Director of Public Prosecutions v Lane

[2017] VCC 1719

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-01405

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK LANE

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2017
DATE OF SENTENCE:	21 November 2017
CASE MAY BE CITED AS:	DPP v Lane
MEDIUM NEUTRAL CITATION:	[2017] VCC 1719

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr P. Kilduff	Stary Norton Halphen

HIS HONOUR:

1Mark Lane, when you were about 16 or thereabouts, you moved into a house in the western suburbs with your older brother.  You older brother had commenced a new relationship with a woman.  She was the mother of five children.  Second oldest was the victim of your offending.

2The prosecution summarised the offending in these words:  One afternoon, the victim came home school and you were there.  You took the victim into her mother's bedroom and then closed the bedroom door and sat the victim down on the bed.  You kissed her on the lips.  You gently pushed her down so she was lying on her back on the bed.  She was at the bottom of the bed with her legs hanging down.  You knelt down at the end of the bed, facing her, lifted her school dress, lowered her underpants and kissed her around the vaginal area.

3She tried to push your head away.  You then removed your lower clothing.  You were only wearing a singlet or a tank top when you stood up.  She could see your erect penis.  You then climbed on top of her and tried to penetrate her vagina with your penis.

4You then got up and told her not to move.  You then got some Vaseline, put it on your penis and around her vagina before trying again to insert your penis in her vagina.  It hurt her and she was crying as you continued trying to kiss her.  You were able to partially penetrate her vagina.  You then removed your penis and ejaculated on the top or in between her legs.  You then got off her.  She pulled up her knickers and ran out of the room.

5In later weeks, if you were able to get the complainant alone, you would take her into her mother's bedroom and sexually abuse her.  On each occasion, you licked her vagina and used Vaseline to try and penetrate her vagina with your penis.  Sometimes you touched her breasts.

6The sexual assaults occurred two to three times a week while you were living in the address in the western suburbs.

7You were charged and have plead guilty to one charge of sexual penetration of a child aged between ten and 16.  That charge is a representative one, representing approximately 20 occasions of similar offending.

8While I must keep in mind that you are to be punished only for the single charge that you have pleaded guilty to, however, it cannot be said that it was a one off crime.

9What is notable is the young age of the victim.  She was 12 or 13 years of age.  This makes the offence a more grave one.  What is also important is your young age at the time.  You were 16, yourself a child.

10The principles to be applied in circumstances such as yours have been articulated and repeated in a number of appellate cases in our State.  Perhaps most comprehensively by Nettle J in the decision of PJB in 2007, where he said this,

"Decisions of this court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending.

Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity."

11His Honour went on,

"Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years."

12Your circumstances since you were 16 fit well with those important mitigatory matters raised in PJB and other cases, both before and after.  That is, in your case, from a difficult and underprivileged upbringing, you have become a decent, hardworking man, raising a family with your wife.  You and she have been together it seems, since your late teens or early 20s.  You have four children, all working or at high school.

13You have been deeply involved in your local community's football club as a volunteer for many years.  You have a solid work history which is very much to your credit.

14You are now 45 and any earlier attendances that you had at lower court in this State or other states are not relevant in my view.  What has occurred is that you have rehabilitated.  You are not a risk of reoffending in like manner, and I perceive you have learnt a hard lesson from these proceedings, one that you will not want repeated.

15There are other migratory matters that I will deal with shortly.  But before doing so, I make clear the offending was serious and shameful.  Although no doubt you did not think at the time how it would affect the victim, the truth is plain.  She has been gravely affected and for a long time by the violation of her as a child.

16The community and the courts have, in recent times, learnt just how deeply entrenched the psychological damage is to those who suffered sexual abuse as a child.  We have learnt by properly listening to what victims have to say in victim impact statement.

17In this case, I take into account the victim's heartfelt victim impact statement.  She has struggled with relationships because intimacy is very hard, even with her own children.  Counselling has not helped and the pain remains.  At the end of victim impact statement, she said she just wants to move forward and have closure.  I will return to this concept shortly.

