Director of Public Prosecutions v Martin

[2018] VCC 1367

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00352

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRUCE DOUGLAS MARTIN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	23 August 2018
DATE OF SENTENCE:	29 August 2018
CASE MAY BE CITED AS:	DPP v Martin
MEDIUM NEUTRAL CITATION:	[2018] VCC 1367

REASONS FOR SENTENCE
-   -  -
Pseudonyms used to protect the identity of the complainants.
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Subject: Criminal law - sentence
Catchwords: Pleaded guilty to 3 charges  of carnal knowledge of an unmarried female aged between 16 and 17 – representative charges - three students – two of the complainants were students of the  offender - offending occurred between 1969 and 1973  when offender was 29 – 31 years of age – maximum penalty 12 months imprisonment -  teachers and senior students would socialise and drink alcohol together – offending occurred at offender’s house – victim impact statements provided -  empathy and remorse – long teaching career - no further offending – Prosecution accept suspended sentence within range.
Cases Cited: R v Knoote-Parke [2016] SASCFC 37
Sentence: 12 months imprisonment wholly suspended for 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Guesdon (Plea) Mr A. Godleman (Sentence)	OPP
For the Accused	Mr D. Dann QC	Leanne Warren

HIS HONOUR: 

1Bruce Douglas Martin, you have pleaded guilty to three charges of carnal knowledge of an unmarried female aged between 16 and 17 years, each charge involving a different complainant.  These offences occurred many years ago, at a time when the structure of criminal law involving sexual offending was significantly different from the present time.  The maximum penalty is 12 months' imprisonment.

2Between 1969 and 1973 you were a maths teacher at a suburban high school.  The three complainants, Christine Summers[1] and her sister, Catherine Jackson[2] and Dianne Corbett[3] were students at the school.  It was then an accepted part of school and community life that teachers and senior students would often socialise together, drinking alcohol at the local pub and afterwards there would be parties at various houses including yours.

[1] A pseudonym

[2] A pseudonym

[3] A pseudonym

3You were a popular teacher involved in many extracurricular activities such as school skiing trips, other excursions and school plays. 

4While you taught Catherine Jackson and Dianne Corbett, you did not teach Christine Summers but often saw her socially and on occasions she stayed overnight at your house.  She was flattered by the attention you paid her and in 1971 when she was 15, you took her into your bedroom and performed a sexual act with her which did not involve penetration. 

5Later that year when she was 16 you had penile-vaginal sex with her which is Charge 1 on the indictment.  That is a representative charge and there were two other occasions when sexual intercourse occurred in the same way at your house.  Although she was initially infatuated with you, she eventually extracted herself from the situation and she told no one about it until many years later. 

6When Dianne Corbett was in form three you were her maths teacher and you used to see her at the home of her school friend, Barbara Lyons.[4]  You were friends with the Lyons family.  You began paying Dianne Corbett special attention at the end of 1971 when she was 15.  She turned 16 in the middle of the following year when she was in form four and you were again her maths teacher.

[4] A pseudonym.

7On an occasion after she turned 16 you drove her to your house and had sexual intercourse with her.  This is Charge 2, a representative charge.  A couple of weeks later you had sexual intercourse with her again at your house.  In the following year you were not her teacher and in her words you ignored her.  She formed a relationship with a fellow student and told him that she had had sex with you previously.

8Catherine Jackson socialised with you at the local pub and at your house from the age of 14 or 15.  In her words she became besotted with you.  In 1973, after she had turned 16, she went to your house one night and you took her into your bedroom and had sexual intercourse with her.  That is Charge 3 which is also a representative charge.  There were four other occasions when you had sexual intercourse with her, each time at your house.

9About 11 years later, in 1984, Catherine Jackson met up with you at a pub and you both went to a hotel where you had sexual intercourse.  Two years later she told a friend and one of her sisters that she had had sex with you as a
16-year-old.  On 20 January 2015, you were arrested and interviewed, during which you said you may have had sex with the complainants but not when they were under 16.  You explained that a different set of social mores may have operated at that time when things were a bit more free and easy.

