Director of Public Prosecutions v McDougall

[2018] VCC 1101

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01033

DIRECTOR OF PUBLIC PROSECUTIONS

v

CAROLINE MCDOUGALL

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	18 July 2018
CASE MAY BE CITED AS:	DPP v McDougall
MEDIUM NEUTRAL CITATION:	[2018] VCC 1101

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. N. Hutton (Plea) Mr A. Godleman (Sentence)
For the Accused	Mr. D. Sexton (Plea) Mr V. Azzopardi (Sentence)	Tony Hargreaves & Partners

HER HONOUR:

1Caroline McDougall, you have pleaded guilty on indictment to a single charge of indecent act with a child under the age of 16 years with the offence occurring between the first day of February 1992 and the 17th day of July of 1992. 

2The maximum penalty for this offence is one of ten years' imprisonment, reflecting the seriousness with which Parliament regards this offence. 

3The circumstances of your offending are set out in a document entitled "Summary of Prosecution Opening (amended)", dated 19 June of 2018.  The contents of this document are not disputed by your counsel.

4In short compass, at the relevant time, you were a teacher at Deer Park Secondary College and aged around 34 to 35 years.  The victim was a Year 10 student at Deer Park Secondary College and was aged 15 years. 

5During the first half of 1992, the victim spent time with you and confided in you about a relationship that he had with another teacher the year prior.  You began driving the victim home after school, where conversations would primarily be about sex and the other teacher with whom the victim had had a relationship. 

6On one occasion, whilst driving the victim home, you parked your vehicle in a relatively secluded area.  Over the course of approximately half an hour, you kissed the victim and fondled his penis.  These facts comprise the charge against you, indecent act with a child under the age of 16 years. 

7The victim says he was a willing participant in the behaviour.  He was a child, he could not consent.  You told him that you understood why the other teacher had fallen in love with him and that he was "sexual beyond his years". 

8This is a serious breach of the trust employed in you as a teacher and in the context of a teacher/student relationship.  Further, given the victim had seen you as a confidante in the context of a relationship with another teacher, you used and exploited this particular vulnerability and did so in a similar way.  In my view, this further aggravates your offending and your moral culpability was high. 

9Your counsel was correct in submitting that children under the age of 16 years warrant protection and your conduct triggers the need for punishment that reflects the community's abhorrence of such criminality and the need for denunciation and deterrence.  The law provides special protection to children, because it is acknowledged that they have an unequal relationship with adults who are much older than themselves and against whom they are unable to defend themselves, particularly in matters sexual, which are both confusing and embarrassing for them. 

10The matter was reported to police in December of 2014 and you were arrested and interviewed on 21 April 2016, at which time you gave a "no comment" record of interview, as is your right. 

11Your counsel has provided detailed written and oral submissions, setting out your personal circumstances and matters which it is sought I take into account.  I have had recourse to all of these submissions. 

12The written submissions, combined with the voluminous material filed on your behalf, sets out a somewhat tragic set of personal circumstances.  Prior to this offence taking place and whilst doing your personal circumstances little justice, I am told that you suffered a sexual assault at the age of approximately
16 years.  You experienced an extremely poor relationship with your mother, which was ongoing throughout your life.  Whilst you had a better relationship with your father, he was abusive, particularly towards you mother and one other sibling.  Each of your parents are now deceased.

13Whilst the third of four siblings, you only had a close relationship with your brother, Ian, who died in 2012 in a plane crash.  I am told that he experienced his own mental health difficulties. 

14You had experienced the death of a close friend in 1980, lost a pregnancy in 1989, the end of your marriage in 1990, news of a close friend's cancer diagnosis in 1992, along with the demise of an abusive relationship subsequent to that with your husband.  None of these personal circumstances prior to your offending were put as an excuse, but were as relevant personal circumstances in the lead-up to your offence. 

15I do accept that at the time of your offending, you were particularly lonely.  I do not accept that I can take into account any suggestion that your mental health was either causative or a contributor to your decision to offend in the way that you did.

