Director of Public Prosecutions v NC
[2013] VCC 886
•15 May 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-00327
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| NC |
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JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 May 2013 | |
DATE OF SENTENCE: | 15 May 2013 | |
CASE MAY BE CITED AS: | DPP v NC | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 886 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms N. Smith | Office of Public Prosecutions |
| For the Accused | Ms C. Hollingworth | Brendan Wilkinson |
HER HONOUR:
1 NC, you have pleaded guilty to two charges of indecent assault. The maximum penalty applicable to each of those charges is five years' imprisonment.
2 Your offending involved the complainant, SP, who at the time of your offending was 12 years of age.
3 Your offending occurred between 1 November 1988 and 31 December 1989 when you were 20 to 21 years of age.
4 It is not necessary to recount in great detail the facts of this matter as they are on transcript, the matter having been opened in some detail by the learned prosecutor. I proceed to sentence you on the basis of the facts as summarised by the prosecutor in the agreed prosecution opening dated 8 May 2013 (Exhibit A) and also as discussed during the course of your plea hearing.
5 It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing.
6 There are a number of aggravating features of your offending. Firstly, you were in a parental role as guardian of SP. Your offending involved a breach of trust.
7 Your offending behaviour in the two charges escalated in gravity from Charge 1 to Charge 2. Further, it is concerning that immediately after your offending in Charge 1, you had a discussion with another adult who had been present at the time regarding your behaviour with SP, yet nevertheless you subsequently committed Charge 2.
8 You said that at the time of your offending you did not know your actions were illegal. I have concerns about that. Whether or not you understood your offending was illegal, I at least have no doubt you well understood that a 20 year old behaving in this way with a 12 year old girl was totally inappropriate. You further knew it was wrong after you spoke to Ms Hayes, should you have, prior to that, been in any doubt about the inappropriateness of your behaviour. In my opinion, you were well aware at the time it was inappropriate and illegal.
9 It is of concern that in the record of interview you described SP as being "promiscuous". In using such terminology, you sought to cast some blame to SP for your offending. I am also concerned, as I discussed with counsel, your report to Mr Newton that SP at the time of your offending, from your perspective, had already gone through puberty and was manifesting secondary sexual characteristics at the time, appearing in some way to justify your offending against SP.
10 A Victim Impact Statement was not before me. I was told SP had been given the opportunity to make a Victim Impact Statement, however had declined.
11 You have pleaded guilty to these two charges and are entitled to have that fact taken into account in your favour and I do so. The community, by your plea, has been spared the time and cost of a trial and witnesses, in particular SP, have been spared the need to give evidence upon your trial. Further, I take it into account in your favour you intimated early your intention to plead guilty. You were not interviewed by police until 2008 and in that record of interview you made admissions to your offending behaviour. Thereafter the matter proceeded to a committal mention on 22 February 2013, when you indicated your intention to plead guilty to these charges. SP was not required to give evidence at a contested committal hearing.
12 I accept you indicated your intention to plead guilty at an early stage and such is a relevant sentencing consideration in mitigation of your sentence. I accept your plea of guilty indicates remorse for your offending, although I remain concerned regarding your description of SP as “promiscuous”, and your report to Mr Newton to which I have previously referred (para 21 of his Report).
13 By virtue of your plea of guilty to the two charges before me, which are Class 2 offences, pursuant to s34(1)(b)(ii) of the Sex Offenders Registration Act 2004, you are required to report pursuant to that Act for 15 years. The Order and reporting period is mandatory. Ms Hollingworth conceded that classification and duration applied to you.
14 Ms Hollingworth, on your behalf, relied upon her helpful written outline of submissions upon which she elaborated during your plea hearing.
15 Regarding your offending behaviour, she said you now acknowledge that your offending involved a breach of trust, as you were in a step-parental role in relation to SP. I discussed, with some concern, your denial of this to Mr Newton (para 21). You no longer, however, adhered to the view you expressed to Mr Newton. You described your offending as having occurred when you were immature, combined with issues in your then marriage. Neither of those reasons of course excuses your offending and nor did Ms Hollingworth suggest otherwise.
