Director of Public Prosecutions v Lane
[2014] VCC 540
•16 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 13-02073
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL LANE (A PSEUDONYM) |
---
| JUDGE: | HER HONOUR JUDGE HAMPEL |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 4 and 5 March 2014, 15 April 2014 |
| DATE OF SENTENCE: | 16 April 2014 |
| CASE MAY BE CITED AS: | DPP v Lane |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 540 |
REASONS FOR SENTENCE
---Subject:
Catchwords: Sentence – incest – indecent act – pleas of guilty – 20 year delay - no criminal history – DPP v Murray – alcoholism – remorse – lack of appreciation of impact on victim – Good prospects for rehabilitation
Legislation Cited:
Cases Cited:
Sentence:---
APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms L. Dipietrantonio | OPP |
| For the Accused | Mr D. Gibson | VLA |
HER HONOUR:
1 Michael Lane,[1] in 1988 you met you partner, Lorraine. Shortly after meeting, the two of you began living together. Along with Lorraine came her son, Alan. You and Lorraine then had two children of your own, both girls; the first born in 1990, the second in 1993.
[1]Pseudonyms have been used for the accused, victim and all family members.
2 On three occasions that Alan can recall, between January and October 1992, when he was nine and ten years old and you were 26, you sexually abused him.
3 The offending occurred at times when your partner was away, and she had left you in charge of Alan. The first occasion that Alan can remember occurred around February 1992, when he was nine. You spoke to Alan about the death of your son, and after becoming distressed, asked him to sleep in your bed that night. He felt sorry for you, and agreed. You penetrated his anus with your penis. In his statement to police in 1992, Alan said that this hurt him, and that he was sore for a couple of days after. This offending is the subject of Charge 1, incest.
4 In his statement Alan refers to a similar act happening a second time, although he cannot remember exactly when that was. This is relied on as an uncharged act.
5 Charges 2 to 5 involved separate acts all occurring on the one occasion at a later time in 1992. Again, Alan's mother was away and you were left in charge of him. You played pornographic films and made Alan and his two year old sister watch. It is this conduct that constitutes Charge 2 of indecent act.
6 After putting your daughter to bed, you took your clothes off and forced Alan, using threats, to take remove his clothes as well. You masturbated in his presence, while the pornographic film was still playing. This offending constitutes Charge 3 of indecent act.
7 You then made Alan touch your erect penis with his hand. You held your hand over his so that he could not pull it away. You asked Alan to put his mouth on your penis, but he didn’t. This conduct is the subject of Charge 4 of indecent act.
8 You then forced Alan onto a mattress that was on the floor in the lounge room. You got on top of him and said “Let me stick it in you and I’ll let you off grounded.” Alan was moving around to resist your attempts to penetrate his anus with your penis and he prevented you from succeeding in an act of penetration. You smacked him on the bottom before letting him go. You later got in bed with him while you were both naked. It is this offending constitutes Charge 5, the final charge of indecent act.
9
Alan disclosed the offending to a family friend in mid-October 1992, and shortly after that, as a result of that disclosure, the police were told. On
9 October 1992, Alan made a statement to the police detailing these acts. He was then ten years old. Within days of this, you left Melbourne and went to Queensland. Alan’s mother blamed him for the breakdown of her relationship with you. Shortly after, she followed you to Queensland with her daughter, abandoning Alan, who she placed in State care. For some time after that, Alan was placed with his father, but was eventually returned to care because his father’s drug abuse and absences when serving terms of imprisonment, rendered him unfit to shoulder the responsibility of caring for his son.
10 Alan was as a result, abandoned by his mother and father, and denied contact with his sisters. He had no contact with his mother or sisters for many years. After that, he had some sporadic contact, and in 2009, when he again made attempts to have contact with them, he discovered one of his sisters had young sons of her own, and that you, their grandfather, had unrestricted access to them. He was, understandably, concerned about that. Again, the response from his family was protective of you, and dismissive of him. Despite pressure being placed on him not to act in a way which would deny you your ability to maintain contact with your daughters and grandchildren, Alan decided to pursue his complaint to the police.
