Director of Public Prosecutions v McPherson
[2019] VCC 1745
•24 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-00473
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUKE McPHERSON |
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JUDGE: | Her Honour Judge M. Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 August, 20 September 2019 | |
DATE OF SENTENCE: | 24 October 2019 | |
CASE MAY BE CITED AS: | DPP v McPherson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1745 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Sexual penetration of a child under 12 years
Legislation Cited:
Cases Cited: R v Clarkson (2011) 32 VR 361, Adamson v R [2015] VSCA 194,
Sentence: TES: 9 years imprisonment with a minimum of 6 years to be served before becoming eligible for parole. Sex Offenders Registration for 15 years. Forensic sample and disposal orders made.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A. Peek | OPP |
| For the Accused | Mr S. Kenny for plea Ms Calgaro for sentence | Yang and Vale Pty Ltd |
HER HONOUR:
1 At the outset, I remind those listening that publication of anything likely to identify the complainant in a sexual offences case is prohibited by an Act of Parliament[1]. In my published remarks, pseudonyms will be used for her name and the names of her family members.
[1] Section 4 Judicial Proceedings Reports Act
2 Luke McPherson, on 5 June 2019, after a trial, a jury found you guilty of one charge of sexual penetration of a child under 12 years. This is an offence for which a term of imprisonment must be imposed[2]. The maximum sentence is 25 years’ imprisonment. The offence is a standard sentence offence[3]. That means that I must consider the standard sentence of 10 years’ imprisonment amongst the other factors to take into account when deciding what the appropriate sentence is in your case[4].
[2] Category 1 offence – s3(1) Sentencing Act
[3] Sections 3, 5A & 5B Sentencing Act
[4] Section 5(2)(ab) Sentencing Act
3 I will briefly outline your offending. You had known Ted Prendergast[5] for many years, and through him, came to know his wife Carol[6] for years, and later, knew their three children from birth. Verity[7], their eldest child, was aged eight years when you offended against her.
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
4 You were at the Prendergast family home on 29 April 2018, and at one stage, you, the three children, Ted Prendergast and his father were all in Verity's bedroom. You were playing with the children, who were getting boisterous, and it was decided that you would all move to the lounge room. Mr Prendergast and his father left first with the youngest child, while you gave the middle child a piggy back to the lounge room. Verity also wanted a piggy back and got on to her bed in preparation to get on your back when you returned. It was at this point with only the two of you in the room, that you asked her if you could touch her vagina. When she said ‘No, you can’t’, you insisted, saying 'Please, I did it to you when you were little'. Verity said ‘no’ again and in her evidence, described and demonstrated how, when she was getting on your back and despite her protestation, you pulled her in front of you and, in her words, “stuck [your] hand into her pants and undies and started grabbing [her] vagina and wiggling [your] fingers”. The jury accepted her evidence and demonstration that there was penetration of her vagina. She said 'Please stop it, stop it' but you did not, until she had said it a second time.
5 Your defence was that any touching of her vagina was accidental, and occurred in your attempt to catch her as she was jumping on the bed and about to fall off, and you denied that the accidental touching involved any penetration. By their verdict, the jury were satisfied beyond reasonable doubt that you did deliberately touch Verity's vagina, and you did intentionally penetrate her.
6 I note that there was never any suggestion that you had in fact touched her vagina in any way before this day; the prosecution case was that this reference to 'doing it to [her] when she was little' was said by you in an attempt to coerce Verity to comply with your demand.
7 I assess the gravity of your offending as being a very serious criminal act, which, while it only lasted a relatively short time, constitutes a gross breach of the trust in you held by both Verity and her parents. Further, you took advantage of the moments alone with her to commit the crime, did so in her own bedroom in her house where she was entitled to feel safe, and persisted in the act, trying to overcome her objection by saying you had done it before, and then continued the penetration for a time despite her protests. The comment about doing it before seemed to have confused Verity, as can be seen from her evidence-in- chief[8], where she says she did not remember it happening, and the comment has been a factor in the impact on her.
[8] VARE dated: 1st May 2018
8 There has been a considerable impact on Verity, and on her parents[9]. Verity appears in the recorded evidence taken the day after the crime as an intelligent, confident little girl, but unsurprisingly was unable to understand why someone she thought so much of had done this to her. In her impact statement, in her own words she sets out very clearly the impact on her: she feels she cannot trust anyone other than her family, school friends and teachers; she is sad that it happened, and angry for what you did and what you said to her. She says she thought she could trust you and now she wishes she had never met you.
