Director of Public Prosecutions v McCormick (a pseudonym)

[2021] VCC 1168

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLIE MCCORMICK (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2021
DATE OF SENTENCE:	18 August 2021
CASE MAY BE CITED AS:	DPP v McCormick (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1168

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW - Sentence

Catchwords:  Guilty Verdict Following Trial – Historical Sexual Offending – Four Complainants – Unlawfully/Indecently Assault a Girl – Gross Indecency in Presence of Girl U/16 – Indecent Assault – Gross Indecency – Delay.

Legislation Cited:     Sentencing Act 1991 (Vic)

Cases Cited:

Sentence:                 Total Effective Sentence of 36 months’ imprisonment. 

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Pirrie	Office of Public Prosecutions
For the Accused	Ms J. Swiney	Stary Norton Halphen

HIS HONOUR:

1Charlie McCormick[1], on 25 June at Geelong County Court, you were found guilty by a jury of 12, of two charges of gross indecency in the presence of a girl under 16, four charges of unlawful and indecent assault of a girl, and two charges of indecent assault.  You were found not guilty in respect of Charges 1, 3, 7, and 12 on the indictment.

[1] A pseudonym.

2The maximum penalties applicable for these offences are, for gross indecency, two years' imprisonment; for unlawful or indecent assault of a girl, five years' imprisonment; and for indecent assault, five years' imprisonment. 

3Your four victims each gave powerful and compelling evidence at your trial.  Your nieces, Angela Abela[2], Danica Valente[3], Pamela Smith[4], and Leila McDonald[5] told the court of your serious offending from the early 1970s to the early 1980s.  The jury accepted each of them as credible and reliable witnesses and accepted their accounts of the crimes you fall to be sentenced for to the highest standard known to our law.

[2] A pseudonym.

[3] A pseudonym.

[4] A pseudonym.

[5] A pseudonym.

Circumstances of Offending

4Turning to the circumstances of your offending.  As I have said, your offending occurred between 1973 and 1984. 

5Charge 2, of which you were convicted, was a charge of gross indecency occurring sometime between January 1973 and December 1974, where you committed the act of gross indecency in the presence of Danica Valente.  You asked Danica Valente to get you a glass of water.  She was staying at your place.  When she entered the bedroom, you were lying on the bed, naked, exposing your penis. 

6In relation to Charge 4, your victim was Leila McDonald.  Charge 4 occurred sometime  between July 1971 and June 1973, and again was a charge of gross indecency.  You sat in a chair in your family home, Leila McDonald was over at your home, and you opened your legs and exposed your penis to Leila McDonald.  Denise McCormick[6] saw you expose your penis and told you off. 

[6] A pseudonym.

7Charge 5 relates to Pamela Smith.  Between 1 January 1977 and
31 December 1980, you indecently assaulted her as follows.  She was laying in bed in your daughter's room, you entered the room, lifted the blanket and then her nightie.  As she attempted to pull her nightie down, you told her she was dreaming and rubbed her vagina.  That is Charge 5. 

8You continued to rub her vagina, you exposed your penis from your dressing gown, you put your penis into her right hand and manipulated it to masturbate yourself.  You ejaculated onto her chest, then you wiped your ejaculate with a tissue.  You told her she was dreaming and left the room.  The second part of that summary is Charge 6.

9Charge 8 also relates to Pamela Smith and occurred sometime between January 1977 to December 1980.  She was laying in bed in your daughter's room, you entered the room, lifted the blanket and her nightie, and rubbed her vagina.  That is Charge 8. 

10You continued to rub her vagina, exposed your penis from your dressing gown, you put your penis into her right hand and used your hand to guide her to masturbate you.  You ejaculated into her hand and onto her chest and then wiped your ejaculate with a tissue.  That is Charge 9. 

11Charge 10 was a charge of indecently assaulting Angela Abela between 1981 and 1984.  She was asleep in your daughter's bed when she awoke to your penis touching her face.  You masturbated and rubbed your penis on her face before you ejaculated.  You then wiped your ejaculate with tissues and left the room. 

12Charge 11 also related to Angela Abela, a charge of indecent assault perpetrated on her.  Between July 1981 and July 1984, she was asleep in your daughter's bed when she awoke with your penis in her hand.  You used your own hand to guide her to masturbate you.  Your wife coughed from another room and you departed. 