11
No explanation has been advanced on the plea for the failure of the police to interview you at the time of Alan's original complaint. It was not until
20 years after that, after his first statement of complaint had been made to the police, and only following further contact initiated by Alan, that on
17 October 2012, you were interviewed.
12 No explanation has been advanced for your partner's failure to protect her son in any way other than abandoning him. Whatever the reason for her failure to pursue a police investigation, it is disturbing in the extreme that the state, into whose care Alan was abandoned, also failed to pursue the matter, and to push or shame the police into pursuing the investigation. Alan’s suffering at your hands has been compounded by these successive abdications of responsibility by those entrusted with responsibility to investigate criminal offences against children, and to protect them. Those later failings cannot be laid at your head, but they are significant in terms of the compounding effect of the harm caused to Alan.
13 When finally interviewed, in October 2012, you spoke of the poor state of your memory due to your long history of drinking. You said that you had pretty much been an alcoholic since you were 17 or 16. When Alan's specific allegations detailed in his statement were put to you, you stated that you did not have any memory of the incidents, and you said that you would not do the things alleged. You admitted that you did have some pornographic tapes at the time, but said you would not have shown them to Alan. Your explanation for why you moved to Queensland was that you had heard that there were better job opportunities there. You denied that you had moved because of the allegations. You also said that you “More than likely, probably would have” known about the allegations made against you in 1992, and also volunteered information that a mate had told you that the police were looking for you.
14 By your pleas of guilty to these charges, you are properly to be taken as admitting the essential circumstances of the offences as recounted by Alan; that is, you are acknowledging that Alan is a truthful and reliable witness in respect of these matters.
15 You have, since pleading guilty, been assessed by the forensic psychiatrist, Associate Professor Andrew Carroll. You told him that apart from one rather vague memory that you believe may relate to the offending, something you described as a kind of dream type thing, that you have no clear memory of the offending behaviour. You said that you didn’t see yourself doing that sort of thing, but nonetheless acknowledged to him that you accepted that it had probably happened. You also told Associate Professor Carroll that you felt very unhappy with yourself for having carried out such an offence. He said you did not seek to minimise its gravity, or impact on the victim. It is not possible for me to determine whether in fact you have no clear memory of the offending behaviour, or whether you are simply struggling to acknowledge what you have done. That, in my experience, is a common feature amongst people who plead guilty many years after the event to having committed sexual offences against children.
16 You maintained, when you spoke to Associate Professor Carroll, that you had not left for Queensland to avoid police questioning. You told him you went there because your parents had offered to provide you with some support. That clearly sits in contrast to what you told the police about going to Queensland for better job opportunities, that you were aware at the time you went to Queensland of the allegations against you, and aware, from what a mate had told you, that the police were looking for you. The account you gave to Associate Professor Carroll about that is also in conflict with the evidence before me, of Alan’s mother abandoning him and following you to Queensland with your daughters. It is not quite clear, it seems that only one daughter was born at that stage, the other was born shortly after that.
17 The victim impact statement provided by Alan, and which was read aloud by him at the hearing, is heartrending. I have already spoken of the failure of his mother, his father, the police and the Department of Human Services, in whose care he was left, to pursue the allegations against you, of the fact that his mother blamed him for adversely affecting the relationship between herself and you as a result of his report, of the subsequent abandonment of him, and the consequential loss of contact with his sisters, and also of the pressure placed on him by the older of his two sisters not to report the matter to the police, when he raised it with her in more recent years.
18 In addition to those matters, Alan spoke of the impact on his psychological well-being more generally throughout his life, his lack of confidence in himself and lack of trust in others, destructive behaviours in which he has engaged over the years, substance abuse, and the difficulties that he has encountered in his relationships with women.
19 He spoke too, of the impact on his schooling, and the effect that that has had on being able to fulfil his potential in terms of further education and employment prospects.
