Director of Public Prosecutions v Lawson(pseudonym)
[2015] VCC 311
•16 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GORDON LAWSON (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 February and 16 & 18-20 March 2015 |
| DATE OF SENTENCE: | 16 June 2015 |
| CASE MAY BE CITED AS: | DPP v LAWSON(pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 311 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Sexual penetration of a child under 16 years - indecent act with a child under 16 years
Legislation Cited: Sentencing Act 1991, Sex Offenders' Registration Act 2004
Cases Cited: Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
McAleer v The Queen [2015] VSCA 4,
Sherritt v The Queen [2015] VSCA 1
Marocchini v The Queen [2015] VSCA 29
Cole (a Pseudonym) v The Queen [2015] VSCA 44
Charles v The Queen [2011] VSCA 399
Verdins v The Queen (2007) VSCA 102
R v Tsiaras [1996] 1 VR 398
Sentence:4-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP on 20 February and 16, 18 & 19 March 2015 For the DPP on 20 March and | Ms L. Dipietrantonio Ms S. Denham | Office of Public Prosecutions |
| For the Accused | Mr S. Casey | Paul Vale Criminal Law |
HIS HONOUR:
1This is a return of a hearing for sentencing - it is in fact a re-sentencing - after review by the Supreme Court. On the day of the original sentencing by me, 18 March 2015, it was recognised that the sentence I passed was in error in that the imposition of a community correction order on the same occasion as the imposition of a suspended sentence was impermissible at law. By order of the Supreme Court made 4 June 2015, the indictment in this matter has been remitted back to this court for sentence according to law. I now proceed to re-sentence Gordon Lawson[1].
[1] Gordon Lawson is a pseudonym.
2For the sake of certainty, I will re-make the orders that I had made before in relation to the Sex Offenders' Registration Act and the forensic sample.
3Gordon Lawson, you have pleaded guilty to one charge of sexual penetration of a child under 16 years and one charge of indecent act with a child under 16 years.
- Sexual penetration of a child under the age of 16 in the present circumstances carries a maximum penalty of ten years' imprisonment and/or a fine of up to 1200 penalty units.
- Indecent act with a child under the age of 16 carries a maximum penalty of ten years' imprisonment also and/or a fine of up to 1200 penalty units.
4You were born on 22 June 1962 and were aged 35 to 36 when this offending occurred. You will be 53 later this month.
5You have no criminal record.
6At the time of the offending you lived in North Melbourne with your mother.
7The victim in this matter was born on 15 August 1988 and was nine or ten years old at the time of the offending. The victim is your niece, the daughter of your elder brother.
8The victim lived at an address in Coburg with her parents, brother and, at times, two foster siblings.
9In 1998, when the victim was in grade 4 and aged around nine years, the victim's parents worked long hours and so you would collect the children from school, take them home and care for them until their parents returned home from work.
10On an occasion between 1 January 1998 and 31 December 1998, you collected the children from school and took them to their home in Coburg. You were playing Solitaire on the computer in the study. The victim entered the room and sat on your lap and you were teaching her how to play Solitaire. On this occasion, you put your hand down the victim's underpants and put your fingers in the lips of her vagina and rubbed your fingers up and down for approximately five to ten minutes until the victim got up and left. This conduct constitutes Charge 1, sexual penetration of a child under 16 years.
11On another occasion between 1 January 1998 and 31 December 1998, at an address in Coburg, the victim wanted to buy some chips and asked you for money. You stated you would give her the money if she let you kiss her vagina. The victim states "I wasn't too keen but I really wanted the packet of chips so I said yes". You both entered the victim's bedroom and you lay on the bed. You told the victim to stand on the bed with her legs either side of your head, you then kissed and licked her vagina for approximately 30 seconds. The victim states, "I didn't like it at all … so I put a stop to it. He tried to encourage me with ‘Come on, I'm going to give you $2’ but I didn’t like it so I stopped". This conduct constitutes Charge 2, indecent act with a child under 16 years.
12The victim recalls you referring to her vagina as a “money box - he would drop the money down my pants next to my vagina. He didn't do it a lot because I didn't like it. Maybe two or three times".
13The victim also recalls you telling her the offending "was our secret".
14The victim states "The relationship with my uncle was fine after it stopped, it was normal. I didn't know it was wrong, so I treated him just like all of the family … he would still buy me lollies but there was no exchanging of favours."
