Director of Public Prosecutions v McCarthy (a pseudonym)
[2025] VCC 771
•11 June 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SHANE ALBERT MCCARTHY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DOYLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 June 2025 | |
DATE OF SENTENCE: | 11 June 2025 | |
CASE MAY BE CITED AS: | DPP v McCarthy (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 771 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence
Catchwords: Trial – jury verdicts of guilty on indecent act with a child under the age of 16 - sexual penetration of a child under the age of 16 - supply of a drug of dependence to a child – significant impact on victim – breach of trust – family friend – course of conduct offending – delay – evidence of rehabilitation
Legislation Cited: Sentencing Act 1991, Sex Offender Registration Act 2004
Cases Cited:Clarkson v The Queen [2011] VSCA 157
Sentence: Total effective sentence of four years with a non-parole period of two years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Thomas | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr T. Marsh | JK Lawyers |
HIS HONOUR:
1Shane Albert McCarthy,[1] on 7 April 2025 you were found guilty by jury verdict of Charge 2, indecent act (course of conduct), Charge 3, sexual penetration of a child under the age of 16 years, and Charge 5, supply of a drug of dependence to a child. You pleaded guilty in front of the jury panel to Charge 1, indecent act with a child under the age of 16. I directed an acquittal in respect of Charge 4, supply drug of dependence to a child, on the basis that no specific incident was alleged. The evidence of supplying cannabis was general and was said to have happened on multiple occasions.
[1]A pseudonym.
2The maximum penalties are as follows: indecent act with a child under the age of 16, 10 years' imprisonment, sexual penetration of a child under the age of 16, 10 years' imprisonment, and supply of a drug of dependence to a child, 15 years' imprisonment.
3The victim in this case is Ms Susan Anderson[2]. The offending occurred in 2008/2009 when she was 14 and 15 years old.
[2]A pseudonym.
4Ms Anderson was born in October 1993. You played in a band with her father. She grew up in Wonthaggi and lived there with her father and her stepmother when the offending started. You, Mr McCarthy, had been living with your wife and children in Korumburra. In 2008 you separated from your wife and moved to live at Ms Anderson’s house.
5Ms Anderson gave evidence that you lived with her family for approximately six months. She was 14 years old when you moved in.
6After you moved in an incident occurred between you and Ms Anderson in the lounge room. You were on the couch, and she was sitting in a chair next to the couch. She gave evidence that you pulled her over towards you and then you tongue kissed her. You said to her that you had been thinking about doing this since her 13th birthday. On that occasion you had played in a band at the birthday party. This is the basis of Charge 1. You pleaded guilty to this offence. At the time of that offending you also said to her that she was the youngest girl you had kissed. She told you that she was 15 in a couple of months which she said was not true, and she said that to make herself appear older. She said she did not initiate the kiss. She said she did not want to kiss you before it happened.
7Ms Anderson gave evidence that after that first incident 'it kind of progressed pretty quickly'. She fell into a pattern of coming home from school and going to sleep early so she could wake up around 9.30 to 10.00 pm when her father and stepmother were in bed. She would go to the lounge room and 'make out' with you on the couch or on the mattress on the floor. You would hop on top of her. No one else was present. She described this as a 'relationship with you'.
8This would mostly happen in the night later in the evening after her parents had gone to bed. She said she did not have a great relationship with her mother or her father, and it was 'nice to have someone care for me'.
9She described the incidents as involving 'dry sex' in a missionary position. You would push up and down against her vagina with your penis. Sometimes your penis was inside your clothing and other times it was outside and on other occasions you would just be wearing underwear. She said that on some occasions when your pants were down you would ejaculate onto her clothes. She said she always had her clothing on. These incidents always involved tongue kissing. She explained this as you kissing her with your tongue. She said that you would often put your hands down her pants. She would lie and say she had her period to stop you penetrating her with your finger.
10She said that you never succeeded in putting your finger into her vagina at the house.
11Charge 2 is a course of conduct charge which covers events at house over a two-month period. It is clear from the evidence of Ms Anderson that these actions took place on multiple occasions. Her evidence was that she went out into the lounge room all the time if people were not there. She could not say how many times a week this was.
