Director of Public Prosecutions v Lawrence (a pseudonym)

[2021] VCC 1320

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER LAWRENCE (A Pseudonym)

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JUDGE:	His Honour Judge Hannebery
WHERE HELD:	Melbourne
DATE OF HEARING:	6 September 2021
DATE OF SENTENCE:	8 September 2021
CASE MAY BE CITED AS:	DPP v Lawrence (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1320

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              sexual penetration of a 16 or 17 year old child - maximum penalty for this offence is 3 years' imprisonment – plea of guilty – COVID-19 – delay – suspended sentences

Legislation Cited:      Crimes Act 1958; Crimes (Sexual Offences) Act 1991; Sentencing Act 1991; Sex Offenders Registration Act 2004

Sentence:                  9 months' imprisonment and that such sentence is to be wholly suspended for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms D. Guesdon	Solicitor for the Office of Public Prosecutions
For the Accused	Ms D. Price with Mr J. Penny	Doherty & Colleagues Solicitors

HIS HONOUR:

Introduction

1Peter Lawrence[1], you have pleaded guilty to one charge of sexual penetration of a 16 or 17 year old child, contrary to contrary to s 48(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1991. This is a rolled up charge comprising two incidents.

[1]A pseudonym

2The maximum penalty for this offence is 3 years' imprisonment.

Summary of Offending

3The Prosecution tendered a Summary of Prosecution Opening,[2] in short your offending is summarised as follows:

[2]Prosecution Exhibit 1.

4You were a Support Worker at Vaugirard, a ‘Boys Home’ run by the De La Salle Brothers, between 1990 and 1992. You worked with and came to know the victim. He was approximately 13 or 14 years old and a ward of the State. He resided at the boys' home. You would interact with the victim daily during this time

5In May 1991, the victim ran away from Vaugirard.  He called you In June 1991. You agreed to pick him up and allowed him to stay with you. The next morning, you contacted Child Protection. From June 1991, the victim was living with you in a 'private board' arrangement. 

6You were approved as a “Foster carer” of the victim.  The victim was then under your care, supervision or authority.

7You and victim resided together at your address in McKinnon until April 1992 when the victim moved to Sale. The victim's Wardship was then officially discharged on the 8th of August 1992.

8

Your offending comprises two incidents which occurred between approximately

30 January 1992 and 1 May 1992.

9

The first incident occurred on a date shortly after the victim’s birthday on

29 January 1992. The victim fell asleep on a mattress in the lounge room whilst watching television. He awoke to you rubbing his penis over the top of his tracksuit pants. He was shocked and embarrassed. He did not know what to do so pretended to be asleep. 

10You then pulled down the victim's tracksuit pants and underwear.  You put the victim's penis into your mouth (Charge 1 - sexual penetration of a child age 16 or 17 – rolled up charge). You continued to rub the victim's penis at the same time that you had it in your mouth.

11You did this for approximately ten minutes.. You then pulled the victim's tracksuit pants and underwear back up. You then got up,  turned the television off and walked to your bedroom. The victim waited approximately ten minutes then got up and walked to his own bedroom. No other people were home during the offending.

12The second incident occurred approximately two weeks later. 

13The victim again fell asleep on the mattress in the floor of the lounge room whilst he was watching television. He woke up to you rubbing his penis on the outside of his clothing. You pulled the victim's tracksuit pants and underwear down and rubbed the victim’s penis with your hand. 

14You did this for a few minutes before putting the victim's penis into your mouth. The victim pretended to be asleep for about one minute as you sucked his penis before he jumped up and yelled at you.  So those two incidents are the subject of  Charge 1, sexual penetration of a child aged 16 or 17.

15The victim said  "what do you think you're doing? This is now the second time you've done this." You had surprised and shocked expression on your face. You asked him to stop yelling. The victim then went to his bedroom and went to sleep.