10At the time of the offending you were aged between 29 and 31.  You were a teacher with some years of experience already.  There was nothing unremarkable about your early years except to say you were successful at school both academically and in areas of leadership.  You had graduated from Melbourne University with an Arts Degree majoring in mathematics followed by a Diploma of Education.  You taught at high schools in Melbourne for three years and then went to England where you worked as a relief teacher for a year or so.

11You returned to Melbourne and taught at the suburban high school, as I said, from 1969 to 1973.  You then spent more than 20 years teaching at Templestowe High school and some years as an assistant principal at Macleod High School.  In later years you worked in education research and then as an examiner for VCE maths, retiring in 2008.  Now, at the age of 76 your professional life, and indeed your personal life, has been stable for many years.  This has followed several years of excessive drinking of alcohol in your 20s and 30s, marked by self-confessed immaturity and sexual promiscuity.

12Several teachers who worked with you wrote supporting you, and I shall return to that later.  One writer, Dr Trevor Hay averted to an aspect of the social climate in schools at the time as distinct from today.  He stated:

"Templestowe High, like many other schools of the era, was in the process of searching for a working proximity between staff and students.  There were times when staff and both former and current students mixed together on social occasions including in staff members' homes, although I never witnessed any inappropriate behaviour when I myself was present".

13One of the complainants stated:

"On Fridays it was the culture that the teachers and some of the students would go to the … Hotel for drinks.  It was quite accepted, even though we were underage, to go and drink with the teachers".

14She said there were lots of parties and you would be at most of them.  You explained this to the psychologist, Dr Barth, who assessed you recently.  You said you had been poor at separating your professional and personal boundaries during this period, and you acknowledge that this would not be acceptable today.  You told Dr Barth that you had reduced your alcohol consumption in your mid-40s.  Your partner since 1978 has been Barbara Lyons and she remains supportive of you.

15Dr Barth considered that you are a low risk of reoffending and that your actions as a young man likely resulted from situational factors, that is your immaturity and propensity for sexually promiscuous behaviour.  Dr Barth also considered that you have developed good empathy for the complainants and you are remorseful.  You told him that you were deeply sorry and that you had not understood at the time of the offending how deeply the complainants were affected.

16And indeed the victims each provided a victim impact statement which sets out the extent to which they were affected in this way and I have taken that into account.  The empathy and the remorse to which I have just referred are all mitigating factors as is the fact that you have pleaded guilty.  It should be regarded as an early plea because you were charged with much more serious offences and a contested committal was held on the basis of the rape charge.

17Your plea has avoided the need for a trial, indeed three trials, and saved the complainants and other witnesses from further cross-examination.  That is important and you are entitled to a discount on your sentence for that.  Your family years of stability have been attested to by a number of people who wrote references for you.  Dr Hay worked closely with you at Templestowe High School and in his experience you were concerned for the students and your work an initiatives there were motivated by an instinct for their all-round welfare and development.

18He believes you are genuinely remorseful and that you accept that you should have known better, if I can summarise his conclusion in that way.  Others have described you variously as a fine and dedicated teacher, conscientious and committed to the profession and involved in many areas of school life.  One writer described you as having done immense good for young people throughout your teaching career.  The picture they have drawn of you as a teacher and as a member of the wider community over many years seems completely at odds with the person you were for several years as a younger man.

19As a teacher you were in a position of trust and you breached that trust quite egregiously by using your position to flatter and impress the young complainants and ultimately to seduce them.  This issue was discussed in the case of Queen v Noote-Parke[5] where the 51-year-old applicant in that case, who had been a police officer at the time of the offending, sought to rely on his prior good character.

[5] [2016] SASCFC 37

20The trial judge in that case held that because his previous good character had been used to assist him to commit the offences it was not capable of having any migratory effect.  On appeal it was held in that case that good character must be taken into account as a mitigating factor to some extent.  This case differs from the facts in Noote-Parke given that your offending occurred many years ago.