12She gave evidence that when she was in the lounge room with you on these occasions you frequently gave her cannabis which the two of you would smoke using a bong.
13Ms Anderson described an occasion when she went to your house in Korumburra where Sandra McCarthy[3] lived. She said you were babysitting. Present were Ms Anderson, you, and another girl named Skye[4]. Ms Anderson gave evidence that you were in Sandra's bedroom, and you drew speed up into a syringe, you then squirted the contents of the syringe into both Skye and her mouth and then you injected the rest. She said that prior to this you had produced rocks on a spoon and prepared the drugs. She did not describe any significant effects of the drug use. This is the basis of Charge 5.
[3]A pseudonym.
[4]A pseudonym.
14In relation to Charge 3, sexual penetration of a child under the age of 16, she said this occurred at an address in Wonthaggi. This is where Georgia[5] and Christopher Rea[6] lived who were friends of yours. They converted their shed for you by putting a bed in the back so that you could sleep there. By this time Ms Anderson was living with her mother at another address in Wonthaggi. She was 15 years old.
[5]A pseudonym.
[6]A pseudonym.
15She described a similar incident to those which took place in the lounge room at the house. You were kissing her and engaging in 'dry sex'. You were 'high'. You pulled your pants down. You put your fingers in her vagina. She told you she was having her period, and you said, 'maybe it's God's way of protecting me'. She described the penetration as occurring 'two or three times'.
16She does not recall any further sexual activity occurring after she turned 16. She said she was finished with it by then.
17Ms Anderson went to the police in Leongatha about your offending in late 2021 but police took no action. Early the following year she attended at the Morwell SOCIT and made a complaint followed by a statement on 13 June 2022.
18At the trial, a pretext call between you and Ms Anderson was played. A further recording was played which was taken when Ms Anderson went up to Shepparton to meet with you and recorded the conversation. The prosecution argued at the trial there were relevant admissions to a sexual relationship in these recorded discussions. It seems to me the jury accepted this argument. In these conversations you do not challenge the version of Ms Anderson or dispute that she was telling the truth. When you were interviewed on 21 September 2022, you made further admissions to the police of sexual misconduct, including touching Ms Anderson's breasts and vagina.
19Ms Anderson made a Victim Impact Statement. Her statement is an eloquent expression of the enduring impact of your offending on her life.
20She says in her statement that for a long time she had an internal battle believing that what occurred might have been her fault. She said she wanted to feel loved and cared for. She now realises it was not her fault but that you were a grown man who took advantage of her. She reported the offending to police because she became aware that you were working with teenagers, and she was concerned you might offend again.
21She says that what felt like attention and affection at first turned into confusion and became a traumatic experience that she was not emotionally prepared for. Your manipulation has altered her perception of relationships and intimacy. She has struggled with trust issues and forming healthy connections with others. This has affected her role as a parent.
22She says as a mother and foster parent she finds herself grappling with a deep seeded fear that someone could take advantage of her children in a similar way. She is therefore overly vigilant and protective. She worries her children could be vulnerable to manipulation and it weighs heavily on her.
23She has been left with emotional scars. She has feelings of shame, confusion and anger. She said she questions her value as a person which she believes stems from the traumatic relationship with you. She has also suffered from anxiety and depression.
24She says your conduct has caused strained relationships within her family. She has suffered with a burden of secrecy, and it has taken her years to share what happened with those closest to her.
25She has needed therapy and counselling, and this has caused her stress.
26The substantial impact on Ms Anderson’s life since the offending is an important matter in sentencing you for these charges. In this case the effects have been substantial and enduring. This is a matter that informs the weight to be given to just punishment for this offending.
Gravity
27The maximum penalties of 10 years' imprisonment for Charges 1,2 and 3 reflect the seriousness of the sexual offences you have committed, as does the maximum penalty of 15 years for the offence of providing a drug to a child.
