Director of Public Prosecutions v Lawson
[2010] VCC 933
•22 July 2010
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-10-00500
CR-10-00497
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| KEVIN JAMES LAWSON |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 July 2010 | |
DATE OF SENTENCE: | 22 July 2010 | |
CASE MAY BE CITED AS: | DPP v Lawson | |
MEDIUM NEUTRAL CITATION: | [20150] VCC 933 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr R.J. Johnson | |
| For the Accused | Ms L. Warren |
HER HONOUR:
1 Kevin James Lawson, you have pleaded guilty to two charges of sexual penetration of a child under 16; two charges of committing an indecent act with or in the presence of a child under 16; one charge of making child pornography and one charge of possessing child pornography.
2 The offences were committed in 2008 against a nine-year old boy whose family you had befriended. In December 2007 the family had been evicted from their home and had moved to a caravan park. You were staying in the same park at the time and introduced yourself to the family, of whom three children, a boy and two girls, were living in the household at the time.
3 You took the children for walks and swimming and had dinner with the family a number of times. You bought the family presents and helped the mother from time to time, and in particular you provided the boy with lollies, lemonade and food. You bought tyre tubes for his bike and fixed the bike for him. You watched television with him in your caravan and on one occasion when his sisters came to the caravan they were told by you to go away.
4 The family moved from the park in February 2008 to a house and you asked the mother if you could move your caravan onto the property. She agreed, and two weeks later you set up your caravan near the house. Your instructions to your counsel are that this suggestion came from the mother, but in any event it is not a matter of great weight.
5 In the caravan you had gaming consoles, including an Nintendo Wii and Z box. You also had a DVD player, a laptop computer, board games and card games. The children visited you in your caravan each day and the boy would often be there alone with you. On one such occasion he was lying on the bed when you knelt beside the bed and masturbated him. This is Charge 1 on the indictment, committing an indecent act with a child under 16. He tried to tell you to get off but you continued for about 20 minutes.
6 It is part of the prosecution case, and included in the summary, that you told him to do what you said or you would kill his mother. You deny any such threat. It was not part of the boy's initial disclosure but in his VATE interview he told the police about three such threats and in his victim impact statement he said you scared him and tricked him and that you said that you would kill his mum. He said he worries about her when he is not with her, and that is consistent with his claim.
7 The threats are on one view inconsistent with the child's frequent visits to your caravan of his own volition, but that must be considered in the context of the grooming behaviour which I shall describe later in these remarks. Of course the threats are no longer the subject of any charge, nor did the prosecution raise them as an aggravating factor. The negotiating process that saw you plead guilty to the current indictment resulted in the withdrawal of charges of threat to kill, and although they are a feature of the boy's complaints I am unable to place any weight upon them. You must have the benefit of the doubt in relation to that matter. However I include reference to the threats in these remarks in order to show the context in which the events occurred.
8 The prosecution summary referred to uncharged acts of genital touching which occurred on approximately 5 to 10 occasions around the same time as Charge 1. During the same period you often exposed your erect penis to the boy. On another occasion the boy was sitting on the couch in the caravan and you knelt on the floor and sucked his penis. This is Charge 2, sexual penetration of a child under 16.
9 Just after the boy turned 10 he was in your caravan when you reminded him of the threat you had made previously. You told him to masturbate you, and you showed him what to do. He then masturbated you with his hand for approximately 5 to 10 minutes. This is Charge 3, committing an indecent act with a child under 16.
10 On another occasion a few weeks before you left the property on 12 September 2008 the boy was in the caravan with you when you sucked his penis. He said you again reminded him of the threat you had made. This is Charge 4, sexual penetration of a child under 16.
