Director of Public Prosecutions v McCormack

[2015] VCC 1416

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

AT GEELONG
CRIMINAL JURISDICTION  

DIRECTOR OF PUBLIC PROSECUTIONS

V

PATRICK JOHN MCCORMACK

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Geelong
DATES OF HEARING:	Trial 22 September – 6 October 2015 Plea  13 October 2015
DATE OF SENTENCE:	14 October 2015
CASE MAY BE CITED AS:	DPP v McCormack
MEDIUM NEUTRAL CITATION:	[2015] VCC 1416

REASONS FOR SENTENCE
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Subject: Criminal law - sentence       

Catchwords:    Accused found guilty by a jury of one charge of sexual penetration of a child under 16 – child was under ten – aggravating factor - no remorse – gross breach of trust – in loco parentis - severe on-going emotional harm to complainant – accused’s loss of business and estrangement from sons – low risk of re-offending – importance of general deterrence.

Legislation Cited: Sex Offender Registration Act 2004   

Sentence: 3 years, 2 years non-parole period.

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Note: Pseudonyms have been used to protect the identity of the complainant.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. L. Bourke	OPP
For the Offender	Mr T. F. Sullivan	Robert Harris

HER HONOUR:

1Patrick John McCormack, you have been found guilty by a jury of one charge of sexual penetration of a child under the age of 16.  The child was under the age of ten at the time.

2This took place in 1992 at a time when you and your wife were friends with the Johnson[1] family.  The two Johnson daughters were the same age as your two older sons and they often slept at each other's houses.

[1] pseudonym

3You were charged with one offence against Gemma[2], who was aged either seven or eight at the time, and two offences against Dianna[3], who was four years younger.  The jury was unable to reach a verdict in relation to the charges involving Dianna.

[2] pseudonym

[3] pseudonym

4On the occasions when they slept at your house the Johnson children slept in the same room as your sons on mattresses on the floor. 

5On 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. 

6Gemma's evidence was that this happened on other occasions as well, and she resorted to squeezing her legs together tightly to try and prevent it happening.  The other children were always asleep at such times.

7While I am sentencing you for one charge only, I take into account that it was not an isolated instance. 

8Gemma 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.

9Gemma was 31 years old when she gave evidence at the trial.  The passage of time does not seem to have made it any easier for her to talk about the abuse, and she struggled to give her evidence and did so in great anguish, which is an indication of the severe impact the abuse has had upon her.  She has had extensive counselling over the years.

10Her victim impact statement described quite severe ongoing emotional trauma including a range of mental health issues.  She stated the abuse has been a major contributing factor to her resignation from her job a year ago which has left her unable to meet her mortgage payments without borrowing from her family.

11Her mother also gave evidence at the trial and was visibly distressed, despite her composure, as she heard for the first time the details of the abuse.  She also provided a victim impact statement in which she described the effect of the abuse on her daughter and herself.

12Gemma had to leave secondary school without finishing, and has often had to call upon her mother for support when distressed, causing her mother to have to distance herself from various engagements and social interactions.  She and her family have had to take care not to cause distress to Gemma with any triggers of the memory of the crime.

13The offending was a gross breach of the trust placed in you.  Gemma's parents had placed you and your wife in charge of their children, and so you were in loco parentis, but instead of keeping Gemma from harm, you caused harm to her.

14You are aged 59, 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. 

15Your conviction for this offence will result in cancellation of that registration.  You will have lost your business and I understand that you have become alienated from your sons as a result of the crime.

16From 2000, for eight years you were in a relationship and helped your partner bring up her children, two of whom joined your own sons in your business.  She, has until now, been assisting you in the business.  According to the evidence of Robert Tartaglia and Greg Watson you are well regarded in the business and you introduced Mr Tartaglia's son into it as well.

17The offending occurred many years ago and you have no prior convictions nor have you offended again.  There is nothing to suggest that your prospects of rehabilitation are anything other than good, in other words, there is a very low risk of re-offending.

18However sexual abuse of children is a serious crime regarded with great abhorrence in the community, requiring the strong denunciation of the court, and is deserving of severe punishment.  The maximum penalty is 25 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.  It is well known that sexual abuse is harmful to children, and in this case the suffering of the complainant in the years which have followed, bears that out.

19During the conversation between you and the complainants in 2014, which was tape recorded, you apologised to Gemma but proceeded to plead not guilty.  Of course you were not to be punished for that plea. 

20At the committal and the trial the complainant had to give evidence and be cross-examined, but I note that your defence was conducted in such a way as not to assert the complainants were lying rather that they were mistaken and had come to honestly believe the truth of what they were alleging.

21The submission made by Mr Sullivan, on your behalf, was for a prison sentence short enough to permit a community correction order to be imposed, as well as to form part of the punishment.  However, I take the view that in all the circumstances of this case, a term of imprisonment of less than two years would not be adequate to reflect the gravity of the offending, and a term of two years or longer would exclude the possibility of a community correction order. 

22I note that Gemma was under the age of ten at the time of the offence, which is an aggravating factor, adding to your culpability. 

23Would you stand now please, Mr McCormack.  I sentence you to three years imprisonment and I fix a period of two years which you must serve before being eligible for parole.

24Under the provisions of the Sex Offender Registration Act you must after your release, provide your details to the police every year for 15 years. 

25The prosecution seeks an order for a forensic sample of saliva to be obtained, and through your counsel, you do not oppose that.  I make that order.

26I 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.

27Mr Bourke, I just want to check one thing.  I meant to check myself as to the maximum penalty.  Was I correct?

28MR BOURKE:  Yes, Your Honour.

29HER HONOUR:  Twenty-five years.

30MR BOURKE:  Your Honour, I'm sorry, you might have to declare pre sentence detention..

31HER HONOUR:  I have not done that, no, thank you for reminding me.  Seven days; is it?

32MR SULLIVAN:  Eight.

33HER HONOUR:  Eight days.

34MR SULLIVAN:  If it please, Your Honour.

35HER HONOUR:  That would be right, yes, not including today.

36I declare that pre-sentence detention of eight days has already been served.  I will cause that to be noted on the court record to be reckoned as already served.

37Anything further, Mr Bourke?

38MR BOURKE:  No, thank you, Your Honour.

39HER HONOUR:  Anything further, Mr Sullivan?

40MR SULLIVAN:  No, Your Honour.

41HER HONOUR:  Thank you.  Mr Bourke, as to the indictment; is there any order I need to make in relation to Charges 2 and 3 to clear the indictment or is that no longer required?

42MR BOURKE:  I think Your Honour has already done this, but if you have not, Your Honour ought to ensure that the record reflects that the jury was discharged without verdict on Charges 2 and 3.

43HER HONOUR:  I will make that clear on the record if I have not already done so.

44MR BOURKE:  Yes.

45HER HONOUR:  But I had a look at the Criminal Procedure Act and there is nothing else that I could see that is required.

46MR BOURKE:  So I think that is sufficient, Your Honour.

47HER HONOUR:  All right, thanks, Mr Bourke.  Thank you, Mr Sullivan. 

48MR SULLIVAN:  Thanks, Your Honour.

49HER HONOUR:  Adjourn the court please.

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