Director of Public Prosecutions v Masters (a pseudonym)

[2016] VCC 1925

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE OLLIE MASTERS (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	9 December 2016
CASE MAY BE CITED AS:	DPP v Masters (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1925

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 I Blackie
For the Accused	Mr E Orum

HER HONOUR:

1George Ollie Masters[1], you have pleaded guilty before me to one charge of indecent assault, one charge of carnal knowledge of a child aged between ten and 16 years and four charges of sexual penetration of a child aged between ten and 16 years.

[1] George Ollie Masters is a pseudonym.

2The facts underlying your offending are as follows.  In the summer of 1980 and 1981 you and the complainant, Jemma Sackville[2], played badminton for the Allendale Badminton Team, at which time you were 36 and she was 13.  You would drive Ms Sackville and others to and from badminton games at a stadium in Wendouree.

[2] Jemma Sackville is a pseudonym.

3Charge 1, indecent and unlawful assault of a girl relates to an offending which occurred between 1 December 1980 and 22 January 1981.  One Sunday during that period of time when Ms Sackville was 13 years old you attended with her and others at the stadium in Wendouree for badminton training, and on finding the stadium was closed decided with the group to go to nearby Lake Learmonth.

4You sat with Ms Sackville in the car and on the back seat rubbing her inner thigh.  At Lake Learmonth everyone except Ms Sackville decided to go skinny dipping.  She kept her T shirt and shorts on.  You came up to her in the water and began kissing her on the lips and fondled her breasts under her T shirt and bra telling her she had, "Nice little boobs, more than a mouthful, if just too much."  At the time Ms Sackville thought you were just mucking around, was embarrassed and quickly got out of the water.

5Charge 2, carnal knowledge of a girl aged between ten and 16 years relates to offending between 1 and 27 January 1981.  A couple of weeks later after Charge 1 on a Sunday you and the complainant and a friend of yours decided to skip badminton training and drove to Lake Burrumbeet where your friend parked the walked off, leaving you and Ms Sackville alone in the vehicle.

6There you removed her underwear, got on top of her and had sexual intercourse with her, ejaculating on her body, she said to police, after about eight thrusts.  Ms Sackville was concerned she might be pregnant and spoke to you about it a week later, you saying you would "fix it up" if she got pregnant.

7Charge 3, a representative count, relates to three occasions of sexual penetration of a child aged between ten and 16, which occurred between 1 and 31 December 1981.  During this period of time you and the complainant engaged in a sexual relationship, she being aged between 14 and 15 years.

8On one occasion her parents were away for the night and she contacted you.  You arrived, dropping your pants and saying to the complainant, "Give it a kiss, bait" (your nickname for her was "bait", short for jailbait), and the complainant performed oral sex upon you.  You left, returning later in the evening with a bottle of sparkling wine.  Later when the complainant was slightly drunk the two of you had sexual intercourse three times on her parents' bed.

9Charge 4, sexual penetration of a child between ten and 16 years is also a representative charge involving between 20 and 26 occasions of sexual intercourse.  This offending occurred between 1 December 1981 and 30 June 1982 at which time the complainant was approximately 14.

10On the first of these occasions you drove the complainant after badminton to a road between Allendale and Kingston where you parked and told her you loved her and were planning to leave your wife for her.  The two of you sat in the front of the car, she performed oral sex upon you and the two of you had penile/vaginal intercourse.

11You used a condom but noted that it had broken, told the complainant to wash her vagina with detergent to make sure she did not get pregnant and which precaution she took when she got home.  During the badminton season in the first half of 1982 the complainant turned 15 on 28 January and you 38 on
12 April.

12You would drive her to or from badminton on a weekly basis and meet her at your car between games where the two of you would have sexual intercourse.  This occurred nearly every time you were at badminton.  You told Ms Sackville that you loved her and wanted to spend time with her and that when she turned 18 you would leave your wife and take her away.  Ms  Sackville believed this and wanted to do everything you asked.

13Charge 5 is a representative count involving two occasions of sexual intercourse between 1 November and 1 December 1982.  At this time
Ms Sackville was 15 and you took her to your mother's house in Kingston where she was to help you with the shearing.  While at the house you took off the bottom half of her clothing as she lay on the kitchen table and you lay on top of her and the two of you had sexual intercourse.  On another occasion whilst she was assisting you in the shearing shed you undressed her, laid her on one of the wool bales and again had sexual intercourse with her.

