Director of Public Prosecutions v Monson

[2018] VCC 2098

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01490

DIRECTOR OF PUBLIC PROSECUTIONS

v

VIKTOR MONSON

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2018
DATE OF SENTENCE:	11 December 2018
CASE MAY BE CITED AS:	DPP v Monson
MEDIUM NEUTRAL CITATION:	[2018] VCC 2098

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sexual penetration with a child between 10 and 16; Plea of guilty; Significant subsequent convictions and sentence for relevant offending; Totality; Rehabilitation; Advanced age; Partially suspended sentence.

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

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

Sentence:Total Effective Sentence (State) is 2 year/s 6 month/s imprisonment. Direct that after the service of 6 months imprisonment, the balance of the sentence be suspended

a period of three years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	Office of Public Prosecutions
For the Accused	Mr B. Johnston	Doogue + George

HIS HONOUR: 

1Viktor Monson, you have pleaded guilty to one charge between 1 January 1989, and 31 December 1989. You took part in an act of sexual penetration with a person aged between 10 and 16, who at the time of the commission of the offence was under your care, supervision or authority, contrary to s.48(1) and sub-s.(3) of the Crimes Act 1958 (Vic). Mr Monson, you can remain seated during these remarks if you would not mind.

2OFFENDER:  Thank you, Your Honour.

3HIS HONOUR:  The maximum penalty for this offence is 15 years' imprisonment.  At your plea hearing, the prosecutor tendered the summary of prosecution opening, which sets out the details of your offending.  In short that offending involved the following.  The victim in this matter was born in April 1977 and was about 12 years of age when you sexually assaulted him.  You met his mother through a church and youth group in the western suburbs of Melbourne. 

4You ingratiated yourself to her and impressed her as a compassionate person with an interest in youth groups and the church.  No doubt because of the trust and rapport you had established with the victim's mother, you were able to see the victim on most days.  You presented yourself to them as a born again Christian.  You used to take various children in the local area, including the victim, for a swim at the nearby lake.  You would let the victim drive your car anytime he wanted to.  And on one occasion you took the victim and his mother to church.

5During 1989, you invited the victim to go on a camping trip with a group of other boys you were planning to take.  The day before the scheduled trip, you told the victim that the other boys had pulled out of the trip.  You asked him if he still wanted to go and that it would be fun.  He agreed.  The following day you drove the complainant to an unknown location somewhere past Castlemaine.  During the trip you passed a number of farms and the victim commented that he would love to have a little lamb.  At one stage you stopped at a service station and purchased a pornographic magazine which you handed to the victim and said, "this is for you".

6This was the first time the complainant had seen a pornographic magazine.  You also purchased a bottle of Bundaberg rum at another stop.  You then drove to a caravan park and checked into a cabin.  You gave the alcohol to the victim to drink.  You also told him that he would be sleeping with you in the double bed.  The victim recalls his heart racing when this was said because he knew something was not right. 

7After the victim had consumed a small amount of the rum, you told him to look at the pornographic magazine.  When his penis was erect, you went under the covers and started to engage in oral sex with him.

8You continued to do so until he ejaculated.  He was shocked and did not know what to do.  This was his first sexual experience. 

9The following morning you repeatedly told the victim that what had happened was a secret to be kept between you and no one should know about it.  The victim felt confused and hurt and remained quiet during the trip home.  At one stage you stopped and attempted to buy a lamb for the victim but that did not eventuate.  You did this to try make him feel better.  You then returned back to Melbourne.  Thereafter you stayed in contact with the victim and you commenced a relationship with his mother.  A few months later you moved to Perth with her.

10Although the victim had been living separately with his father for some time, he came to live with you and his mother in Perth.  When he was in year eight at school in Perth, you argued with him about being late for school.  A short time later he moved back to Melbourne to live with his father. 

11This offending was first disclosed by the victim to a friend at some stage during his teens or early 20s.  The matter was formally reported to the police in April 2016.  On 17 August 2016, Victoria Police travelled to Western Australia to arrest and interview you.  You chose not to make any comment during your interview.

Impact of offence

12The victim in this matter is now 41 years of age.  He provided a victim impact statement which he read to the court himself from the witness box.  In essence, he says that you wrecked his life.  He says that what you did to him deeply affected every aspect of his life.  He grew up feeling lonely, untrusting and uninterested in life.  He says he turned to drugs to escape his feelings.  And although he was able to obtain qualifications as a carpenter and as a chef, he was never able to sustain employment because of how psychologically damaged he felt.