16 Ms Hollingworth submitted that in the time between your offending and sentence, 25 years later, you had led an exemplary life and she understandably relied heavily upon this during your plea hearing. I shall return to this aspect of delay later.
17 You do not have any prior criminal history, nor is there anything subsequent. I therefore accept you come to the Court as a person of otherwise good character.
18 You are now 45 years of age. A number of family members were in Court to support you during your plea hearing. There is no doubt your family have been hard workers throughout their lives.
19 You grew up in Melbourne, also lived in South Africa from age 3 to 6. You then returned to Australia ultimately completing Year 12 at De la Salle College in 1985.
20 You went to the Victorian State College in Burwood and commenced a business degree, although did not complete it. You obtained work with a stock broker as an assistant accountant.
21 You were married to PC at the time SP was living with you. You had met PC in 1982, although your relationship did not commence until 1987. You were married for only a short period of time, separating in 1990. Both you and PC have a daughter, AC, who is now 24 years of age and who has a child of her own, born in 2011. When you married PC, she also had a son, A, from a previous relationship whom you subsequently adopted. Sadly, he died in tragic circumstances in 2004.
22 You attended university in 2000 and completed a Bachelor of Computing qualification in 2002. You commenced work with the Navy in that same year.
23 As part of your employment with the Navy you served in the Solomon Islands in 2003 and 2004, for which you received a service medal.
24 You were promoted to sub-Lieutenant in 2004.
25 In 2006, you worked at the Royal Australian Navy Recruiting School training recruits.
26 In 2012, subsequent to being interviewed by police in 2008, you were selected to command the HMAS Brunei. When you were then charged with these offences in 2012, that command was revoked.
27 Since then you have been a Lieutenant based at HMAS (Sydney Watson Bay). Previously for five to six years you had been working on HMAS Gladstone/Cairns doing border control work.
28 You expressed the hope at some stage of being promoted to Lieutenant Commander.
29 You met your current wife, TW, in 2005 and married in 2010. There is a child, ZC, two-and-a-half years of age of your relationship and another child is due in November 2013. You live in Perth.
30 I was advised the Navy was aware of the charges before me. You remain employed with them, however your command of ships has been placed on hold until you are sentenced in this matter, at which time, as I understand it, superior officers in the Navy will decide your future, and whether or not you can continue in the Navy.
31 As outlined in the submissions by Ms Hollingworth, you do not have any health issues or drug or alcohol issues.
32 Ms Hollingworth submitted you expressed insight and remorse in your record of interview. I accept that, however, as I discussed with her there were also those concerning responses to which I have previously referred.
33 I accept you have some insight in relation to your offending and have expressed same to Mr Patrick Newton, your family and to your legal representatives.
34 Ms Hollingworth further referred to your plea of guilty being at the earliest opportunity and I have already referred to my acceptance of that.
35 Ms Hollingworth relied upon Mr Newton’s conclusion that you presented a “very low risk of re-offending”, and submitted Mr Newton did not consider you needed to complete the Sex Offender Program.
36 A number of documents were placed before me during your plea hearing, including a number of references. I have read all the references and will only briefly summarise them here.
37 There was a reference from your mother, BC, dated 7 May 2013. Your offending was out of character. You were a good student at school and had since worked hard. She described you as having high standards. You had expressed remorse to her for your offending.
38 There was a reference from Gunter Bocksteiner, dated 7 May 2013, who had known you since 1980. He described you as a caring father of AC and A. Your dedication to them continued despite your separation/divorce from PC. Your offending was out of character.
39 There was a reference from TW, your wife, dated 7 May 2013. She described you as a loving, caring and hardworking husband and father. Your offending was out of character. You were ashamed of your offending.
