Director of Public Prosecutions v Nathans

[2015] VCC 1495

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

Grahame Nathans (a pseudonym)

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	11 September 2015
CASE MAY BE CITED AS:	DPP v Nathans
MEDIUM NEUTRAL CITATION:	[2015] VCC 1495

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms E. Finnigan
For the Offender	Mr K. McDonald

HER HONOUR: 

1Grahame Nathans[1], you have pleaded guilty to one charge of indecent assault.  The maximum penalty applicable to that charge at the time of your offence was five years' imprisonment.  

[1] a pseudonym

2The prosecution has sought an order for the taking of a forensic sample from you and the making of that order was consented to.

3The circumstances of your offending are set out in detail in the Summary of Prosecution Opening for Plea, which was tendered as Exhibit 8.  In brief the circumstances were as follows.  As a child the complainant lived with her family who operated milk bars or takeaway premises.  Between about 1987 and 1989, the family lived and worked at a takeaway shop in Ringwood.  On one occasion between 1988 and 1989 the complainant's parents were going to a show in Melbourne and so arranged for you and your wife to look after the takeaway shop and the complainant and her sibling.  Your wife is the aunt of the complainant.

4During that period while you were looking after the children, you were in the lounge room one evening with the complainant.  The complainant was sitting on the edge of the couch.  You came in and shut the door.  You stood in front of the complainant.  You pulled out your penis from your pants and knelt down in front of her.  You pulled down the complainant's underwear and rubbed the top of your penis around her vagina area.  This continued for about a minute.  You then left the lounge room.  This occasion is the subject matter of
Charge 1.  Charge 1 is a representative charge in respect of that occasion and a subsequent occasion which occurred about one hour later.

5You came back to the lounge room.  Again the complainant was watching TV.  She was sitting on the edge of the couch when you came in.  She stood up at the end of the couch.  You stood in front of her, undid your belt, pulled out your penis and pulled down the complainant's pants.  The complainant was then sitting on the arm of the couch and you rubbed the top of your penis on her vagina area.  That is the second occasion of which Charge 1 is representative. 

6It is important to understand that you are being sentenced in relation to the first of those two occasions, understanding that Charge 1 is representative of both occasions.

7The complainant said nothing about this matter until she was about 22 or 23 when she spoke to her mother.  At one point when she was about 14 or 15, you and she were in your car.  You stopped and said you wanted to apologise to her for what you had done a few years ago and thanked her for not telling anybody. 

8A pretext conversation was recorded in April 2013.  In that conversation you made a generalized apology for the complainant but did not give any details as to what you said you had done.

9You were interviewed by police on 21 May 2013.  You agreed you had apologized to the complainant.  You described an occasion when you were looking after the complainant when you recalled a certain event happening which was not in the precise terms that the complainant said and which is the subject of the charge, but nevertheless appears to be referring to the same incident.  You made an offer to plead guilty in July 2015 after a contested committal.

10Indecent assault of a child under 16 is a Class 2 offence pursuant to s.34(2) of Schedule 2 of the Sex Offenders Registration Act.  Accordingly, you are required to comply with the reporting conditions of that Act for eight years.

11Victim Impact Statements from the complainant and her mother were read.  The complainant's sister read her statement and the complainant's mother read her statement.  The complainant, in her Victim Impact Statement, speaks of the weight of keeping a secret and the stress this matter has caused her.  She says she has difficulty trusting people.  She clearly regrets the loss of the relationship she had with her aunt, who is your wife, and her cousins.  It appears that there has been a rift in the family as a result of her coming forward with this complaint.  The complainant's mother describes her anger, hurt and loss of trust.  This matter has led to her reliving certain experiences that she had in her own life.  The complainant's mother clearly regrets the loss of her relationship with her sister and her sister's family with whom she had been close.

12In sentencing you, I have taken into account your personal circumstances.  You grew up in the Melbourne area.  Your childhood was happy and stable.  You are the child of your father's second marriage.  You have a number of half siblings and siblings.  You repeated Year 9 and then left school to do an apprenticeship as a fitter and turner.  You worked as a fitter and turner and then at about 24 you commenced employment as a bus driver which continued until recently.  You were employed with one company for a period of 22 years.  That employment ceased after the cancellation of your working with children accreditation following this charge.  You have recently renewed your truck licence and expect to commence full time employment with a trucking company shortly.

