Director of Public Prosecutions v Macleod

[2016] VCC 480

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01605

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY MACLEOD

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	26 April 2016
CASE MAY BE CITED AS:	DPP v Macleod
MEDIUM NEUTRAL CITATION:	[2016] VCC 480

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Donaghy	Office of Public Prosecutions
For the Accused	Mr J. Fitzgerald	Victoria Legal Aid

Pages 1 - 12

 

 

HIS HONOUR:

1Gary Macleod, you were convicted by jury verdict of two counts of rape, one count of making a threat to kill, one charge of assault and one count of kidnapping.  These five charges arise out of one incident in early 1990.  You were also found guilty of one count of indecent assault which occurred in late 1989 and six charges of taking part in an act of sexual penetration of a person between ten and 16 years, which related to events which spanned from late 1989 to early 1990.

2The factual circumstances of the offending were contained in the trial prosecution opening, but for the purposes of the sentence can be adequately summarised in this way.

3You were born in 1960, and between November 1989 and 31 March 1990, the complainant in these matters was 14 years old.

4There were originally 13 charges against you, one (Charge 7) was dealt with differently by the jury, at my direction.

5In November of 1989, the complainant was living with her mother and three brothers, but would regularly visit her sister, who lived at the Kingston Lodge caravan park in Carrum Downs with her husband.  The complainant's cousin also lived at the caravan park, and the complainant would visit her also.  Her cousin lived in a caravan adjacent to a self-contained cabin, No.8, where you lived.

6The cousin told you on a number of occasions that the complainant was
14 years old.

7On a day in December 1989, the complainant was at the caravan park, walking with her cousin to a shop in the park's grounds, when she saw you.  After a conversation and smoking of cigarettes, you invited her to your cabin for a chat.  After talking together, you kissed, and then she followed you into a bedroom, and there you inserted her fingers into her vagina, Charge 1.  Later, you inserted your penis into her vagina, Charge 2.  You did not use a condom.  The complainant believed she was in a relationship with you from this first occasion, and over the next few months, had sex with you approximately 12 times, the majority in your cabin.  These were acts which were not charged on the indictment.

8Charge 3 related to the next occasion, when she recalls that in December 1989 she caught a bus to the caravan park on a hot day and went to your cabin.  There you had against asked to have sex, she said no, as she was menstruating.  You asked her two more times, saying that "you didn't care that she had her period", and you then, she having relented, inserted your penis into her vagina, that was Charge 3.

9Charge 4 related to another occasion in December 1989, when you picked her up in a car, an orange Datsun, from a milk bar, in Noble Park North.  You asked her if she had ever had sex in a public place, and when she said no, you suggested and drove to a paddock next a partially-completed hospital.  There, you got on top of her and inserted your penis into her vagina.

10Charge 5 related to another occasion in December 1989 when she caught a bus to the caravan park to meet you.  You said you were going to your sister's house to discuss house-sitting for them.  Your sister, Jeanette, lived in Dandenong, and sometime after this, she and her family went on holidays, and you, when you were house-sitting for them in that December, the complainant called you before catching a bus to meet you there.  Whilst there, you had sex with her, you inserted your penis into her vagina.

11Charge 6 relates to Christmas of 1989.  You had told the complainant that you were going to Albury around this time and gave her a telephone number to contact you.  She did so, and the complainant's mother, the next day, dropped the complainant and her brother in front of the Holbrook post office, and there you picked her up and drove her to Bundalong in Victoria, where your mother lived, and where you would celebrate New Year's Eve.  You introduced the complainant to your family, and after midnight, you went to bed together with her and inserted your penis into her vagina.

12Charge 8 relates to a period between 2 January and 15 February 1990, when the complainant again came to your cabin in the caravan park.  You suggested seeing a movie at the drive-in, as the complainant had never been to one before.  You told her you wanted to have sex in the car, and you did so, inserting your penis into her vagina.

13Charges 9 to 13 relate to events in 1990 after the complainant went back to school in that year.  She decided to end the relationship with you.  You drove to her car, parked outside the school.  She saw you, got into your car, and she told you that "she didn't want to do this anymore".  You reassured her, and she left and went to a class.  Thereafter, she went out with a boy that she met at school, and in the period specified on the indictment, on an afternoon after school, she was at home when you telephoned and told her you would come to pick her up.  She said no, but you sounded angry and said "you were coming over anyway".

