Director of Public Prosecutions v Mitchell

[2018] VCC 1990

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00394

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY MITCHELL

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2018 and 1 November 2018
DATE OF SENTENCE:	29 November 2018
CASE MAY BE CITED AS:	DPP v Mitchell
MEDIUM NEUTRAL CITATION:	[2018] VCC 1990

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Buggery; Indecent Assault; Plea of guilty; Offending 1967 and 1971; Offender 76 at time of sentence; Previous good character diminished by subsequent convictions; Delay; Completion of NSW sentence of 4 years 6 months; Totality.

Legislation Cited:                   Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic), Sex Offender Registration Act 2004 (Vic), Education Act 1958 (Vic).

Cases Cited:Stalio v The Queen (2012) 46 VR 426; Carterv The Queen [2018] VSCA 88; R v Renzella [1997] 2 VR 88.

Sentence:Total Effective Sentence – 3 years imprisonment. 24 months to be suspended after serving 12 months imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton	Office of Public Prosecutions
For the Offender	Mr J. Van Arkadie	Victoria Legal Aid

HIS HONOUR:

1Gary Arthur Mitchell; you have pleaded guilty to one count that at Warragul, between 1 May 1967 and 31 August 1967, you committed the crime of buggery contrary to s.68(2) of the Crimes Act 1958 (Vic), as it then was.

2You have also pleaded guilty to a second charge; that at Beaumaris, between 1 January 1971 on 31 December 1971, you unlawfully and indecently assaulted a male under the age of 16 contrary to s.68(3)(a) of the Crimes Act 1958 (Vic), as it then was.

3At your plea the prosecutor tendered a summary of prosecution opening, which became Exhibit A.  Briefly described your offending involved the following.

AB

4From 1961 until 1993 you were employed by the Department of Education and Early Childhood Development as a teacher.  You commenced teaching at Warragul Technical School in 1964.

5Your first victim, who I will refer to for the purposes of these sentencing remarks as 'AB', began his schooling at Warragul Tech in March 1963.  AB was 12 years old at that time.

6In 1965 you held the position of second in charge of the school cadets program.  AB participated in that program, which was held on Thursdays after lunch and occasionally during the school holidays.  You also taught AB either English or Social Studies during that year.

7During the following year and into the first half of 1967, there were a number of occasions where you walked into the first aid room of the school when AB was changing into his cadet uniform.  On something less than ten occasions you touched AB's penis for short periods; both above and below his clothing.  At this time AB would have been 15 or 16 years of age.  That conduct is not the subject of any charges, however it contextualises the act that constitutes Charge 1.

8On an occasion around the middle of 1967 you went to the first aid room, where AB was getting changed.  The door was locked but you gained access using a key.  You told AB to go into a small room adjoining the first aid room and made him face the wall.  You then pulled his shorts and underpants down and made him bend over a wooden desk.  With the assistance of some form of lubricant you then inserted your penis into the anus of AB.  You then ejaculated in his anus.  AB went back to class and did not inform anyone about what had happened at the time.  You left Warragul Technical School at the end of 1967.

9You were born on 29 December 1941 and would have been 25 years of age at the time of this incident.

10The relevant provision of the Crimes Act for this offence was in operation between 1 April 1959 and 28 February 1981 and the offence is punishable by a maximum term of imprisonment of 15 years.

CD

11In 1971 you commenced teaching at Beaumaris Primary School.  By that time you were 29 years of age.  The second complainant, who I will refer to as CD for the purposes of these sentencing remarks, was a pupil of your Grade 5 class of that year.  He was born in 1960 and was ten years of age at the time you assaulted him.

12On one occasion during a Maths or English lesson you sat on the right side of CD on a bench seat in the classroom.  Whilst talking to the class you put your hand down the front of his shorts, under his underpants and touched his penis.  Those actions constitute the second charge of indecent assault upon a male, to which you have pleaded guilty.

