Director of Public Prosecutions v Lancaster

[2015] VCC 1334

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00724

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHAUN RANDALL LANCASTER

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 September 2015
CASE MAY BE CITED AS:	DPP v LANCASTER
MEDIUM NEUTRAL CITATION:	[2015] VCC 1334

REASONS FOR SENTENCE
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Subject:
Catchwords:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward
For the Accused	Mr S. Gillespie-Jones

HER HONOUR:

1Shaun Randall Lancaster, you have pleaded guilty to four counts of indecent act with a child under 16 years.  Charges 1 and 2 relate to AC and Charges 3 and 4 relate to BC.  The maximum penalty for this offence is ten years imprisonment.  The circumstances of this offending occurring between 2002 and 2004, are fully outlined in the prosecution opening, tendered on the plea dated 12 May 2015, Exhibit A.

2In respect of Charges 1 and 2, AC was born on 11 November 1991, and these offences were committed against her in 2002, when she was aged about ten years.  AC and her family were friends with Bob Tait who lived in Shepparton.  You were a friend of Bob Tait's son Stevie, and would regularly visit their home.

3On a Friday night, you, AC and her family were at the Tait's house.  At some point in the night, you were at the house alone with AC.  She was sitting on the couch wrapped up in a doona.  You went over to her, moved the doona and put your hand down her clothing, touching her on the chest area, that is Charge 1.

4You then grabbed her head and pushed it towards your penis, which you had exposed from your tracksuit pants, and you pushed it against the outside of her mouth.  She resisted and you took your penis away from her mouth, though soon thereafter, you pushed your penis to the outside of her mouth again.  That is the conduct of Charge 2.  AC's family returned to the house not long after this happened.  You continued to see AC after this night, providing her a gift of a G-string underwear which you suggested she try on.  On other occasions, you would try and hug her, such advances she resisted.  AC told her mother what had happened some years later.

5BC was born on 17 August 1995 and these offences were committed in 2004, when she was aged nine.  You were a friend of BC's aunt.  This aunt lived with her mother, or BC's grandmother and you regularly visited that house.  On an occasion when BC was at the house, you were on the couch with her and you ran your fingers up her legs and touched her on the vagina, on the outside of her underwear.  That is Charge 3.

6You then pulled her skirt up and moved on top of her.  You placed your hand over her mouth and told her not to talk.  You moved her underwear to one side and pushed your penis against the outside of her vagina.  That is Charge 4.  You then told her if she told anyone, you would slit her throat.  You stayed next to her on the couch and acted as though nothing had happened.

7BC told a friend what had happened in 2008.  She also told her mother during 2009 and the matter was ultimately reported to police.  Police conducted a record of interview with you on 16 December 2009, where you provided no comment answers.  Both AC and BC have provided victim impact statements.  They are Exhibits B and C.

8Some portions of these statements were identified as inadmissible by the defence in written submissions. (see Paragraph 8)  I take only the admissible portions of that material into account.  It is clear in respect of both AC and BC that your offending had a significant impact on them.  AC has experienced strong emotions of hate and anger BC states "This has not only affected me, but everyone around me.  It has had a massive effect on my life.  I believe I lost my childhood.  I felt like everything had been taken away from me".

9You were charged in relation to these matters in 2009.  The committal was conducted in December 2010.  In July 2012, you were found guilty by a jury of three sexual offences relating to AC.  In February 2013, you were found guilty of three sexual assaults and an associated threat offence relating to BC.  You were sentenced in respect of both these matters on 10 April 2013.

10You successfully appealed those convictions and the Court of Appeal ordered a retrial on 17 December 2014.  This matter was originally listed before me as a trial on 11 May 2015.  It was indicated to me at that time, that you were prepared to plead to four charges of indecent act with a child under 16 years in respect of both AC and BC.  After enquiry from me with your counsel, it was confirmed that this was the first time that a preparedness to plead to these offences had been indicated.