11 The police attended the property on 12 September and as they approached your caravan you were seen to throw a plastic bag and a box into nearby bushes. These were found to contain a number of letters and pornographic photographs of children. In the caravan were found the hard drive of a computer containing files, the text of which was identical to two of the letters recovered from the bushes. The hard drive also contained images of the complainant taken by you showing him with an erect penis. At the time of taking the photos you told the complainant to pull his pants down, which he did, following your renewal of the threat to his mother. This is Charge 5, making or producing child pornography.
12 Charge 6, possessing child pornography, relates to a bundle of about 100 photographs found in the bushes; images of child pornography found on the computer hard drive in the caravan and photographs of child pornography found in a storage facility leased by you. Many of the photographs found are not pornographic and include photographs of children playing, but largely focussing on the complainant.
13 You stated in your record of interview that you did not think the other images of children were pornographic, but you told the psychologist who assessed you, Mr Cummins, that some of the photographs came from an adult pornography site. Mr Cummins formed the view that at the time of the offending you probably did not understand that the children depicted in the child pornography were sexually abused by its very production and that in viewing those images you were perpetuating that abuse. Certainly the images do not represent the more serious examples of highly confronting material that are often brought before the courts, but even so their production and their copying and viewing by you are serious matters.
14 The letters that were found, some handwritten and some typed by you, were of a disturbing character. Some were addressed to the boy and were of a sexual nature. For example some letters invite him to join in games of a sexual nature with you and other children who are named but appear to be fictional. Other letters include a series of questions relating to sexual incidents. A number of these were read to the boy by you and his response was written next to the question either by him or you.
15 Other letters included offers of rewards for performing sexual acts such as the boy masturbating either himself or you. These rewards included cash and so-called sex tablets expressed as follows, "If I gave you $50 would you wank Kevin?", followed by, "If you make him spoof I will give you another $20". There is, however, no suggestion that any tablet was ever provided to him. During this period on one or two occasions you showed the boys pictures of naked females.
16 The prosecution described this as grooming behaviour by you designed to win the confidence and friendship of the family and in particular the boy. It is noted that on one occasion in August 2008 the family were going to a nearby town and you wished to take the boy in your car with you. He did not want to go with you and you became upset and would not speak to him for the rest of the day.
17 The prosecution further submitted that this behaviour overall had the hallmarks of predatory steps towards offending, demonstrated by providing junk food, games and gifts, and the letters designed to stimulate the child's sexual interest and curiosity. The production and possession by you of the photos referred to earlier show an obsession of a sexual nature with young boys.
18 Ms Clarke, who appeared on your behalf on the plea, sought to characterise this behaviour differently for two reasons. The first is that you tried to assist the family, who were disadvantaged, and you had become genuinely friendly with them, and there is no evidence that you deliberately enticed the children to your caravan. The second reason relates to your state of mind at the time and your deficits in socialising due to a psychological condition from which you suffer. This requires the recounting of some history as to your background.
19 You are now aged 67 and you grew up as one of two sons of parents who moved location quite frequently and for some time you were cared for by your grandparents. At age eight you were subjected to sexual abuse by your uncle when he fondled your penis and, at the age of 13, you were subjected to similar behaviour by a man in a picture theatre who later followed you into the toilets and intimidated you. Only days afterwards you yourself fondled a six-year old boy, which led to you being charged and pleading guilty to indecent assault in the Children's Court.
20 It appears that you underwent some form of counselling around that time, but the details are vague and you recounted a bizarre incident having occurred when the psychiatrist photographed your genitals. You suffered further sexual abuse at the age of 14. In 1967 while in your mid-20s you were charged with the sexual abuse of two boys and you were placed on probation for two years.
21 These matters are set out in the recent report of Mr Jeffrey Cummins. He gave evidence and described having seen you regularly since October 2008. He recalled having assessed you 17 years ago in relation to sexually assaulting your nephew. That matter was heard on 7 June 1996 when you were sentenced by His Honour Judge Stott of this court to 18 months imprisonment wholly suspended for attempting to procure the commission of gross indecency with a male and indecent assault. Those offences had occurred many years previously - 20 years ago in respect of one offence and 16 years ago in respect of the other when your nephew was aged 5 years and 10 years respectively. The offences involved penile touching and licking. His Honour was satisfied that the offences were opportunistic and not predatory but he regarded as aggravating factors the disparity in age between you and the victim and the betrayal of trust.