14Charge 6, sexual penetration of a child aged between ten and 16 years, is also a representative charge involving 18 occasions which occurred between
1 December 1982 and 22 January 1983.  On the first of those occasions you told the complainant you would pick her up from home and when you did not arrive she walked to your house because she knew your wife was away.

15On arrival the two of you had sex three times that night.  On the first occasion you sat on a kitchen chair, Ms Sackville sat on top of you and you inserted your penis in her vagina.  The second time the two of you had sex in your bedroom.  The third time you had sex while both of you were in the shower.  Later over that summer the complainant would ride her bike to your home while your wife was working on an afternoon shift at the hospital and the two of you during the summer had sex on at least 15 occasions.

16You were interviewed by police on 11 May 2015 where you admitted to associated facts such as playing badminton with and associating with the complainant, but declined to comment on the allegations, stating however you were not necessarily stating that what she alleged was wrong.  You told police you had a friendly relationship with Ms Sackville, meeting her when she was 12 or 13 when you first started calling badminton together and then on occasion you would call her "bait".

17The maximum penalty for indecent assault is three years' imprisonment.  The maximum penalty for carnal knowledge of a child aged between ten and
16 years is ten years' imprisonment.  The maximum penalty for sexual penetration of a child aged between ten and 16 years is ten years' imprisonment.

18I now turn to your personal circumstances.  You are 72 years old and you have been married almost 50 years.  You have two sons who are also married and five grandchildren.  You have no prior or subsequent criminal convictions, nor has any member of your family.

19You were born in Kingston, a small rural town outside Ballarat, where your father had a farm.  You were the only son.  You have one sister.  You attended the local rural primary school and then obtained a scholarship to Ballarat College where you boarded from age 11.

20You found this a frightening experience and your grades began to fail.  At age 14, mid Form 3, after your parents received a note from the school to the effect that you needed to work harder, your father removed you from the college and you thereafter worked on the farm with him.

21Your father, a World War 2 veteran, was apparently a distant parent, harsh and very critical of you.  In your adolescence you led a fairly isolated life, attending the local pub when you were old enough with your father on a weekly basis, your main primary social outlet being the local youth group where you father was a boxing coach and where you attended weekly dances and taught gymnastics.

22You told psychologist, Dr Janet Mason, on whom you have been attending for treatment since 10 October 2015, and whose report dated 30 May 2016 was tendered on the plea, that you grew up a shy, isolated, awkward and introverted adolescent whose main experience of similar age girls was mostly confined to dancing with your cousins at a weekly dance.

23At age 19 you met your wife, then a trainee nurse, at a farmers' ball, and the two of you married three years later in 1966 when you were both 22.  You continued to live at Kingston on a house you built on land at your father's farm which had been subdivided.  Your two sons were born in 1967 and 1969.  Your father made you a one third owner of the farm, but continued to make all business decisions about it, nor did he train you or include you in running it.

24In the mid-1970s you leased land in rural New South Wales and planted a potato crop, which was at first a great financial success, however the second crop was wiped out by disease, leaving you in debt to the tune of $80,000, a very considerable sum for that time.

25In 1977 your father was unexpectedly diagnosed with cancer and died a month later.  You continued to struggle with the aftermath of your relationship with him which had never really resolved and dealt with the stress of taking over the running of the farm and the considerable debt repayments you faced by turning to alcohol, drinking daily.

26Your wife returned to work on a full-time basis at the local hospital and the relations between you became distant as according to her written reference to this court, you never revealed your emotional difficulties.  It was in this context that you began your most inappropriate sexual relationship with the complainant when she was only 13 and you 23 years her senior.

27Your woes dramatically increased when your mother, to whom you had been extremely close, and who had sought to compensate for your father's harshness, suddenly died in mid-1982.  You apparently struggled greatly with this, had trouble working and sleeping and increased your alcohol intake, drinking to the point of collapse.  You decided to lease the farm.

28In 1983 your sister and her husband moved to Kingston and you and your brother-in-law set up and ran a screen printing business which was successful and which you ran with him for some years.  Your marriage remained in difficulties however and in 1987, as a sort of ultimatum, your wife insisted the two of you take a three month holiday travelling around Australia which she believed saved your marriage.

29On your return the two of you decided to make a fresh start, sold the farm and with the proceeds bought an aged care facility in Prahran which your wife ran with you assisting.  This enterprise was successful, you ran it for nine years, and during that time the residency increased from 12 to 25.

