Director of Public Prosecutions v Kaiser (a pseudonym)

[2018] VCC 572

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALAN KAISER (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2018
CASE MAY BE CITED AS:	DPP v Kaiser (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 572

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 R. Harper
For the Accused	Mr A. Marshall

HIS HONOUR: 

1Alan Kaiser[1], after a jury trial you were convicted of the following charges: 

·three charges of committing an indecent act with a child under the age of 16 years.  The maximum penalty for each of these offences is ten years' imprisonment; and

·one charge of sexual penetration of a child under the age of 16 years. The maximum penalty for this offence is also ten years' imprisonment.

[1] A pseudonym.

2A brief summary of your offending, based on the evidence at trial is as follows.  The complainant in this matter is Morgan Naylor[2].  Morgan was born in June 2003.  Accordingly, Morgan turned 12 years old in June 2015.

[2] A pseudonym.

3Sometime between August 2015 and the end of that year you went to visit Morgan and her family and you stayed three nights.  It was arranged that you would sleep in the same bed as Morgan, who had a queen-sized bed in her room.

4The jury accepted the evidence of Morgan Naylor that on the first night whilst in bed, you rubbed her breast area and pinched one of her nipples (Charge 1).  After that you moved your hand under her pyjamas and rubbed the top part of her vagina (Charge 2).  Morgan punched you and told you to stop touching her.

5On the second night you inserted your finger into her vagina (Charge 3 – sexual penetration).  She left the bed and slept in her brother's room.

6On the third night, Morgan went to bed before you.  She woke to hear you unbuckling the belt on your jeans.  She asked you what you are doing and you said that you wanted to have sex with her.  She said, "I am only 12 years old.  Please leave me alone." You then got out of bed and went to sleep on the couch (charge for committing an indecent act).

7In October 2016, Morgan Naylor reported aspects of your conduct to her aunt, Alissa[3].  Alissa told her sister, Morgan’s mother Fiona[4] and from there, Morgan reported your offending to the police.

[3] A pseudonym.

[4] A pseudonym.

8You were interviewed by the police on 6 January 2017 and denied the offending.  You were charged with these offences and immediately released on bail.  You remained on bail until you were remanded into custody on 8 March 2018.

9You complied with your bail requirements up to and during the trial.  Mr Marshall relies on this and your general attitude during the trial to submit that you have a true respect for the legal process and authority.  This respect has continued in your time in custody, where you have remained respectful of the prison authorities.

Objective Gravity of your Offending

10Your offending against Morgan was opportunistic and persistent in the face of her repeated requests for you to stop touching her.  The seriousness of your offending may be readily appreciated by saying that your conduct was against a 12 year-old with whom you were trusted to share a bed with when you stayed at their family home.  It also follows that your moral culpability for your offending is very high.

11Two victim impact statements were tendered.  Both contained requests not to be read in court.  I however have read them and I will respect the wishes of the victims.  It is sufficient to say that Morgan feels deeply the betrayal of trust.  Your actions will stay with her and her mother, most likely for the rest of their lives.

12Your offending must be met with deterrence, denunciation and a measure of protection of the community.  The sexual exploitation of children is abhorrent.  The breach of your victim’s trust further deserves condemnation.  It is also marked by its callous opportunism, and by its persistence in the face of repeated requests, made by your victim each night, for you not to touch or approach her in a sexual manner.

13I turn now to your personal circumstances.

14You are 38 years of age and you were born in January 1980.  You are one of 7 children.  You were variously raised in Melbourne and then in Girgarre, where your parents took on a hobby farm whilst your father worked at the Tatura dairy.

15You left home at 15 after conflict with your parents.  From the evidence led on the trial, the household at Girgarre was a cold and hard environment.  This is borne out by the DHHS material tendered on your plea.

16You then lived with your grandparents, which you recalled to Mr McKinnon, the psychologist, as a happier time.  Your education left you with limited literacy skills.  You started work at 15 as a concreter's labourer.  From 17 you worked in a factory for a couple of years and then from 19, you worked for ten years in the rubbish recycling industry.  After that, you worked with truck driving, earthmoving and heavy vehicles.  At the time you were interviewed by police, you were employed as the manager at a heavy vehicle/rig hire business in Dandenong.  Although your life has had its ups and downs, you have remained in almost constant employment (with only a brief gap nearly 20 years ago) since you started work at age 15.

