Director of Public Prosecutions v Neilson

[2016] VCC 158

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01505

DIRECTOR OF PUBLIC PROSECUTIONS

V

JAMES NEILSON

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2015, 16 February 2016
DATE OF SENTENCE:	19 February 2016
CASE MAY BE CITED AS:	DPP v Neilson
MEDIUM NEUTRAL CITATION:	[2016] VCC 158

REASONS FOR SENTENCE
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Subject: Criminal Law – sentence.            

Catchwords: Pleas of guilty to one charge of sexual penetration of a child under 16 while the child was under care, supervision or authority of offender (representative count) and one charge of indecent act with a child under 16 - offending occurred over five months – breach of trust and exploitation of 13 year old girl – offender aged 38 at the time – no similar prior convictions or further offending – chronic alcoholism –stable and responsible employment over many years - loss of job will follow conviction – early plea and genuine remorse. 

Sentence: 3 years and 2 months, with a non-parole period of 18 months.         

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C Sedgwick for plea Mr R Champion further plea	OPP
For the Accused	Mr D. Sala	Doogue Obrien George

HER HONOUR: 

1James Neilson, you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 and one charge of committing an indecent act with a  child under 16.  The maximum penalties for these offences are 15 years' and ten years' imprisonment respectively. 

2The complainant was aged 13 at the time.  You were aged 38.  She lived with her family in the same street as you and you met through the neighbours.  She found she could talk to you easily and began going to your house almost every day after school.  She introduced you to her mother with whom you began a relationship. 

3The complainant's parents' marriage broke down and the complainant moved with her mother to a new house which you located for them.  You visited their house every week for hours, spending time with the complainant, taking her shopping and swimming.  She developed a crush on you.  You would sometimes massage on her back under clothes, on one occasion extending your hand down her lower back, near the top of her buttocks.  

4On one such visit in late 1998, you had been drinking and looking at the complainant in a way which made her feel uncomfortable.  After her mother had gone to bed, you cornered her in the kitchen, using your arms to prevent her from moving away.  She ducked under your arms and then as you continued conversing, you kept getting closer to her.  Eventually, you kissed her forcefully on the lips and she tried to push you away but could not.  You continued to kiss her with your tongue in her mouth.  She then succeeded in pushing you away.  That is Charge 2, committing an indecent act.  She ran to her room and locked the door and you knocked on the door and tried to get in.  Her mother awoke and saw that her daughter was upset but the cause was not disclosed.  

5On an occasion when you picked the complainant up from school, you took her to your mother's house.  Your mother was not home.  The complainant spoke with her mother on the phone and her mother asked her to stay the night there.  You had dinner together, during which you drank alcohol, and you asked her whether she had had sex before.  She told you she had promised her brother that she would not.  You said you wanted to take her to bed and she reiterated her promise to her brother.  You took her to your bedroom and massaged her back until she fell asleep. 

6None of this behaviour is the subject of any charge, nor is another incident where you picked the complainant up from school and took her to a cemetery.  There, you walked around holding her hand and kissing her occasionally.  You returned her to school with a note saying that she had been at the dentist but the school was unhappy about this and called her mother to the school. 

7When the complainant's mother began working night shifts, you began visiting the complainant without her mother knowing.  Sexual activity between you increased at this time, from kissing to fondling her breasts and the top part of her vagina over her clothes.  The complainant did not ask you to stop as she was infatuated with you.  Again, this is not the subject of any charges. 

8There were two occasions between 1 August and 31 December 1998, when you penetrated the complainant's vagina with your fingers and they make up Charge 1, as a representative charge. 

9On the first occasion, whilst lying on the lounge room floor with her, you put your fingers down inside her pants and gradually inserted the tips of your fingers into her vagina, putting them in and out for some minutes.  You did this to her in a similar way on another occasion, sitting on a couch with her after kissing her and touching her breasts.  On other occasions, you placed her hand on your penis, over your jeans and underwear, and moved her hand around your penis.  This is not the subject of any charge but shows the context of the relationship. 

10Meanwhile, you moved to South Australia to work, with the relationship between you and the complainant's mother in an on-and-off status.  When she was 19 or 20, the complainant went to Adelaide and met you and the sexual relationship recommenced.  She confronted you and questioned you about what you had done to her when she was child, but you never really acknowledged it.  The relationship ended a few years later. 

11Four years after that, in 2014, the complainant told her mother the full story of the relationship and her mother said she had suspected it.  In June 2014, the complainant telephoned you and spoke to you in the form of what is known as a pretext conversation, in which you effectively made admissions as to your conduct.  You told her you had been drinking a lot at the time and you knew it was wrong and you took advantage of her.  You said you were sorry and that it was a mistake.  You said similar things to the police about your drinking when you were interviewed but denied any relationship before the complainant was 20.  You admitted to having spent a lot of time alone with her as a child and that for a while, she called you Dad. 

