Director of Public Prosecutions v McCormack

[2017] VCC 387

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication 
with use of pseudonyms.

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00342

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK MCCORMACK

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February,  28 March 2017
DATE OF SENTENCE:	6 April 2017
CASE MAY BE CITED AS:	DPP v McCormack
MEDIUM NEUTRAL CITATION:	[2017] VCC 387

REASONS FOR SENTENCE
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PSUEDONYMS USED TO PROTECT IDENTITY OF VICTIMS

Subject: Pleaded guilty to 2 charges of committing an indecent act with a child under 16.
Catchwords: at earlier trial found guilty of sexual penetration of sister, hung jury for this complainant; pleaded guilty to new indictment thus avoiding complex  legal issues; recorded evidence of witnesses  to be played at  second trial – only modest discount on sentence; lacks insight into offending;  very low risk of reoffending; general deterrence important.

Sentence: 15 months on each charge; new non-parole period of 12 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Lee	OPP
For the Accused	Mr T. Sullivan	Michael Brugman

Pages 1 - 7

 

 

HER HONOUR: 

1Patrick John McCormack, in October 2015, you were found guilty by a jury of one charge of sexual penetration of a child under the age of 16, the child, Gemma Johnson[1], being under the age of ten at the time. 

[1] Pseudonym

2You had also been charged with two charges of sexual penetration of a child under 16 in relation to the younger of the two sisters, Dianna Johnson[2].  The jury was unable to reach a verdict in relation to those two charges.  The new trial was listed to be heard at the Geelong sittings of the County Court in February 2017 but it resolved to a plea of guilty in relation to two charges of committing an indecent act on a child under 16. 

[2] Pseudonym

3On 14 October 2015, you were sentenced by me to a term of imprisonment of three years, with a period of two years to be served before being eligible for parole.  You are still serving that sentence.  You appealed against conviction and sentence, the appeal having been heard in November 2016 and dismissed. 

4Although this was a plea of guilty at the earliest possible time following negotiations which resulted in a new indictment, no plea offer had been made earlier during the 17 months since sentence. 

5There is some utilitarian value in the plea for having avoided a second trial which would have been preceded by applications involving complex legal issues.  On the other hand, the recording of the complainant's evidence and that of other witnesses would have been used in the trial, avoiding the need for them to have to give evidence again, and so in that regard, little has been saved by your plea.  Indeed, both complainants gave evidence at the first trial and it was clearly a very difficult experience for them.  The value of the plea in having avoided the expense and inconvenience of the second trial warrants only a modest discount on sentence and I take that into account.

6A plea of guilty may be accepted as an indication of remorse and insofar as it acknowledges in this case that you have committed the offences, I accept it in that way. 

7You were assessed by the psychologist, Mr David Ball, recently and he considered that you have no insight into your offending behaviour.  You told him that you could not remember the offending and that if you did it, something silly must have come over you. 

8During the conversation between you and the complainants in 2014 which was recorded, you apologised to Gemma but proceeded to plead not guilty.  Of course, you are not to be punished for that plea.  At the committal and the trial, both the complainants had to give evidence and be cross-examined, but I note again as I did previously that your defence was conducted in such a way as not to assert that the complainants were lying, rather that they were mistaken and had come to honestly believe the truth of what they were saying.

9Turning to the background of the offending, in the early 1990s, you and your wife had been friends with the Johnson family and their two daughters, who were the same age as two of your sons, and they often slept at your house. 

10You were charged with one offence against Gemma who was aged either seven or eight at the time and two offences against Dianna who was four years younger.  All alleged to have occurred in 1992.  And as I have said, the jury was unable to reach a verdict in relation to the charges involving Dianna. 

11Whenever they slept at your house, the Johnson children slept in the same room as your sons on mattresses on the floor.  On the occasion in question, when the children were asleep, you went into the room and sat beside Gemma's mattress.  You placed your hand inside her pyjamas, rubbed the outside of her genital area and then inserted your finger into her vagina, moving it in and out.

12Gemma's evidence was that this happened on other occasions as well and she was resorted to squeezing her legs together tightly to try and prevent it happening.  The other children were always asleep at such times. 

13In sentencing you for one charge only, I took into account that it was not an isolated instance.  Gemma told no one about this until she was about 15, having denied it at the age of about eight when asked by her mother.  She said in evidence that her mother brought it up several times over the years but she was not ready to talk about it.

14Dianna Johnson was aged three years and 11 months, and four years at the time of the offending against her.  She recalled that the first offence against her occurred just after Christmas when she and her sister were staying at your home, sleeping in the bedroom with your sons.  She was awoken by you sitting on the end of her mattress.  You reached under the blankets and under her nightdress and pulled her underwear down.  You touched her vagina for a short time without penetrating it.  The child became upset and was crying.  You told her to be quiet and left the room.  And that is Charge 1.

