Director of Public Prosecutions v Matheson (a pseudonym)

[2016] VCC 1357

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

AT BALLARAT
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

V

MICHAEL JOHN  MATHESON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Ballarat
DATE OF HEARING:	13 September 2016
DATE OF SENTENCE:	13 September 2016
CASE MAY BE CITED AS:	DPP v Matheson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1357

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence          

Catchwords:   pleas of guilty to two charges of unlawful and indecent assault of a female – historic offences – child aged 3 - offender was the child’s uncle, then aged 14 or 15 – breach of trust – no previous or subsequent offending – genuine remorse – early plea – unremarkable background apart from low intellectual functioning and chronic depression – current sentencing practice.    

Sentence: 2 years’ imprisonment    wholly suspended for two years.

NB: A pseudonym has been used to protect the identity of the complainant.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Parkes	OPP
For the Accused	Mr S Payne	VLA

HER HONOUR:

1Michael John Matheson[1], you have pleaded guilty to two charges of unlawful and indecent assault of a female. 

[1] Pseudonym

2You committed these offences in 1977 when you were aged 14 or 15 years.  The complainant was your niece, who was then three years old. 

3You had been left in her house with her while her parents were at work.  You took her to her bedroom and pulled down your lower clothing, exposing your penis.  You then attempted to insert it into the child's mouth, unsuccessfully at first, as she was too short.  You placed her in a standing position on a mattress and made another attempt, but the child kept her mouth shut.  You grabbed her hair and told her something like, "Suck it" and forced your penis into her mouth, causing her pain.  You continued the penetration by thrusting your penis in and out. 

4The child was extremely upset and crying.  You took her to the bathroom and told her to brush her teeth.  You then took her to buy a bag of lollies, but on your return home with her, she was still crying.  She told her mother what had occurred and her mother screamed at you to leave the house and never come back. 

5The child's father came home and her mother told him what had occurred.  He screamed at the child and told her never to tell anyone about the offence.  She was very scared of her father and did what she was told.  It was not until February 2015 that she reported the matter to the police. 

6You were contacted by the police and interviewed on 26 March 2015.  You made full admissions, but said you could not remember all the details of the offending.  However, you volunteered to the police that the second incident had occurred at your home, and this was almost identical to the first. 

7You regretted your behaviour afterwards and it never occurred again.  You expressed your sorrow and remorse to the police, saying that what you had done had never really left your mind.  You also expressed this to Ms Cidoni, the psychologist who assessed you last month and provided a report for the court.  She said you were genuinely ashamed and remorseful. 

8The fact that you made admissions and pleaded guilty at the earliest possible opportunity, means you are entitled to a discount on your sentence because you have avoided the need for a trial, and most importantly, you have spared the complainant and her mother from having to give evidence and be
cross-examined.  The discount should be a substantial one because of your voluntary admission to the second charge. 

9I am told that you understand that these are very serious charges and that they are serious examples of this type of criminal behaviour.  The complainant was a tiny child and she had been entrusted to your care and you breached that trust. 

10The impact on the complainant as a little girl, as a girl growing up and even now as an adult, has been devastating.  She and her mother described in their victim impact statements the effect it had on the family.  The father's anger, on hearing what had happened, meted out upon the child in demanding that she not tell anyone is heartbreaking to hear.  She was so scared of him that she did not tell anyone for many years. 

11Her parents did not stay together, as her father resorted to alcohol and was violent towards his family.  It is a very sad story and it illustrates the far-reaching effects of the sexual abuse of children.  You heard about that yourself this morning when the complainant and her mother read their statements to you. 
I understand that you do not want to minimise your behaviour and you accept full responsibility for it. 

12You have not offended at all since these offences and you have led a quiet and unremarkable life, working as a truck driver. 

13As a boy you struggled at school and left early, and Ms Cidone's testing results are consistent with that, meaning your intellectual capacity is not high, and in addition, you do not have good coping skills.  She considers that you do not have any mental disorder, but there are signs of chronic depression, which might respond to psychotherapy.  Certainly she was sufficiently concerned by her findings to form the opinion that you would experience hardship if you were imprisoned. 

14You live alone, although in the same caravan park as your son, with whom you are close, but otherwise you live an isolated life.  You have never had any problems with drugs or alcohol and have always been employed, apart from short periods between jobs. 

15These offences occurred almost 40 years ago and if you had been dealt with at the time in the Children's Court, your sentence would have been appropriate for you as a 14 or 15 year old boy. 

16You had not offended before and as I said earlier, nor have you offended since and that is important for two reasons.  The first is that it shows you have had no propensity for this type of offending, and so your prospects for rehabilitation have already been demonstrated as being very good.  Ms Cidoni found you to be at low risk of re-offending, as might be expected.

17The other reason for the importance of not offending in all this time, is that the complainant in her telephone conversation with you in early-March last year, wanted to be reassured by you that you had not offended against any other child.  It might be some comfort to her to know that you have not. 

18The low risk means that the protection of the community need not be
a consideration in sentencing you.  Because of the unusual circumstances of your youth at the time of the offending, the need for general deterrence is not
a factor that looms large in my sentencing task, but still has some role to play.  If you had been dealt with at the time in the Children's Court, general deterrence could not have played any role at all.

19These charges attract a maximum penalty of five years' imprisonment and
a term of imprisonment is called for by such serious offending.  However your particular circumstances, combined with the fact that you, yourself, were a child at the time, means that it is not necessary for you to serve any time in prison. 

20Would you stand now please, Mr Matheson?

21I sentence you to two years' imprisonment for each charge, with no order for cumulation.  The sentence will be wholly suspended for two years, meaning that if, during that time, you were to offend in any way that might itself attract
a prison term, you will have breached the suspended sentence.  You would then have to appear again before me to be re-sentenced.  To avoid going to prison, you would have to show that there were exceptional circumstances as to why you should not. 

22The prosecution seeks an order for a forensic sample of saliva to be obtained, and through your counsel, that is not opposed.  I make that order and must advise you that the police have the power to use reasonable force to obtain the sample, but I trust that will not be necessary. 

23If you have pleaded not guilty to these charges, I would have sentenced you to three years' imprisonment, of which two years and six months would have been suspended for three years. 

24An order under the Sex Offenders Registration Act is discretionary in this case and I find that there is no need for such an order. 

25Are there any other matters, Ms Parkes?

26MS PARKES:  No, Your Honour. 

27HER HONOUR:  Mr Payne?

28MR PAYNE:  No, Your Honour.

29HER HONOUR:  Thank you.  I have just been handed the order under s.464ZF, I will just sign that now.  You may be seated now, Mr Matheson. 

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