13It is important to point out that charge is a representative charge in that it encompasses approximately six further occasions where you touched CD's penis in the same manner.  CD recalled that when you touched him you would keep your hand on or around his penis for approximately three to four minutes.

14Although CD believes that other students would have seen what was going on he did not discuss it with anyone at the time.  You ceased teaching at Beaumaris Primary School at the end of 1973.

15The offence of indecent assault upon a male is punishable by a maximum term of imprisonment of five years.

16Both of the victims in this matter came forward and reported what happened to them to the Royal Commission into Institutionalised Sexual Abuse.  Thereafter statements were made to Victoria Police in 2014.

Impact on the victims

17Each of the victims provided a victim impact statement.

18AB never told anyone about what had happened to him until he confided in his wife after about 20 years of marriage.  By that stage he says he could no longer hide how he felt.  It took another 15 years for him to seek help and to finally tell the full story of his assault. Reflecting on the impact of what you did to him he is now able to see how this assault affected his quality of life over the last 50 or so years.

19At the time he could not tell anyone about what happened for fear of not being believed or punished.  His grades suffered, his career opportunities diminished, and he found that he could not work in a group environment because of his fear of other males.  He would go out of his way to avoid social gatherings involving groups of men.  He describes almost daily suicidal thoughts.  His coping mechanism over these years has been to throw himself into his work and to work very long hours to distract himself.  In consequence his family life has suffered a great deal.

20To this day he still struggles with suicidal thoughts and the legacy of what you did to him.  With the support of his wife, and more recently his counsellor at the Ballarat Centre Against Sexual Assault, he appears to be managing as best he can, but as he says in his statement, he still has “a long way to go”.

21CD has been profoundly affected by what you did to him.  In his statement he said:

"It took away my trust of people that were supposed to be there to care and provide a safe environment for a child at primary school".

22After your abuse of him, CD lost interest in studying, changed schools and became disruptive at school.  He has struggled throughout his life to develop trusting and enduring relationships.  He feels an almost overwhelming sense of sadness and shame.  He has suffered anxiety and depression and undertook ten years of counselling with a psychiatrist.  Finally, with continued professional support, he felt strong enough to report your abuse of him to the Royal Commission, and to police.

23What you did damaged CD in a myriad of ways that continue to blight him.  He harbours some hope that by making his victim impact statement and participating in this process the pain he feels might, at least to some extent, ease.

24In summary, both of these statements document the terrible damage your offending has caused.  The impact of what you did will be an important consideration in formulating the sentence to be imposed.

Personal circumstances

25You are now 76 years of age.  Whilst you have no prior convictions there are a number of relevant subsequent convictions to which I will refer shortly.

26You grew up in the Parkdale area in Melbourne.  Your father was employed in the timber industry and your mother worked in the family home, raising you and your younger sister.  When you were about 14 years of age your mother died from cancer.  Your father remarried and you experienced a good deal of difficulty in adjusting to those changed circumstances.  As a result you became distant from your father.

27You completed your secondary education at Mentone Grammar School.  You started your working life with BHP but commenced teacher training in 1961.  Once qualified you started at Warragul Technical and then moved onto work as a primary school teacher between 1968 and 1993.

28As I detail below, you served a four-month term of imprisonment in 1996.  After that time you obtained employment as an area manager for Progress Press for a time.  You also worked as a bakery assistant and a gardener.  You last worked in paid employment in 2009.

29In 1975 you were married.  There were three children of the marriage, with whom you remain in contact.  Your marriage ended in 2005.

30You yourself were sexually abused as a child.  First by a doctor who saw you in relation to a potential thyroid condition, and later by an older student at secondary school.  That later abuse involved regular penetrative sexual assault.  Your counsel indicated that the perpetrator of that abuse began blackmailing you by threatening to tell your mother if you did not comply with his demands.

