Director of Public Prosecutions v Myles

[2014] VCC 271

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-13-00661

DIRECTOR OF PUBLIC PROSECUTIONS

v

IVOR MYLES (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE GRANT
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2014
DATE OF SENTENCE:	11 March 2014
CASE MAY BE CITED AS:	DPP v Myles
MEDIUM NEUTRAL CITATION:	[2014] VCC 271

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A.K. McKenry	OPP
For the Accused	Ms H. Spowart	Victoria Legal Aid

HIS HONOUR: 

1Ivor Myles, you have been found guilty by jury verdict of two charges of indecent assault, three charges of sexual penetration of a child under 10 and one charge of incest.  The maximum penalties for each offence are: indecent assault, five years’ imprisonment; sexual penetration of a child under 10, 20 years’ imprisonment; and incest, seven years’ imprisonment.  All the offences were committed against your younger sister. 

2Charges 1 to 4 occurred on a day between 25 March 1985 and 31 December 1986 when you were aged between 12 and 14.  The complainant was eight or nine years old.  She was in her bedroom.  You removed her clothing and forced her onto the bed.  You indecently assaulted her by licking her vagina.  You then used your penis to penetrate the complainant’s vagina on two occasions and her mouth on one occasion. 

3Charge 5 occurred at a neighbour’s house on a day between 25 March 1987 and 31 December 1988.  You were between the ages of 14 and 16 years and the complainant, 10 or 11.  You forced the complainant onto the lounge room floor and put your penis into her vagina. 

4Charge 6 occurred on a date between 1 January 1990 and 31 December 1990.  The complainant was 13 or 14 years old and you were 17 years old.  You forced the complainant against the wall in the hallway of your house and you put your fingers in her vagina.  The complainant stomped on your foot and broke free. 

5This is serious offending.  The victim is your sister.  She was very young when the offending commenced.  The victim impact statement reveals the profound impact your criminal behaviour has had upon her life.  She is suffering nightmares, depression and anxiety.  She is seeing a psychologist to help her deal with her emotional harm.  

6In determining an appropriate sentence, I must recognise the gravity of the offending. 

7There are a number of important matters in mitigation. 

8The first is your age at the time of offending.  Charges 1 to 4 were committed when you were aged somewhere between 12 and 14.  Charge 5 was committed when you were aged between 14 and 16 and Charge 6 was committed when you were 17 years old. 

9Had there been an early complaint to police in relation to Charges 1 to 4 or Charge 5, the matters would have been heard in the Children’s Court.  Had there been an early complaint to police in relation to Charge 6, it would have been dealt with as a young offender. 

10In assessing the nature and gravity of your offending and your moral culpability, I must take account of the fact that in relation to five of these charges you were a young person of immature years.  If the first five charges had been dealt with in the Children’s Court, general deterrence would have played no part in the sentencing process.  Had these matters proceeded in the Children’s Court, you would have received a supervisory order or a sentence of youth detention. 

11On Charge 6, if you had been dealt with close in time to the offending, rehabilitation would have been a significant and crucial factor in sentencing.  Youth detention would have been the likely order. 

12The second matter in mitigation is the delay in the matters being reported to the police.  There was a significant delay in these matters being brought to the attention of the police.  The last offence on the indictment was committed in 1990.  The matters were reported by the complainant in 2011 and you were interviewed in the same year.  This is a delay of some 21 years.  Although you committed offences after 1990, you have not committed any subsequent sexual offences. 

13I have been provided with a copy of your criminal record.  The first entry is an appearance at the Springvale Children’s Court on 10 February 1987 when a Care and Protection Application was proved and you were placed on a supervision order for 26 weeks.  This means that at the age of 15 you were found to have suffered serious harm or likely to suffer such harm and an order was made with the objective of protecting you from such harm. 

14Between 1989 and 2002 you appeared in various Children’s and Magistrates’ courts for dishonesty offences, drug offences and motor vehicle offences.  Except for one charge of beg alms which is not a relevant consideration in this case, there has been no further offending since August 2002. 