20 He is articulate, insightful, and clearly possesses a determination to survive, despite the cruel blows he has suffered as a result of your conduct, and the neglect of those who should have had his best interests at heart. I hope he does indeed appreciate how his strength, determination, and persistence have already demonstrated a capacity to overcome such adversity. And I hope that he appreciates that he is well on the way to being, no longer the powerless victim he felt as a nine and ten year old, but rather, as a survivor who has taken significant steps over the years, and in more recent times, particularly, to take control of his future. No-one can change the past, but Alan, you have taken brave steps to face, and control your future, and I hope this realisation does bring you the closure you seek, the ability that you hope this will bring you to move forward to a more positive future, as you said in your victim impact statement, you hoped this court process would achieve for you.
21 Associate Professor Carroll reports you, Mr Lane, as being significantly remorseful, as being unhappy with yourself for having carried out such an offence and as not seeking to minimise the gravity of the offending, or the impact on your victim. Some of the things that you said to Associate Professor Carroll, as reported in his report, at first blush would appear to be a little too hard ti reconcile with that, particularly your lack of recollection or minimal admissions. And although you must have been aware of the contents of Alan’s victim impact statement before you were interviewed by Associate Professor Carroll, as it was read aloud in open court before he interviewed you, the report contains no reference to information volunteered by you to Associate Professor Carroll, about what Alan had said in his victim impact statement about the effects on him. However, that may well be because of that difficulty that I have already referred to, of being able to articulate or to fully face the gravity of your own conduct
22 I accept that you are remorseful, not just sorry for the position you find yourself in, but that you are indeed, remorseful for the impact of your offending behaviour on Alan. Although I consider, having regard to the way you have raised matters with Associate Professor Carroll, that you still have some way to go to fully appreciate the impact on him. Again, as I have said, that is not unusual in people in your circumstances pleading guilty well after the event to a sexual offence that is committed on a young person in their care. It is part of what the experts seem to refer to as the cognitive distortions that allow the behaviour to occur in the first place, and then allow the person to either rationalise it, or put it out of their mind. So in that sense, I am not saying it as a blame matter, but as an understanding of the phenomenon, and as reinforcing in what Associate Professor Carroll said in his report about the significance of your preparedness to undergo a sex offender treatment program and the benefits that may well provide you and the community.
23 By pleading guilty you have acknowledged your behaviour and you have spared Alan the ordeal and indignity of having to give evidence at committal and trial. You have spared him the ordeal of having to be cross-examined and have it suggested to him that what he is saying is untruthful or mistaken. Whilst you may be in those early stages of acknowledging the full seriousness of the impact on your behaviour on Alan, that is because, in my view, of an inability at this stage to appreciate that, rather than any devaluing of, and understanding of the impact on him. So, what I have said about that does not aggravate the seriousness of your conduct, but it does demonstrate the need for further insight into the impact of your offending before you can fully appreciate its impact, and before one can have a greater degree of confidence, that as the material suggests, that you in fact represent a low risk of re-offending.
24 I should add that what I have said, in no way detracts from, or should detract from, the sensitive acknowledgement by Mr Gibson at the opening of the plea, of the impact on Alan of your offending, or of the gravity of the offending. What Mr Gibson said, and the presentation of the plea generally, demonstrated an understanding of your circumstances, the stage you had reached in acknowledging what you had done, as well as an understanding of Alan’s very different circumstances and the stage of understanding that he had come to.
25 The offending is obviously serious. It was a gross breach of trust; you were his step-father, he was a young child left in your care. His mother, your partner, trusted you to look after him in her absence. And it was an exploitation too, of Alan's vulnerability and his powerlessness within that family unit.
26 This was offending that occurred on more than one occasion, and stopped only because Alan made a complaint, and you fled.
27 It is clear that subject to consideration of matters personal to you, that the needs of denunciation, punishment, and deterrence, loom large in sentencing you. Children must be protected. They deserve to be protected by their parents and those entrusted with their care. A breach of that trust is something that no civilised community can accept. It must be, when detected, named and denounced for what it is, and punished appropriately.
28 Having fled when the matter was first reported 20 years ago, you now find yourself at the age of 47, with no prior criminal history, and no subsequent criminal history, in this court pleading guilty to charges of incest and indecent act with a child under 16, very serious charges which carry a maximum penalty of 20 years and 10 years imprisonment respectively.