16I understand that allegations of your offending surfaced around the time of your offending and you retired from teaching shortly thereafter.  You were tertiary educated and also a talented piano player and teacher. 

17You have had the misfortune to suffer from severe depression over many years, despite numerous psychological and psychiatric interventions.  I have had recourse to a letter from your then psychiatrist, Dr Leslie Chester, who treated you for severe depression from 1996 to 1998.  Treatment was discontinued in 1998 because Dr Chester was of the belief that you had recovered sufficiently. 

18I have also had recourse to reports from psychologist, Dr Matthew Barth, dated 30 June 2018 and Mr Patrick Newton, dated 4 July 2018, which have been tendered on your behalf. 

19You have attended on Mr Patrick Newton, clinical and forensic psychologist, on some 20 occasions since your arrest in October of 2016.  His focus has been to assist you to manage the stressors associated with your prosecution, as well as to assist you to gain insight into your offending conduct.  He describes you as being a cooperative and motivated participant in counselling. 

20He was of the opinion that you have considerable and persisting psychological vulnerability, including a tendency to respond to stress with severe mood disturbance and heightened levels of anxiety, meeting criteria for a current major depressive disorder of moderate clinical severity.  However, he was also of the view that you have made good progress in your treatment, had gained insight into your offending and developed remorse for your conduct.  He did opine that you would be ill-equipped to deal with a custodial setting and that there was a severe risk that your mental state could deteriorate.  Mr Newton was prepared to continue to work with you therapeutically.

21Dr Matthew Barth, psychologist, conducted an assessment as to your future risk.  In terms of your overall risk of sexual recidivism, his unchallenged finding was that you fell in the low risk category.  He was also of the opinion that without continued treatment, your mood was likely to deteriorate further, so that you would be vulnerable to more severe periods of depressive mood disturbance, which would likely to be more intense in the custodial context. 

22I accept the professional reports as tendered on your behalf.  Further, I accept, in combination with the reports of Dr Barth and Mr Newton, that limbs 5 and 6 of the decision in Verdins are enlivened.  That is, I accept that your recurrent major depressive disorder may mean that a given sentence will weigh more heavily upon you than it would on a person of normal health.  Also, where there is a serious risk of imprisonment having a significant adverse effect on your mental health, this is a factor tending to mitigate punishment.  I have clear evidence of those factors before me. 

23You are now 61 years of age and your offending is some 26 years ago.  Since that time you have actively sought to improve your life and have worked with a mental illness fellowship.  You have obtained a Diploma of Community Services, you have obtained a Bachelor of Social Work from Monash University, you have obtained a Masters of Counselling in Human Services from Latrobe University and have now established your own counselling service, Bayside Therapy. 

24I heard evidence from Ms Zoe Krupken, psychotherapist, who has been your clinical supervisor since 2009 in your counselling profession.  She has clinically overseen your work and described you as both "ethical" and "effective".  She has not seen you have any issue with boundaries and says that you are prepared to bring complex cases to supervision.  She does not see you as a risk to others and gave evidence that there have been no complaints made about you.  These observations are in some conflict with the evidence otherwise of your ongoing psychological and psychiatric fragility.  However, her evidence was not subject to challenge and I accept her evidence. 

25You are also unfortunate to suffer from a range of medical conditions, primarily Sjogren's disease, which results in fatigue, dry eyes, dry mouth and gastrointestinal difficulties.  It is not curable, so you require ongoing symptom management.  You require a range of medications and have a range of practitioners, upon whom you need to attend regularly.  You have a range of pending procedures.

26I have received reports from Dr Yael Kipen and Dr Siky Siapantas.  I have taken the contents of these reports into account.  I accept that, combined with your mental health difficulties and lack of exposure to a prison environment, that these medical conditions would also make any time in custody more burdensome than any prisoner without such conditions. 

