Director of Public Prosecutions v McKechnie
[2016] VCC 1751
•18 November 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not restricted Suitable for Publication |
Case No. CR-16-00358
| DPP |
| v |
| FRANCES ELLEN McKECHNIE |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 November 2016 | |
DATE OF SENTENCE: | 18 November 2016 | |
CASE MAY BE CITED AS: | DPP v McKechnie | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1751 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Indecent Act with a child under 16 – single incident of indecent act with a child – special circumstances
Sentence: Adjourned Undertaking for a period of 12 months with special conditions, Sex Offender Registration for a period of 8 years and Forensic Sample Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Coombes | OPP |
| For the Accused | Mr P. Higham | Pica Criminal Law |
HER HONOUR:
1 Frances McKechnie, you have pleaded guilty to one charge of committing an indecent act with a child under 16 years, an offence with a maximum sentence of ten years’ imprisonment.
2 I proceed to sentence you on the basis of the Prosecution Opening[1], an agreed summary which was read out in court.
[1] Exhibit A
3 At the end of the plea, counsel on your behalf submitted that in all the circumstances, an appropriate disposition in your case is an adjourned undertaking to be of good behaviour. The prosecutor submitted that was not a suitable disposition, and an appropriate disposition was a Community Correction Order.
4 I have decided that in the special circumstances of your case, which, although not necessary to be considered as exceptional, in my view are to be regarded as such, it is appropriate to make an order adjourning the matter on the undertaking that you be of good behaviour. I will now explain my reasons for reaching this conclusion.
The offending
5 The offence occurred between January 2007 and December 2008.
6 During that period, you were aged 42-43 years and in a relationship with the uncle of the complainant, R. R was then a child aged nine or ten years. She has alleged ongoing sexual abuse at the hands of her uncle, but there is no evidence that you knew of any such criminal activity at the time of your offence.
7 The uncle lived in a purpose-built unit, or bungalow, at the back of the house where his sister lived with her children, including the complainant. On one occasion when you were at the unit, there was some playful activity with whipped cream between you and R, after you had made scones. The uncle then ordered both of you to go into his bedroom and for you to lay on the bed. You both obeyed him, and he lifted up your top, putting whipped cream on your stomach. He then told R to draw pictures in the cream on your stomach, which she did. He then told you to take off your top and bra, which you did. The uncle poured more cream on your breasts and told R to ‘play with’ you, which she did, drawing pictures on your stomach and breasts. After a while, you said “That’s enough”, got up, and had a shower to remove the cream. It is the act of permitting R to touch your bare breasts, or acquiescing to that act taking place, that forms the basis of the charge.
8 All sexual offences committed against children are serious. However, as with all offences, there are different levels of gravity, depending on a range of circumstances. In discussion, the prosecutor did not concede that your offence was at the lowest end of the scale, but did concede it was at the lower end.
9 Despite the difference in your ages (31 or 32 years), the responsibility you had towards R as an adult, the fact that the offence occurred in a place close to being R’s home, and the confusion that this activity imparted or may have imparted to a child of tender years, I find that your offending is at the lowest end of the scale. I make that finding because the act did not involve you touching R in an indecent way, or at all; because I accept that you were involved in the act the subject of the charge as a result of the control exerted over you by your then partner, in a relationship where the power imbalance was squarely in his favour, and because you voluntarily desisted from the offending conduct. I am satisfied that you knew immediately that it was wrong, and that you have felt deep and genuine remorse ever since.
10 R has alleged multiple events of sexual abuse at the hands of her uncle, and he is going to trial next year. His abuse of her is alleged to have happened in the main house, which is her home, and in his bungalow. In those circumstances, your one offence of short duration, where you did not yourself physically touch the child, is unlikely to have added much to the trauma R has suffered at the hands of her uncle, if the events she alleged have happened, and unlikely to have added much to the impact on R from the fact of being abused by her uncle in or close to her home, a place where she is entitled to feel safe.