29 Your circumstances are different now from those that existed at the time of the offending. Your relationship with Lorraine endured, although it had its ups and downs, and its on periods and off periods, but finally came to an end four years ago. Until the time you surrendered yourself into custody on the day of your plea hearing in early March this year, you had continued to enjoy regular contact with your daughters and their children.
30 I am told that you have been living an isolated life. Since your separation from Lorraine you have not re-partnered, and you seem to have, and have had, few friends and no social contact with anyone apart from your children and their children. It would appear that is, in the main part, due to your long-term history of abuse of alcohol. Although you maintained your relationship with Lorraine for extended periods over that period up until four years ago, and you have maintained regular contact with your children, and have always been in steady employment, you report that you would drink heavily every night after work and on weekends. You described yourself as a functioning or working alcoholic.
31 You told Associate Professor Carroll that both your parents were alcoholics - I should say Mr Gibson told me this too, in the course of the plea before you were assessed - that you started drinking at the age of 14, and that you were soon drinking six stubbies of normal strength beer a day, that your usage had escalated over time and had peaked in recent years to 20 cans of beer a day on weekdays and 40 on weekend days. Consistently with that, you reported to Associate Professor Carroll that when remanded in custody, you required Valium in order to deal with the withdrawal symptoms from the alcohol. You told Associate Professor Carroll that you had had dry periods over the years, the longest of which was for two years, but at the time of the offending, that was not a dry period, you had been drinking, consistently, about 15 cans a day.
32 Associate Professor Carroll draws a causal connection between your alcohol abuse and the offending. He said that led to an effect upon your mental capacity and functioning, to periods of poor judgement and disinhibition and poor memory. It must be noted, however, that you have no previous and no subsequent convictions for like offences. On the material before me, alcohol abuse has been a feature of your life since the age of 14. Given that, I find it difficult to understand Associate Professor Carroll’s reliance on the apparent lack of any other periods of offending behaviour, as supporting his conclusion that it was likely that heavy alcohol abuse, and your intoxicated state at the relevant times, played a very significant causal role in your offending behaviours.
33 Even if alcohol did play a causal role in your offending behaviour, it is no mitigating feature. You were an adult, and as Associate Professor Carroll said, your ability to understand the wrongfulness of your actions would have been intact, notwithstanding your abuse of alcohol.
34 You had revealed to Mr Gibson, and again to Associate Professor Carroll, that you were, as a child of five, sexually abused by an uncle. Neither you, nor Associate Professor Carroll, considers that has any bearing on this offending. He reports that you have no post-traumatic stress disorder symptoms, that your psychosocial and psychosexual history is unremarkable and that you have no deviant sexual arousal or paraphilic fantasies.
35 Associate Professor Carroll assesses your risk of reoffending to be low. In his report he said this, at paragraph 57:
”In my opinion, the likelihood of sexual reoffending in this case is low: he has apparently gone for over two decades without any recurrence; there is no evidence of paraphilia; there is no history of violent or noncontact sexual offending; his offending appears to have all occurred in the context of alcohol intoxication, which in theory at least, is a remediable risk factor; he is prepared to acknowledge his offences and accept specific therapeutic input; he is in his late forties and age itself, is a significant protective factor for sexual reoffending. In my opinion, his prospects for rehabilitation are good, provided he can make the necessary changes to his lifestyle and desist from alcohol abuse in future."
36He then said:
"He will need to be assessed by the correctional specialist sexual offender program, and be considered for the suitability for specific treatment. In my opinion, he would benefit from psychological treatment; there is no indication whatsoever for anti-androgen medication. He will also require support after release, to assist with his goal of avoiding relapse into alcohol abuse. Whether his aspiration to become a social drinker, and not return to heavy use is realistic or not, is difficult to say. His strong family history and entrenched pattern of alcohol abuse, strongly suggest that he will require considerable support if he is to avoid harmful alcohol use again in the future."
37 I accept these assessments of Professor Carroll and endorse his recommendation that you be assessed for suitability for acceptance in a sex offender treatment program.