17At the time of your offending, you were living in your car, showering at a local service station and then going to work.  At the time of interview with the police in January 2017, you had been provided with accommodation at a local social club.

18You have been in a relationship now for about seven months.  Your new partner attended the trial most days.  During the running of the trial (the one on which you were acquitted of all charges), you moved in with her.  She visits you in prison, and you consider her a true support.

19It appears also now that you have considerable family support.  Members of your family were present through much of the trial and the plea hearing.  Mr Marshall submitted that you have entered a period of considerably greater relative stability than you have known for a long time.

20Shortly after you went into custody, you were assaulted by four prisoners.  You sustained bruised ribs, bruising to the left side of your head, two black eyes and damage to your left eardrum.  You still suffer from the injury to your ear.  You told the psychologist that this was a fearful experience, and you remain fearful of your time in custody.  You are now in protection and are likely to remain there, if not for the duration of your sentence, then at least for some time yet.

21Ian McKinnon, forensic and consultant psychologist, prepared a report dated 7 April 2018.  Mr McKinnon assessed your functional intelligence at the lower end of the normal adult range.  Nevertheless, he considers your general cognitive functioning and intellectual faculties to be normal.  Mr McKinnon concluded that you do not possess an entirely antisocial or criminal disposition.  Nevertheless, he was cautious about your prospects.  Whilst he is uncertain whether you are struggling against paedophilic tendencies, he considers that your lack of expressed remorse is a concern.  Ultimately, Mr McKinnon concluded that you probably meet the sexual typology of "an opportunistic inadequate child molester – an adult who is not particularly competent in the adult world".

22Mr McKinnon considers that prison poses an ongoing threat to you as you appear vulnerable to threats and intimidation.  As such, he considers that you will continue to struggle to cope with the prison environment.

23Mr McKinnon considers you may benefit from participation in a sex offender program.

24Mr Marshall submitted that whilst a period of immediate imprisonment was inevitable, you have excellent prospects of rehabilitation: 

·first, he points to your settled personal life, which is a change from the time of your offending.  As I have pointed out, this includes not only your relationship with your partner but also the support you now have from your family;

·second, he submitted you have no prior convictions;

·third, he said that you have learned a salutary lesson already from your time in custody.  Moreover, your time in custody going forward is unlikely to be easy;

·fourth, your offending was opportunistic rather than predatory; and

·fifth, Mr McKinnon (Mr Marshall submits) considers that your future risk does not appear to be high (although he cannot formulate a prognosis for you with a high degree of confidence).

25Overall, I consider that you have reasonable prospects for your rehabilitation.  I add to the factors listed by Mr Marshall the fact that you have an offer of return to your employment from Mr Nichols[5].

[5] A pseudonym.

26Although you come to be sentenced as a serious sexual offender on the third charge, the Crown does not press for the sentence that I must impose to be disproportionate in order to protect the community.  Nevertheless, this remains serious offending.  The  finding of guilt comes after a trial.  The mitigating factors arising from your personal circumstances must take a backseat to the principles of deterrence, denunciation and protection of the community.  The seriousness of your offending must be met by terms of imprisonment and ought not be constrained by previous sentencing practices.

27I will sentence you now, Mr Kaiser.

28On the first charge of committing an indecent act with a child under the age of 16 years, you are convicted and sentenced to 16 months' imprisonment.

29On the second charge of committing an indecent act with a child under the age of 16 years, you are convicted and sentenced to 16 months' imprisonment.

30On the third charge of sexual penetration, you are declared to be a serious sexual offender and I order that fact be entered onto the records.  On the charge, you are convicted and sentenced to three years' imprisonment.

31On Charge 4, you are declared to be a serious sexual offender and I order that fact be entered onto the records.  You are convicted and sentenced to nine months' imprisonment.

32Charge 3 is the base sentence.  I order that five months of the sentence on Charge 1, seven months of the sentence on Charge 2 and three months of the sentence on Charge 4 are to be cumulated on each other and on the base sentence.  That produces a total effective sentence of four years and three months.  I order that you serve a non-parole period of three years before you are eligible for parole.

33I declare the period of 49 days pre-sentence detention excluding today reckoned as already served.

34By virtue of your conviction on Charge 3, you will be registered on the Sex Offenders Registration List for life. 

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