15She recalled that around the time of her fourth birthday, she was staying overnight again at your house, sleeping in the boys' bedroom.  She awoke to find you sitting on the end of her mattress.  You reached under the blankets, pulled down her pyjama pants and touched her on the outside of her vagina in the same manner as before.  This is Charge 2.  She recalled other occasions when this also happened around this time. 

16When still aged four, the child told her mother that she did not want to go back to your house and that she hated you.  Her mother asked her if you had touched her and she replied that you had and she did not like it.  Her mother's evidence at the trial was that she confronted you about it and you denied it, but the Johnson children never stayed overnight at your home again.  The friendship continued between the two families but you and your wife separated at around that time. 

17In March 2014, Dianna Johnson rang you and recorded the conversation.  She tried to talk to you about the allegations and you told her you would not discuss those matters on the phone. 

18About a month later, she and her sister met you by arrangement and had a conversation with you which they recorded.  During the conversation, you apologised to them but stated that you did not remember "doing anything" to Dianna.  You offered to help them - an offer which included money.  Dianna told you she wanted you to have counselling and you agreed, saying you were "absolutely positive" that you no longer had a problem. 

19You were arrested on 16 June 2014 and denied the allegations when interviewed.  The details of your personal background remained the same as when I last sentenced you except for the fact that you have been in custody since then.  For completeness, I shall repeat those details as I set them out before. 

20You are aged 60, a single man now divorced, having been separated from your wife since 1995.  There were three children of the marriage.  You worked in the building industry as a demolisher for many years, as a registered demolition building practitioner and a registered supervisor in asbestos removal. 

21At the time of the first sentence, I noted that your conviction would result in cancellation of that registration.  You would have lost your business, and I understand that you had become alienated from your sons as a result of the crime.  But despite that,  I have now been told that they have been visiting you in prison and you have become closer to them. 

22This offending occurred many years ago and you have no prior convictions.  At the time of the first sentence, there was nothing to suggest that your prospects for rehabilitation were anything other than good.  In other words, there was a very low risk of reoffending.  Unfortunately, because you were awaiting the appeal, you have not been able to take part in a sex offenders program but you are on a waiting list for that. 

23The sexual abuse of children is a serious crime, regarded with great abhorrence in the community and requiring the strong denunciation of the court and is deserving of severe punishment.  The maximum penalty for this offence is ten years' imprisonment.  An important component of the penalty is the need for it to reflect these factors, but also to act generally as a deterrent. 

24It is well-known that sexual abuse is harmful to children and in this case, the suffering of the complainant, like her older sister in the years which have followed, bears that out. 

25The mother of the two complainants, Ms Jane Johnson[3], provided a victim impact statement in which she referred to the trauma caused to both families and importantly to the severe disturbance suffered by Dianna during her adolescence, consistent with her comprehension by then of the significance of the abuse perpetrated by you. 

[3] Pseudonym

26Dianna, herself, described the severe disruption to her teenage years once she understood the gravity of what she had experienced.  As a child, she had excelled at school but she dropped out in Year 9 and was placed in DHS care at age 14.  While there is no expert evidence to establish the causal link between the abuse and the dysfunction in this case, I can accept that the level and type of dysfunction is consistent with the harm that can be caused by sexual abuse of children and I can reasonably conclude that the causal link has been established here.

27You are already serving a sentence of three years with a non-parole period of two years, so you would have been eligible for parole on 14 October this year. 

28In sentencing you for these two offences, I will fix a new non-parole period as required by the Sentencing Act and there will be further time to serve.  I take into account that the offending against the sisters occurred at the same time and so there should be some concurrency in this sentence which will be reflected in the new non-parole period.  Will you stand now please,
Mr McCormack?

29I sentence you to 15 months' imprisonment on each charge.  Three months of the sentence for Charge 2 will be served in cumulation upon the sentence for Charge 1.  That results in a total effective sentence of 18 months' imprisonment. and I fix a new non-parole period of 12 months.  In effect, that will add about four months to the time you will have to serve before being eligible for parole with your earliest release date being, by my calculation, 7 April 2018. 

30The Serious Sex Offender provisions of the Sentencing Act apply to Charge 2 and I shall note that on the court record. 

31Under s.6AAA of the Sentencing Act, I am required to state the sentence I would have imposed if you had pleaded not guilty to these charges.  I would have sentenced you to 22 months' imprisonment with a new non-parole period of
16 months.

32Under the provisions of the Sex Offenders Registration Act, you must, after your release from prison, provide your contact details to the police every year for the rest of your life. 

33(SOR signed)

34Mr Lee, is there anything I have neglected or omitted?

35MR LEE:  No, Your Honour.  

36HER HONOUR:  Thank you.  Mr Sullivan?

37MR SULLIVAN:  As it pleases, Your Honour.  No.

38HER HONOUR:  Thank you.  Mr McCormack may be taken now.  Thank you, officer.

39MR SULLIVAN:  As the court pleases.

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