40 There was a reference from your step-mother, PC. She described you as courteous, well-mannered, caring for others and respected by family, friends and colleagues.
41 There was a reference from your father, RC, dated 9 May 2013. He described you as an honest citizen, a good husband and excellent father. Your offending was out of character.
42 There was a reference from your father-in-law, PW, dated 9 May 2013. He described you as of good character with high values and morals.
43 There was also correspondence before me which confirmed your wife’s pregnancy (Exhibit 3).
44 There was a report from Mr Patrick Newton, Forensic and Clinical Psychologist, dated 30 April 2013, who interviewed you on 2 April 2013. Mr Newton referred to your background and history, much of which I was told by Ms Hollingworth during your plea hearing. Your parents apparently separated when you were 5 years of age. You remained in your mother’s care and had regular contact with your father. Your father remarried soon after. You said you were on good terms with your family, albeit your work was such that you saw them relatively infrequently.
45 You did not experience any significant academic behaviour or disciplinary or social problems at school, and completed your VCE attaining a creditable result.
46 The report of Mr Newton suggested you were able to form a number of age appropriate relationships during your life. You had been an active member of your community and had worked hard in your chosen career.
47 Regarding the background to this offending, you initially said neither you nor your ex-wife acted in any sense as SP’s guardian. Ms Hollingworth addressed me on this concerning statement, your view now having changed as I previously stated.
48 You had expressed remorse to Mr Newton for your offending, and described your involvement in it as self-centred, foolish and blameworthy.
49 Turning to your mental status and assessment results, Mr Newton concluded you were not suffering any mood or anxiety related disorder or adjustment disorder. Your intelligence was, he estimated, in the above-average range or higher. Your personality adjustment was assessed as normal. There was no indication of any psychopathic or antisocial personality traits.
50 Mr Newton concluded you did not reveal any signs of deviant cognitions with regards to sexual behaviour.
51 Turning to your risk for sexual recidivism, Mr Newton considered both the dynamic and stable risk factors relevant to you when reaching his overall conclusion. In his opinion, you were a relatively “low risk” of sexual recidivism. There were no significant dynamic risk factors identified in your case and, further, he noted there was a period of twenty-five years since your offending without any further incidents. I am also aware of this. He concluded your overall risk of recidivism to sexual offending would be very low.
52 Further, in his opinion considering the period of time that had elapsed since your offending, he did not consider it necessary for you to complete the Sex Offenders Program.
53 I accept on all the material before me that your rehabilitation prospects are very good, if not excellent. When sentencing you, I must seek to maximise your rehabilitation prospects.
54 Ms Hollingworth’s primary submission regarding sentence was that you could appropriately be dealt with for your offending by the imposition of a Community Corrections Order without conviction with a work component being the only condition other than the core conditions. I discussed this with her and also heard evidence from a representative of the Office of Corrections in relation to the feasibility of such a disposition, in particular in relation to any conditions attached to it, given your transient lifestyle with the Navy. It would appear Ms Hollingworth’s initial submission that the work component could be transferred interstate was not possible. The ramifications of a work component were discussed at length with Ms Hollingworth. She then obtained further instructions from you, and you confirmed you wished to be considered for a Community Corrections Order.
55 Ms Hollingworth also referred me to Defence Instructions (General) (Exhibit 4) regarding the effect of conviction/non conviction disposition upon serving officers. Ultimately, as I understood it, your superiors would review your position with the Navy following sentence. Ms Hollingworth submitted a conviction may, although she could not be certain, lead to adverse effects upon your employment. Whilst this is a relevant matter for consideration, this is but one of the many matters I must take into account as part of the instinctive synthesis when sentencing.
56 Ms Smith, who appeared on behalf of the prosecution, also prepared very helpful written submissions. She correctly observed that Courts regard sexual offending against children as being very serious attracting the imposition of severe sentences. No doubt she is correct about that and such has often been stated by Courts many times and over many, many years.
