Director of Public Prosecutions v Manning

[2014] VCC 2101

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR -14-01360

DIRECTOR OF PUBLIC PROSECUTIONS

v

NICHOLAS MANNING

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JUDGE:	HER HONOUR JUDGE HANNAN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 December 2014
CASE MAY BE CITED AS:	DPP v Manning
MEDIUM NEUTRAL CITATION:	[2014] VCC 2101

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 L. Dipietrantonio	Office of Public Prosecutions
For the Offender	Mr A. Pyne

HER HONOUR:

1Nicholas John Manning, you have pleaded guilty to four charges of committing an indecent act with or in the presence of a child under 16.  The maximum penalty in relation to each offence is ten years' imprisonment. 

2The circumstances of your offending are set out in the prosecution summary, which is Exhibit 1.  I do not propose to recite the facts in full now they having been read in open court his morning but I direct a copy of the prosecution opening be annexed to these reasons for sentence as the agreed factual basis upon which you have pleaded.

3In essence you met the victim who was aged ten and his family soon after they moved into your neighbourhood.  Over time you became close to the family, they trusted you and you took on a role that has been described as "similar to a grandparent".  You commenced taking the victim out, giving him money, buying him toys and food.  The victim would visit you and dine with you. 

4On 18 November 2013 police attended your home having received information regarding inappropriate contact between you and a then unknown victim.  You identified the victim and made admissions, which is to your credit.  An initial VARE interview was conducted with the victim but due to his distress it had to be discontinued.  However the victim did manage to tell the police that you did "rude things" to him, made him feel his "rude part at your house" and "in your bedroom".  A second VARE was conducted and the victim provided details in relation to your offending.  He told investigating officers that it made him feel "sad, distressed and scared". 

5Your offending occurred on two separate occasions between 13 May and 13 November 2013.  On the first occasion the victim was in your bedroom.  You showed him adult homosexual pornography and made him expose his buttocks and penis while you masturbated.  This conduct forms Charge 1.  You then touched the victim's penis and buttocks.  This conduct forms Charge 2.  On another occasion between the same dates the victim was at your home.  You made the victim masturbate your penis and stopped when the victim became frightened.  This forms the basis of Charge 3.  You then made the victim expose his buttocks and penis and this founds Charge 4.

6Following what can only be described as this disgraceful conduct you threatened the victim to keep him silent.  Telling him that he would be in trouble and that is father would bash you if he found out.  You also told the victim that he would be sent back to his mother.  This was clearly calculated to terrify him into silence.  You subsequently sent the victim sexual texts referring to yourself masturbating.  How you could send such material to a ten year old child is a mystery to any right-minded person.

7You were interviewed by police and you made what can be described as admissions although you did not detail what had occurred.  I think a fair assessment is that while there was some minimisation in relation to your conduct your admission as to the nature of the conduct and the identity of the victim should be seen as significant. 

8Exhibit 2 is a victim impact statement from your young victim's father.  It was read aloud by the prosecutor this morning.  None of what is described is surprising and the effects would, or should, have been appreciated by you at the time of your offending.  It is clear that the effects have rippled through the victim's life and the lives of his family.  It is to be hoped that time will help him heal from that which he should not have endured.

9Any offence of this nature is serious.  This was not a single isolated incident.  It is relevant, in my view, that you threatened the victim to keep him silent.  You showed no regard for the welfare of a child of tender years intent, it seems, upon your own perverse gratification.  The age and power imbalance was significant.  The effects are both real and in the usual course, enduring.

10You have admitted the content of a criminal record which discloses one prior appearance in this court.  In 1997 you were convicted of three charges of sexual penetration of a child under 16, five charges of committing an indecent act with a child under 16 and 20 charges of indecent assault.  You were sentenced to be imprisoned for a total of seven years with a non-parole period of three years.  This conviction is, of course, both significant and relevant for my purposes in sentencing you this day.  I have been told it relates to a number of young boys at a football club where you were apparently the coach.