11 I have not received a victim impact statement from R, but I do not suggest that there has been no impact at all on her from your offence. Harm is presumed[2]. However, if the events she alleges against her uncle happened, it is very hard to disentangle the level of impact on her from your offence from the impact on her of multiple allegations of abuse by her uncle over a seven year period when she was aged between 5 and 11 or 12 years. Further, it appears from the evidence of R recorded at a Special Hearing when the first trial date was imminent, that R was alive to the fact that in your relationship with the uncle, the power resided with him. It is at least possible that this lessened the impact on her of you permitting her to touch your breasts, in the context of him ordering both of you to engage in this activity, and the impact that may have had on her being compounded by the ongoing alleged sexual abuse at his hands.
[2]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]; Adamson v R [2015] VSCA 194 [56]
Matters in mitigation
12 There are a number of factors in your favour, and some of them are significant and bear strongly on the penalty that I have said I will impose.
13 The first of these factors is your plea of guilty. You are entitled to have that taken into account in your favour and I do so. Because of your plea, the community has been spared the time and cost of a trial.
14
As I just mentioned, R has already given her evidence, and was
cross-examined on behalf of the three accused. Apart from the uncle, allegations have been made against another girlfriend or partner of the uncle said to have participated in sexual acts committed on the complainant with the uncle. Your counsel submitted that it was after matters were clarified during R’s evidence that the plea of guilty to one charge of committing an indecent act became acceptable to the prosecution and your legal representatives. The original indictment contained charges against you of sexual penetration, both as the active participant and as an accessory to the uncle. Negotiations early on did not resolve the matter, and the charge on which sentence is being passed did not form the prosecution ‘bottom line’ in those negotiations.
15 You made a police statement within weeks of the Special Hearing being held, and expressed your intention to plead guilty. As a result of this plea, I can tell you that the sentence to be imposed is far less than would have been imposed had you been found guilty after a trial.
16 I also accept that your plea is a reflection of the intense remorse you feel about your conduct. You report that immediately after you stopped what was happening, you went to the toilet and began dry retching; you were extremely upset throughout the interview with police when you described what had happened, which description is in keeping with the basis of your plea; and you were extremely upset during the hearing of the plea. You made a ‘heartfelt apology’[3] when you were speaking to Ms Matthews, a forensic psychologist who provided reports to the court. I am satisfied that you are truly sorry for any impact on R of your behaviour, and your contrition also shows that you are highly unlikely to reoffend in any way, and certainly not in this manner.
[3] Exhibit 3 p2, lines 26-30
17 The next matter is highly significant: your undertaking to give evidence against R’s uncle at his trial. I referred earlier to you making a police statement[4] shortly after the Special Hearing, and on the day of your plea, you gave evidence before me that you would give evidence in accordance with that statement if called upon to do so. I will be imposing a less severe sentence than I would otherwise have imposed because of this important undertaking[5].
[4] Exhibit 1
[5] Section 5(2AB) Sentencing Act.
18 The next significant matter is also of high significance in my view: your background. There are two aspects to its significance. The first is that you had a traumatic upbringing which has impacted on your relationships as an adult, with long lasting effects on your own psychology, and which has considerable bearing on how it is that an educated, professional woman who is highly regarded by her family, friends and colleagues could be involved in such an offence. The second aspect is your good character and work history, and the excellent reputation you have.
19
Your background is set out in the Outline provided by your counsel[6], and also in the reports[7] provided by Ms Pamela Matthews, forensic
psychologist, but I will summarise it here.
[6] Exhibit 2
[7] Exhibits 3 and 4
20 Dealing with the first aspect of your background, your upbringing was tumultuous, with a father who was a violent alcoholic, and you and your five siblings were witnesses to violence against your mother, and you and your sisters were subject to some of the violence yourself, both physical and sexual. Your father was also emotionally abusive to your mother and to you, leading to you having only bad feelings about yourself. By the time you were in Year 9 at school, this upbringing had led you to abuse alcohol and engage in daily amphetamine abuse, and to truant from school, and in Year 10, you began harming yourself. You were not encouraged to study further, by your father in particular, and you left school after Year 11.