57 I am also obliged, pursuant to s5(2)(b) of the Sentencing Act 1991 to have regard to current sentencing practices, as defined by the Courts. See R v MJR [2002] NSWCCA 129 and Stalio v R [2012] VSCA 120.
58 Ms Smith observed, correctly in my opinion, that general deterrence was an important sentencing consideration for offences such as these.
59 I turn to the delay between your offending behaviour and you being sentenced for it by this Court, of approximately twenty-five years. There is no doubt the fact that you have not committed any offences and have got on with your life in a constructive way since your offending, is a relevant sentencing consideration in your favour (See R v MWH [2001] VSCA 196). However, I note the cautionary words of her Honour Court of Appeal Justice Neave in R v Kovac [2006] VSCA 229 (para 28), being mindful of course of the factual differences between you and the appellant in Kovac. Recently there has also been further consideration of delay when dealing with child sex cases in DPP v CP [2008] VSCA 215 and Murray v R [2011] VSCA 232. There is, as has often been stated by the Courts, a tension when sentencing between the seriousness of the offending behaviour and the transformation of an accused since that behaviour.
60 I was provided with a number of cases by the prosecution of authorities and also sentencing snapshots relevant to the offence of indecent assault. Whilst there is no doubt other cases or authorities and snapshots are of assistance, it is difficult to compare cases factually, as facts vary enormously case to case, as do matters personal to offenders. Further, statistics do not provide detail relevant to each offender/offending. The principles stated in this material I do, however, find particularly helpful.
61 Ms Smith submitted that the disposition sought by Ms Hollingworth of a without conviction Community Corrections Order was, from the prosecution perspective, within the range of appropriate dispositions.
62 Whilst Judges are not bound to accept prosecution concessions, see R v Gallagher (1991) 23 NSWLR 220 and Postiglione v The Queen (1997) 145 ALR 408, I am conscious of that concession.
63 Ultimately, I must impose a sentence that I consider appropriate taking into account all relevant sentencing considerations.
64 As well as matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this involving sexual offending involving children.
65 I consider there is an element of specific deterrence required when sentencing you as your offending occurred on two separate occasions, with a significant period of time between Charges 1 and 2. Having said that, I am also aware you do not have any prior Court appearances and nothing subsequent to this offending. The need for specific deterrence whilst relevant need not loom large in the sentencing process.
66 I must also consider the question of protection of members of the community from you and bear in mind the likelihood of your re-offending. I am comforted by the conclusion of Mr Newton that you are a very low risk of sexual re-offending. Further, in his opinion, you did not need to participate in the Sex Offender Program.
67 I am called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
68 I have, as I discussed during the plea hearing, real concerns about the appropriateness of a Community Corrections Order for your offending, and in particular whether such an Order be without conviction. Despite my reservations, I arranged to have you assessed for such an Order to enable all sentencing options to be placed before me.
69 I have received a report from Richard Temple-Camp, the Community Corrections Officer, dated 10 May 2013, who assessed you pursuant to my request.
70 You were assessed as suitable for a Community Corrections Order with conditions of unpaid community work, a treatment and rehabilitation condition, specifically offending behaviour program, and a supervision condition. The author was aware of the evidence given before me by his co-worker and confirmed that the work component could not be transferred interstate. Despite this, you were adamant you would relocate to Victoria to complete and comply with this sentence if it was imposed. You also confirmed that during your plea hearing. You also agreed to participate as directed in the Sex Offender Program, if such was considered necessary.
71 I am conscious you were assessed as suitable for such an Order. The question is for me, is such an Order, however, appropriate?
72 There is no doubt I regard your offending as very serious indeed, with a number of aggravating features.
73 When determining whether there should be a conviction recorded for your offending, I note s8(1) Sentencing Act 1991. The legislation sets out a number of circumstances I must consider when determining whether or not to record a conviction. That list is not exhaustive. Whilst I accept your offending was many years ago, that you do not have any prior or subsequent convictions, and have worked over the ensuing years, also the possible impact of a conviction on your employment, there is also the nature and seriousness of your sexual offending against a minor, with a number of aggravating features.