11You are now aged 70 having been born in 1944.  You were born in England and your mother placed you up for adoption at ten months.  Unhappily, at three or four, you were placed with a family with a large number of children and an abusive mother.  The description of your childhood contained in the letter from your adoptive sister is disturbing and shows a very real history of both deprivation and disadvantage which included both physical and sexual abuse.  It is clear that despite all that has occurred your adoptive sister remains supportive of you.

12The family and seven of the children came to Australia when you were ten.  You were enrolled at school but left when you were 14 with very modest literacy skills.  Indeed you had been enrolled in remedial education with little success in this regard.  You commenced an apprenticeship in shoe repair which you did not complete.  It was in the next few years, when you were working as a labourer, that you were sexually abused by older men.  You have struggled with your sexuality over a period of time. 

13As regards your employment, your longest period of employment was with the Maryknoll Co-op selling hardware.  You have also worked in an abattoir and in an antique store.  Exhibit C is a report from Luke Carrangis, a clinical psychologist, dated 24 September this year.  You have attended some 17 counselling sessions with him.  In recent time he reports working with you providing counselling to enable you to deal with the stress, shame and anxiety related to your re-offending as well as other areas related to your personal and domestic life.

14It is notable that you have been working on a "prevention plan in time of high stress" and your mental awareness as regard to your denial with Mr Carrangis says was a key factor in your offending.  You have been working on cognitive tools to combat this and other issues and to raise your awareness of precursors to offending. 

15Mr Carrangis says that you are no longer suppressing your personal need for intimacy and you are developing a proper basis for an intimate relationship with your partner who has attended a number of appointments with you.  Mr Carrangis says he assesses your current risk of re-offending as low as long as you continue in therapy.

16Exhibits D to F are three references from your adoptive sister and two friends who have known you for some seven or eight years.  They are all aware of your offending and your history and remain supportive of you.  Indeed they all attended court upon your plea.  The man they describe is at significant odds with the person who committed these offences.  It is to be hoped that you can truly become the man described.

17Your prospects of rehabilitation are, I think, somewhat guarded but positive provided you remain in therapy.  You acknowledge that your conduct is wrong.  This is a long term process and I suspect that you will need to be forever vigilant.  You have, however, demonstrated a commitment to therapy and change which is positive, as is the support of your family, your partner and those who attended court in support of you.

18There is clearly a potential for increased risk as is acknowledged by your psychologist should your current support structures change but I think that is a matter which will need to be managed by the Parole Board.

19Your counsel points to a number of matters you are entitled to have taken into account in mitigation.  Firstly, your plea of guilty which you entered at an early stage in these proceedings having made admissions to police.  I re-iterate again it was you who identified the victim and enable a VARE to be conducted.  You are entitled to the full benefit of an early plea and I have sentenced you on that basis.

20I accept in your case that your plea should also be used as evidence of your remorse.  Noting your spontaneous admission and what I think was real concern as regard to your own actions.  You have engaged in treatment to try to deal with why you offended again and more importantly to try to arrest any repetition. 

21Your prospects of rehabilitation are, of course, relevant.  There has been a significant gap in your offending which demonstrates capacity to remain offence free. 

22General and specific deterrence are relevant sentencing principles which must be give weight in the sentence I impose this day.  I must seek to deter not only you but others who would engage in this sort of conduct which so seriously damages the lives of our children.

23Your sentence must manifest the community's denunciation of your conduct and impose just punishment.  I must seek to deter you from future offending which must be given weight in light of your history.  Your counsel's primary submission is that a sentence of imprisonment up to two years combined with a CCO is within range.  The prosecution submit that the only disposition open is an immediately servable term of imprisonment. 

24I am satisfied, and it is not disputed by your counsel, that on all charges you fall to be sentenced as a serious sexual offender. I am thus required to have regard to the provisions of Part 2A of the Sentencing Act which requires that I regard the protection of the community as the principal purpose for which sentence is imposed.  I may, in order to achieve that purpose, impose a longer sentence that that which is proportionate to the gravity of the instant offence considered in light of its objective circumstances.