31In his comprehensive psychological report of 1 September 2018 Dr Dion Gee notes that you demonstrate what he calls a

"Psycho-pathology suggestive of a background depressive disorder, and continues to display some difficulty effectively regulating cognitive, emotional and behavioural states in an adaptive manner.  In light of this Mr Mitchell continues to display a degree of disturbance in personality functioning, wherein he presents with mixed avoidant, compulsive and anti-social features".

32He diagnosed you as having a moderate personality disorder – that is, having moderate impairments of personality functioning with respect to intimacy, empathy and disinhibition.  He formed the view that you previously met the diagnostic criteria for a paedophilia disorder, however he believes that it is less clear that you continue to meet such a diagnosis because of, among other things, your somewhat confused sexual identity and age related decline in sexual desire.

33Significantly, in my view, you completed a Sex Offender Intervention Program over a nine month period between October 2016 and July 2017 whilst in custody in New South Wales.  This was a custody based residential therapy program for men who have sexually abused adults and/or children.  It was reported that you had made a number of significant "treatment gains" in this program.

34Referring to the risk of further offending of sexual violence Dr Gee states:

"A more comprehensive and tailored analysis of Mr Mitchell's sexual violence risk using the RSVP shows that he represents a low risk of reoffending sexually, whereas his current circumstances - as assessed by the SAPROF - affords, at most, a moderate level of protection against a relapse into sexual violence.  Taken together, and based on the information presented in this report, Mr Mitchell presents a low risk of reoffending sexually in the future, meaning that he is less likely than the typical convicted sex offender to reoffend".

Submissions on Sentence

35On the plea Mr Van Arkadie relied on your advanced age and your plea of guilty, which was entered - it was accepted - at the earliest possible opportunity.  It was submitted that you had shown remorse specifically in respect of these matters through your plea and in your comments to Dr Gee acknowledging the harm that you have caused to your victims.  Mr Van Arkadie also submitted that you fall to be sentenced as a first offender despite the fact that you have subsequent convictions and that you are entitled to some measure of credit in respect of earlier good character.

36On the plea an issue arose as to whether or not s.5AA of the Sentencing Act 1991 (Vic) was engaged by this offending, and that provision came into operation on 5 April 2018 and states:

5AA        Court not to have regard to previous good character or lack of previous findings of guilt or convictions in certain circumstances

(1)          Despite section 5(2), in sentencing an offender for a child sexual offence, a court must not have regard to the offender's previous good character or lack of previous findings of guilt or convictions if the court is satisfied the offender's previous good character or lack of previous findings of guilt or convictions was of assistance to the offender in the commission of the offence.

(2)          Subsection (1) does not apply to an offender who is under the age of 18 years at the time of the commission of the offence.

(3)          In this section—

child sexual offence means a sexual offence within the meaning of section 3 of the Criminal Procedure Act 2009, committed in relation to a person under the age of 18 years.

37Mr Hutton argued, that provision was engaged, and that by virtue of
Mr Mitchell's position as a teacher his good character, or a lack of prior convictions - as was then the position - was of assistance in obtaining and maintaining his profession, and could therefore properly be said to have assisted in the commission of the offence.

38Mr Hutton referred to two provisions from the Education Act 1958 (Vic). Those provisions are s.39(1) and s.41 of the Education Act, as it then was.

s.39(1):  No person shall be registered as a teacher unless he produces evidence which satisfied the Council of his fitness to teach.

s.41: The Council, with the consent of the Governor in Council, may at any time remove from any register the name of any teacher who, after he has had an opportunity of being heard and proved to the satisfaction of the Council to have been convicted of felony, or of misdemeanour, or to have been guilty of conduct unbefitting a teacher.

39It was argued those provisions indicated that a person's previous good character, and lack of previous findings of guilt, would be of assistance in enabling you to obtain, and maintain, registration as a teacher.

40In the alternative it was argued that even if s.5AA did not apply the weight that might be given to any previous good character would be diminished by your subsequent convictions and the gross breach of trust inherent in this offending.