28As stated in Clarkson[7], the law presumes enduring psychological harm will result from children engaging in premature sexual activity with an adult. It is apparent from the victim impact statement that Ms Anderson has experienced the anticipated psychological consequences of offending such as this.
[7]Clarkson v The Queen [2011] VSCA 157
29The age gap between you and Ms Anderson was significant. She was a young teenager, and you were 35-year-old man with a family of your own including children of around the same age. The breach of trust involved in the offending was substantial. Ms Anderson was the daughter of your friend with whom you played in a band, and you offended against her in circumstances where her father had allowed you to live in his house because you found yourself in difficult circumstances after the breakdown of your marriage.
30The offences in this case were not isolated incidents. Charge 2 is a course of conduct offence and Charge 3 occurred in the context of ongoing sexual contact between you and Ms Anderson.
31You pleaded guilty to Charge 1. The facts of that charge were never in dispute. Mr Marsh submitted, and the prosecution accepted, that the action of tongue kissing is a lower end example of an indecent act with a child under the age of 16. This can be accepted but the tongue kissing which constitutes Charge 1 was really the beginning of you grooming Ms Anderson for the sexual relationship that took place after that incident.
32In relation to Charge 2, Mr Marsh submitted that the conduct constituting Charge 2 was not an example of the 'most grave offending' covered by this charge. In my opinion the conduct alleged in Charge 2 was very serious offending. Firstly, the charge is a course of conduct offence incorporating many incidents over a two-month period. Ms Anderson's evidence was that she would engage in this behaviour with you very regularly. Furthermore, the offending involved you thrusting your penis against her vagina whilst tongue kissing her and sometimes putting your hand under her underpants. The particulars of the charge relate to the simulated sex of thrusting your penis into her vagina, but the surrounding circumstances are relevant to assessing the gravity of the particularised conduct. At times the general contact was through clothing but at other times you removed your pants, and your naked penis was up against her vagina over clothing. Occasionally you ejaculated. A description in respect of this conduct as 'everything but sex' is in my opinion accurate.
33In relation to Charge 3 of digital penetration, this occurred during an episode of simulated sex not covered by the charge period in Charge 2. There is no direct overlap between the offences. This offence occurred against a background of you having put your hand underneath her underwear on multiple occasions to be met with the response that she was having her period. You should have known such conduct was unwelcome. It is true that the offending seems to have been relatively brief, and I accept that the form of penetration did not expose Ms Anderson to the risk of pregnancy or disease, and there were no overt threats or force used. However, this remains a serious offence.
34Mr Marsh submitted that Charge 5 is not a serious example of providing a child with a drug. The prosecution accepted this offending fell at the lower end of the range. Nonetheless, this is an inherently serious offence which carries a maximum penalty of 15 years' imprisonment.
35In respect of the offending captured by Charge 2, the course of conduct offence, Ms Anderson gave evidence that you gave her marijuana in the lounge when she was with you. Even though cannabis use by the adults was not unusual in the residence, in my opinion this was part of your grooming conduct and the provision of illicit drugs to Ms Anderson indicates your disregard of the boundaries between illegal adult behaviour and children.
36This offending occurred approximately 16 years ago. The maximum penalties which applied then are different to the maximum penalties which apply now for similar conduct. The sentences must reflect the maximum penalties which applied at the time. Furthermore, no standard sentences apply in this case because of when the offending took place.
37The law is that current sentencing practices refer to sentencing practices in effect at the time of sentencing, not those which existed at the time the offence was committed, but current sentencing practices must be considered alongside an awareness of the maximum penalty that applied at the time of the offending. Equal justice may require me to consider the historical sentencing practices insofar as they can be established.
38In Stalio v The Queen [2012] VSCA 48 at paragraph 34 the Court of Appeal said this:
'We accept that in principle it may be relevant to consider sentencing practices at the date of an offence when sentencing for that offence occurs many years later. This is not because 'current sentencing practices' as referred to in s5(2)(b) of the Sentencing Act relates to practices at the date of the offence, but because this factor is relevant to the attainment of the purposes set out in s5(1), and in particular the imposition of punishment to the extent which is just in all the circumstances. The principle of 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.'