25Any sentence imposed on these charges must be served cumulatively unless otherwise ordered.  I have determined that in your case it is not necessary nor appropriate to achieve the protection of the community to impose a sentence which is longer than that which is proportionate to the gravity of each relevant offence in light of its objective circumstances.  The Crown did not make any submissions to the contrary.  I direct to be noted in the records of the court that I have sentenced you as a serious sexual offender on all charges.  You are convicted and sentenced as follows:

26Charge 1, convicted and sentenced to be imprisoned, 30 months.  Charge 2, convicted and sentenced to be imprisoned, 30 months.  Charge 3, convicted and sentenced to be imprisoned, 30 months.  Charge 4, convicted and sentenced to be imprisoned 30 months. 

27I direct that eight months of the sentence upon Charge 2, eight months of the sentence upon Charge 3, eight months of the sentence upon Charge 4 be served cumulatively with the sentence upon Charge 1 and upon each other.  That makes a total effective sentence of 54 months.  I direct that you serve 36 months before becoming eligible for parole.  I direct that it be noted in the records of the court that but for your plea of guilty I would have sentenced you to a total effective sentence of six years and four months with a non-parole period of four years and four months.

28By operation of s.34(3) of the Sex Offender's Registration Act you are deemed to be registrable on the basis that you have been found guilty of two Class II offences.  I pause to say having regard to the necessity to treat Charges 1 and 2 and then Charges 3 and 4 as a single offence in each circumstances.  In addition you have previously been found guilty of three Class 1 offences and a number of Class 2 offences.  It is common ground between the parties that the reporting period in your case is life.  In a moment my Associate will provide you with relevant documentation setting out your obligations and ask you to sign an acknowledgment that you have received that documentation.

29Finally the Crown make application pursuant to s.464ZF of the Crimes Act for an intimate forensic sample be taken from you.  You consent to this.  I am satisfied it is in the interests of justice, having regard to the seriousness of your offending and your history to make the order, which I do in the terms of the draft.  I must inform you police may use read force to enable that procedure to be conducted. 

30Have a seat please.  Mr Pyne, you can approach with my Associate to have the Sex Offender Registration material signed please.  Thank you.  Madam Prosecutor, have you checked the cumulations?

31MS DIPIETRANTONIO:  Yes, Your Honour, on my calculation it seems to be correct.

32HER HONOUR:  Mr Pyne?

33MR PYNE:  Yes, Your Honour, I haven't specifically gone over doing it but I ‑ ‑ ‑ 

34HER HONOUR:  I need you to, so have a seat and do it.

35MR PYNE:  Yes.  Yes.

36HER HONOUR:  Counsel, is there any factual matter which needs to be corrected?

37

MS DIPIETRANTONIO:  The only issue, Your Honour, relates to a term

Your Honour used when describing the offending and Your Honour used the term "masturbation".  That was the amendment that was made to the particulars of the indictment ‑ ‑ ‑ 

38HER HONOUR:  Yes.

39MS DIPIETRANTONIO:  ‑ ‑ ‑ with the word "masturbation" being removed and the word "fondled" being replaced. 

40HER HONOUR:  Yes.

41MS DIPIETRANTONIO:  I'm not sure if that's going to change anything.

42HER HONOUR:  It changes nothing.  How it's described, it's the same action effectively is it not?

43

MS DIPIETRANTONIO:  That's the only matter I raise,

Your Honour.

44HER HONOUR:  In the sense - I mean if masturbation is said to mean that there is some intent upon a particular conclusion that is not what I intended.  Fondling would equally describe the conduct as I understand it.

45MS DIPIETRANTONIO:  If it please, Your Honour.

46HER HONOUR:  For the purpose of clarity.

47MS DIPIETRANTONIO:  Thank you.

48HER HONOUR:  Yes thank you.

49MR PYNE:  One other thing that I raise, Your Honour ‑ ‑ ‑ 

50HER HONOUR:  Yes.

51MR PYNE:  I don't know whether or not it's of - I have a patient health summary from this.  It's not relevant to Your Honour's sentence.

52HER HONOUR:  Yes.

53MR PYNE:  I just owner whether or not it'd be a document that may be of assistance to Corrections and whether I should provide it to your Associate.

54HER HONOUR:  Yes, you can provide it to my Associate.  It can go down into Custody, it may be of assistance to Corrections.  Thank you, remove the prisoner please.  Thank you, sir. 

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