41Mr Van Arkadie argued there was no adequate evidential basis that would enable the court to be "satisfied" that previous good character was of assistance to you in committing these offences.

42Section 39(1) of the Education Act was concerned with the broad concept of fitness to teach, and without more evidence that concept would encompass a number of matters beyond good character.

43Section 41 appears to be concerned with a discretion conferred on the relevant supervising authority to disqualify or remove from the register of teachers any person convicted of a felony, or a misdemeanour, or found guilty of conduct unbefitting of the teacher. There is no evidence as to how that discretion might have been exercised in 1967 or 1971.

44In my view the requirement that the offender's good character assist in the commission of the offence should be real, tangible, and not remote.  Here the evidence does not sufficiently or clearly establish how, or to what extent, good character would have assisted in becoming a teacher, or continuing to teach, 50 or so years ago.

45Furthermore, satisfaction under the provision precludes the offender from relying on good character in any sense whatsoever, and thus deprives that person of mitigation that might otherwise reduce the length of sentence imposed.  It seems to me that the standard of satisfaction required in that sort of circumstance would be beyond reasonable doubt. In the absence of adequate evidence as to the good character requirements I am not satisfied that this provision is engaged.

46I should say, however, that I accept Mr Hutton's alternative argument that the weight that might be given to any previous good character will be diminished by your subsequent convictions and the gross breach of trust inherent in this offending.

Totality

47The application of the principle of totality was a matter that took on some significance on your plea, because you have recently completed a four and a half year term of imprisonment which was imposed in New South Wales.

48The charges on the indictment before me were laid in October 2015 but unfortunately are only being dealt with now, in November 2018.  It was argued that delay has significantly disadvantaged you.  You had lost an opportunity to achieve a reasonable measure of concurrency and that matter should be taken into account for the purposes of reducing the sentence I must now impose.

49It is necessary to set out something of the chronology of your offending in order to properly understand this argument.

50In May 1996 you were sentenced in respect of six charges of indecent assault involving three victims.  That offending occurred in 1973.  You were sentenced to 12 months in prison; four months of which was to be served, eight months suspended for two years.

51In November 1999 you were sentenced to three months' imprisonment wholly suspended for 12 months for an indecent assault which occurred in 1981.

52In December 2000 you were sentenced to four months' imprisonment wholly suspended for two years for four charges of indecent assault involving one victim which occurred in 1972.

53In 2005 you were sentenced in New South Wales to a charge of loitering near a public place to 16 months' imprisonment wholly suspended.

54In August 2014 you were sentenced to a total effective sentence of four years and six months with a non-parole period of two years and six months.  That matter apparently involved sexual offending against a boy who was aged between 13 and 16.  Those offences were committed between 1998 and 2001.  You commenced serving that sentence in New South Wales at around the beginning of 2014.

55You were not granted parole in respect of that sentence, and as at 22 June 2018, taking into account pre-sentence detention, you had served all of the four and a half year sentence imposed by that time.  You have remained in custody since then and that pre-sentence detention of five months or so is directly referable to these offences.

56The charges on this indictment were filed on 26 October 2015.

57After further enquiries were made it was accepted by the parties that you did not seek parole in New South Wales because you did not have any suitable accommodation in New South Wales, and because you faced extradition to Victoria in respect of these charges.  The fact is you would have been eligible for parole by about the middle of 2016 but remained in custody for a further two years; in part because these charges remained outstanding.

58As I noted earlier, it appears you used that further time in custody constructively by undertaking the in-custody sex offender treatment program.  At the time of sentence, therefore, you will have already served almost five years in actual custody.

59Mr Van Arkadie also relied on the principle of equal justice as it applies to offenders who must be dealt with decades after the commission of their offences.  That was explained in the decisions of Stalio v The Queen (2012) 46 VR 426 and Carterv The Queen [2018] VSCA 88.  Some materials were provided that gave some vague indication of sentencing practice at that time.