22 Judge Stott relied on the report of Mr Cummins at that time, who did not consider you to be a paedophile but rather as a shy and unassertive man with an inadequate dependent personality style and low levels of self-esteem. Mr Cummins also considered you then to be markedly psychosexually immature, and that is still his opinion. He noted that you are a very isolated man, having lived and travelled alone in recent years, and previously having not lived independently of your parents. You have never been married or lived with a partner and have been regarded as a loner. Indeed Mr Cummins referred to your dependent relationship with your dog, with whom you relate as a peer and whom you regard as your only friend. Despite your isolated lifestyle you have a good work history in that having left school at 15 you were employed first as an upholsterer and then as a labourer for many years and for only two employers.
23 Mr Cummins considers that your level of psychosexual immaturity is extreme with cognitive distortions regarding the likely sexual attitudes of children and adolescents, and that you relate to children in a childlike manner. He considers that your likely condition of dependent personality disorder makes you vulnerable when in the company of children and that your motive for offending is more likely to be curiosity rather than a desire to achieve sexual gratification. Mr Cummins says there is support for this view to be found in the absence of any systematic progression in terms of the seriousness of your sexual offending over many years. A further consequence of this psychosexual immaturity is a limited sense of remorse, and indeed there is no evidence of remorse.
24 Mr Cummins made a clear link between your limited psychosexual maturity and your offending. He said this impedes your ability to relate comfortably to adults and indeed some of your decision making is from the perspective of an adolescent, and Mr Cummins regarded your behaviour with the child as essentially opportunistic rather than predatory and as being at the lower end of the spectrum of predatory behaviour.
25 This brings me back to Ms Clarke's second point, that because of your immaturity and dependent personality style you could not be said to have groomed the boy, but were interacting with him consistently with your personality style and behaviour generally. Ms Clarke linked this argument to her submissions that the principles in the case of Verdins should apply here. That is, that this is not a good case for general deterrence because of your psychological disorder and the way in which it reduces your moral culpability. Mr Cummins' evidence is clear about your psychological condition and his opinion now is the same as it was when he first assessed you some years ago.
26 Although I have concluded from the evidence that you did groom the boy with a view to sexual exploitation of him and you knew that what you did was wrong, the circumstances here require me to moderate the sentence to some degree. There are a number of other mitigating factors to be taken into account in sentencing you. You have pleaded guilty and have therefore avoided the need for the boy to be cross-examined and for his mother and other witnesses to give evidence.
27 Even though your plea was entered very late in the proceedings the costs and the inconvenience of a trial have thereby been avoided, and that is to be acknowledged by means of a discount on your sentence to some extent. It is also accepted as an indication of remorse, although there is no other persuasive evidence of that. I note that you were prepared to plead much earlier to some of the charges.
28 Another mitigating factor is the expectation that you will experience unusual hardship in prison because of your vulnerability due to your social immaturity and because of your social isolation, with the consequent likelihood that you will not be receiving any visitors. I take that into account as a mitigating factor resulting in a modest reduction in the non-parole period you must serve.
29 Of course these charges are extremely serious and they were accompanied by a number of aggravating features such as the large disparity in age between you and the boy, the breach of the trust placed in you by the boy's mother, the grooming of the child and the predatory nature of the offending, as well as your suggestion that the child initiated the activities and made advances to which you succumbed. The child's answers in his VATE interview indicate no such behaviour by him, and I do not accept that that occurred.