27I have had recourse to some 14 character references.  Again, without doing the careful consideration of each of the authors of those references proper justice, it is accurate to say that they know you from a wide variety of capacities and include your ex-husband, friends and persons whom you have taught piano.  Each of the referees were aware of your offending and each of the referees found it to be out of the character that they know you to be.  They otherwise describe you as being a calm and supportive person, a talented musician and one who shows great care for others and animals. Overall, there are positive reflections of your character, over and above your offending of 1992.

28Your offer to plead guilty to the offence before me occurred around 23 February of this year and was accepted by the prosecution.  This was in the context of considerably more serious allegations which you no longer face.  In the circumstances, I consider your plea to be one which has occurred at an early opportunity.  It has utilitarian value and has saved the court the time and expense of trial proceedings.  I note that the victim was cross-examined at committal proceedings, but the decision by you to plead guilty to the charge before me has spared his further cross-examination.

29In the overall context of these matters and having regard to the materials tendered on your behalf, to which I will later refer, I am satisfied that your plea is one of remorse.

30I note that prior to 1992, you had no criminal history.  You have had no further matters since 1992.  This does suggest, in combination with the materials before me, that your offending at that time was out of character.  It also suggests that it was borne of a combination of factors which have not repeated themselves since. 

31I form the view that you are unlikely to re-offend, given the efflux of time and the considerable work that you have done to improve your own situation.  I do not see the need to give weight of any significant means to either specific deterrence or the need to protect the community from you. 

32In the future I am told you hope to move to Byron Bay in New South Wales to open a rescue centre for abandoned dogs. 

33The basic purposes for which a court may impose a sentence are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim. 

34I am also required to balance the interests of community in denouncing criminal conduct, with the interests of the community, in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.  I do express my denunciation of your behaviour. 

35I have taken into account the relevant sentencing guidelines, referred to in
s.5 of the Sentencing Act, where relevant to your case. The prosecution refers me particularly to s.5AA of the Sentencing Act, which requires that, "The court is not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances." 

36I am not satisfied that the provision has strong application to your case, given
I am dealing with a single offence against a single victim and the 26 years hence, but I am required to take it into account.  I do accept, as previously stated, that your offending was committed in circumstances of a significant breach of trust. 

37Both parties, that is, prosecuting and defence counsel, have submitted that
I should consider imposing a term of imprisonment, but that any term imposed should be wholly suspended in all the circumstances and that such an outcome would take into account all relevant sentencing considerations, including that of general deterrence.  I do accept these submissions. 

38I have concluded that the objective gravity of the offending means that the only appropriate sentence is one of imprisonment, however, the mitigatory factors are such that I consider that it is desirable to suspend the whole of such a sentence of imprisonment, a sentencing option which was still available at the time of the commission of the offence. 

39In relation to the single charge of indecent act with a child under the age of 16 years, you are convicted and sentenced to eight months' imprisonment.  This term is wholly suspended for a period of 20 months. 

40Ms McDougall, you need to be aware that the sentence I have imposed is a term of imprisonment, albeit that you are being given the opportunity to serve it whilst remaining in the community.  If during the period of the order, namely the next 20 months, you commit another offence punishable by imprisonment, whether in or outside Victoria, you will have breached that sentence.  In that event, you will be brought before me on such breach and it is highly likely that you would be ordered to serve the actual term of imprisonment. 

41Do you understand the nature of the order that I have made?

42Indecent act with a child under the age of 16 years requires that, pursuant to the Sexual Offenders Act of 2004, I register you for a period of eight years and I do so.

43Are there any further orders sought?

44MR GODLEMAN:  No, Your Honour.

45HER HONOUR:  It doesn't seem that I am required to make a s.6AAA declaration in the circumstances. 

46MR AZZOPARDI:  No, Your Honour.         

47HER HONOUR:  All right.  All right, if there is nothing further, I will stand down until 10.30.  Was there anything, Mr Azzopardi?  No?

48MR AZZOPARDI:  No, Your Honour, thank you.

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