18What has to be understood is that sexual abuse of children impacts on a victim in the sense of their childhood being taken from them.  But it endures beyond that so as to use her words, "I do not know how to be happy."  The adverse effect has in her case, endured and I will as required, take into account the impact on the victim of your crime.

19As the trial was about to commence, you initiated discussions which led to your plea later that day.  The value of your plea is that the victim was spared the ordeal of recounting events before a jury and being challenged in cross-examination.  Thus, the value of the plea is not to be underestimated, despite it being late.

20Importantly, you have acknowledged your wrongdoing, and it means the victim is totally vindicated.  That is important in what the courts have described as the social rehabilitation of victims.  In the words of the victim here, she now perhaps has a chance to move forward and have proper closure.  It is only hope that that is the case as time goes on.

21Ordinarily, to meet the certain sentencing purposes of denunciation and deterrence, actual incarceration for a number of years would be expected in offending of this kind.  However, given your moral culpability and the need for deterrence are less because of your age at the time, a sentence of imprisonment which is suspended is open.  Your counsel urged that any sentence of imprisonment be suspended.  Prosecution submitted that a wholly suspended sentence was within the exercise of proper sentencing discretion.

22Taking into account the matters raised in mitigation, as well as some further mitigation for delay, and at the same time, not losing sight of how serious the offending was and its impact on the victim, nonetheless, in all the circumstances, the inevitable term of imprisonment should, in my view, by wholly suspended and it will be.

23Will you please stand, Mr Lane?

24For committing the crime of sexual penetration of a child under the age of 16, you are sentenced to be imprisoned for two years.  That sentence will be wholly suspended and the operational period of the suspension is three years.

25What that means is that you must not commit another offence punishable by imprisonment during the operational period which is three years.  No short time, but that is necessary.  I expect that you will get through that operational period without committing further offences.

26But if you do, and notwithstanding that those offences would not themselves bring about a sentence of imprisonment from a Magistrate, it is the fact that you have committed an offence punishable by imprisonment that will bring you back before me, and the mercy shown to you here will not be repeated.  The benefit to you of your young age will have evaporated.  The way forward to do as you have been doing of course, Mr Lane and that is to be law-abiding for the rest of your life, but certainly for the next three years.  Do you understand?

27OFFENDER:  Yes.

28HIS HONOUR:  Thank you.  I am also asked to grant an application the prosecution makes that you provide a forensic sample.  That will be ultimately as I understand it, a scraping from your mouth so that your DNA can be extracted and kept on a database.  I have considered that application and intend to grant it.  I do so because of the seriousness of the offence that you committed, together with the fact that it is in the interests of justice that your DNA be on the database.  I also take into account you do not stand in the way of that.

29I need to make clear to you that you have a window of time in which you must submit to that forensic sampling process.  Twenty eight days from now, the window opens.  You have a further 28 days to get down to the police station and have the sample taken.  You will be given some documents that outline that process.

30The point here is that if you do not cooperate with the authorities at the time they wish to take the scraping of a mouth for the DNA purposes, that they are authorised to use reasonable force into enable them to get the sample.  Of course, the way through is to cooperate.

31I will sign that document and provide it to - you can take a seat.  I have not written in what police station he has to go to.  Just someone else do that point.  Werribee, is it?

32I think requirements of the Act as it was at the time of enquiry and indication to you, Mr Lane.  What I would have done had you pleaded not guilty to the offences and been found guilty of them, I would have imposed a sentence of like time.  That is, two years.  Consideration would have been given to a non-parole period of 18 months.  But it would not have been suspended.  You would have done the time.  Thank you.

33COUNSEL:  Your Honour pleases.

34HIS HONOUR:  Anything further required?

35COUNSEL:  No, Your Honour.

36HIS HONOUR:  Thank you.  Thank counsel for their very considerable assistance in this case and to those that are assisting in the video linking of the complainant, that is an advance in our system that is very helpful.  It cannot happen without generous people at the other send.  Thank you kindly.  We might end the link to that place now, thank you.  Mr Lane can leave the dock once I have adjourned.  Thank you.

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