11You were born on 17 August 1975 and are currently aged 40 years.  You were throughout your childhood and remain to this day to be supported by your parents.  You successfully completed Year 10 at secondary school in Shepparton in 1993, and you have been gainfully employed for most of your adult life working as either a forklift or a truck driver.

12You commenced full time employment with Keating Freight Lines Proprietary Limited in January 2011.  However, at the time of the first trial in these proceedings in July 2012, you ceased that employment.  You were in custody from July 2012 until your successful appeal in December 2014.  You recommenced your employment with Keating's in February 2015.

13You commenced a relationship with Lisa Mascoll in 2008-2009 and had a son with her, Ethan, who is now aged four.  You separated from Ms Mascoll in 2014 whilst you were in custody.  You continued to have contact with your son.  You were referred to Joseph Matthew, a clinical psychologist, and commenced sessions with him in March this year.  I received a report from him dated 2 April 2015.

14Since your release from custody, you have had difficulties coping with the breakdown of your relationship with Ms Mascoll, and the consequential impact on your relationship with your son.  You were diagnosed with an adjustment disorder.  I was also provided with reports from Martin Jackson, a neuropsychologist, dated 4 May 2015 and an addendum dated 12 June 2015.  As a result of various neuropsychological tests being conducted, Jackson reports that you have a range of cognitive strengths and weaknesses.  He is of the opinion that overall, your cognitive profile is consistent with a person who has a mild intellectual disability, with some strengths.

15The principal factor in your favour is your plea of guilty to these matters.  There is a utilitarian benefit of the plea, saving time and cost to the community and facilitating the course of justice.  This is particularly so in your case having avoided the need for two trials, both of which would have been lengthy and complex.

16Your counsel submitted that your plea to these matters was also indicative of remorse.  The history of these matters as previously outlined is relevant to the contextual circumstances of this plea.  As noted in Phillips, 2012, VSCA 140 at 69:

"The conduct and statement of the offender over time, provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exist".

17In your circumstances with the preparedness to plead to the lesser offences, indicated only recently, more limited weight is to be placed on the plea as being indicative of remorse or contrition regarding the offending. 

18These offences occurred in 2002 and 2004.  You were not charged in respect of them until 2009.  It is over ten years since these offences occurred.  It is not unusual for children who have been subjected to sexual abuse to delay in coming forward and making a complaint.  During this ten year period, you spent two years and five months in custody.  It was submitted in your time spent out of custody, over that period, you have been a law abiding member of the community and gainfully employed.

19Your conduct over this ten year period is a matter that I take into account in your favour, relating both to the impact of delay and rehabilitation.  You have taken positive steps towards your rehabilitation.  In addition, you have the support of your parents.  You have independently sought assistance in addressing personal matters of anxiety and other psychological issues.  The material provided to me from your employer suggests that you are a hardworking, valued and trusted employee.

20It was argued that your rehabilitation should not be put in jeopardy by a further period of incarceration.  This was linked with the professional opinion from Martin Jackson, that you are very focused on re-establishing yourself in the community, and that you continue to improve community, family, social and occupational connections.  He notes:

"All of these are protective factors in the context of your risk of reoffending, which I consider to be very low".

21You have eight prior convictions from two court appearances.  Most relevantly, you were convicted of five charges of indecent act with a child under 16 on 26 May 2007, at the Shepparton Magistrates' Court.  I was provided with the relevant summaries for this offending, which related to a three year old and an eleven year old victim, who were both sisters of a friend of yours.

22On those charges, you were convicted and released on a community based order for two years, with special conditions including that you undergo a Sex Offender Relapse Prevention Program. These prior convictions also have relevance to the orders to be made under the Sex Offenders Registration Act 2004.

23There are some aggravating features of your offending; i) both occurred in circumstances where you breached the trust of both the children and their carers'; ii) The offending involved two different children; iii) In respect of Charges 1 and 2, you persisted with your conduct, even though AC resisted and was able to push you away.  You remained in contact with AC and attempted to hug her on later occasions; iv) In respect of Charges 3 and 4, your offending was accompanied by threats that you would slit her throat if she told anyone; v) You have relevant prior convictions. 