14You knocked on the front door and she opened it.  You asked her to speak to her in your car, which was parked on the street at the front of the house.  You went to the car with her, with the engine running.  You got in the driver's seat, she got in the passenger side but left the door open and faced backwards, leaning against the dashboard.  She told you that she "didn't want to see you anymore", and during the conversation you noticed she had a mark, a love bite on her neck.  You became angry and drove off whilst holding the complainant's wrists.  Her leg was still outside the car, she was asking you to stop.  She could then pull herself into the car and close the door.  That was Charge 9.

15Whilst you were driving, you then arrived at your father's place, where you dragged her into the unit, pushed her to the floor and punched her, Charge 10.

16Charge 11 related to pushing her again to the floor whilst you had a knife and you threatened her "We're staying here tonight, and all the action will happen tomorrow, and that is when I will kill you".  You told her that "you were going to get her drunk and fuck her like a slut 'like you were when you kissed Morris'", you said, in reference to the boy from school.

17You then took her clothes off, pushed her on the bed and inserted your penis into her vagina.  That was Charge 12.

18Later that day, at a time when you were calmer, and said you wanted to take the complainant shopping to buy a new top, as you had ripped the one she was wearing, you made her promise not to run off at the shopping centre, and you went to Southland Shopping Centre in Cheltenham.  Whilst you were no longer threatening her, you returned to the house and again, raped her, by inserting your penis into her vagina. Charge 13.

19In February 2013, the complainant attended the Frankston police station and reported what happened when she was 14 years old.

20The jury convicted you of all charges on the presentment, except for Count 7, in which they returned a verdict of not-guilty upon my direction, given that the complainant frankly and candidly agreed that she could not sufficiently recall, and therefore particularise the allegations with the count alleged.

21In my view, she was a very impressive witness, and by the time of the plea, had provided the court with a victim impact statement which she read out to the court, and which I take into account.

22As is often the case in crimes of this nature, even when committed many years ago, the impact of the offending behaviour is real and long-lasting.  She attests to having experience depression, suicidal thoughts, anxiety, paranoia, low self-esteem, and distrust of others.  She still experiences fear at walking to local shops, fear of being taken away.  Her daughters have not been allowed to play outside out of fear, and this is but one way in which your crime has impacted on her and her family.  She has felt abused, manipulated by an older man, lost the sense of innocence to which she was entitled as a very young person. 

23In my view, irrespective of the fact often repeated by the defence during the trial, that she was an independent young girl and physically developed for her age, she was entitled to have her welfare, her wellbeing, and her youth protected, and not abused in the way you dealt with her, whether consensually, as with the first set of offences, and certainly not by violence and force, as with the latter offences. 

24The fact that you continued to deny any coercion or forced sexual contact, or holding of her against her will, or that your sexual dealing with her was legitimate because you asserted belief "she was of age", not only flies in the face of very persuasive evidence, which was rightfully, in my view, unequivocally accepted by the jury, but demonstrates your ongoing lack of insight into your behaviour, lack of empathy, with its effect and impact on the victim, and a total lack of remorse for your wrongdoing.  All of which amounts to significant level of moral culpability.

25You put your sexual gratification before what was the right thing to do.  Your conduct lasted, effectively, a summer, and was not an isolated incident.  It was rather a course of conduct which you pursued and excused in your own mind.  The disparity in the ages between you and the complainant, as well as the duration of the conduct, add to the gravity of the offending.  The fact that your conduct involved penetration of the complainant has the same effect.  Given the complainant was aged less than 16 years, the principle of deterrence, denunciation, and just punishment are important considerations, and I shall return to those principles, which I have applied in coming to the ultimate sentence, a little later, after I summarise the matters submitted to the court on your behalf during the plea hearing, which pertain to your personal circumstances.

26You are now 56 years old.  You enjoyed a relatively settled and happy childhood and family life.  You have two younger sisters, you have a consistent and creditable work history.  You left school aged 15, and worked soon here thereafter.  With a few gaps through the years, you have had steady, if relatively short period of employments in various positions and types of work.

27In 1987 you sustained a back injury and were temporarily out of work.  You became depressed, and you accidentally overdosed on tryptanol, requiring several weeks at La Rundle Hospital.  You were 27 years old.  When you were 18, you formed a relationship with a woman, and that year, 1978, your parents separated and you lived with your mother at first.  Later you moved in with your partner into your father's house and then into your own rental home.  You had two children from that relationship, two boys.  You had worked as an auto setter at various firms, and this was the case at the time of the offending.  That relationship ended in 1983, and at first, you remained in contact with your sons.  In 1987, your mother re-partnered, and in 1989, when aged 29, you worked a plastic reprocessing business.  It was during this time you moved into the caravan park, which featured in the evidence at the trial.