38 You are entitled to a considerable reduction in the sentence otherwise appropriate, by reason of your pleas of guilty and the stage at which they were entered. They clearly have utilitarian value, sparing the time and cost of a trial, but also, as I have already indicated, a significant effect here of vindicating the truthfulness of Alan's account and of sparing him the ordeal of having to go through a committal and trial process. I accept, in the circumstances of this case, that once you were finally approached by the police 20 years after the offending, and 20 years after you had fled, that you have done what you could to advance the course of justice. And I accept that although you are at an early stage of being able properly to comprehend the enormity of your offending and of its impact on Alan, you have done all you can to expedite this through the court process. I accept this is evidence of genuine remorse. And that clearly, also, weighs in the balance in reducing the sentence otherwise appropriate, and supporting the opinion of Associate Professor Carroll as to your prospects for rehabilitation.
39 In considering the impact of the 20 year delay between the offending first being reported and your fleeing, and the matter coming to be sentenced, I accept that the matters referred to in the course of the plea, and identified by the Court of Appeal in the case of DPP v Murray[2] apply here, that the absence of like offending in the 20 year intervening period demonstrates rehabilitation. But also that, as against that, it is appropriate to give weight to the fact that you have been able to live the last 20 years without the shadow of a conviction over you, and in the meantime, Alan has suffered from the impacts of this offending. And therefore, those balancing factors need to be dealt with.
[2][2011] VSCA 232.
40 Balancing as best I can these matters that I have identified that count in your favour, with the need to denounce, punish and deter, my acceptance of the low prospect of reoffending, and your preparedness to engage in a sex offender treatment program if assessed as suitable, and my acceptance of what is likely to be a lonely life in prison, and on release, as bearing on the burden of imprisonment and of conviction, I have, nonetheless, come to the view that no sentence, other than one of imprisonment, is appropriate. You have always accepted that, and Mr Gibson, on your behalf, made that clear.
41 Because of the nature of these charges, and the acknowledged inevitability of a sentence of imprisonment for them all, you come to be sentenced as a serious sexual offender in respect of Charges 3, 4 and 5. I agree with, and accept, the prosecution submission that this is not a case where a disproportionate sentence is required in order to achieve the stated primary consideration of protection of the community in respect of those charges. That aim can appropriately be achieved by imposing individual sentences which reflect the seriousness of each individual offence, and by imposing periods of cumulation to reflect the overall offending, but so also as to comply with the principle of totality.
42 I make the declaration that you are sentenced as a serious sexual offender in respect of Charges 3 to 5 and direct that be placed on the record.
43 The sentencing structure I have come upon is this: The sentence for Charge 1, the charge of incest, is clearly the most significant sentence. So far as the other four charges, they are to be treated as an episode; four separate criminal acts, but an episode on one instance. They have varying levels of gravity in my view, escalating so that there is an added serious in Charge 3 of masturbating in front of the pornography to the showing of and exposing Alan to the pornography, which is the subject of Charge 2. So the sentence of Charge 3 is greater than that for Charge 2.
44 There is an added gravity again in respect of Charge 4, because it was a contact offence and because you importuned Alan to try to sexually penetrate by having him place his mouth on your penis, and Charge 5 is also one where there is physical contact, and where again, Alan was importuned to allow an act of sexual penetration, this time by anal penetration. Again, there was no actual penetration, both charges 4 and 5 are of indecent act, not of attempt to engage in an act of penetration. I consider those to be of like gravity, and so the sentence in respect to each of those is the same.
45 And I have directed that there be a period of partial cumulation in respect of the sentences on each of Charges 4 and 5 on the sentence of Charge 1. There should be some cumulation, in my view, in respect of the second episode on the sentence, the subject of Charge 1. And the way I have decided to do it is to make a partial cumulation in respect of the sentence for those two offences in that episode which I consider to be the more serious. I just wanted to explain that.
46 You are also required to be placed on the Sex Offender Register for life, by reason of the operation of the legislation, and I will explain that to you after I have formally passed sentence.