39Mr Marsh referred to the sentencing snapshot from 2008/2009 as indicating the sentencing approach in the timeframe these offences were committed. I have had regard to those statistics, but statistics do not provide information about the facts of the cases they are drawn from. It can be accepted that the sentencing regime was slightly less punitive at that time than it is now, but that of course reflects the increase in the maximum penalties and the application of standard sentences.
40The application of current sentencing practices in this type of case is not without difficulty. Of course, current sentencing practices are a guide but not a controlling factor in the sentences to be imposed. I have considered the sentencing case summaries in the Judicial College, particularly insofar as they relate to historical sexual offending.
Personal circumstances
41You were born in February 1973. You are now aged 52.
42You had a difficult childhood, and you were exposed to drugs and alcohol at an early age by your parents. In the report provided by Dr Tiffany Lewis, there is a reference to you as a child witnessing your parents participate in an orgy whilst watching pornography. You said to her that you later became the habitual user of pornography. You report a preoccupation with pornography and sex as an adult. Dr Lewis describes you as a person 'managing an addiction to pornography'.
43Your education was disrupted by your family moving around due to your father's work as a truckdriver. You went to 13 primary schools. You got into fights and trouble at school, and you left at the age of 14 to work as a potato picker and a packer at your mother's workplace. At 15 you worked as garbage collector which you loved. You stopped working there when you were 17 years old around the time your first child was born, and you were breaking up with his mother and abusing drugs. You later worked on farms, managed your father's video store, and at the age of 30 became an interstate truck driver.
44You have had four significant relationships, the first three with the mothers of your four children and the last with your current wife, Joann[8], who has four biological children of her own. You were married to Sandra at the age of 19 and you separated when you were in your mid-30s, which is the timeframe when these offences occurred. Your youngest child was born in 2015 after a brief relationship with a woman named Martha[9].
[8]A pseudonym.
[9]A pseudonym.
45You have been a long-term substance abuser. Your alcohol use was problematic from your mid-teens as was your drug use, which has included heroin, amphetamines and methamphetamine. You started using methamphetamine intravenously in your mid to late 30s.
46You have a significant criminal history which reflects your lifestyle in your 20s and 30s of abusing drugs and alcohol. Your prior convictions start in 1991 and end in 2008, which is around the time this offending occurred. You have no prior convictions for any sexual offences. You have received one previous prison sentence in 1996 for theft, trafficking cannabis and other dishonesty offences and driving offences. That offending was committed in breach of a suspended sentence. I was told by Mr Marsh that you have a subsequent conviction in 2016 when you were dealt with for assault and damage offences relating to an incident with your oldest son. You have no convictions since that time. Having regard to the time that has passed now since you were in trouble and the different nature of your prior convictions, they have limited significance to sentencing in this case.
47At the time of this offending in 2008/2009 you were 35 years old, and you were going through a divorce from your wife Sandra. You say this caused you significant stress and anxiety and your drug and alcohol use increased substantially. However, it seems substance abuse had been a continuing problem for you.
48You met your wife Joann in 2014. You and Joann purchased trucks and ran a business together which ultimately failed. After that you volunteered at your local church.
49After the incident which Mr Marsh referred to in 2016, you immediately sought rehabilitation through a Christian rehabilitation organisation based in country Victoria. You married Joann in January 2017. In early 2021, you were offered a position as a mentor and counsellor at the Christian rehabilitation organisation. In the middle of 2022, you became a program director.
50In this period, you have also become a Christian.
51After you obtained employment with the Christian rehabilitation organisation, you and your family lived at a residence through your employment on a large property where the residential program is conducted. Your family has lost that accommodation since the jury verdict and your remand in custody in relation to these offences. They have been forced to relocate.
52You and Joann do not have children together, but you each have children with different partners. The younger children were living with you and your wife until you were remanded in custody.