28During 1989, your mother and her partner moved to Bundalong.  In 1991, you met a woman and shared a house with her in Noble Park.  You had two boys together with her in the early 90s, but you separated in 1995, and although initially the boys lived with you, by 1996 they went to live with their mother.  You had different work for the next two or three years, and lived with your sister or in shared accommodation. 

29In 2000, while working as a forklift driver for Toll Logistics, you formed a new relationship.  For the next seven or so years, you had a series of short-term jobs and small business ventures which did not continue long-term.  In 2007, you injured your knee.  You went on WorkCover, and after further injury to your groin you resigned in 2009.  That year your mother's partner developed dementia after surgery.  You moved back to Bundalong to support your mother and your stepfather.  You remained her carer after his death, performing all cleaning and household chores, as well as shopping and gardening.

30This background, in its most relevant aspects is confirmed by letters which were tendered upon your plea.  I have read them, and taken them into account.  Dr Lim has confirmed the osteoarthritis in your right knee, Dr Maroney has written about your mother's health and your role as carer.  Robert and Norma Murray, family friends, have written of your caring nature, and your aunt, Joy Wilson, has also written of your considerate, good character.  This has also been attested to by Garth Rainesbury, your stepbrother, your younger sister Jeanette Carnelli, and in a letter by your mother Agnes.  Each mention your hardworking, caring character.  I accept that this offending is out of character and this fact is supported further and significantly by your lack of any prior criminal history. 

31You do however, have a subsequent conviction, which was rightly acknowledged.  This is a relevant matter of 2011, committed earlier in time in context of the breakup of the relationship.  It is a matter of concern that in the context of the end of a relationship of domestic dispute, you resorted to conduct which involved restraining the victim from leaving, punching her to the face, and causing injury.  The more serious counts on this indictment is conduct which involves violence and force.  This tends to make relevant specific deterrence in your case.  Even despite the assessment of psychologist Carla Lechner, who wrote a report to the court, but does not address this matter, or appears not to have been informed about it.

32On the materials she had provided, she reasonably concluded that your risk of reoffending in a similar nature to the current offences is relatively low, particularly as you do not exhibit any symptoms of psycho-sexual disorder.  However, she has not mentioned these subsequent matters in her assessment of you.  What Ms Lechner does confirm is your lack of remorse given you also asserted to her your denial of any coercion, and asserted your view as to the complainant's age at the time of the offences.  She has written in detail of your personal history and reported on the fact that you have no contact with your sons or a daughter born of another relationship.  She has reported particularly of a matter of which occurred when you were at secondary college, and which you report to have impacted on you as a young boy on p.3 of her report.  Despite this, she asserted you as not exhibiting any symptoms of an underlying psychological or psychiatric disturbance, apart from an adjustment disorder, which is consequent depression connected to your current predicament.  This may, I accept, make your reclusion more burdensome, together with other facts current to your situation, that is, the back, knee and groin pain for which you are currently prescribed tramadol, the diagnosis of Meniere's disease, a disorder of the inner ear, which caused some hearing loss, ringing in the ear, vertigo, and your inability to continue to care for your mother on an ongoing basis.  I accept that I should moderate your punishment in view of these factors, which will render your incarceration more difficult.

33I accept that the assessed risk of sexual offending is probably low, and that therefore your prospects of rehabilitation are good.  Your mother is some
77 years of age, and no doubt your asserted aim of eventually returning to continuing to her care is a positive rehabilitative factor, which hopefully can see you return to a pro-social lifestyle. 

34I take into account the delay in this case, in the sense that there has been a significant time between the offending, and the time of sentence.  This delay bears on the impact of the offence, on the victim, and on your age at sentence, this being the first time that you will have been incarcerated.  I take that matter into account.  Delay in achieving some form of retribution and closure from the victim's point of view is an adverse factor. 

35On the other hand, your age and good character over an extended period in other respects tends to favour a lower penalty.  While it may be able to be asserted, as it was, that at 56 you are a somewhat different man from the
29 year old who committed the offences, such a submission is found as significant in my view, giving you a lack of insight of remorse.  It may have counted heavily in your favour, had you accepted your culpability.  In relation to the principle of totality, I consider that there should be a small measure of cumulation for each of the offences in recognition of each discrete offence with a significant measure of concurrency.

36The offences covered by Count 9 to 13 similarly ought to carry some measure of cumulation and recognition of each component of the conduct, which is inherently different while recognising that this too, was a course of conduct. 
I consider as to the first set of charges, that the consensual nature of the sexual intimacy is really a kind of lack of aggravation, and not an ameliorating factor.  A lack of aggravation which affects the outcome only slightly when one considers the age difference, the nature of the acts, and the power and maturity in balance inherent in that conduct. 