47 Could you now please stand Mr Lane.
48 Michael Lane, on the five charges to which you have pleaded guilty, you are convicted. On Charge 1 you are sentenced to be imprisoned for a period of five years. On Charge 2, to be imprisoned for a period of 12 months. On Charge 3, to be imprisoned for a period of 18 months. On Charge 4, to be imprisoned for a period of two years, and on Charge 5, to be imprisoned for a period of two years.
49 I direct that six months of the sentence on Charge 4 and six months of the sentence on Charge 5 be served cumulatively upon each other, and on the sentence on Charge 1, making a total effective sentence of six years. And I fix a period of four years as the time you must serve before being eligible for parole.
50 You have spent 42 days in pre-sentence detention, and I direct that that be counted and reckoned as part of the sentence already served.
51 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for the pleas of guilty, I would have imposed a total effective sentence of nine years and I would have fixed a non-parole period of seven years.
52 Application has been made for the taking of a forensic sample, given the seriousness of this offending. That application is not opposed. I consider it appropriate to make the order, given the seriousness of the offending and that fact that you fled. I am going to direct that that sample be provided by the taking of a scraping of a sample from the inside of your mouth, what is called a buccal sample. I must inform you that if you do not consent to the taking of that sample, then an authorised member of the police force is entitled to use reasonable force to obtain that sample and may well use the more invasive method that is available, namely the taking of a blood sample. Do you understand that?
53 I declare pursuant to the Sex Offenders Registration Act that you are required to be placed on the register for life.
54
I must provide you with a copy of the registration conditions and I will ask
Mr Gibson to accompany my associate to the Dock. I am required to have those conditions handed to you and I am required to ask you to sign a receipt acknowledging that you have been provided with it. You do not have to sign the receipt, the court record will show, in any event, that you have been provided with it.
55 Thank you, I note that you have signed the receipt. Do the orders that I pronounce reflect what I said I intended to do?
56 MS DIPIETRANTONIO: Yes Your Honour.
57 MR GIBSON: Yes Your Honour.
58 HER HONOUR: Everything ticked right. And are there any further orders that are required to be made?
59 MS DIPIETRANTONIO: No Your Honour.
60
HER HONOUR: Thank you. Mr Gibson you have been very accommodating of my timing difficulties and I have tried to accommodate yours too. If you need to go somewhere else, I will stay on the Bench so you can speak to
Mr Lane before he is taken down stairs, if that is more convenient.
61 MR GIBSON: I propose to see Mr Lane downstairs, so I don't need to do that. Thank you Your Honour.
62 HER HONOUR: Oh, you will be able to see him, all right, thank you.
63 MR GIBSON: Thank you Your Honour.
64 HER HONOUR: Thank you. Could you remove Mr Lane please.
65 MS DIPIETRANTONIO: Your Honour, could I ask if the video link could remain open for a short time after the court convenes so I can speak to Alan.
66
HER HONOUR: Yes, certainly. I am going to leave the video link open,
Mr Lane, so Ms Dipietrantonio can speak to you.
67 COMPLAINANT: Thank you Your Honour.
68 HER HONOUR: If you wish a copy, the reason for sentence will later be made available. They will be anonymised so your name, your mother's name, Mr Lane's name will be changed so that you will not be able to be identified and you will be entitled to the protection that the Judicial Proceedings Reports Ac 1958 provides to victims of sexual offending. I just wanted to explain that to you so you don't feel that you have been dehumanised, it's actually a very important step to ensure that people are protected.
69 COMPLAINANT: I am aware of that. Thank you Your Honour.
70 HER HONOUR: Thank you. I have signed the 464ZF. Thank you. I'm sorry, Mr Gibson, my associate needs to speak to you about our timing for 29 April too.
71 MR GIBSON: Yes.
72 HER HONOUR: I am afraid that things have got a little out of hand in respect of the long matter that has been before me too.
73 MR GIBSON: Yes, your tipstaff was giving me a heads up on that this morning.
74 HER HONOUR: Good, because I am sorry, you are going to be a bit inconvenienced, but we will do as much as we can to accommodate it. But it might just mean a later start in Geelong on the 29th for both matters.
75 MR GIBSON: Thank you, yes thank you.
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