60Taking all of these matters into account it was submitted that you should now be sentenced to a suspended term of imprisonment, bearing in mind that you have served approximately five months' imprisonment in respect of these matters.

61Mr Hutton, on behalf of the Director, accepted that at least partly as a result of your understanding of your parole situation you were not paroled and served your full sentence in New South Wales.  Mr Hutton acknowledged that the lost opportunity for parole in New South Wales was a relevant consideration in applying the common law principles as to pre-sentence detention as they were explained in R v Renzella [1997] 2 VR 88, and more generally in the application of the totality principle.

62However, Mr Hutton also quite properly emphasised the gross breach of trust that this offending involved and the enduring harm your offending has caused.  As I understood him he acknowledged that it was open for me to impose a partially suspended term of imprisonment.

63Balancing the competing sentencing considerations as best I can, and particularly having regard to the principle of totality, I have determined that it is appropriate to impose a term of imprisonment which is partially suspended.  That said, the sentence must nonetheless denounce what you did to these boys as they were then and mark the impact it has caused.

64On Charge 1, being the charge of buggery, you will be convicted and sentenced to two years and six months' imprisonment.

65On the charge of indecent assault upon a male under the age of 16 you will be convicted and sentenced to 12 months' imprisonment.

66I will further direct that six months of the sentence imposed on Charge 2 be served cumulatively upon the sentence imposed on Charge 1, making a total effective sentence of three years' imprisonment.

67I will order that after the service of 12 months' imprisonment that the balance of that sentence, being 24 months, be suspended for a period of three years.

68Pursuant to s.18 of the Sentencing Act 1991 (Vic) I will declare the period of 160 days has already been served under this sentence and I will cause that declaration to be noted in the records of the court.

69I will declare that you have been sentenced as a serious sexual offender in respect of both of these charges and I will direct that declaration be noted in the records of the court.

70I will note that you will be required to report under the Sex Offender Registration Act 2004 (Vic) for the remainder of your life.

71I will further declare that under s.6AAA of the Sentencing Act that but for your plea of guilty I would have sentenced you to a term of imprisonment of four years and three months with a non-parole period of two years and three months.

72Mr Van Arkadie, it is necessary for your client to be handed some documents relating to the Sex Offender Registration Act.  He will be asked to sign those documents - my associate needs to witness that.  I wonder if you might assist by facilitating that?

73MR VAN ARKADIE:  Certainly, Your Honour.  If I can approach the dock?

74HIS HONOUR:  Thank you.

75MR VAN ARKADIE:  Thank you, Your Honour.

76HIS HONOUR:  Counsel, is there any matter arising?

77MR VAN ARKADIE:  I'm just checking one thing, Your Honour.

78HIS HONOUR:  Yes.

79MR VAN ARKADIE:  And it's old legislation, so it's not at the forefront of my mind.

80HIS HONOUR:  Yes.

81MR VAN ARKADIE:  There used to be a rule about suspending two year sentences for three years - or maybe it was the other way around.  I just want to check that.  If I could have a minute?

82HIS HONOUR:  By all means check it.  My understanding is that it's the other way around.  That is to say that ‑ ‑ ‑ 

83MR VAN ARKADIE:  The period of suspension couldn't be longer than ‑ ‑ ‑ 

84HIS HONOUR:  Yes, but this is - check it, by all means.

85MR VAN ARKADIE:  Yes, Your Honour.

86HIS HONOUR:  I assume that I've got it right, obviously, but if I haven't I'd be grateful if you could point that out.

87MR VAN ARKADIE:  No, Your Honour's correct.  2A of s.27.

88HIS HONOUR:  Yes.

89MR VAN ARKADIE:  It just took me a few seconds.

90HIS HONOUR:  Thank you, Mr Van Arkadie.

91MR HUTTON:  Nothing arising, Your Honour.

92HIS HONOUR:  Thank you.  I'll stand down till nominally 10.30.

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