37You will be sentenced as a serious sexual offender pursuant to particular provisions to which sentence the relevant provisions as to community protection and cumulation apply.  The prosecution has not sought a disproportionate sentence in this case, and I do not intend to impose one given a careful consideration of all the circumstances.

38I was informed as to the relevant current maximum penalties applicable to each offence, and also informed as to the relevant maximum penalties at the time of the offences.  This was provided in the context of a matter of a consideration of current sentencing practice in relation to the offending in question.  I was referred to a number of helpful documents in relation to this issue, which encompassed a large number of current cases of rape and sexual penetration with a victim ten and over, as tabulated by the judicial college of Victoria and analysed statistically by the Sentencing Advisory Council in their snapshots for making a threat to kill, No.174, sexual penetration of a child aged between 12 to 16, No.181, and rape, No.176.  I have considered this material carefully. 
I have also reviewed the sentencing statistics in higher criminal courts for 1989, a document prepared by the courts management division of the Attorney General's Department. 

39Importantly in this context of current sentencing practices, I was referred to the helpful decision of Starlio v The Queen [2012] VSCA 120. It is clear that the applicable principles are that the maximum term of each of the charged offences at the time they were committed is an important factor to take into account, which I do.

40Your offending conduct, if committed more recently, would have been charged as offences attracting much larger maximum terms.  The more recent larger maximums reflect a greater understanding of the impact on victims, and the true extent of moral and criminal culpability involved.  The community's current level of abhorrence of such offending is also a relevant consideration, even though sexual abuse of children has always been seen as serious.

41In terms of current sentencing practices, as referred to in s.5(2) of the Sentencing Act, although this term refers to present sentencing practices, the concept of equal justice requires that I also have regard to the practices at the date of the offences, if those practices can be demonstrated to have required the imposition of a materially lesser sanction for like offences than current practices would impose.

42In this case the maximums applicable are significantly lower to current maximums.  Equal justice requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time, in order to obtain the purposes set out in s.5, particular to the just nature of the punishment.

43In clearer terms, it would be wrong to sentence you to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time.

44In this context, I should state that the maximums for indecent assault at the time of the commission of the offence was five years, ten years for sexual penetration of a child between ten and 16, kidnapping maximum was at large, which is now 25 years, assault was at large, now five years, and threat to kill was 15 years up to April 1992, then down to five years to 1997 and up to ten years today.  Rape then was ten year maximum, now 25 years.

45Please stand, Mr Macleod.  On Count 1 of indecent assault, you are convicted and sentenced to nine months' imprisonment.  On each of Counts 2, 3, 4, 5, 6 and 8, you are convicted and sentenced to 12 months' imprisonment on each.  On Count 9 of kidnapping, you are convicted and sentenced to three years' imprisonment.  On Count 10 of assault, you are convicted to nine months' imprisonment.  On Count 11 of threat to kill, you are convicted and sentenced to six months' imprisonment.  On Count 12 of rape, you are convicted and sentenced to four years' imprisonment, and on Count 13 of rape, you are convicted and sentenced to four years' imprisonment. 

46I order that the base sentence be Count 12.  I order that one month of Counts 1, 2, 3, 4, 5, 6 and 8 be cumulative on Count 12.  I order that one month on Count 10 and 11 be cumulative on Count 12, and that nine months on Count 13 be cumulative on Count 12, and upon the other cumulated sentences. 
I order that three months of Count 9 be cumulative on Count 12 and the other cumulated sentences, making a total effective sentence of five years and nine months.  I fix a non-parole period at three years and nine months.  Take a seat, Mr Macleod.  What is the presentence detention?

47MS DONAGHY:  Seventy-five days, Your Honour, not including today.

48HIS HONOUR: I note that you have served 75 days by way of presentence detention excluding today. I note that as a consequence of the sentence I have just passed, you will be registered as a sex offender for life, pursuant to the provisions which regulate this registration. Those provisions are onerous and will require compliance after you are released. I have signed orders for the taking of a biological sample in accordance with s.464ZF(2) of the Crimes Act.  In my view, the order is justified because of the seriousness of the circumstances of the offending and because it is in the public interest.

49I should inform you, Mr Macleod, that if at the time that a request is made for a scraping from the mouth, which is not a painful procedure, in order to collect a forensic sample from you, under the supervision of an authorised member of the police force, if you do not consent to such a taking of a mouth scraping, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conduct.  I have signed those orders.  Are there any other orders that I need to make?

50MS DONAGHY:  No, Your Honour.

51HIS HONOUR:  I have other matters to proceed, I will stand down.

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