16Subsequently, the victim attempted on a number of occasions to speak to you about the offending but without any success.  He continued to live with you for a few more months. He moved out whilst still only 16 years old because as he said, "there was no trust left."

17The victim reported the matter to police in June 2018.

18You were interviewed on the 7th July 2018. You initially denied the specific allegations put in relation to the charged acts but admitted to a different sexual incident involving the victim. You stated that there was an occasion when the victim was living with you and you performed oral sex on the victim, he would have been 17,18 or 19, you can’t be sure. You later said when you performed oral sex on the victim he would have been 16, it was very close to his 16th birthday

Impact on the Victim

19A Victim Impact Statement dated 21 August 2021 was tendered on the plea and read aloud during the plea hearing.[3] The statement articulated the multiple ongoing and adverse impacts your sexual offending has had on the victim.

[3]Prosecution Exhibit 2.

20The victim sets out numerous ongoing problems of a medical, financial and lifestyle nature. He says that he endures “endless hardships and torture” on a daily basis. Your crime has had and continues to have a profound detrimental effect on the victim’s life.

21The impact of a crime is a matter to be considered on sentence pursuant to s 5 of the Sentencing Act 1991, and I do so. I am also conscious not to let this one factor overwhelm the other sentencing considerations.

Nature and Gravity of Offending

22Your offending represented a gross breach of trust. You committed this offence when you were engaged by a youth support service to provide sanctuary to a child whose alternative was a youth detention centre. Your role was that of a foster carer to the child. The victim had only just turned 16. His circumstances were precarious. He was alone with you at your home. He was reliant on you for housing, and you were aware of this.

23Rather than ensure his safety, you took the opportunity to indulge your sexual desires with no regard for his welfare.

24The offending involved two separate acts of sexual penetration. Both events were opportunistic in nature. There is no suggestion of any manipulation, threats or coercion. The offending ceased after the second event and nothing further is reported from then until the victim left your care in April 1992.

25At the time of the offending you were 38 years old and had been working in youth services for the best part of a decade. Both through your own experience as a child and through your work with other children, you must have known the vulnerability of the victim and your relative position of power whilst he was in your care. That you decided to offend in the manner you did despite this context makes your moral culpability very high.

26Sexual offending against children, especially when it involves a breach of trust, is an inherently serious offence. This charge represents a serious example of a serious offence. I must, however, take into account that the maximum penalty set by Parliament for that offence at the time you committed it was only 3 years' imprisonment, less than one third of the maximum penalty currently prescribed for the equivalent offence.

27As such, this is a serious offence but in relative terms a middle range example committed at a time when its gravity as judged by modern standards was not then reflected in its maximum penalty.

Personal Circumstances

28Peter Lawrence, you are 68 years old and were 38 years old at the time of offending. You were born in Dublin, Ireland where you lived in a two-bedroom council home. You are one of twelve siblings. Your family migrated to Australia in 1963. Upon your arrival you were bussed to the Fairbridge Farm School in Molong New South Wales, while your parents moved to Sydney. You remained there until you were 15 years old.

29Your time at Fairbridge Farm School was characterised by emotional, physical, and sexual abuse.[4]

[4]Defence Exhibits 3 to 6.

30Upon leaving Fairbridge, you joined your parents in Sydney, despite having little contact with them over the proceeding 5 years. You ran away at approximately 16 years of age due to your parents' alcoholism and the family violence perpetuated by your father on your mother. You were homeless and began sex work before you were taken in by a religious order in Bundeena, where you lived for several years.

31In 1976, you returned to the United Kingdom and stayed there for almost a decade. You obtained a certificate in Youth and Community Work from Avery Hill College in London[5] and worked as a youth leader in North West London. You performed this role for many years and formed a close circle of friends. During this time you were engaged to a women for three years. That relationship ended and you commenced a long-term relationship with a man.

[5]Defence Exhibit 2.