[9] Exhibit A
9 Eighteen months after the event, her father describes[10] a girl whose demeanour has changed, who now talks back to her parents, who has fallen behind in her schoolwork, lacks concentration, and becomes uncharacteristically angry, including at her siblings. Because you violated Verity in her bedroom, she was having difficulty settling down in there at night and her parents have bought a new bed and re-decorated the room in an attempt to deal with the impact.
[10] Ibid
10 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[11], and include future harm[12]. This is something about which you know because of your own abusive experience as a teenager. Because it is only 18 months since the event, with Verity still only aged 10, it is impossible to know the possible future harm you have caused to her. It is to be hoped that she is the resilient child she appeared to be.
[11]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[12]Adamson v R [2015] VSCA 194, [56]
11 I take into account the harm caused to her as far as it is known at this time. I wish Verity and her family well for the future.
12 In deciding the appropriate sentence, I also take into account your personal circumstances. These give some insight into how a man with no relevant criminal history could commit a sexual offence for the first time, in his 30’s, against the child of an old friend.
13 You are now aged 32 years, and have been in a long term relationship with your partner, who gave evidence in the defence case at the trial, and who continues to love and support you. You are also supported by your mother and step father, and your younger brother, with all of whom you now have a very close relationship. Your biological father separated from your mother when you were five years old, and you have had only occasional contact with him.
14 You struggled in your education, attending a number of different schools until you completed Year 10 at a special school, with the assistance of teacher’s aides. You had some problems with your behaviour, leading to a diagnosis of attention deficit hyperactivity disorder (ADHD), and after an incident involving you and your brother when you were aged about 12, the Department of Human Services became involved, your mother felt unable to manage you in the circumstances, and you were placed in out of home care until the age of 18.
15 Your teenage years were spent in a number of foster homes, possibly as many as 32 placements. You found yourself in a placement at about the age of 15 where the male carer appeared to help you with many things in your life and you developed a close relationship. That carer then sexually abused you over a number of days, which was a gross breach of his carer role, and of your trust, leading you to this day to be confused about your feelings for that man. You told a teacher about the abuse not long after it happened, and the carer was charged, you gave evidence in court, and he was convicted.
16 You left school at age 16 shortly after you were sexually abused because you could no longer focus, but then, to your credit, successfully completed both a panel beating apprenticeship and then a mechanics apprenticeship. You have worked in a number of driving jobs but stopped working when you were charged with this offence as you were unable to focus. You report[13] that you have been in and out of jobs all your life because you get frustrated easily and because you often felt depressed and anxious. Most positions have been six months to a year in length when you either find another job and move on, or resign, or get fired.
[13] Exhibit 2
17 There were a large number of references tendered on your behalf[14], which I have read, and take into account. They are from friends and family members, many of whom I assume are here in court today amongst the large group. They all consider you to be a different person to the one who committed this crime, and speak of you in the most favourable terms. The ongoing support of these people is vital to your rehabilitation.
[14] Exhibit 4
18 I received reports from two psychologists – Dr Pang[15] whose report detailed your attendances for counselling for anxiety between November 2018 and April 2019 in the context of the police investigation into this offence; and Ms Mynard[16] who conducted a psychological assessment in August 2019, and reached a number of opinions about your psychological state.
[15] Exhibit 3
[16] Exhibit 2
19 Your counsel relied on Ms Mynard’s opinions to submit that I should find that your moral culpability for the offending is somewhat reduced by reason of your multiple diagnoses, and also that these should also lead to me finding first, that a term of imprisonment will be more onerous than if you did not have these diagnoses and second, that there is a serious risk of your mental health deteriorating further during your time in prison.
20 At the plea hearing, the prosecutor conceded that these last two points are made out on the material from Ms Mynard, but submitted that there was insufficient evidence for me to make the finding about a reduction in your moral culpability as a result of impaired mental functioning at the time of the offending. I agreed the report of Ms Mynard needed further explanation, and it was arranged that Ms Mynard attend court on another day to give evidence and be questioned about her opinions.
21 Following her evidence, your counsel and the prosecutor provided me with written submissions[17]. Both maintained their original positions.