13The combined force of the evidence against you at your trial was overwhelming.  You denied your offending.  You have consistently denied it to your family and friends.  As is often the case, due to your otherwise warm and caring nature and positive influence on the lives of others, friends and loved ones continued to support you and have believed in your innocence.  Their testimonials to your character are genuine and heartfelt. 

14As is so often the case, they are uniform in the difficulty they have reconciling your past offending with the individual they have come to trust, love, and respect.  In a sense, you have betrayed them, as you have your four nieces.  You were successful in concealing the aspect of yourself that is reflected in your offending from all but your vulnerable victims.

15Your crimes have now been proved beyond reasonable doubt.  The consequences of your actions have been far reaching. Devastating for your immediate victims, but the ripple effect of the impact of your crimes has engulfed the entire family.  You have broken a large and once loving and close family by your selfish criminal acts, the span of which covered 10 years, and your refusal to accept your wrongdoing.  Sisters, cousins, siblings, and partners have indirectly been seriously affected by your crimes. 

16Victim Impact Statements were tendered on behalf of Danica Valente, Angela Abela, and Pamela Smith.  Each are eloquent as to the insidious impact of your offending and the insidious impact of offending of this nature, and its deep and lasting consequences.  You have impacted their security and well-being, their self-esteem and their relationships with partners and loved ones throughout their lives.  The trauma inflicted by you has had serious psychological consequences affecting their quality of life, their interactions with loved ones and others, and their work lives. 

17I will turn to a couple of small portions without identifying the author of each, so as not to unnecessarily inflict more trauma upon them throughout the course of this.  But it is important that I set out the full impact of your crimes, and I do that in part with reference to the victim impact statements. 

18One of your victims writes:

'My life changed for the worst 46 years ago when I was betrayed by someone I trusted.  I've lived a  lie for the past 46 years putting on a happy face but suffering inside and feeling lonely with no support because I was too embarrassed to ask for help as I felt ashamed and totally isolated.  I have struggled with anxiety and depression without the proper medical assistance due to not being able to talk about what happened.'

19She goes on to talk about the difficulties in her relationship because she could not come forward as her husband urged her to, to raise these matters, including it impacting upon her career, and having to give up her career:

'My life would have been so different not just financially but I feel I have wasted so many years being in my own shell and feeling like such a lonely person as I had this terrible nagging sadness at the back of my mind that I couldn't talk about not even with my closest friends that have been in my life since we were teenagers.  I have lost most of my maternal family and they sided with Charlie and said that I was lying.  I feel a great sadness with this loss as we were all extremely close and had a great family bond this has now gone totally.  Included in the family members is Charlie’s wife who I adored my whole life and loved her deeply and to have her not believe what had happened to me was devastating.'

20Some other small aspects from another impact statement:

'To the person that changed my life in a way that can never been forgiven…… I will not speak your names or the names I wish to call you…… 

You will never understand the profound impact your vile acts against me, have had on my life in so many ways…...  as a person, a woman, a mother, a wife, a daughter, a sister, an aunt, a friend. You stole my innocence at such a young age which cost me the ability to be the best version of myself. 

…

The burden you put on my shoulders to deal with on my own for the majority of my childhood and young adult years is truly unforgivable!!!'

21And from another:

'I have grown up with a high level of anxiety, which has caused me to react negatively to most stressful situations in my life.  I now realise that this has been affecting me since I was a child. It has caused me to have very low self-esteem in regards to my body.'

22It is well known how devastating the impact of sexual offences committed by trusted adults against young powerless children can be - with lifelong consequences.  The victim impact statements reveal the serious nature of the impact of your crimes, and I take these matters into account.

Objective Gravity

23Offences such as yours, committed by a much older adult against very young children in your care, as they were in this case, are very serious offences.  Your offending involves a gross breach of trust.  You offended against each of your young victims while they were being cared for at your home.  They trusted their Aunt Denise, and they trusted you. 

24Charges 5 and 6, and 8 to 11 in particular, represent relatively serious examples of this type of offending, although, as your counsel noted, the indecent assault charges did not include penetrative offending, as they sometimes do in other cases. 

25General deterrence remains a significant sentencing factor in a case such as yours despite the intervening years due to the paramount importance of the protection of children.  There are four victims of your offending, which is also significant, and it demonstrates a pattern of offending over a decade, as I have mentioned.