32A copy of your resume was tendered on the plea.[6] Since returning to Australia, from 1992 until 2018 you have had consistent employment in various positions and organisations. This has included your role as manager at Vaugirard Youth Support Service. More recently, you have worked as a Security Officer at the Australian Integration Management Service and as a building manager and front desk attendant.

[6]Defence Exhibit 3.

33Your most recent employment required you to hold a private security licence. That licence was suspended due to the pending nature of the charges, and meant that you had to leave your position. You are now, at age 68, unemployed and reliant upon an age pension. I accept that the loss of your employment, that you had hoped to continue, represents a form of extra curial punishment because of your offending.

34It was not contended on your behalf that your disadvantaged and, at times, traumatic childhood had a direct impact on your decision to offend against the victim. There is simply no evidence on this issue whatsoever. Those matters are, however, relevant as part of your broader personal history to be considered in the course of sentencing.

Mental health

35It was put on your plea and not contested by the prosecution that you have endured significant mental health issues related to your childhood experience of sexual abuse. These issues have involved anxiety, depression, and suicide attempts which prompted you to seek professional help. In 2008 and 2009 you received counselling through the South-Eastern Centre Against Sexual Assault.

36It is not suggested that your current or previous mental health issues are such as to enliven any of the principles outlined in Verdins.[7]

[7]R v Verdins (2007) 16 VR 269.

37It is, however, contended that since being charged and involved in the justice system that your mental health has deteriorated. You are currently subject to a mental health care plan put together by your consulting psychologist.

Plea of Guilty

38This matter resolved after it went through an Emergency Case Conference. You were arraigned and pleaded guilty on 23 July 2021. You had conducted a contested committal hearing during which the complainant was cross-examined. As such, your plea of guilty is not at the earliest reasonable opportunity. It is, however, still of very considerable utilitarian worth.

39By your plea you have saved the time and resources that would otherwise have been expended on a trial. You have spared the victim the inconvenience and undoubted stress that would have been associated with giving evidence on this topic once more.

40The utilitarian worth of your plea is enhanced having regard to the pressures placed on court listings because of pandemic restrictions. But for your plea, it is probable that the matter would not have been concluded until well into 2022.

41I consider that your plea of guilty, in combination with the partial admissions during your interview with police, is consistent with you having some remorse for this offending. It was frankly conceded on your behalf that subsequent adult consensual sexual relations you had with the victim have proven something of an impediment to your insight into the wrongfulness of the offending, so your remorse is something short of complete contrition.

Delay

42The matter has been subject to a very substantial delay. The offending ceased in 1992. The victim made a statement to police in November 2018 and charges were laid in April 2019.

43The course of the matter over the following 11 months was unremarkable and consistent with the expected progress of a contested proceeding. Since that point however the matter has been significantly elongated because of the interruption to jury trials caused by the pandemic. That delay was not attributable to your conduct of the matter.

44The delay is a significant matter to consider in mitigation of sentence. I am  required to impose a sentence for an offence committed almost 3 decades ago.

45During the period of that delay, you have not committed any further offences. You have been until recently fully employed. Your behaviour since the offending has shown that you are not to be sentenced as somebody with an ongoing sexual interest in children. Rather, the delay establishes that the two episodes constituting the charge represent an aberration in an otherwise blameless life.

46The delay and your good behaviour during to the offending shows that your rehabilitation has been fully achieved. The probability of you re-offending is very low. Specific deterrence plays little part in the sentencing matrix.

47You are now  a 68-year-old man being sentenced at a time of COVID-19. I accept that legitimate concern about the prospect of entering a prison environment in the midst of a pandemic has hung over your head for a substantial period of time during an elongated judicial process. This anxiety and uncertainty has been a form of punishment in itself attributable to the delay.

Sentencing Principles and Suspended Sentences

48Since the commission of the offence, sentencing practices in relation to offences against children have changed. There is now a much greater understanding of the impact suffered by victims of child sexual abuse, and this is reflected in changes to maximum penalties and to sentencing practices generally. I am, however, required to sentence you having regard to the law and sentencing practices as they existed at the time you committed the offence.

