Director of Public Prosecutions v Newton

[2017] VCC 1111

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

AT BENDIGO
CRIMINAL JURISDICTION

CR-16-02073

DIRECTOR OF PUBLIC PROSECUTIONS

v

TIMOTHY NEWTON

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Bendigo
DATE OF HEARING:	21 August 2017
DATE OF SENTENCE:	14 August 2017
CASE MAY BE CITED AS:	DPP v Newton
MEDIUM NEUTRAL CITATION:	[2017] VCC 1111

REASONS FOR SENTENCE
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Subject:  Sentencing

Catchwords:  Sentencing; historical sexual offending; child under 16; offender not in position of authority or trust; plea of guilty; no prior or subsequent offending

Legislation Cited:     Sentencing Act 1999 s6AAA; Crimes Act 1958 s 464ZF
Cases Cited:
Sentence:                  10 months imprisonment wholly suspended for 12 months

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Solicitor for the Office of Public Prosecutions
For the Accused	Mr R. Kelly	Nicholas Rolfe and Associates

HER HONOUR:

1Timothy Newton, you have pleaded guilty to a charge of sexual penetration of a person aged between ten and 16.

2The maximum penalty for this offence is ten years' imprisonment.  I have taken that into account as an indication of the objective seriousness of such an offence, but as I told you on the day of the plea hearing, in all of the circumstances of this case, you will not be sentenced to any immediate imprisonment.

3This charge arises out of your conduct over a period of some months, more than 30 years ago.  Between 30 April 1984 and 29 April 1985, when you were aged between 20 and 21, you engaged in sexual intercourse with a then
13 year old girl.  I shall not use her name during this sentencing, not out of disrespect but to protect her name against publication.

4When aged about 11 she had moved with her family to the Victorian country town where you lived.  You met her through mutual friends and you would see each other at events, such as at the local football club.  Indeed, you had met and knew her parents.  You would also see her with her friends, in the main street of town, outside the shops.  You would talk to her and her friends, and would show her recognition at the football club.

5On one occasion, when she was with friends outside the local fish and chip shop, you spoke to her softly, asking “why not” come over to your place that night.  That night she snuck out of her home and went to your flat.  You invited her in, led her into your bedroom, and there had sexual intercourse with her on the bed.  This was the first occasion giving rise to this charge.  Afterwards you thanked her and she got dressed and went home.

6Following that occasion, you continued a secret sexual relationship with her that continued for about three months or so.  There are two further occasions specifically outlined in the prosecution opening, which I shall not describe in any detail.  They form part of the representative charge but it is agreed that there were more than three occasions. All occasions involved her coming to your flat. She came voluntarily.There was no physical force used by you at any stage. There was no subterfuge to lure her to your flat.  Nevertheless, you knew at the time that she was a school girl.  You knew she was aged 13; you were aged 20 or 21 at the time.

7After a few months you decided to bring this conduct to an end.  You ceased all direct communication with this girl, although, as you both continued to live in the same country town, you still saw each other at some events.

8She moved away from that town and area when she was aged 16.  You did not see her again until an occasion many years later when she was with her then husband, but as she did not stay in the area, there was no further contact between you until late 2015 where she telephoned you.  Soon afterwards she made a second telephone call to you, by soon afterwards I do not mean the same day, but shortly afterwards in December 2015.  This time, the second time, unbeknownst to you, the call was being recorded - it was a pretext call, in which she chatted with you to elicit admissions of the offending.

9I have listened to the recording of that call, and extracts from it are included in the prosecution opening.  She initially asked what you had thought after her recent call, and you responded that you thought you might be in trouble, and said you had not stopped thinking about it and had been waiting for police to knock on your door.  She implied that she had not told the police.  She said that she was about 13 at the time, and you acknowledged that.  You told her that you had had a lot of time for her, and it was a pity that she was that young, and if it had happened seven years later you and she would probably still be married - that was said with a joking tone.  You said you thought she was very good looking, said you really enjoyed her company, but also said that she could have passed as a 16 year old back then - had a body of a 16 year old, was rather cute. Then you said that you had no regrets.

10Eight days later you were interviewed by police, and during that interview stated that it was a long time ago but you did have, what you called, "Like an affair" with this girl.  You thought it would have been only a half dozen times, there was no force, that she was in love with you and things “just happened”.  You said that after a while you had thought it was not right, and you had put a stop to it, although, you stayed as friends.

11You told police that she used to sneak out from her parent’s place and just had to come across the road.  You said that it had “just happened” after you had been kissing and other stuff in your bedroom.  You admitted to having sexual intercourse with her.  When asked, "How did you know she was 13", you said that you knew her parents pretty well and also that another girl that you know, and I am told was a friend of hers, was the same age.  You admitted that you knew that it was wrong because of her age.  At a later stage you said that you did not know at the time that it was an offence for a 20 or 21 year old to have sex with a 13 year old, but after a while you did, and that is why you put a stop to it.  You said you had not actually thought, at the time, that you were breaking the law.