15Further, the victim states: "In years 7 or 8 when I did sex ed at school, it had clicked in my mind that it wasn't right what my uncle had done, it wasn't normal... Through the years since Grade 4, every now and then I would think about it and I would feel sick about what Uncle Gordon had done because it wasn't a secret I liked keeping."
16In March 2013, the victim disclosed the offending to her mother. Her mother states: "When she said this I couldn't breathe. We were both crying and hugged each other … she said to me that he would give her food and chips and other things and say she was special … she really struggled about coming forward."
17On 16 July 2013, police arrested you and you were taken to the Fawkner police station. A record of interview was conducted with an independent third person present.
18During the record of interview you denied the allegations and made the following comments (amongst others):
a. You agreed that in the 1990s you collected the children from school and walked them home. You stated you did it for approximately 1 to 1½ years when their father worked late.
b. You agreed you would buy the victim and other children drinks or a packet of chips.
c. You stated that the victim would sit on your lap and watch TV as you had a packet of chips and she loved chips.
d. You admitted the victim had sat on your lap once whilst you were playing Solitaire on the computer and you showed her how to play the game.
e. You denied putting your hand down the victim's pants and touching her vagina, but stated that you could have accidentally touched her if you scratched your leg.
f. You denied referring to the victim's vagina as a ‘money box’.
g. You acknowledged that the victim like chips and “that was the cheapest thing I could buy”.
19You entered a plea of guilty at the committal mention hearing on 24 October 2014.
20I now turn to your personal circumstances.
21As I noted earlier, you were aged from 35 to 36 when this offending occurred, you are now nearly 53 and you have no criminal record.
22You are single, you have never been involved in a longterm romantic relationship and do not have any children. You have never left home and continue to live with and support your elderly mother. You have no extended social network and, whilst in the past you performed voluntary work as an assistant Scout Cub leader for an extensive period, this ceased when you were charged with these offences and, at the present time, you have no other interests or hobbies.
23You left school at 17 without completing year 9 and worked in a sheltered workshop for six years and then worked mowing lawns. It appears that you ceased paid employment around the age of 25 and have since relied on the disability support pension for income. You remain illiterate to a large degree.
24Your mother has confirmed that you were a slow developer as a child and at as early as two years, were diagnosed with a mild intellectual disability. You have required and received support and assistance from your family members and community agencies throughout your childhood and adult years.
25Your mother also reported that you required a high degree of direction and supervision to complete basic activities in daily living. One of your sisters manages your financial affairs. With direction, you have the capacity to care also for your aged mother.
26You have no present issues with either illicit drug or alcohol abuse.
27A psychological report from Mr Ian Joblin, clinical psychologist, and a comprehensive neuro-psychological assessment and report from Dr Loretta Evans, neuro-psychologist, were received on your plea. In Mr Joblin's opinion, the basis of your offending is related to your psychological presentation. This includes your only basic literacy and a history which is consistent with a diagnosis of intellectual limitation. As a result of your limitations, you have had problems socially and effectively no longer have any social life beyond your family. Given the isolated nature of your offending, without further instances after many years, Mr Joblin does not regard you as paedophilic. Your offending acts more likely represent your limited psychological state and lifestyle at the time. You are able to accept the inappropriateness and wrongness of your behaviour and Mr Joblin concluded that you felt significant remorse.
28Dr Evans endorsed Mr Joblin's finding of intellectual disability. In terms of overall presentation she described you as mildly childlike and socially immature as well as quite rigid in thought. Dr Evans' primary diagnosis was of mild intellectual disability characterised by predominantly impaired functioning of cognitive skills. With particular reference to your executive functioning, Dr Evans noted:
" … under complex circumstances, the ability to comply with rules and plans was not achievable, unless others provided instructions and guidance about goals, monitored actions as well as behaviour, and adapted changes to unsuccessful attempts. Furthermore, despite slowed responding on most tasks, formal measures of inhibition revealed highly impulsive behaviour.”.
and further …
" … responses to questions designed to measure social reasoning, and comprehension of socially acceptable behaviours, were within the 1st percentile and indicated poor understanding about societal norms, expectations, or behaviours."