Personal Circumstances

26Turning to personal circumstances.  You are 70 years of age.  You have been married to Denise McCormick for 51 years.  She continues to support you, notwithstanding the findings of guilt.  And of course, she gave evidence at your trial.  You and Denise have two children, Andrew[7] and Michelle[8], both of whom are supportive and loving.  And I have received testimonials from both of your children.  And, of course, your daughter gave evidence at your trial. 

[7] A pseudonym.

[8] A pseudonym.

27I will just refer very briefly to an aspect of Andrew McCormick’s testimonial:

‘Dad is an empathetic, community-minded, people person. Before the allegations, he loved volunteering at school working bees, our local church youth group, and local sporting clubs. He has always had a passion for helping others.

Dad has a strong relationship with my children. He balances a healthy amount of play and discipline. He sets clear boundaries, respects their personal space, and communicates in an age-appropriate manner. He does not swear or talk about things that are beyond their social age. I have also observed him to be like this with other children both within and outside of the family.’

28And Michelle McCormick writes:

‘I have a strong relationship with my Dad. Although I live in Melbourne, I travel to Geelong to see him on a weekly basis and call him most mornings. Dad is an incredibly warm, generous and loving man whose love for life is infectious to those around him. He is highly empathetic, kind and honest with a strong moral compass.

Growing up I saw Dad model gender equality both at home and in the community. He shared domestic and parenting chores equally with Mum, encouraged me as a child to engage in all sports equal to my brother, and as a young adult became a driving force behind my decisions to go to university. These qualities have helped shaped my view and place in the world today.

The charges are completely contrary to my father’s character. He has always shown respect, clear boundaries and appropriate behaviours around myself, my friends and children in the family. I have never known my Dad to do anything wrong or be in trouble before.

Throughout his life, Dad has made a strong contribution to the community. He has coached and umpired in junior football leagues, volunteered for local churches and schools, and cleaned windows for many businesses in the Geelong area. Since 2006 when the accusations were first made, his contributions have been significantly reduced due to damage to his reputation. It is a huge loss for Dad and the wider community.

Dad has suffered a number of setbacks throughout his life, including bowel cancer, severe problems with his back, high blood pressure and more recently, challenges with his mental health.’

29From 1972 to 1973, you worked in construction in engineering.  In 1974, you injured your back and were unable to work.  From 1979 to 1981, you were a first aid attendant at a refinery.  From 1981 to 1985, you undertook factory work as a trades’ assistant in maintenance.  From 1985 to 1990, you were a cleaner at a primary school and from 1990 to 2009, you were a cleaner at a secondary school.  From 1985 to 2009, you were an umpire for various football leagues. 

30From 1995 to 2019, you owned and operated a window and cleaning business.  This business focussed on contract window and carpet cleaning for local businesses.

31I was told that you were in relatively good health for your age, but that you do have a past history of bowel cancer. 

Good Character

32You have previous good character.  A number of impressive character references were tendered on your behalf.  It was clear from the majority of these references that the authors were genuinely bewildered at the notion of your offending, as it was irreconcilable with their experience of you.  That is not uncommon in offences of this nature.  It may also be reflective of your offending being an aspect of your character and life that you have long since rectified. 

33When assessing what can be described as ‘otherwise good character’, the common law requires me to disregard the offending before me.  The utility of such an exercise can become diminished when offending occurs over a period of time, as in your case, and coexists with some of the indicia of good character.  A finding that the offending is out of character in such circumstances can be problematic. 

34In your case, however, evidence of good character has been advanced many years beyond the period of offending.  And it has been advanced beyond a mere lack of prior convictions.  It is positive good character and, for most part, reflects the views of many people close to you of your conduct and contribution in the past 30 to 40 years. 

Delay 

35One consequence of the delay of 40 to 50 years between the offending and today's date is the fact that I am sentencing an individual who has changed somewhat from the time of the offending.  At the very least, your circumstances have changed. 

36You are now 70 years of age, and your age is relevant to my sentencing task.  The sentence I impose will represent a greater portion of your remaining years than it would for a younger man.  You are not in perfect health for your age, although I have been told you are in reasonable health.  Your age and state of your health are factors that will impact adversely on your experience of custody. 