24Specific deterrence is a relevant sentencing consideration.  Your conduct warrants just punishment and denunciation.  General deterrence plays a significant part in sentencing you.

25If I am minded to impose a sentence of imprisonment in respect Charges 1 and 2, you are to be sentenced as a serious sexual offender on any of the remaining charges. I am proposing to sentence you to a term of imprisonment in respect of Charges 1 and 2, so therefore you are to be treated as a serious sexual offender under the Sentencing Act in respect of the sentences imposed for Charges 3 and 4.

26Pursuant to those provisions, the Crown does not seek the imposition of a disproportionate sentence.  However, pursuant to the relevant section, protection of the community is the principal sentencing consideration.  Given this offending involved separate acts involving two victims, a level of cumulation is required.

27The prosecution argued that you should be sentenced to terms of imprisonment in respect of each of the charges, though it was submitted that you should not be required to spend any more time in custody, than that which you have already served.  Your counsel also urged me to adopt that course.

28Taking all relevant sentencing considerations into account, I accept that submission.  However, in the course of the plea, I expressed my concern about you completing a sex offender program.  I had you assessed for a community correction order, in order for that to take place. 

29I received a report from Community Corrections, however I was informed that a full assessment as to your suitability to participate in such a program cannot be undertaken, until you are placed on a community correction order.  I am minded therefore to impose a community correction order, with a condition that you attend for assessment, and if deemed appropriate, to participate in any program as directed by the Office of Corrections.  The report from the Office of Corrections also recommends another condition relating to mental health assessment and treatment as directed.

30I will record on the order that it is anticipated that such an assessment relating to your suitability for a sex offender program be made.  I note that in order to impose a community correction order to commence at the expiration of a term of imprisonment, the term of imprisonment is limited to that for a period of less than two years.

31Could you please stand up, Mr Lancaster.  In respect of Charge 1, you are convicted and sentenced to a period of imprisonment of one month.  In respect of Charge 2, you are convicted and sentenced to a period of imprisonment of 18 months.  In respect of Charge 3, you are convicted and sentenced to a period of imprisonment of two months and in respect of Charge 4, you are convicted and sentenced to a period of imprisonment of 20 months.

32I order that three months of the sentence in respect of Charge 2 be cumulative on the sentence imposed in respect of Charge 4, making a total effective sentence of 23 months.  In addition, I impose a community correction order for a period of two years, with two conditions. 

1.  That you attend for assessment and if appropriate, participation in programs directed towards sexual offending as recommended by the Office of Corrections.

2.  The other relating to a mental health assessment and treatment as directed by the Office of Corrections.

33Could you please tell me the exact pre-sentence detention? 

34MR HAYWARD:  It's two years, five months.

35HER HONOUR:  Two years, five months, thank you.  I declare pre-sentence detention of two years and five months.  In addition to the community correction order conditions that I have just outlined, there is a condition regarding supervision and that is just you are required to be under the supervision of the Office of Corrections for a period of two years.  Application was made to pursuant to s.464ZF and I make that order.

36Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these charges, I would have imposed a term of imprisonment of four years, with a non-parole period of three years. Under the provision of the Sex Offenders Registration Act, on consideration of your prior convictions, you were previously found guilty of five, two Class 2 offences. You have now been found guilty of two further Class 2 offences as defined by the relevant provisions.

37Pursuant to s.34(1)(c)(3), you will be required to comply with the reporting obligations under the Sex Offender Registration Act for life. Now there are all those orders. Could I have the 464 please and I will sign that now. There is a community correction order that you will be required to sign Mr Lancaster and then there is also the obligations under the Sex Offender Registration Act that you are required to sign as well, thank you.

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MR GILLESPIE-JONES:  Might Ms McKinnon be able to assist the

 

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39HER HONOUR:  Yes sure.  All right, I'll just stand down, thank you.

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