29Your cognitive deficits are permanent, and together with behaviour deficits may have contributed to the offending behaviour. You are intellectually vulnerable and at risk of exploitation in a prison environment.
30The crimes of sexual penetration and indecent act with a child under 16 are serious, and in the case of penetration often result in immediate imprisonment and for a significant term. Sexual assaults against children are, unfortunately, not uncommon and are to be deplored. The courts are expected to protect the rights of children. The victim in this case was aged between nine and ten at the time the offending commenced and you were aged 35 to 36. Furthermore, your offending was aggravated by having been in a position of trust. It was also repeated.
31The victim impact statements - one from the primary victim and the other from her mother - bear eloquent testimony to the hurtful emotional consequences of your acts. As is quite typical, the primary victim suppressed the detail of this abuse for many years. This has resulted in anxiety and self-doubt which has impacted on her relationships with others and with her employment. She is also conflicted and hurt by the way in which the consequences of her reporting have broken the close family connection she previous enjoyed.
32The victim's mother, your sister-in-law, has also suffered. She has felt anger at you, not only for what you did to her daughter but also how the consequences have been destructive to the extended family relationship. She feels self-blame for not being able to protect her daughter and is very distressed and heartbroken at the emotional impact of the offending on her daughter.
33I do not accept your instructions to your counsel that there was no premeditated thought or that you were not aware at the time that your actions were wrong. The accepted factual basis on the plea represents inducements made by you to the victim and you telling the victim that this type of conduct "was our secret".
34I do accept, however, that you have developed a more enhanced sense of remorse since being charged and as the consequences to the victim have been more readily appreciated by you. Dr Evans stated:
"During interview, Mr [Lawson] responded in a manner to indicate a basic understanding about the negative impact that his offending has had on his own circumstances, as well as his niece. He repeatedly acknowledged his actions were wrong and that [he] was sorry, which suggests an understanding about ‘cause/effect relationships’. However, he does not appear to fully appreciate his reliance on others for guidance, nor what is required of him in order to adapt or change his behaviour. Nonetheless, it is my opinion that Mr [Lawson] accepts his actions were wrong and appears remorseful about his behaviour."
35In mitigation, I take into account the matters urged on your behalf by your counsel, including:
· your early plea of guilty, sparing the victim the necessity of the further anxiety and stress of protracted court proceedings and challenges to her truth;
· your good character, both prior and subsequent to this offending;
· the delay of 17 to 18 years since the offending which, in combination with the fact that you have not reoffended in any way, reduces what otherwise would need to apply to give effect to specific deterrence;
· your intellectual disability, which I accept reduces your moral culpability for the offending and would mean that any time spent in custody would be significantly more onerous for you than for a person with better mental functioning - I regard your condition as reducing, without eliminating, your being an appropriate subject for the principle of general deterrence;
· your understanding now of the full consequences of these acts to the victim and your remorse, which has been expressed and which I accept is genuine;
· I regard your prospects of rehabilitation as good;
· your contribution to the community through your longstanding assistance to the cub scouts in assisting your brother; and
· the loss for you now of the ability to continue with the scouting movement.
36The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and the protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
37In his submissions on your behalf, your counsel gave specific emphasis to the recent decision of the Court of Appeal in Boulton[2]. I have given close consideration to the principles expressed in that decision and the further expressions from the Court of Appeal in subsequent decisions including McAleer[3], Sherritt[4], Marrochini[5] and Cole[6]. I have also carefully considered the provisions of the Sentencing Act 1991, in particular s.5(4C), the sentencing overview of cases for these offences as set out in the Victorian Sentencing Manual and the authorities of Charles[7], Verdins[8] and Tsiaras[9].
[2] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
[3] McAleer v The Queen [2015] VSCA 4
[4] Sherritt v The Queen [2015] VSCA 1
[5] Marocchini v The Queen [2015] VSCA 29
[6] Cole (a Pseudonym) v The Queen [2015] VSCA 44
[7] Charles v The Queen [2011] VSCA 399
[8] Verdins v The Queen (2007) VSCA 102
[9] R v Tsiaras [1996] 1 VR 398
38In the recently changed landscape of sentencing law, even in cases of objectively grave conduct a court may conclude that some or all of the punitive, deterrent and denunciatory purposes of sentences can be sufficiently achieved with conditions within a community correction order tailored to an offender's circumstances and the causes of offending, directed at the rehabilitative purposes. Boulton emphasises that sentencing courts need to rethink the conventional wisdom about whether imprisonment is the only option.