74 I am conscious and have carefully considered that the recording of a conviction may hinder your employment prospects and be a permanent mark on your character. There was, however, a considerable age difference between yourself and SP and you made the advances. You were in a position of responsibility with SP. There are two charges of increasing gravity and a discussion by Ms Hayes with you about your behaviour prior to you committing Charge 2. When considering whether or not a conviction should be recorded regarding sexual offences, I have had regard to R v Tate [2012 VSCA 127 and the principles stated therein which I found very helpful.
75 Ultimately, I have concluded I do not consider a non-conviction would adequately reflect all sentencing considerations.
76 I have given the appropriate disposition in your case a lot of thought, being aware of the Report from Mr Temple-Camp that you are suitable for a Community Corrections Order..
77 In determining whether or not a suspended sentence is the appropriate disposition in your case, I have taken into account s.27(1A) and s.27(3). Further, I taken into account that imprisonment should always be the last resort of the Court.
78 In my opinion, however, the only appropriate sentence is one which involves a term of imprisonment. In my opinion, it is appropriate such term be wholly suspended.
79 I sentence you as follows.
80 On Charge 1 you are convicted and sentenced to 3 months’ imprisonment.
81 On Charge 2 you are convicted and sentenced to 4 months imprisonment.
82 Charge 2 is the base sentence, and I direct that 1 month of Charge 1 be served cumulatively upon Charge 2.
83 That results in a total effective sentence of 5 months' imprisonment . I direct that the total of that sentence, that is, the entire 5 months of that sentence, be wholly suspended for a period of 18 months from today’s date.
84 What that means in terms that I hope you follow, because that is what the legislation says how I have to say it, you must not, within the next 18 months, commit any offence punishable by imprisonment whether inside or outside Victoria, or you will breach that suspended sentence and will return before me to be sentenced again on these two charges. I should warn you, to avoid being required to serve the 5 months that was hanging over your head effectively you would need to show exceptional circumstances that have arisen since I have made the order today. That is a very high bar, to use perhaps a sporting high jump term, but I hope that is in language you understand as I am obliged to explain it in language that a person understands, according to the Act. It will be very hard to find exceptional circumstances in your case, I would have thought. So be very careful, just so you know, offences such as driving whilst disqualified might, I am not sure what the penalty is now, there was a recent change, but that does carry with it a potential gaol term. You have just got to be careful. I have no doubt though, as best I can, you will not be back before me.
85 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these two charges following jury verdict, I would have sentenced you to a term of imprisonment of 2 years 6 months and I would have set a non-parole period of 18 months that you would have had to actually serve.
86 Should I need to revisit this sentence in the future, which I hope I do not, pursuant to s18(4) Sentencing Act 1991, you have not spent any days in custody by way of pre-sentence detention.
87 As previously stated, following your plea of guilty in relation to these offences, you are required to be registered pursuant to the Sex Offenders Registration Act 2004 for 15 years, and such is mandatory. My Associate, Ms Jackson, in just a moment will approach with the documents that tell you what that means, what the Registration is all about. She will ask you to sign for those documents, simply acknowledging receipt of them. You are not being asked if you want to be on the Register, that is not the issue, I have made that order. But if you do want to sign it you do not have to, it is her job to ask you to sign it.
88 The prosecution made application for a forensic sample pursuant to s464ZF. Ms Hollingworth consented to the making of that order on your behalf. I make the order in the terms sought based on the seriousness of your offending. It will be for a saliva sample. I must advise you the authorities may use reasonable force in order to obtain that sample.
89 Any further matters or orders?
90 MR WILKINSON: No, Your Honour.
91 HER HONOUR: Thank you, just have a seat for the moment please, NC.
92 HER HONOUR: Very well, anything require clarification?
93 COUNSEL: No, Your Honour.
94 HER HONOUR: Thank you both.
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