13You married your first wife when you were 21 and had two children with her.  You married your current wife who is the complainant's aunt in 1988.  Up until reasonably recently you have been involved in football and cricket activities, including umpiring football.  You have no history of drug or alcohol abuse or mental illness.  In 2004 you had a cardiac operation and continue to take cardiac medication.  You have had a number of hospital admissions in 2014.

14You have no prior criminal history.

15In sentencing submissions, your counsel submitted that an appropriate sentence would be a Community Correction Order.  In making that submission your counsel submitted that given the time elapsed, the lack of any subsequent offending and matters set out in a report from Mr Patrick Newton, clinical and forensic psychologist, dated 27 August 2015, specific deterrence and community protection would not need to be given weight in sentencing you.

16Mr Newton, in his report, says that you have expressed empathy for your niece which appear genuine and that it would not be appropriate to diagnose you as suffering from a paraphilic disorder.  Mr Newton says that a review of the risk factors suggest that you would pose a low risk of sexual recidivism and referred to various protective factors.

17Your counsel submitted that an immediate sentence of imprisonment would not be warranted in view of your admissions, your plea of guilty, your good employment record, your family support, your lack of criminal record, the low risk of you re-offending and your excellent prospects of rehabilitation.

18The prosecutor in sentencing submissions accepted that a Community Correction Order would be within the sentencing range available.

19Grahame Nathans, your offence was serious.  Any sexual assault on a child is a serious matter.  This is a serious example of an indecent assault.  The type of reaction described the complainant and her mother are examples of the sort of harm that is caused by this type of offending.  This offending occurred many years ago.  You are now 66 years old and have committed no other offences.  You have been hardworking.  You have pleaded guilty.  I accept what Mr Newton says about there being a low risk of you re-offending.  I accept that your rehabilitation has effectively already occurred.  Specific deterrence and community protection do not need to be given weight in sentencing you. 

20There are a number of factors that operate in mitigation.  In addition you pleaded guilty.  Your plea of guilty was not entered at an early stage, being after the contested committal, but it still has the benefit of the trauma and expense of a trial being avoided.

21I accept that over time you have expressed remorse in various ways and I accept that your plea of guilty is an expression of your remorse. 

22Taking into account the period of time that has elapsed since this offence and your good behavior in that time, it is my view that a Community Correction Order can appropriate reflect the sentencing considerations of denunciation, just punishment and general deterrence.  You have been assessed as suitable for a Community Correction Order.

23Mr Nathans, I understand that the mandatory conditions in a Community Correction Order have been explained to you by the person who assessed you.

24OFFENDER:  Yes, Your Honour.

25HER HONOUR:  Do you understand those conditions?

26OFFENDER:  Yes, I do.

27HER HONOUR:  The special conditions that I propose to impose are the ones that I have already outlined.  They are that the order would go for two years.  You would be required to do 120 hours of community work.  You would be required to undergo assessment for programs to reduce re-offending and to engage in those programs if you are assessed as suitable.  You would also be required to be under the supervision of a Community Corrections Officer.  Any hours that you spend in any treatment or rehabilitation programs would be deducted from the work hours that are required.

28OFFENDER:  Thank you, Your Honour.

29HER HONOUR:  The other important condition is, of course, that if you breach the order by any further offending or not doing what they tell you to do, then you will be brought back to court on breach of the order and I would be able to resentence you if you had re-offended.  Do you consent to me making the order?

30OFFENDER:  Yes.

31HER HONOUR:  In a moment Mr McDonald with come with my associate.  They will bring the Community Correction Order for you to sign and to give you. 

32You will also be provided with documentation which explains your obligation under the Sex Offenders Registration Act.  You will be asked to sign a document which says that you have received the documentation. 

33I am also making an order for the taking of a forensic sample from you.  I am making that order because of the seriousness of your offending and because the making of the order was consented to.  I am sure that you will co-operate in that matter, but I am required to tell you that if you do not co-operate with the sample being taken with a saliva swab then reasonable force can be used and a blood can be taken.  I am sure in your case that will not be necessary.

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