30 Even though in this case general deterrence, as it is reflected in the sentence, must be sensibly moderated, the repugnant crime of sexual abuse of a child calls for a sentence that reflects the court's denunciation of that crime and the community's expectation that such offenders will be severely punished. When you committed these crimes the maximum penalty for sexual penetration of a child under 16 was 10 years imprisonment. I note that that penalty has now been increased to 25 years if the child was then aged under 12. However, the lower penalty applies in your case.
31 For the crime of committing an indecent act with a child under 16 the maximum penalty is also 10 years imprisonment and the same for producing child pornography. For possessing child pornography the maximum penalty is five years imprisonment.
32 Your prior convictions suggest that the risk of your re-offending is high and equally that your chances for rehabilitation are modest. While according to Mr Cummins you do not fit the classic case of a paedophile it seems reasonable to describe your behaviour as grooming behaviour and the offending as predatory, rather than opportunistic.
33 The boy and his mother have both provided victim impact statements. His mother described the impact on the family and her concern for her son, in particular whether he will ever forget what happened. She worries about the effect of having had his childhood ended by your exploitation of him. The boy spoke of his fear of old men, his concerns about his mother and his difficulties with concentrating on his school work. He does not like to be alone and does not like to think of what you did to him.
34 Ms Clarke pointed to the lack of changes observed in the boy's behaviour initially, suggesting that he did not perceive the impact of any threat or predatory behaviour then. That possibility does not preclude the later impact upon him, and I accept that he and his family have indeed suffered as they have described. Crimes such as these very often result in severe consequences for their victims and that is one reason for general deterrence to be an important focus of the sentence, in addition to the repugnance with which the crimes are regarded by the community.
35 Because you have previous convictions for sexual offences I must sentence you as a serious sexual offender on each of these counts. However it was not submitted that in order to achieve the protection of the community it is necessary to impose a longer sentence than the circumstances of the offending require.
36 Mr Lawson, would you stand now, please.
37 I sentence you to the following terms of imprisonment.
38 For each of Charges 1 and 3, the charges of committing an indecent act with a child under 16, two years.
39 For each of Charges 2 and 4, sexual penetration of a child under 16, three years.
40 For Charge 5, making or producing child pornography, 18 months.
41 For Charge 6, possessing child pornography, nine months.
42 The sentence for Charge 2 is the base sentence for purposes of cumulation. I order that two years of the sentence for Charge 4, one year of each of the sentences for Charges 1 and 3 and six months of the sentence for Charge 5 be served cumulatively upon the base sentence. I make no order for cumulation in respect of Charge 6. This results in a total effective sentence of seven years and six months. I order that you serve four years and six months before being eligible for parole. You have now been in custody for eight days and I shall note that on the court record to be reckoned as already served.
43 There are a number of other orders I need to make. I am required to state the sentence I would have imposed had you not pleaded guilty to these charges. I would have sentenced you to nine years imprisonment with a non-parole period of six years.
44 Under the Sex Offenders' Registration Act you will be required to report your whereabouts to the police every year for the rest of your life. My associate will hand you a form dealing with that shortly.
45 The prosecution seeks an order for a forensic sample to be obtained under s.464ZF of the Crimes Act which is not opposed and I make that order. I must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary.
46 The prosecution also seeks a disposal order in respect of items seized, and that is not opposed. I make that order.
47 MS WARREN: Your Honour, perhaps to make something clear in relation to the disposal order, I understand that number 15 on my schedule which refers to nine ring binder folders of photographs, that also includes personal photographs of my client and that part of the order is not consented to.
48 HER HONOUR: Yes, that was mentioned, I think, and I think there was going to be some attempt to make that separation. I will ask Mr Johnson.
49 MS WARREN: Thank you, Your Honour.
50 HER HONOUR: Yes, all right, that will be done, thank you. Are there any other matters? I will just ask my associate to approach your client, Ms Warren, with the Sex Offenders' Registration form.
51 MS WARREN: Thank you.
52 HER HONOUR: You may take the prisoner.
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