15The third matter in mitigation, relates to matters that are personal to you.  You have had a troubled and disrupted upbringing.  As a young man, you had learning difficulties and attended a special school.  You left school in Year 9 with limited literacy skills.  A child protection order confirms the difficulties in your childhood and teenage years.  You have no work qualifications.  At times you have been able to work as a furniture removalist.  You suffer from a mental illness that has compromised your ability to work. 

16This brings me to the fourth matter in mitigation, namely your mental health and the time you have spent already in custody.  You have been supported by Mental Health Services since your late teens.  You have an established diagnosis of schizophrenia.  A 2013 report from Dr Cidoni details 48 past psychiatric admissions.  You were on a community treatment order prior to your remand in custody on these matters on 10 October 2012. 

17You were initially charged on summons in November 2011.  After charging, you had a short period as an inpatient at South West Mental Health.  There were some adjournments of process because you were mentally unwell and from 7 April 2012 until 7 May 2012 you were an inpatient with South West care. 

18After failing to appear on two occasions in 2012, you were arrested and bail was refused.  You have been in custody ever since.  You were interviewed in custody by a psychiatrist on 26 October 2012.  You were assessed as acutely psychotic and certified for treatment in hospital.  You were transferred to Thomas Embling Hospital on 31 October 2012.  Over time, your mental state has improved and you are no longer at Thomas Embling. 

19Because you suffer from a significant mental illness, principles of general and specific deterrence will be appropriately moderated.  My sentence will also recognise that an imprisonment order would weigh more heavily upon you that it would for someone in normal health. 

20Mr Myles, even though this is serious offending, it is appropriate for your imprisonment term to be partially suspended.  Such an approach is justified for the reasons I have outlined; namely your young age at the time of the offending, your disadvantaged background, your mental health status, the absence of subsequent sexual offending, the absence of offending after 2002, and the time already spent in custody on remand. 

21Mr Myles, will you stand please?  You will be sentenced as follows:

22On Charge 1, six months imprisonment; on Charge 2, 21 months imprisonment; on Charge 3, 21 months imprisonment; on Charge 4, 21 months imprisonment; Charge 5, 15 months imprisonment; Charge 6, nine months imprisonment. 

23I order four months of the sentence on Charge 5 and two months of the sentence on Charge 6 are to be served cumulatively on each other and on the sentence imposed on Charge 2.  This makes a total effective sentence of 27 months. 

24I order that 516 days of the sentence be served with the balance suspended for a period of 12 months. 

25I make a declaration that you have served 516 days by way of pre‑sentence detention. 

26Mr Myles, because of the sentences imposed on Charges 1 and 2, you will be sentenced on the remaining charges as a serious sexual offender.  I note the prosecution did not, given the circumstances of this case, seek a sentence longer than that, which is proportionate to the gravity of the offending. 

27Considering the circumstances of this case, notwithstanding s. 6E of the Sentencing Act, I have determined that no cumulation other than that which I have already announced would be appropriate. I do not intend to make an order under the Sex Offender Registration Act and I note the prosecution did not seek such an order.

28Mr Myles, what this means is that you have been sentenced to a total effective period of 27 months imprisonment. I order that you serve 516 days of that sentence, and I make a declaration that you have in fact served that period, so you will now be eligible for release and you will be on, what we call, a suspended term of about 10 months, which means that if you were to offend in the next twelve-month period, it is most likely, unless there are exceptional circumstances, that you would go to prison for 10 months.  If there is no further offending, then there will be no more imprisonment.  Do you understand that?

29OFFENDER:  Yes.

30HIS HONOUR:  You will have to go back downstairs with the custodial officer and I understand you will be released from downstairs and no doubt, Ms Spowart will talk to you further when that occurs.  Do you understand all that has happened? Yes, thank you.  There are no other orders that need to be made?

31MR McKENRY:  No, Your Honour.

32HIS HONOUR:  Yes, thank you both.

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