30You also successfully invested in property and the two of you then retired in 2002 to Mt Eliza where you have lived ever since.  You have been very involved in the community there as an active bowls player and your mental health also improved in those years and your drinking reduced.  However there were obviously ongoing residual psychological problems, you presenting to your local general practitioner in 2006 with depression which apparently resolved.

31Police interviewed you in relation to these charges in early 2014.  You were formally charged in 2015.  Ultimately you entered a plea of guilty at committal mention stage.  That is you entered a plea of guilty at an early opportunity.  Your response to being charged with these offences was severe.

32You were diagnosed by Dr Mason as suffering adjustment disorder with mixed anxiety and depressed mood, which involved "extreme worry, exacerbated depression, desperation, despondency, unease and a sense of worthlessness with expressed suicidal ideation."

33Dr Mason stated, "As this has occurred Mr Masters ability to function generally has become significantly impaired and is of considerable concern."  Your counsel on the plea mentioned that members of your family have noted an increase in muddled thinking and general confusion.

34It appears that you determined in fact to commit suicide to save your wife and sons the ignominy accompanying a gaol sentence, and it was only with their intervention that you began attending for treatment with both Dr Lacey and psychiatrist, Dr Ruan Hapithantrij, you having attended on the latter since January this year and who has prescribed you anti-depressant and anti-anxiety medication.

35Both practitioners described you as having an improved mood since commencing treatment and Dr Mason also described you as cooperating well and frankly in therapy.  However your current psychological state remains precarious.  You are considered to suffer both depression and anxiety.

36Both Dr Mason and Dr Hapithantrij believe your depression and anxiety would be exacerbated by imprisonment with an accompanying escalated risk of suicide.  Testing by Dr Mason revealed you to otherwise be a pro-social, conscientious person but it was her view your background had produced in you a pre-existing undercurrent of depressed symptoms and at the time of your offending you had developed symptoms of severe depression.  You told
Dr Mason that you in fact developed strong loving feelings towards the complainant and contemplated the possibility of a future with her.

37You suffer a number of physical ailments, most seriously the possible onset of Parkinson's Disease. I received several reports from neurologist, Jenaka Seneveratne, the last dated 22 July 2016.  The diagnosis is provisional only.  You presented with hand tremors and an MRI scan revealed mild small vessel ischemia and you have responded positively to anti-Parkinsonian medication which would favour the diagnosis.  Ultimately diagnosis however is only possible after observation of a period of time which has not yet sufficiently elapsed for a more definite medical conclusion.

38It was Dr Seneveratne's view that the disease would progress, although he could not predict whether you would respond well to medication or not.  Certainly it was his view you could suffer reduced mobility which would make your physical response to the demands of a custodial setting more difficult.

39I received a number of very impressive references from your wife, sons, a friend and your brother-in-law, who have all revealed your frankness in describing the offending and your remorse for it.  All of them were highly condemnatory of that offending.  Dr Mason also stated that your had expressed "unequivocal remorse regarding his inappropriate and unacceptable sexual behaviour towards Jemma Sackville when she was a minor".

40Psychometric testing she administered on you showed she believed that this offending was out of character.  In a letter to this court you described your offending as deriving from "poor judgment, vanity, alcoholism and a lack of courage and self-respect," also stating, "I've come to see that I was a poor husband and much worse that I applied an appalling lack of judgment and common sense in forming a sexual relationship with a girl who was too young to know better".

41You believed that ultimately your lack of exposure to a social life involving girls when you were a teenager resulted in an ignorance in you as to the effects of your offending upon the complainant.  It appears you mistook the outgoing personality of a young teenager as some form of flirtation and stated that you believed everything that you did in allowing and encouraging the sexual relationship did stem from that ignorance.  That is, as to the very harmful effect it would have upon her.

42According to Dr Mason when you met Ms Sackville she presented as outgoing, confident and mature with a strong mental attitude "like that of a much older person".  You developed strong feelings towards her and at times contemplated leaving your wife for a future with her.

43The impact of your offending upon Ms Sackville has been severe, as is clear in her victim impact statement.  Ms Sackville wrote that she has no self-esteem and has suffered massive anxiety and depression all her life.  She has been overprotective with her daughters for fear they would be exploited, she dressed as an adult to please you which resulted in bullying at school, and played a part in her decision to leave school early, although she did note in her statement to police that you tried to dissuade her from this course.