21 You obtained some employment, both before and after you left school, in retail and child care. You became pregnant with your first child at the age of 20, and immediately gave up drugs and alcohol. The relationship with the father did not continue and there is a suggestion of you submitting, and not consenting, to his sexual demands whilst pregnant, on the basis that your feeling, developed in your abused childhood, was that “guys just take what they want anyway”. He saw his daughter during her childhood, but you never lived together.
22 You then met and married another man in 1987 who is the father of your next three children, born in 1988, 1990 and 1994. These children were all in court to support you. You were together with their father for ten years but, due to your low self-esteem, you never felt you were good enough for him, with extreme examples of this effect referred to in Ms Matthews’ report. Ultimately it was you that sought a separation.
23 A year after the separation, in 1998, you began a new relationship, but you discovered that despite the attention this man paid to you early in the relationship, he was manipulative and abusive, and the children were scared of him. For you, it was like living with your father again. After a year, you separated from him.
24 In early 2000, you had a breakdown. You had been seeking psychological treatment since your early 20’s but with this breakdown you were unable to function and one of your sisters moved in with her children to help you with yours. You eventually had to sell the family home, and were left with little money after paying debts and providing a loan to a family member. You were on a disability pension for a time.
25 Despite these problems, during those years you set the foundations for your children to grow into adults who show themselves to be resilient people, who are contributing to society through their employment, are inspired by your own hard work, both paid and voluntary, and through their presence in court and their references[8], provide unconditional love and support to you. I do note your eldest daughter, who is married with a child and, unfortunately, these proceedings have currently created some distance in your relationship.
[8] Exhibit 5
26 Despite your breakdown in 2000, you returned to study as well as employment in that year even while your youngest child was only six and going through his own problems at that time. Despite all that had gone on and was going on in your life, you completed courses in aged care and disability care between 2000 and 2004 and worked in aged care over that same period.
27 Also over that period, you were in another relationship, which also turned abusive and controlling. You were physically and sexually abused by this partner. It was after this relationship that you met R’s uncle online in a general chat room in 2007, and after meeting in person, began a relationship. I have already briefly described the controlling nature of that relationship and more detail is in your interview with police and the statement[9] you made.
[9] Exhibit 1
28 You then entered into another relationship which lasted six years, between 2009 and 2015, and which was described by your counsel as being ‘relatively normal’. During the same period, despite receiving further counselling for depression, you combined further studies in youth work, library studies and management with voluntary work, and from 2010, you have worked as a library professional and support officer. You are highly regarded in this field as shown by the references I received[10], but you were shifted to a non-contact administrative role after being charged. This role will not continue after the end of 2016, and you will not be able to return to work as a library officer because of the finding of guilt as a result of your plea.
[10] Exhibit 5
29 You reported to Ms Matthews that you have been diagnosed repeatedly with depression and been receiving treatment for approximately 30 years. Most recently, over the last year, you have been undergoing therapy with a psychologist, Dr Simone Field.
30 Ms Matthews conducted some tests and formed the opinion that you suffer from post-traumatic stress disorder with symptoms in the severe range and major depressive disorder with multiple episodes over your lifetime, currently at moderate levels. At page 22 of her report of 3 November 2016, Ms Matthews sets out what the psychological research shows about the emotional, behavioural and health outcomes for children from dysfunctional family environments, which I accept are outcomes applicable to you.
31 It is her opinion that your childhood abuse and succession of abusive adult relationships is the key factor in your offending. I also accept that opinion. It provides an explanation for your offending, and also in my view, reduces your moral culpability[11].
[11]AWF (2000) 2 VR 1; Bugmy [2013] HCA 37
32
Although there is no specific risk assessment tool for females charged with sex offences, using such research as is available, and her own clinical judgment, Ms Matthews assessed you as being of very low risk of sexual re-offending.
I agree.
33 She also expressed the opinion that as there are no group treatment programs available for female sex offenders, you would be better managed in the community with individual treatment, and she referred to management of your mental health through Forensicare.