12The agreed prosecution summary set out several other illustrations of the manner in which the complainant was entrusted to your care, supervision and authority by her mother.  In addition to taking her to and from school and having her stay overnight at your mother's house, you would take her swimming, brush her hair and help her with her homework.  Her mother relied on you to go over to the house to check on the complainant while she was at work and told her daughter to call you if anything happened to her while she was at work.  You breached the trust she placed in you, not only in terms of unfaithfulness to her, but by the sexual abuse of her own young daughter. 

13You told the psychologist, Ms Lechner, who assessed you recently, that you were ashamed of what you did and that you understand that it was a breach of trust.  She reported her diagnosis of alcohol use disorder and adjustment disorder with depression and anxiety, with the alcoholism being chronic and long-standing in nature.  There is specifically no diagnosis of paedophilic disorder and Ms Lechner rates your prospects for rehabilitation as being favourable.  She listed your regret and shame as being indicators of this as well as the absence of any other sexual offending and your history of steady employment. 

14I have already noted the maximum penalties for these offences which indicate the seriousness of them.  They deserve the stern condemnation of the court consistent with the community's abhorrence at the exploitation of children and young people who lack the maturity to make sound decisions about sexual activity.  Therefore, the sentence should reflect the need for general deterrence and for specific deterrence to an appropriate extent. 

15The complainant provided a victim impact statement in which she said that the whole event always weighed heavily upon her heart and still does.  She thinks her childhood ended quickly and she was forced to grow up faster than she otherwise would have.  It affected her relationship with her mother because your relationship with her mother was continuing while you were engaging in sexual activity with the complainant.  She has had to keep those events secret and still cannot tell others.  She has continued to try to protect herself from people by not trusting them and she feels she has become cold and heartless as a result.  She says she has had no indication that you regret what happened and does not understand why you did it and whether you knew it was wrong. 

16You are now aged 55, a man of sound intelligence with a good work history, but whose career prospects and perhaps other opportunities in life may have been impeded by heavy drinking over the years.  You have described yourself as a functioning alcoholic.  Over the years, you have made attempts at sustained sobriety including attending Alcoholics Anonymous, but ultimately, despite an extended period of abstinence at one stage, you have continued to drink. 

17You completed secondary school and began a degree at university but left to work with Victoria Police where you remained for 12 years and developed expertise in the fingerprint department.  In 2005, you went to South Australia to pursue the same sort of work and have now been suspended from your job.  You have no prior convictions, and the conviction for these offences will have a serious impact upon you in terms of your career.  You will lose your job and will never be able to work in the field again.  You are well regarded by your colleagues and your work is the central focus of your life as you have no immediate family.  You are single and have not been in a relationship for many years. 

18Imprisonment is the only appropriate disposition and is likely that it will be burdensome for you because of the ongoing depression you suffer and possibly because of your former employment with the police.  It is not being put that this attracts the principles in the decision of Verdins, but it is a matter to be taken into account.  Your early plea means you are entitled to a discount on your sentence for having avoided the need for a trial and for the complainant to have to give evidence.  It is also an indication of remorse, which is an important indicator as well of your prospects for rehabilitation.  Those prospects are very good and I take that into account. 

19Would you stand now, please, Mr Neilson.  

20I sentence you to three years' imprisonment for Charge 1 and six months for Charge 2.  I order that two months of that sentence be served in cumulation on the sentence for Charge 1 resulting in a total effective sentence of three years and two months.  I order that you serve a minimum period of 18 months before being eligible for parole.  That is a relatively short period, taking into account the mitigating factors and the low risk of reoffending given the circumstances in which these offences occurred and the absence of any further offending. 

21The prosecution seeks an order for a forensic sample of saliva to be obtained. You have consented to that through your counsel and I make that order.  I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.  It is mandatory that you be placed on the Sex Offender Register which means that because of the nature and type of the offences you must report your details to the police every year for the rest of your life once you are released from prison.  You will be given a form to sign about that in a moment.  

22If you had pleaded not guilty to these charges, I would have sentenced you to four years' imprisonment with a non-parole period of two years and nine months.  Are there any other matters? 

23MR SALA:  No, Your Honour. 

24MS MOLITA:  No, Your Honour. 

25HER HONOUR:  Thank you. 

26MR SALA:  Perhaps, Your Honour, if I might be excused and I will approach with your associate.

27HER HONOUR:  Certainly. 

28MR SALA:  Thank you, Your Honour. 

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