21The life you have lived since then demonstrates good character which, together with the good reputation you have since established, goes a long way towards redemption and lends additional weight to the significance of your remorse.  It is an important mitigating feature of considerable weight to be taken into account in affording leniency.

22That observation leads me to the question of delay.  I am required to take into account that it was many years before you were charged with these offences.  You were interviewed on 20 January 2015, some 42 years after the end of the offending period.  You were charged six months later on 23 June 2015.  A lengthy pre-trial process then ensued.  At a mention in April 2016 the committal hearing was adjourned on an application by the prosecution and the hearing took place on 2 February 2017.

23It was listed for trial in August 2017 and following pre-trial hearings there was an interlocutory hearing in the Court of Appeal in November 2017.  Again, the trial was listed for hearing on 23 April 2018, and it resolved the next day and the plea date was then fixed.  For a large part of that period, since being interviewed, you were facing much more serious charges and the long delay must be taken into account in that context as a mitigating factor.

24When interviewed by the police you admitted sexual activity but you denied having had underage sex with the complainants and that aspect of the offending was the subject of the committal hearing.  Your initial denial was eventually reflected in the plea indictment but you had the more serious charges hanging over your head for two to three years.  Dr Barth identified symptoms of depression and anxiety amounting to an adjustment disorder when he examined you recently and he described a "Persisting self-punitive inner dialogue", as having undermined your sense of self-esteem arising from your empathy for the complainants' suffering and your awareness of your culpability.

25These symptoms were directly related to being charged with the offences, the consequent legal procedures and the long delay, as well as your acceptance of responsibility.  Rehabilitation is always a consideration in sentencing, even in cases such as this where the offending occurred many years ago and where there is no indication of any likelihood of further offending.  You are considered to be at low risk owing to the factors I have already set out.  General deterrence is also an important sentencing consideration and the sentence should reflect the need, as far as possible, to deter others from committing crimes like these that involve the sexual exploitation of young people who are too young to make informed choices.

26It is accepted by the prosecution that in this particular case, a suspended prison sentence is available. 

27Would you stand now please, Mr Martin.  For Charge 1 you are sentenced to six months' imprisonment.  For each of Charges 2 and 3 you are sentenced to eight months' imprisonment.  The sentence for Charge 2 is the base sentence for purposes of cumulation.  I order that two months of each of the other sentences be served in cumulation upon the base sentence, resulting in a total effective sentence of 12 months.  It shall be wholly suspended for two years.

28The effect of that is that if during the period of suspension you were found guilty of an offence which attracts a sentence of imprisonment, you would have breached the sentence and would have to return to court to be re-sentenced.  You would then have to serve the sentence unless you could show exceptional circumstances.  Now, in your case, this is unlikely to happen but the risk of imprisonment does serve to demonstrate the seriousness of such a sentence.  Notwithstanding that it does not have to be served immediately if at all.

29In determining that this is an appropriate sentence, I have taken into account that by reason of your age, even though you are not apparently suffering any ill health, prison would be a more onerous experience than for a younger person.  If you had pleaded not guilty I would have sentenced you to 18 months' imprisonment of which 12 months would have been suspended for 3 years.

30Are there any other matters I have omitted, Mr Godleman?

31MR GODLEMAN:  No, Your Honour.

32HER HONOUR:  Thank you.  Mr Dann?

33MR DANN:  No, Your Honour.  I don't know whether you wanted to mention the indictment issue or not?

34HER HONOUR: I understand my associate had a conversation with you this morning, Mr Godleman about the missing indictment and it's just been resolved that an unsigned copy to be handed up will suffice.

35MR GODLEMAN:  I have a copy with me now, Your Honour.

36HER HONOUR:  Thank you.  And it is certainly not the fault of the prosecution.  It's the fault of someone in the registry, no doubt.  Unfortunately sometimes these things happen. 

37Is that all right with you Mr Dann?  You have no concerns about that?

38MR DANN:  Yes.  Yes, indeed, Your Honour.  Yes.

39HER HONOUR:  Good.  Thanks very much.  You may step down.  Sit down now please, Mr Martin.

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