37The delay also provides an opportunity to better assess your prospects of rehabilitation and the need for specific deterrence and the protection of the community.  Your subsequent conduct over the past near 40 years contains much to your credit. It points to an individual who has made a positive contribution in life. 

38I consider that you have good prospects of rehabilitation. Specific deterrence is not a factor which carries much weight in your case. I do not consider you to be an obvious or significant risk of reoffending. In these circumstances and given your age and personal circumstances, protection of the community is not a factor that calls for prominence, other than by way of its consideration by the operation of s6D of the Sentencing Act.[9] 

[9]Sentencing Act 1991 (Vic)

39You are to be sentenced as a serious sexual offender on Charges 5, 6, and 8 to 11.  I note this in the records of the court.  When sentencing you as a serious sexual offender, I must have regard to the protection of the community from you as a principal purpose for which sentence is imposed when I am determining the length of your sentence. 

40I have given this consideration the prominence required but have concluded that the protection of the community is not a significant factor in your case.  The presumption of concurrency is reversed for the sentences imposed on you as a serious sexual offender, and I have applied the principle of totality, nonetheless . 

41As a consequence of my sentence, you must be registered as a sex offender.  By virtue of you committing these offences, your reporting period as a registered sex offender is for life. 

42I have had regard to the maximum penalties in the current sentencing practices.  The relevant practices are those currently applied, rather than those applied by the courts at the time of your offending.  Now, the principle of equal justice requires, however, that I also take into account sentencing practices at the time of your offending to the extent that they are ascertainable. 

43In dealing with this topic of delay, I should make very clear, of course, there are good reasons, and the law recognises, and the courts recognise why there are good reasons why matters such as this do not come to light for a period of many years.  And of course, you, Mr McCormick, have had the opportunity of living in the community and engaging in the conduct that you have over that period without this stain on your character.  So, in that sense, you have benefited from the delay.  But nonetheless, it is appropriate that I take into account the consequences of delay in the manner I have in relation to your chain of circumstances. 

44General deterrence and denunciation remain very significant factors in the sentencing process in your case. 

Sentence

45Mr McCormick, I sentence you as follows. 

46On Charge 2 on the indictment, you are sentenced to be imprisoned for two months. 

47On Charge 4 on the indictment, you are sentenced to be imprisoned for three months.

48On Charge 5 on the indictment, you are sentenced to be imprisoned for 10 months.

49On Charge 6 on the indictment, you are sentenced to be imprisonment for 16 months.

50On Charge 8 on the indictment, you are sentenced to be imprisoned for 12 months.

51On Charge 9 on the indictment, you are sentenced to be imprisoned for 20 months.

52On Charge 10 on the indictment, you are sentenced to be imprisoned for 24 months.  This is the base sentence.

53On Charge 11 on the indictment, you are sentenced to be imprisoned for 18 months. 

54I direct that two months of the sentences imposed on each of Charges 5, 6, and 8, and three months of the sentences imposed on each of Charges 9 and 11 be served cumulatively on each other, and on the base sentence.  That makes a total effective sentence of 36 months. 

55I suspend 18 months of that sentence, which leaves 18 months of the sentence to be served immediately. 

56Are there any other orders that are sought that I need to make?

57MR PIRRIE:  No, Your Honour.

58HIS HONOUR:  All right.  Ms Swiney, there is no other orders that are sought to be made?

59MS SWINEY:  No,

60HIS HONOUR:  All right.  Yes, we will adjourn the court.  Sorry, look, there was one other matter, there has been a media request for the prosecution opening and the indictment.  It is my practice to release those in a matter such as this.  Is there any reason, Ms Swiney, why I should not?

61MS SWINEY:  No, I cannot say that it is ‑ ‑ ‑

62HIS HONOUR:  I think my sentencing remarks have probably given more information than what the opening does, in any event. 

63MS SWINEY:  No, I cannot see a reason, Your Honour, but I know that it would be objected to, but I do not have a reason.

64HIS HONOUR:  No, well there is no - yes, look, I will release it, but I will say this, that I have referred to the complainants by name, of course they should not be reported, and that any published reasons of mine, they will not be reported or identified in any way by name.  And if there is any media listening, and when they get that material, and also if they have had regard to my remarks, there should not be any published material that either publishes, by name, the victims or, by implication, reveals their identity.  Yes, we will adjourn the court.

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