"Mr Ball's report did not throw much light on why you committed the offence back in 2009.  It seems that this was an isolated incident of sexual offending against a child; no other aspect of your past reveals any sexual attraction to children, and on that basis, Mr Ball concluded that you were not to be diagnosed as a paedophile.  In his view, your risk of like offending was low."

40I went on,

"It does appear that this was an isolated and now profoundly regretted incident.  You were in denial until the evidence of the complainant was heard at the special hearing.  At that point, you changed your plea and negotiated such that the matter resolved, with your plea of guilty to the one count.  You have gained some insight into the impact of your offending on your victim.  All of this seems to me to confirm Mr Ball's opinion, as to your risk of reoffending.  It is as accurate as predictions can be in this regard in all the circumstances."

41Those remarks must now be seen as missing the point.  It was not an isolated incident, and as I will briefly outline, you went on to reoffend with sexual assaults upon a young woman in Queensland, once released from the sentence that I imposed.

42The information provided as to your relevant offending in Queensland reveals that an 18 year old student who recently moved to Bundaberg, was taking a lunch break, talking on the phone to her family and relaxing in a public place.

43You came up behind her and groped her on both breasts over her clothes, and then put your hand on her vagina over her clothes.  She was shocked and distressed.

44The magistrate in Bundaberg sentenced you to 15 months on 2 July 2015.  The offending occurred on 23 May 2015.  You were ultimately released from prison in Queensland it seems, in November 2015. 

45This offending again reveals your ingrained sexual offending, this time on an unknown young woman in a public place, not a known child. 

46Your counsel advised that you were not granted parole, and did not participate in a sex offenders course while you were in prison in Victoria.  You instructed him that none was offered.

47On your release from Victorian prison, you went to Queensland to start afresh.  You got to Bundaberg and lived rough or with others that you got to know.  Your drinking resumed at the same awful levels.

48You indicated that you wished to return to Queensland again, once you have completed the inevitable gaol term that I must impose here in these matters.

49Your subsequent sexual offending makes it clear that deterrence to you is a significant matter.  Your overall prospects for rehabilitation are guarded at best, and probably, they are more dim than that.  I will return to these matters after discussing your background and the more recent medicolegal neuropsychological report tendered on your plea.

50You were seen by Dr Michael Takagi, a neuropsychologist because of concerns regarding your cognition, due to heavy alcohol abuse and possible head injuries from multiple motor vehicle accidents or motorcycle accidents and fighting.  You have developed seizures.

51Dr Takagi's report is helpful.  He concluded that fortunately, you do not have an acquired brain injury.  Rather, in his view, your difficulties are due to poor education and learning difficulties. 

52Dr Takagi reported that you are an indigenous man who grew up in Mooroopna, raised mainly by your grandmother, because your mother worked long hours.

53You struggled with reading at school, and left in Year 9, not able to read. 
Dr Takagi came to the view that undiagnosed learning difficulties were most likely the burden that you carry that prevented you from gaining even basics at school, including as mentioned literacy.  You have worked in many labouring jobs, and only in recent times, became reliant on unemployment benefits.

54Your major problem has been the abuse of alcohol for over 20 years.  You are now 45.  It seems likely you are an alcoholic.  Your reported daily intake of alcohol over the years of frightening proportions.

55You have used drugs, cannabis from an early age, then amphetamines regularly until the age of 27.  You have only intermittently used that since.

56Your mental health is complex, with many purported diagnosis.  It seems clear to Dr Takagi, that you have high levels of anxiety, moderate levels of stress and depression.  Your mental health is affected by your gross abuse of alcohol and your anxiety levels.  You will need ongoing intense expert help with your alcoholism, and generally, your mental health into the future.

57If you do not take up these things, Mr James, you will deteriorate and likely reoffend in some manner.

58Your plea of guilty means your sentence will be less than it otherwise would have been had you gone to trial and been found guilty by a jury.  Your plea of guilty expresses some remorse and acknowledgment of your responsibility in sexually abusing these two young girls.

59By reason of your sentences if imprisonment in 2010, and in Queensland in 2015, for each of the offences on this indictment, you will be classified as a serious sexual offender.  I must then ensure protection of the community is the primary sentencing consideration.

60It also means that unless I otherwise order, your sentences will be cumulative.  I will apply the principles set out in the serious offender legislation, but not so as to completely ignore the principle of totality, which is needed to ensure that your sentence does not become an outlier compared to all others, by reason of orders for complete cumulation.