13He has two children who he feels he has failed as a father.  He has an abiding fear of someone sexually assaulting them in the way that you did to him.  He says he has developed an extreme distrust in all people.  He suffers from depression and continues to struggle with the distress that your sexual abuse of him has caused.  The impact this offending has had on your victim is a very important consideration that must be taken into account in the formulation of the sentence to be imposed.

Personal circumstances

14You were born on 1 March 1942.  You are now 76 years of age.  You were approximately 47 years old at the time of this offending.  At that time you had no previous convictions; however, you have been subsequently convicted of similar offences which occurred around the period 1978 to 1982.  I will return to those matters shortly.  You grew up in Pretoria in South Africa.  Your father was an alcoholic prone to bouts of violence and abuse in the family home.  Your parents separated when you were approximately ten years old.

15When you were about six years of age, you were sent to a boarding school where, according to what you told your psychologist, you experienced and witnessed a lot of cruelty.  You eventually completed the equivalent of year 12 at boarding school.  After leaving school, you completed 12 months of compulsory military service in the South African navy.  Thereafter you returned to civilian life where you acquired a stable work history, mainly in sales positions.  You married your first wife in 1971 and the following year migrated with her to Australia.

16There were two daughters of that marriage, now aged 41 and 46, both of whom reside in Melbourne.  You have continuing contact with one of those daughters.  Your marriage dissolved in 1977.  At some stage in the mid to late 80s, you became involved in a Pentecostal church.  You met your second wife through the church and married in 1994 and you remained in that relationship until not long after you were imprisoned in 2000.  On 7 April 2000, you were brought before the district court of Western Australia under the name, Otto Seamus D'Arcy Searle.

17You pleaded guilty to an indictment containing 104 counts of sexual assaults involving four complainants who were aged approximately 10 to 12 years at the time of the offending, which occurred between 1978 and 1982.  The context in which you committed those offences involved you acting as a coach in a suburban soccer club in Perth where all of the complainants played soccer.  The offending involved 40 counts of indecent dealing, 28 counts of gross indecency, one count of carnal knowledge, one count of attempted carnal knowledge, 24 counts of inciting indecent dealing, one count of indecent assault and two counts of procuring gross indecency.

18The sexual abuse you engaged in included such things as masturbating the complainants, performing oral sex on them and in some instances, engaging in anal penetration.  In respect of those matters, you were sentenced to a total effective sentence of 11 years' imprisonment.  I was told that the Western Australian sentencing regime at the time provided for your eligibility for parole after the service of approximately five years of that sentence.

19In about July 2005, you were released on parole in Western Australia.  Shortly afterwards, your parole was transferred to New South Wales where you went to live in a small town with some of your relatives.  Your presence and past record became known to local residents and attracted adverse publicity.  In the ensuing controversy, your parole was cancelled and you were flown back to Western Australia and returned to custody.  It was not suggested that you had done anything to breach the conditions of your parole.  Apparently because no suitable accommodation could be found, you were required to complete the balance of your sentence.

20With the operation of the remission system then in place in Western Australia, you were released in mid-2007.  Part of the materials provided to me on your plea included a judgment of Her Honour Chief Judge Kennedy of the District Court of Western Australia, of 10 December 2008, the medium neutral citation of which was [2008], WADC 167,  involving an application by the Western Australian commissioner of police for an order under the Western Australian Community Protection (Offender Reporting) Act 2004.  On the strength of the rehabilitative treatment that you had received in custody, Her Honour refused that application.

21At paragraph 33 of her judgment, Her Honour makes reference to the fact that you changed your name to Viktor Eric Monson.  Her Honour stated:

"It seems to me that no criticism can be made of the respondent for changing his name.  The publicity he received while he was in New South Wales on parole was inflammatory, nasty and intimidating".

22I should note that in refusing the application, Her Honour proceeded on the basis that you had committed no offences since 1985.  Your plea to this charge demonstrates that this was a misconception that you were not, at that stage, prepared to correct.  You were gainfully employed as a factory hand between 2007 and 2012 after which you retired.  You currently reside in an aged housing commission flat in Western Australia.  Since leaving prison, you have clearly developed a strong support network, largely centred around your involvement with the Pentecostal church.

23In 2010, you were diagnosed with prostate cancer and underwent surgery to have your prostate removed.  In October 2011, you were brought back before the District Court of Western Australia in respect of two charges of indecent dealing involving a child who was approximately ten years of age.  Those offences were said to have occurred during 1978.  For those matters you were sentenced to a total effective sentence of 20 months, which was wholly suspended for a period of two years.