Remorse
53Mr Marsh submitted this is a very unusual case and there is evidence of remorse in the pretext call and the recorded conversation that was played to the jury. You made admissions in those conversations, and you made further relevant admissions in your record of interview. However, you pleaded not guilty and denied all but Charge 1. Therefore, Mr Marsh accepted that this was not remorse in the conventional sense. The prosecutor, Ms Thomas, submitted rather than remorse your admissions should be regarded as demonstrating some insight into the offending and should be treated in that way, rather than as remorse, which is of course a difficult concept where the offending remains denied and a trial took place.
54Mr Marsh also submitted that in some way the admissions you made in the various recorded conversations and the record of interview were restorative. You are not to be punished for running a trial, but you are not entitled to the mitigatory benefits that flow from a plea of guilty, one of which is closure for the victim which has a restorative effect. Ms Anderson had to give evidence and was challenged by your counsel at the trial. I therefore do not accept that your admissions have a restorative effect in this case, but I do accept that you have demonstrated some insight into the overall wrongfulness of your conduct and that is relevant to the assessment of your prospects of rehabilitation.
55Your counsel Mr Marsh submitted that you have been alcohol and drug free for the past nine years since your initial participation with the Christian rehabilitation organisation. The prosecution took no issue with the evidence of your rehabilitation. Multiple character references were tendered. I will not list all the people who provided letters of support. Many of them were in Court to support you when the plea took place. The references are from family, friends, work colleagues and members of the clergy. I accept they demonstrate that you have overcome your drug addiction and criminality and have become a respected member of your community and that you have been to quote Mr Marsh's submissions 'a force for good in the lives of many'. I also accept you have been candid about your former lifestyle with the authors of those references.
56Your sister, Patricia McCarthy[10], describes the instability of your childhood and exposure to drug and alcohol use from a young age. It seems your siblings also had problems with drug addiction. She describes how you have worked with her and her younger brother in addressing their addictive behaviour and that you have provided accommodation for her and her father. She refers to the impact on your family of the loss of accommodation.
[10]A pseudonym
57
The reference material strongly indicates that you have achieved rehabilitation. I accept you have rehabilitated in respect of drug and alcohol use. Additionally,
Dr Lewis in her report assessed you as falling into the low-risk category for further sexual offending.
58In my opinion, it is relatively unlikely you will offend again.
59Considerable time has passed since the offending in this case, some 16 years. That is not unusual in sexual offences. As Mr Marsh said in his written submissions 'significant delay is perhaps the norm'. The important feature of delay in this case is that in the time since the offending was committed, you have achieved rehabilitation. Therefore, I accept the submission that sentencing considerations of specific deterrence and community protection must be moderated because of the rehabilitation you have achieved.
60Mr Marsh submitted that your upbringing reduces your moral culpability for the offending because the instability and exposure to drug use contributed to the unstable and chaotic life you adopted, which at the time of this offending featured substantial drug use. I agree there are parallels between what you experienced in your upbringing and the type of behaviour you engaged in at the time of this offending.
61As to the cause of these offences, Dr Lewis in her report said that your offending is explained by sexual preoccupation and poor coping skills when your relationship broke down. She says the offending occurred at a time of significant stress and change and significant substance abuse. Dr Lewis says that your family background and childhood development are relevant to the offending and that your substance abuse made you prone to impulsivity.
62Mr Marsh emphasised a connection between your upbringing and your drug use which he submitted was a causal factor in the offending. I accept that your substance abuse was a disinhibiting influence on your ability to resist your sexual urges towards the Victim. Your sexual preoccupation and your drug fuelled lifestyle do seem to me to be related to the experiences in your upbringing and, therefore, I accept your upbringing is a relevant factor which to an extent reduces your moral culpability for this offending.
63That said, you offended against a 14-year-old who was the daughter of your friend, who had allowed you to live in his house when your marriage broke up. On the evidence at the trial, you had been sexually attracted to her since she turned 13. This offending occurred over a sustained period and cannot be explained purely by impulsivity. Even allowing for the disinhibiting effects of substance abuse and your own upbringing, this was conduct of significant culpability.