[17] Exhibit 5 and Exhibit C
22 I have carefully considered Ms Mynard’s evidence, and all of the submissions. I accept her evidence that now, in late 2019, you have multiple diagnoses affecting your mental health. Ms Mynard conducted tests and reached her own diagnoses as to you having an adjustment disorder, post-traumatic stress disorder (PTSD), obsessive compulsive disorder (OCD), and adult ADHD as at August 2019.
23 In her opinion, the adjustment disorder arises from the impact on your mental health of being investigated, charged and found guilty of an offence that you still say was accidental touching and not penetration; the PTSD arises from the ongoing impact on you of your own sexual abuse as a teenager; the OCD possibly arises from your increased anxiety at being imprisoned with other sex offenders, given your PTSD from your own abuse; and the ADHD is something Ms Mynard considered you have struggled with all of your life.
24 On the basis of her report and evidence, I find that all these disorders will make a prison sentence weigh more heavily on you, and that there is a serious risk of prison having a significant adverse effect on your mental health. As a result, the sentence I will impose on you will be less than for someone without your mental ill-health who committed the same offence in the same circumstances.
25 Ms Mynard said in her report at page 8[18] that it was her opinion that at the time of the offending, you were suffering from PTSD, depression, anxiety, an ongoing language disorder and ADHD, but said that it was unclear how these diagnoses “may have contributed” to your offending. She felt it “likely” that your own confusion around sexual identity, psychological symptoms of PTSD, depression, probably arising from the disrupted time in multiple placements as a teenager, as well as your lack of verbal communication skills, all contributed to your offending behaviour. She said you have a complex array of psychological factors for which you have not engaged in treatment and you lack the insight about the impact of these issues upon your life.
[18]Exhibit 2
26 She continued in the next paragraph in her report to say that it was unclear to her how these pre-existing issues related specifically to your offending given your ongoing denial, but that studies showed experiencing sexual abuse in childhood has been found to be “correlated with” the perpetration of child sexual abuse later in life and “although not causal, may have an impact”. She thought the impulsivity factor of ADHD may also have been a contributing factor, and in addition considered your experience of abuse appeared to have contributed to you having a confused sense of boundaries and difficulty with monitoring your own behaviour which she thought may also have contributed to your offending.
27 In her evidence, Ms Mynard said that her current diagnoses, and your previously diagnosed depression, anxiety, language disorder and Tourette’s syndrome are all illnesses or disorders that are long standing in nature, and do not “come and go”. However, she did not observe any symptoms of Tourette’s syndrome on her assessment; said that while the material gave strong indications that you still struggle with language, the language disorder needed to be confirmed by a speech therapist; and said that she exercised her clinical judgment to consider the depression and anxiety to be long standing, but was of the view that they may not have reached clinical proportions until you were charged, obviously after the time of the offending, and then became symptoms of the adjustment disorder she diagnosed in August 2019.
28 It seems because these illnesses and disorders (other than the OCD) had been previously diagnosed, and are generally of long standing, and Ms Mynard observed and diagnosed some of them in August 2019, she formed the view that you were suffering from all of them in April 2018. I do accept that you have a complex array of psychological factors now and probably had at least PTSD in April 2018, but I am not satisfied that there is evidence, from Ms Mynard or any other source, of a causal connection between those disorders and the offending, or for me to find that at the time of the offending you had an impairment of your mental functioning arising from any of these disorders such as to reduce your moral culpability. It therefore remains at a high level.
29 I will, however, take Ms Mynard’s evidence into account as providing possible explanations for you to take the opportunity to offend against your old friend’s eight-year-old daughter when you have never done anything like this before. The conditions to which Ms Mynard referred to provide possible explanations, but not excuses.
30 Before I leave Ms Mynard’s report and evidence, I note that she made an assessment of your risk of re-offending based on her clinical judgment and considered it to be moderate to low risk, rising to a moderate risk given your 'inability to admit' the offence after you have been found guilty of it.
31 I have mentioned that you have never committed a sexual offence before, and it follows, not before April 2018 committed a sexual offence against a child. You do have a criminal history between 2007 and 2013, but for other types of offences: driving, assault, property and dishonesty offences. You have not been in prison before.