24It is an important feature of your personal circumstances in sentencing you now that during the service of your sentence between 2000 and 2007 you completed an intensive sex offender treatment program during 2004 and 2005.  You also completed a period of community supervision with a treatment component whilst on parole between 13 June 2007, and 12 June 2008.  You had become a peer support worker and eventually a head peer support worker whilst you had been in prison.

25Eleven personal references were tendered on your behalf.  They were from Margaret Olsen, Michael Harrold, the Reverend Christopher Maynard,
Dr Graeme Hammond, Basil de Mello, David Shore, Dan Sheikh, Charles Slack, Wendy Fitzgerald, David King and John Fowler.  All of the authors of those references state that they were aware of your criminal history of sexual offending.  Nevertheless, they paint a very positive picture of a man who is deeply ashamed of, and insightful about, the harm his offending has caused.

26Over many years, you have strived to rehabilitate yourself through treatment and through the volunteer work you undertake at the various Pentecostal churches you are associated with.  For example, Dr Graeme Hammond documents your participation in the men's group that meets every fortnight at his home.  The group focuses on accountability, prayer, mutual support and encouragement.  You have been engaged with that group since your release in about 2007.  As another example, the pastor of the Eagles City Mission in East Perth, Basil de Mello writes that he has interacted with you closely over the last ten years or so and has observed you behave in an exemplary way throughout that time.

27You have been a very valuable and productive member of that congregation.  You currently work in a team attached to the Eagles City Mission that helps people in crisis and provides transport and practical assistance to those in need.  You have also involved yourself in the Western Australian Shalom House organisation, an adult men's rehabilitation facility for alcohol and drug addicts.  You visit and regularly assist in the care of an old housemate who has now developed dementia and resides in a nursing home.  You are also settled and well regarded by your neighbours in the Department of Housing units, where you reside.

Psychological Evidence

28You were assessed by a counselling psychologist, Mr Bart Wszola for the purposes of your plea.  In his report of 24 October 2018, Mr Wszola sets out your personal and sexual development.  Mr Wszola's report reveals an extensive history of sexual offending against young boys which started in South Africa when you were about 20 years of age.  That offending, it appears, had been largely driven by a deviant sexual interest in pubescent boys.  You were candid with him and explained that whilst you were at boarding school, you engaged in sexual activity with similarly aged boys and that in doing so you were "Pushing boundaries".

29This later developed into predatory behaviour towards younger males.  Mr Wszola states at paragraph 2.4:

"He acknowledged that as he became older and continued to offend after he relocated to Australia, he progressed on to anally penetrating some of his victims.  He estimated that his offending behaviour started when he was about 20 years old and he disclosed that in his early 20s he became involved with local sea scouts which afforded him access to victims until he was found out and got kicked out".

30At p.7 of that report, Mr Wszola states:

"The numerous personal references provided by Mr Monson indicated that since his release from prison, he's developed a positive and supportive social network.  Mr Monson explained that his network developed as a result of his Christian faith and involvement in Christian groups and support services.  He advised that all of his friends and associates were aware of his history of sexual offending behaviour against male children. 
Mr Monson stated that being fully honest about his past with people that he associates with has been a part of his risk-management strategy to minimise the presence of high-risk situations.  He suggested that he has created a culture of disclosure and accountability with his peers.  Which means that he would be challenged by his associates if they observed inappropriate behaviour from him".

31At p.8, Mr Wszola states:

"He acknowledged that since completing the treatment program, he had developed a more flexible, mature and accepting perspective on sexual fantasies".

32And further, on p.8, Mr Wszola states:

"Mr Monson also impressed as being vigilant to potential risk factors and as maintaining his engagement with his various support systems".

33Mr Wszola formed the view that you have a risk of sexual recidivism that is best characterised as "Below average risk".  Indeed there is no evidence that you have reoffended in any way since your release from prison in 2007. 

34As to submissions on sentence, Mr Johnston, who appeared on your behalf, quite properly acknowledged that this is a serious offence punishable by a maximum penalty of 15 years' imprisonment and that your offending constitutes a serious example of that offence.  He pointed to the absence of some aggravating features to distinguish your offending from other even more serious examples of this type of offence.