44It must be noted that this has affected her employment ever since.  She has always suffered intimacy issues, including in her marriage, stating "I felt it was all for his sexual pleasure and gratification.  I felt like I had no rights.  Even to this day I still feel the same about sex."  She said "I feel like a piece of property and I don't own my own body.  It feels like I have no rights.  I feel worthless."

45In my view it is clear from Ms Sackville's police statement that unsurprisingly, given her age, she became completely infatuated with you, stating at paragraph 16 of her first statement, "I just couldn't concentrate at school.  All my thoughts were caught up with George."  At paragraph 24, "Because he told me he loved me and wanted to spend time with me and he would leave his wife when I was 18 and take me away, I believed him and wanted to do anything for him."

46Herein lies the great harm inherent in such age inappropriate relationships, the great inequality in maturity and power within that relationship and its overwhelming impact on a teenage girl at a critical point of her development.  By virtue of her age and immaturity, whether you appreciated it or not, your relationship with her came to dominate her life and deprived her of achieving crucial developmental milestones, emotionally, educationally and sexually, and those lacks have bedevilled her all her life and continue to bedevil her.

47It is the experience of these courts that this pervasive and long-standing harm is typical in adolescent victims of sexual relationships with vastly older men as you were, 23 years older.  Your actions were also a breach of trust.  You were able to exploit your position as the adult responsible for transporting Ms Sackville to the various badminton games you played in.

48Despite submissions to the contrary from the prosecution I do however accept that you did fail to recognise the harm you were doing and the inherent immaturity and vulnerability of your victim.  I do accept Dr Mason's view on this point.  I accept that ordinarily you are a responsible, productive and pro-social community member, though this may of course be of little comfort to Ms Sackville.

49I accept that the emotional damage done to you in your formative years, so that notwithstanding that you were a married man with children of your own at the time of your offending, you did not appreciate the damage of your actions upon the complainant.  I accept that at the time of your offending you were in a traumatic emotional state which involved heavy drinking, and I also accept that you have rehabilitated yourself.

50You do not present as a danger to the community, nor do you require specific deterrence.  However, the authorities have made it clear that offending such as this with its grave consequences for the victim must result in a severe response.  Overwhelmingly that response would take the form of a term of imprisonment to be immediately served.

51For the reason that I have outlined about the damage that is known relationship such as that you conducted with Ms Sackville have upon victims in cases such as this, that line of reasoning is readily understood and a body of law has grown up to protect young adolescent girls who are in the position that Ms Sackville was.

52However after much anxious consideration I have decided not to deal with you in this way.  My understanding is from the depositional materials, although it is not frankly opened this way by the prosecution, that this relationship continued for some years after the complainant turned 16.

53This done not transform that relationship into anything other than one which was extraordinarily damaging for the complainant, but this fact and the other matters that I have accepted in terms of your appreciation or lack of it as to the damage you are doing Ms Sackville, and that at time you truly cared for her, means that this case does not fall into that area of predatory frankly exploitative class of sexual offending involving an adult and a child.

54It was self-indulgent and protracted offending nevertheless.  I do accept you were a deeply troubled, depressed and socially ignorant man who embarked on an extremely inappropriate and damaging affair with a young teenage girl.  Since 1987 you have effected an entire transformation and rehabilitation which saw the re-enlivenment of your marriage and resulted in you living an entirely appropriate and pro-social life ever since.

55Delay of course has a less mitigatory fact effect in cases such as these, but it is not entirely without value and you stand to be sentenced today as a completely different man and in an entirely different position than you were in more than 30 years ago.

56The other mitigatory factors in my view which are important in this case are one, first I accept that you are truly remorseful for your offending.  In her report
Dr Mason stated that you had shown "considerable worry regarding the impact of this past behaviour" on the complainant.

57Although your record of interview is equivocal it did not contain outright denials and indeed contained admissions as to the surrounding circumstances and you entered a plea of guilty at a very early stage meaning that Ms Sackville was spared the ordeal of cross-examination and the community the time and expense of a trial.

58You have been frank with your family and expressed remorse to them and to your treating psychologist and I accept that his remorse is genuine and not merely the result of the detection of your offending.  Remorse and early pleas of guilt are in my view particularly significant mitigatory features in cases involving historical sexual abuse allegations where all too often perpetrators strenuously avoid the consequences of your offending no matter the cost to others and no matter how often they have to drag a damaged person, damaged as a result of their own offending, through the courts.