49Pursuant to s 27 of the Sentencing Act as it was then in force in 1992, I have the power to impose a wholly suspended sentence of not more than 24 months if I am satisfied that it is desirable to do so in the circumstances. Pursuant to s.27(3), I must not impose a suspended sentence of imprisonment, unless a sentence of imprisonment, if unsuspended, would be appropriate in the circumstances.

50As was noted in the case of  DPP v Buhagiar & Heathcote,[8] 'a suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending'. 

[8][1998] 4 VR 540.

Submissions on Sentence

51Ms Price submitted on your behalf that in this case it was appropriate to impose a period of imprisonment that was fully suspended. Ms Price conceded that the offence was serious and involved a substantial breach of trust. She contended, however, that having regard for the matters in mitigation it was appropriate that an immediate period of imprisonment be avoided.[9]

[9]Defence Exhibit 1.

52Ms Guesdon appeared on behalf of the Director. She submitted that the objective gravity of the offending, in particular the gross breach of trust and your moral culpability, required that a term of imprisonment be imposed. While she conceded that the sentence could be partially suspended, it was the Crown’s position that some portion ought be served immediately.[10]

[10]Prosecution Exhibit 3.

53In your case Mr Lawrence it is necessary to impose a sentence that punishes you to an extent and in a manner which is just in all the circumstances. I must seek to deter others from committing similar offences. I must manifest denunciation of your conduct. I must also have regard for your prospects of rehabilitation as I have found them to be.

54Balancing these considerations as best I can, I consider that it is appropriate to impose a period of imprisonment, but having regard for the circumstances I have already outlined the entirety of that sentence should be suspended.

Sentence

55Peter Lawrence, I sentence you as follows:

56On Charge 1, sexual penetration of a 16 or 17 year old child, you are convicted and sentenced to 9 months' imprisonment. I order that such sentence be wholly suspended for a period of 2 years.

57Pursuant to s 6AAA Sentencing Act 1991, but for your plea of guilty I would have imposed 15 months' imprisonment with a non-parole period of 9 months.

58Charge 1 is a class 1 registerable offence under the Sex Offenders Registration Act 2004, you will be required to comply with reporting conditions of that Act for 15 years.

59I do not require Mr Lawrence to sign the documents acknowledging receipt of SORA obligations, but my Associate will arrange for a copy of those documents to be sent to your representatives and then forwarded to you.

60

I am obliged to explain to you what this sentence means. It means you have got

9 months of imprisonment hanging over your head. If you commit any offence punishable by a term of imprisonment during the next 2 years, you breach the suspended sentence and you come back and the court will likely be obliged to have you serve that period of imprisonment immediately.   

61You are also liable for registration under the Sex Offenders Registration Act 2004. It is important that you understand that failure to comply with your obligations may result in you getting charged and a failure to adhere to these obligations would  likely breach your suspended sentence. If you do not fully understand your obligations, you need to get advice about them.

62Any further orders required?

63MS GUESDON:  No, Your Honour.  May it please the court.

64HIS HONOUR:  I just note there's been a media request for the documents in relation to Mr Lawrence, that is the indictment, the summary of prosecution openings and the defence submissions for plea and victim impact statements.  What's the attitude of the parties?  Can I say my position is that if something has been presented in open court and it's been read out subject to obviously the proviso I said earlier about a necessity not to identify the victim either directly or indirectly, I think it's consistent with the Open Courts Act that that material be released.

65COUNSEL:  Yes, Your Honour, it has been read aloud.

66HIS HONOUR:  Anything to say about that?

67MS GUESDON:  Yes, it doesn't seem I can resist it, Your Honour.

68HIS HONOUR:  I'll order the release of those documents being the indictment, the summary of prosecution opening and the defence submissions on plea and the victim impact statements. 

69Thank you very much.  I will then adjourn the court until 10.30.

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