34 Dealing now with the second aspect of your background, I take into account the good standing in which you are held by those who know you well, who continue to hold you in good standing despite their knowledge of the serious offence you have pleaded guilty to. I also take into account that at the age of nearly 52 years, you have no criminal record. These matters are important, because they confirm my view that you are highly unlikely to re-offend in any way, and certainly not in a sexual way against a child. In that sense, there may be very little to rehabilitate, but to the extent that your rehabilitation involves improving your mental health, you have the ongoing support of your family and friends, as well as the professionals with whom you continue to work and receive treatment.
35 I am satisfied that there is no need for my sentence to provide a deterrence to you committing a crime in future. General deterrence, however, remains as the most important factor in sentencing for sexual offending against a child. That means that, although your circumstances are in my view special and permit me to exercise my sentencing discretion to impose a merciful penalty, I consider it necessary that the adjourned undertaking be with conviction.
36 There are two final matters before I make the orders. The first is that an application has been made by the prosecution for an intimate forensic sample to be taken from you and through your counsel you have not consented to this. Your counsel submitted that in the circumstances of your case, it is not in the interests of justice to make the order. I have had regard to the seriousness of any sexual offence committed against a child, and, although I accept that you are not going to re-offend, there is a public purpose in having a sufficient database of female offenders for the detection and prosecution of other offenders. I have decided that I am satisfied that it is in the interests of justice, that in all the circumstances, I do order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that the police may use reasonable force to enable such a procedure to take place.
37 The second matter is that as a result of my sentence today, you become a registrable sex offender. As your crime was committed against a child but involved no penetration, it is a Class 2 offence. You will be required within seven days to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for eight years. That is not discretionary.
38 Finally, I state that I have had regard to current sentencing practice by reference to the materials and cases provided to me by the defence[12] since the day of the plea and on which I received submissions this morning. I am satisfied that in all the circumstances of this case, the sentencing purposes are met by an adjourned undertaking with conviction and special conditions.
[12] Exhibit 6
39 Stand up, please, Ms McKechnie.
40 The order of the court is as follows:
41 On the charge of committing an indecent act on a child under 16, you are convicted and released on an adjourned undertaking with the following proposed conditions: that you be of good behaviour for 12 months; that within that time you pay $500 to Berry Street Victoria, and provide a receipt to my Associate; and that you continue treatment with Dr Simone Field or her nominee during that time. If you do not comply with all of these conditions, you will be brought back before me to be re-sentenced. Do you understand?
42 OFFENDER: I do, Your Honour.
43 HER HONOUR: Do you agree to these conditions?
44 OFFENDER: I do, Your Honour.
45 HER HONOUR: You will now be asked by my Associate to sign two documents. The first is acknowledging that you now receive a form notifying you of your reporting obligations under the Sex Offenders Registration Act. The second is to show that you agree to abide by the conditions of the adjourned undertaking which is for 12 months. Mr Higham will assist you with these forms, and you can now come out of the dock to stand next to him while you sign these forms.
46 Ms McKechnie, I have now signed that adjourned undertaking, and a copy will be provided to you.
47 MS COOMBES: Your Honour, did Your Honour indicate under s.6AAA, but for her - - -
48 HER HONOUR: I don't think I need to.
49 MS COOMBES: You don't, because of the bond.
50 HER HONOUR: Yes, that's right.
51 MS COOMBES: That's right, Your Honour. Yes, thank you.
52 HER HONOUR: I have signed the forensic sample orders and they have been provided. Any further orders?
53 MR HIGHAM: No, Your Honour.
54 MS COOMBES No, Your Honour.
55 HER HONOUR: All right, thank you. I thank both counsel for their assistance in this matter and those who have been present in court.
56 MR HIGHAM: Thank you, Your Honour.
57 MS COOMBES: As Your Honour pleases.
58 HER HONOUR: I do not expect to see Ms McKechnie again in the next 12 months. Thank you.
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