39I have given careful attention to -
(a) the purposes for which the sentence is to be imposed, and
(b) whether those purposes can be achieved by a community correction order to which one or more of the specified onerous conditions may be attached.
40I have also considered that, given that a community correction order could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, whether there is any feature of the offences, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option.
41I have also considered the Community Corrections Suitability report which has assessed you as suitable, should I so order.
42On balance, in the particular circumstances of this case I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your immediate confinement in prison. In my view, in light of the particular extenuating circumstances of this case, a community correction order of a significant length and directed at punishment as well as rehabilitation will achieve the necessary sentencing balance. It has the benefit, both for you and the community, of avoiding the potentially corrosive aspects of prison confinement on a vulnerable offender and the risk of undoing rehabilitation already achieved. The protection of the public from the risk of any further offending will more likely be achieved from the rehabilitative courses and counselling available within the Corrections program.
43
On Charge 1 of sexual penetration of a child under 16 years and on Charge 2 of indecent act with a child under 16 years, you are convicted and ordered to undergo a community correction order for a period of four years as part of an aggregate sentence.
44The community correction order commences today and ends on 15 June 2019. The Corrections Centre you will attend is the Carlton Community Corrections Service at 444 Swanston Street, Carlton and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm this Thursday, 18 June 2015.
45All the mandatory terms of the community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a Community Corrections Officer;
· you perform 300 hours of unpaid community work as directed by the regional manager; and
· you undergo programs to reduce offending as directed and, in particular, attend for assessment and participation with the Sex Offender Advice and Treatment Service.
46I note from the pre-sentence report that any recommendations for counselling or other treatment made by this service will be implemented as community correction order conditions.
47I believe from the pre-sentence report that you have had the mandatory terms of the community correction order explained to you, however, I will go through those again with you now.
48The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the order is in force;
· you must report to and receive visits from a Community Corrections Officer;
· you must report to the Community Corrections Centre, that is the Carlton Centre, within two clear working days of the order starting, and as I have already indicated that is on Thursday this week, 18 June;
· you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a Community Corrections Officer; and
· you must obey all lawful instructions from and directions of Community Corrections Officers - such direction may be given either orally or in writing.
49Do you understand and agree to all of these conditions, Mr Lawson?
50PRISONER: Yes I do.
51HIS HONOUR: You will get this in writing and your barrister will be able to explain these matters to you as well, and you will be able to take a copy of these conditions with you so that you have it and understand it.
52PRISONER: Thank you, Your Honour.
53HIS HONOUR: If you become sick or if there are exceptional circumstances the order may be suspended for a period of time, and if your circumstances materially alter you may apply for a variation or cancellation of the order. In either case you must notify the Community Corrections Centre, that is the centre at Carlton, and I recommend that you obtain legal advice if any of these things happen.
54However, I must warn you that if you breach any condition of this order you will be brought back to court and that will be back before me. One of the options open to me is to cancel the community correction order and re-sentence you on the original charges, and that may mean a sentence of imprisonment to be served, and I may also deal with you for the breach by sending you to prison for up to three months.
55Mr Lawson, do you understand the consequences of breaching the community correction order?
56PRISONER: I do, sir.
57HIS HONOUR: The further matters that I need to attend to are the orders relating to the Sex Offenders' Registration Act and the forensic sample order. The offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders' Registration Act 2004 and, by reason of you being sentenced for these offences, you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
58Pursuant to s.50 of that Act, I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case is for life.
59My associate will shortly hand to you the Notification Of Reporting Obligations form which I have already signed. Your representative in court today will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notification form and to return the Acknowledgment to my associate.
60The sex offenders' registration material can now be passed to Mr Lawson, and the form for the community correction order. You may leave the dock and come down into the body of the court.
61MR CASEY: May I approach the prisoner, Your Honour?
62HIS HONOUR: Yes of course. Come down to the first row.
63At the plea hearing the Crown sought an order which was not opposed for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest.
64I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the Police Force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Lawson?
65Is there anything else from either counsel?
66MS DENHAM: No, Your Honour.
67MR CASEY: No, Your Honour.
68HIS HONOUR: I will leave the Bench.
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