64Dr Lewis refers in her report to the impact on your family if you are sentenced to a period of imprisonment. You have a son with ADHD. Your family has had to find new accommodation. I accept the impact on your family of a prison sentence will be felt deeply by you. Dr Lewis diagnoses you as suffering from PTSD which may worsen in custody, although the evidence is you are responding reasonably well so far and making the most of your time in custody.
65Overall, I am satisfied the prison sentence I impose will weigh heavily on you and there is a risk of your trauma symptoms increasing over time and I have taken that into account.
66You will receive custodial sentences on Charges 1 and 2, and therefore, for the sexual penetration offence, Charge 3, you will be sentenced as a serious sexual offender, which will be noted in the court records. This means that the presumption of concurrency does not apply, and the sentence for Charge 3 is to be cumulative unless otherwise ordered. Of course, those provisions do not exclude the operation of the totality principle. The other effect of the serious offender provisions is that protection of the community is to be considered the paramount sentencing purpose for that charge, although the impact of community protection on sentencing is limited by the rehabilitation you have achieved.
67The prosecution does not ask for a disproportionate sentence and accepts that the totality principle still has application, although modified by the serious offender provisions regarding Charge 3.
68The totality principle requires that the total effective sentence must be just and proportionate to the total criminality of your offending. To comply with the totality principle, I have moderated significantly the periods of cumulation I have ordered in this case. The offences in this case occurred as part of a sexual relationship between you and the victim, and in that sense, they were a course of conduct a factor in favour of significant concurrency.
69
The sentence I impose must send a message to others minded to engage in sexual behaviour with children, that significant punishment will be the result if detected and convicted. I must also through the sentence I impose, denounce your offending on behalf of the community. Furthermore, just punishment has a significant role to play particularly considering the substantial impact on
Ms Anderson.
70I have taken a positive view of your prosects of rehabilitation and your rehabilitation remains a significant matter to balance against the more punitive sentencing principles which apply in this case. The positive changes you have made to your life reduce the importance of specific deterrence and community protection, which are of little weight given the rehabilitation you have achieved.
71Mr Marsh submitted that a partially suspended sentence is within range for this offending. The power to partially suspend the sentence is only enlivened if the total effective sentence is three years or less. Mr Marsh submitted that, considering the mitigating factors and applying the principle of parsimony, such a sentence was appropriate. Ms Thomas for the prosecution submitted that the nature and gravity of the offending was such that a head sentence with a non-parole period is required.
72Having regard to the nature and gravity of these offences and the substantial impact on the Victim I have formed the view that a proper application of general deterrence, denunciation and just punishment does require a period of imprisonment with a non-parole period.
73The non-parole period is the minimum period justice requires you to serve before becoming eligible for release on parole. It mitigates punishment in favour of rehabilitation. It must be consistent though with the objective gravity of the offending. I have in this case allowed for a significant period of supervision on parole to reflect the rehabilitation you have achieved.
Sentence
74The sentences that I impose in this matter are as follows:
75In respect of Charge 1, indecent act with a child under the age of 16, which relates to the first incident of tongue kissing, you are convicted and sentenced to a period of imprisonment of six months.
76In relation to Charge 2, a course of conduct charge of indecent act relating to thrusting your penis into Ms Anderson's crotch in the lounge room at the house, you are sentenced to two years and six months' imprisonment.
77In relation to Charge 3, sexual penetration of a child under the age of 16, you are sentenced to two years' imprisonment.
78In relation to Charge 5, of supplying a drug of dependence to a child, you are sentenced to 10 months' imprisonment.
79Fourteen months of the sentence on Charge 3 is cumulative on the base sentence for Charge 2, and four months of the sentence on Charge 5 is also cumulative on the base sentence and the sentence for Charge 3. This makes a total effective sentence of four years.
80I fix a non-parole period in this matter of two years.
81I allow pre-sentence detention of 65 days.
82But for your plea of guilty on Charge 1, I would have imposed a sentence of nine months, three months of which would have been cumulative on the other sentences in this matter.
83It is agreed that the Sex Offender Registration Act applies, and the relevant reporting period is life, I will make that order. You will be provided with documents that relate to the Sex Offenders registration.
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