32 Turning to your prospects for rehabilitation, because you have the capacity to work, have strong support from your partner, her family, your family, and your friends, and have never offended in this way before, your prospects of rehabilitating yourself are fair. They will improve if you receive treatment for your PTSD, at the very least, if not for all the current and potential diagnoses. Put another way, you need to deal with the issues that are affecting your life, or you might re-offend in this way again, or re-offend in ways that you have in the past.
33 Before I turn finally to the sentence, there are two further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your legal representative you have not objected to this. I am satisfied that it is in the interests of justice that in all the circumstances I 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 if you change your mind, the sample that will then be taken is a blood sample and the police may use reasonable force to enable such a procedure to take place.
34 The second matter is that as a result of my sentence today, you become a registrable sex offender.You will be required within seven days of your release from custody 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 a period of 15 years. Because you are appearing on the video link, I do not require you to sign the acknowledgment of receiving the form. That form will be given to you through Corrections Victoria.
35 At this point, I am turning to sentence and Verity can come into the Child Witness Remote Facility room[19].
[19] To observe proceedings via videolink from an off-screen position, as discussed with Counsel and her mother on the morning of the sentence being delivered.
36 Turning then to sentence, Mr McPherson, the court must denounce your offending, and impose a sentence that is just in all the circumstances and that reflects the community’s abhorrence of sexual offending, particularly against children. Further, by my sentence, I must seek to deter you and other men from sexual offending against children.
37 You are convicted and sentenced on the charge of sexual penetration of a child under 12 years to nine years’ imprisonment.
38 That is the sentence I have decided upon taking all relevant factors into account and based on my assessment of the objective gravity of the offence. The sentence is less than the standard sentence, because of the personal factors affecting you, principally your mental ill-health.
39 Because this is a standard sentence offence, I must fix a non-parole period of at least 60% of the head sentence of nine years, unless it is not in the interests of justice to do so[20]. I find it is not in the interests of justice, because of the impact of your mental ill-health making service of a term of imprisonment more onerous, and as I have found there is a serious risk of imprisonment having an adverse effect on your mental health. I direct that you serve 6 years’ imprisonment before becoming eligible for parole, which is less than 60% of the head sentence I have imposed.
[20] S11A(4)(c) Sentencing Act. See also the Addendum to this sentence dated 10 December 2019.
40 I declare that you have served 141 days in pre-sentence detention not including today. These will be deducted administratively from your sentence.
41 I have signed the disposal order.
42 Are there any other orders required?
43 COUNSEL: No, Your Honour.
44 HER HONOUR: Thank you. Ms Calgaro, you or Mr Kenny when he is available will be speaking to Mr McPherson, I take it?
45 MS CALGARO: Yes, certainly, Your Honour.
46 HER HONOUR: Mr McPherson, your legal representatives will be in touch. Thank you. I understand the difficult situation that this is for everybody concerned. There is always a ripple effect in such cases and I acknowledge the dignity with which everybody has conducted themselves in these difficult circumstances. Thank you, the video links can be disconnected. Adjourn the court sine die.
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DPP v. LUKE McPHERSON
ADDENDUM TO SENTENCE DELIVERED 24 OCTOBER 2019
1 On 24 October 2019, the prisoner was sentenced on a standard sentence offence to 9 years’ imprisonment with a non-parole period of 6 years.
2 The non-parole period was imposed, in accordance with principle, as the minimum term that justice requires the prisoner must serve before becoming eligible for parole in all the circumstances.
3 In the sentencing remarks delivered on 24 October 2019, reference was made to the need to fix a non-parole period of at least 60% of the head sentence of the standard sentence offence, unless it is not in the interests of justice to do so.
4 It was stated in those reasons that it was not in the interests of justice to fix a non-parole period of at least 60% of the head sentence, because of the impact of the prisoner’s mental ill-health making service of a term of imprisonment more onerous, and the earlier finding that there is a serious risk of imprisonment having an adverse effect on the prisoner’s mental health.
5 On revision of the sentencing remarks, it became apparent that the non-parole period was in fact more than 60% of the head sentence.
6 The purpose of this addendum is to recognise that while the calculation of the percentage of the proposed non-parole period was inaccurate, the head sentence of 9 years and non-parole period of 6 years were the sentences intended to be imposed for the reasons outlined in the sentencing remarks.
Judge M. Sexton
10 December 2019
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