59Second, I accept your offending occurred in a framework of emotional difficulty arising from your childhood, financial circumstances and descent into severe alcohol abuse. 

60Third, I accept as I have said several times, that you did not appreciate the effect of your actions on Ms Sackville or properly appreciate her youth, immaturity and vulnerability.

61Fourth, you are a person of otherwise good character who has gone onto lead a hardworking, productive and pro-social life. 

62Fifth, you continue to enjoy the support of your family and friends who nevertheless displayed in my view in their written references a good understanding of the wrongness of your actions.  Your rehabilitative prospects are excellent and you present no danger to the community.  Principles of community protection and specific deterrence, as I have said, do not apply in your case.

63Sixth, whilst just punishment is an important sentencing principle in cases of this kind, in my view your very great emotional suffering in the more than two years since police interviewed you has somewhat lessened the need for the court to take this aspect of sentencing into account in this case.  You are still suffering considerable anxiety and depression for which you continue to receive both psychiatric and psychological treatment and I have no doubt this will continue on in the future.

64Seventh, I accept your fragile psychological state would make a term of imprisonment very difficult for you to bear, certainly more difficult to bear than would be the case for the ordinary prisoner.  Additionally, your age and impaired physical state, your possible condition of Parkinson's Disease and general mental confusion that seems to have resulted over the years, that is what was noted by your family in their references, as being a decline in your capacity to think and talk, (and this was also noted by Dr Mason and your GP), would make you in my view particularly vulnerable to the rigours of imprisonment.  That is I find the last two limbs of Verdins' case to have significant application in this sentencing exercise.

65Eight, your offending did not involve the aggravating features of force, coercion, violence or threats to enforce signs and secrecy.  In the end, Mr Masters, this was an entirely inappropriate, deeply wrong and damaging sexual relationship between a vulnerable, very young girl and a depressed, unhappy, much older man which has had very serious and appalling lifelong manifestations for her.

66You need to reflect on that and be ashamed of it, as I assume you are.  This is however for one of the reasons I have stated one of those rare cases where a court does not in my view need to move to the ultimate sanction.  I propose dealing with you by placing you on a suspended sentence which is an option open to me.

67Could you stand up please, sir?  I therefore sentence you as follows.  Charge 1 you will be sentenced to two months' imprisonment.  Charge 2 you are sentenced to eight months' imprisonment.  Charge 3, you are sentenced to
12 months' imprisonment.  Charge 4, you are sentenced to 18 months' imprisonment.  Charge 5, you are sentenced to 12 months' imprisonment, and on Charge 6 you are sentenced to 18 months' imprisonment.

68The base sentence will be the sentence imposed on Charge 4, 18 months.  I declare two months of the sentence on Charge 1, five months of the sentence imposed on Charge 3, five months of the sentence imposed on Charge 5 and 12 months of the sentence imposed on Charge 6 is to be served cumulatively to the sentence imposed on Charge 4, giving a total effective sentence of three years.

69I am going to suspend that sentence for a period of three years.  I need to tell you this, Mr Masters.  If you commit any offence punishable by imprisonment in the next three years you will be brought back in front of me for breach of suspended sentence and I will re-sentence you, I will make you serve that suspended term.

70I need to tell you that unless there are exceptional circumstances surrounding that offending I must make you serve all that term.  Do you understand me?

71ACCUSED:  Yes.

72HER HONOUR:  Thank you, have a seat.  I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of four years and ordered you to serve a minimum term of two years.  Is there anything else that I need to attend to?

73MS BLACKIE:  Your Honour, we seek a forensic sample order.

74HER HONOUR:  I don't regard a forensic sample order as necessary in this case.

75MS BLACKIE:  As Your Honour pleases.

76HER HONOUR:  It's a first offending and it is unlikely to occur again.  Thank you very much.  Is there any sex offender registration consequences?

77MS BLACKIE:  Yes, Your Honour, I believe it is life on the notes I have here.

78HER HONOUR:  Yes, as a result of this offending you will be placed on the Sex Offenders Register for life.  Your counsel will explain the consequences of that.  I will just get the appropriate documentation and sign it.  Thank you, Ms Sackville.  Were you able to hear all that?

79MS SACKVILLE:  Yes, thank you.

80HER HONOUR:  Thank you very much.  Yes, thank you, we will stand down.

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