61I must ensure that all sentencing purposes in respect of these types of offences are adequately met.  As noted, protection of the community is the primary purpose.  That is achieved by incapacitation of you in custody and hopefully, by your efforts to rehabilitate on release.

62Of real importance as well is the sentencing purpose of denunciation of your dreadful crimes.  This too must be met not just by my words but by the imposition of a stern sentence of imprisonment.  Deterrence to you and to others must be given prominence.  You are a repeat sex offender.

63Also, the courts must make it crystal clear that anyone who sexually abuses children will face long terms of imprisonment.

64I do not ignore your rehabilitation, but the weight to be given to that matter is necessarily less than the other sentencing purposes I have spoken about.  Your rehabilitation must address your drinking.

65Your counsel contended that you were affected by alcohol at the time of each of these offences.  As indicated to him at the time, intoxication does not mitigate or lower your moral culpability.  Indeed, it is a factor that elevates your risk of sexual offending, as it would seem that your struggles with alcohol have seen you abstain but then fall back into drinking.  So the risk into the future is connected to your capacity to deal with your drinking problem.

66Apart from alcohol, your risk of reoffending must be seen as a real risk based on your past behaviours, including after the sentence that I imposed in 2010, when you offended in the manner that you did in Queensland.

67Put simply Mr James, you must get long-term help with your drinking.  Your steps to engage in Alcoholics Anonymous to date are positive.  Your continued involvement in painting is to be commended, and hopefully, it will elevate your self-esteem over the coming years.

68Doing the best I can, I impose the following sentences:

69In respect of Charge 1, sexual penetration of the first victim, you are sentenced to three years' imprisonment. 

70In respect of Charge 2, the sexual penetration of the first victim, you are sentenced to three years' imprisonment.

71In respect of Charge 3, the sexual penetration of the first victim, you are sentenced to four years' imprisonment. 

72In respect of Charge 4, the sexual penetration of the second victim, you are sentenced to three years' imprisonment.

73In respect to Charge 5, the indecent act with a child under the age of 16, the second victim, you are sentenced to one years' imprisonment.

74I order that one year of Charge 1, one year of Charge 2, 20 months of Charge 4, and two months of Charge 5 be cumulative upon each other, and cumulative upon Charge 3, the base sentence.

75That results in a total sentence of seven years and 10 months, and I order that you serve five years and six months before being eligible for parole.

76You have served time in custody; that has been calculated at 368 days, not including today.  That figure, having been reckoned, I declare that you have served 368 days of the sentence that I have just imposed.  I will ensure that declaration is entered into the records of the court, so that the prison authorities are left in no doubt you have served 368 days of the sentence I have just imposed.

77I will also enter in the records of the court, that for each of Charges 1, 2, 3, 4, and 5 on this indictment, that you are declared as a serious sexual offender.  I will ensure that that declaration is entered into the records of the court.

78By reason of the offences that you have committed, you are subject to the
Sex Offenders Registration Act.  The fact that you will have to register as a sex offender is mandatory because of the offences that you have committed.

79The period of time that you must remain on that register to is fixed by Parliament; that period of time is life.  What will occur, is you will receive with
Mr Clancy's assistance, a document that you must sign.  It will acknowledge from you, that you have received documents from me.

80But the key is that you need to go through and with help, understand that if you do not register on the register upon your release, there are serious consequences for you.

81Are there any other orders?

82MR CLANCY:  6AAA.

83HIS HONOUR:  6AAA, I am sorry.  Thank you.  The period of time that I would have imposed, had you been found guilty of these offences by a jury, that is, if you had pleaded not guilty was nine years and ten months, with a minimum of seven years and six months.

84Mr Clancy, you will have to do your best to - this process is unnecessary in my view, but I have got to sign a document that says I gave to him documents.  He has got to sign a document that says that he has got the documents.

85MR CLANCY:  Would it be permissible Your Honour if I actually go into the Dock with him, just given his limitation, Your Honour ‑ ‑ ‑

86HIS HONOUR:  Yes, do it exactly that way.  Thank you.  But if you have not heard, I have railed against this job again, and have been raising it with the Chief Judge.  While that is occurring, does the maths add up, Mr Cordy?

87MR CORDY:  Yes, I will just double-check up in the meantime.

88HIS HONOUR:  I note that Mr James has signed the document acknowledgment, pursuant to the sex offender registration regulations, that document will be forwarded to the Chief Commissioner of Police.

89MR CLANCY:  Yes, Your Honour.

90HIS HONOUR:  Is there anything further on this matter?  Mr James can be removed.

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