35He relied on the fact that you pleaded guilty to this offence at the earliest opportunity and have saved the victim the trauma of having to be
cross-examined and you have facilitated the course of justice by avoiding the need for a committal and trial.  He argued Mr Wszola's report and the numerous personal references demonstrate insight and remorse.  It was submitted your advanced age, physical ailments such as hypertension and diabetes and the significant delay between the time at which the complainant reported this offence to police on 17 April 2016, and the date on which charges were laid,
20 July 2018, should be taken into account in your favour.

36The overall picture, he argued, supported the contention that you have made significant progress in your rehabilitation since this offending.  It followed, he argued, that general and specific deterrence would not attract as much weight as they might in the absence of those factors.  In addition, the principle of totality requires careful application given that you have undertaken a lengthy sentence subsequent to the commission of these offences and had these offences come to light at an earlier stage, you might well have served a substantial proportion of this sentence concurrently.

37Mr Johnston also reminded me that I should have regard to the principle of equal justice when dealing with offending that is 30 years old, as that principle was explained in Stalio v The Queen (2012) 46 VR 426 and approved in Carterv The Queen [2018] VSCA 88. He acknowledged that a term of imprisonment needed to be imposed but submitted that in all the circumstances that sentence should be wholly suspended.

38Ms Malobabic who appeared on behalf of the Director, pointed to the features of your offending which rendered it particularly serious, including the fact that there was an element of grooming of the victim involved and of securing the trust of the complainant's mother in carrying out the offence.

39The use of pornography and alcohol was another aggravating feature.  In the circumstances, a penalty needed to be imposed which she submitted would meaningfully recognise the offending and the harm caused by that offending to this particular victim.  In those circumstances there ought be a term of actual imprisonment imposed.

Findings

40I accept Mr Johnston's submissions as to the matters which mitigate your sentence.  Your early plea, your remorse and the manner in which you generally approach this proceeding, suggests that you have come a long way in your rehabilitation.  You have impressed many people in the community with the efforts you have made since your release from custody in 2007, in giving back to the community through the voluntary work you have engaged in.

41You have sustained those efforts over a lengthy period and I am persuaded that they are sincere.  In light of the work you have done, I accept that you have good prospects for rehabilitation.  That said, you heard and saw from your victim who read his victim impact statement in court.  You could see, and I could see, that your offending has had a profound effect on him and as I indicated earlier, I must take that fact into account.  Given the seriousness of this offending, I cannot accept that a wholly suspended sentence is appropriate.  However, in balancing the competing sentencing purposes as best I can, I have concluded that a partially suspended sentence is the just and appropriate sentence to impose.  Mr Monson, would you mind standing now if you would please?

42On the one Charge of sexual penetration with a person aged between 10 and 16 years, who was under your care, supervision or authority, you will be convicted and sentenced to a term of two years and six months' imprisonment.  I will further order that upon the expiration of six months' imprisonment served in actual custody, that the balance of a further two years' imprisonment be suspended for a period of three years.

43I will declare that under s.18 of the Sentencing Act 1991 (Vic) that you have served a period of 33 days by way of pre-sentence detention and that period should be reckoned as already served under this sentence. I will cause that declaration to be noted in the records of the court. I will further declare that pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to a period of three years and nine months' imprisonment with a non-parole period of two years.

44I also declare that having regard to the fact that you have been sentenced to terms of imprisonment for relevant sexual offences in Western Australia and the fact that this offence is defined as a sexual offence for the purposes of s.6(b) of the Sentencing Act, that you have been sentenced on this charge as a serious sexual offender. 

45The offence to which you have pleaded guilty is a class one offence under the Sex Offenders Registration Act 2004 (Vic). Your prior convictions in other jurisdictions also include class one offences. You will therefore be required to report under the provisions of that Act for the rest of your life. You can take a seat if you would for the moment please, Mr Monson.

46MR JOHNSTON:  As Your Honour pleases.

47HIS HONOUR:  Mr Johnston, two matters if I might.  First of all there was an application under 464ZF.  I understand that's not opposed?

48MR JOHNSTON:  Not opposed, Your Honour.

49HIS HONOUR:  I'll sign that order.  If I could just indicate one thing to your client.  Mr Monson, I just need to indicate that you may be requested by a member of the police force to provide a mouth scraping that is a saliva sample under the supervision of an authorised member of the police force.  If you refuse to do that then the authorised member can require that a blood sample be taken and the police may use reasonable force to enable that forensic procedure to be conducted if you did not cooperate.

50OFFENDER:  Yes, Your Honour.

51HIS HONOUR:  Do you understand that, Mr Monson?

52OFFENDER:  I do, Your Honour.

53HIS HONOUR:  Yes.  Thank you very much.  You can take a seat again. 

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