12You told police you were really embarrassed and ashamed of what you had done, and that you had thought about it over the years and wished it had not happened, but you had not thought that anything would come of it either.  You agreed that it had happened around 1984.

13As I have said, you were interviewed by police in December 2015.  It was not until August 2016 that you were charged.  There was a filing hearing a week later, and then a committal mention, but at a further committal mention on 23 November 2016 you indicated an intention to plead guilty to this charge, thereby avoiding any disputed hearing at committal stage or trial.

14The victim of your offending is now an adult.  She read her victim impact statement at the hearing, in which she described how this offending has impacted upon her life ever since.  She describes her childhood years after these events as being troubled, full of self-hate, self-doubt, her lacking boundaries, and that she felt she was the subject of town gossip. At the age of 16, she felt she could not live there anymore, and moved to Melbourne, which meant away from all of her family and school friends.  Although she got a job and tried to reinvent or recreate her life there, she describes struggling with anxiety.  She married, and has two children, but considers that her marriage and parenting suffered as a result of the psychological consequences from your offending. When her husband was transferred to the regional area where you were still living, for his work, and she bumped into you at the local races, her anxiety led her to move to Melbourne.  She says it precipitated her leaving her marriage.  I have no reason to doubt that, but I do not make a finding of fact that that was the cause or only cause of her marriage ending.

15She says that it is only in recent years that she has re-established some contact with her father and siblings, and that she still has no contact with her mother, believing her mother still to be your friend, although during the hearing I was told that you have not seen her mother for some years.

16The reason that it is criminal offence for an adult, even a relatively young adult, to engage in sexual conduct with a person under 16 is that the law recognises that under that age children are likely to be vulnerable and immature, and need protection from sexual behaviour with adults, whether or not they realise it at the time. This court often hears of the emotional and psychological consequences that can follow, and can take many years to even be recognised, and often even longer to be addressed.  Unfortunately these seem to have been the consequences in this case.

17I accept that there has been real and long lasting emotional and psychological impact on the victim of your offending.  She has apparently undergone psychological treatment.  By eventually reporting this conduct by you to police, she has seen the matter come before a court, and it is to be hoped, for her sake, that this assists her to move on from her self-doubt and anxiety about these events.

18I must and have taken the impact on her into account.  It is not, however, the only factor for me to take into account in deciding your sentence. 

19I must assess both the objective and subjective seriousness of this offending.  Although the offending occurred more than 30 years ago, current community standards and attitudes require unequivocal condemnation of sexual offending against children. The fact that this offending occurred so long ago does not mean that the community does not require people to be brought to account for such conduct.  Sexual offending by an adult against a child is undoubtedly serious as was conceded by your counsel.  The victim of your offending was aged 13 at the time.  The effect of the delay in this matter coming to trial, unfortunately, seems to have impacted on her much more than on you, personally.

20I must also take into account that this is a representative charge and the offending occurred on at least three occasions.  So it was not a single lapse by you, but one that continued for some months.  However, unlike in some cases of this nature, you were not in a position of particular authority or trust, in respect of your victim.  There was no violence or forced used and no deception to lure her to your flat.  You appear to have genuinely liked her, and you did bring this conduct to an end yourself, because you knew it was wrong to have a sexual relationship with a person of her age.

21At the time you were aged 20 to 21, which was some seven years older than her but you were still relatively young yourself.  Had the case come before a court at that stage, you would have been sentenced as a young - at 20 - or youthful at 21 - offender, which would have attracted a sentencing priority of your rehabilitation.

22I assess the offending as objectively serious, as any sexual penetration of a child by an adult would be.  And as a representative charge, I cannot regard it as a single isolated and immediately regretted incident.  However, due to all of the other factors I have mentioned, it was not approaching the more serious range of instances of this offence.  It nevertheless calls for a sentence which conveys community denunciation of offending of this nature, and general deterrence - that is, to send a message to others who may be tempted that this type of offending will attract stern punishment.

23I have already referred to your cooperation and extensive admissions to police, and to your early plea of guilty.  These entitle you to significant leniency in your sentence.  The plea of guilty and indeed, the cooperation with police, carry utilitarian value in saving the community the time and cost of further police investigation and of disputed hearings.  But also, importantly, it saves the victim of your offending the stress of having to give evidence, either at a committal hearing or before a jury in a trial, being questioned in details about events that are likely to be very stressful to have recall in front of strangers.

24Your plea of guilty also indicates your acceptance and acknowledgement of your criminal responsibility for this offending.  In your case I also take the plea of guilty to reflect genuine remorse, which you have also expressed to others and when interviewed by police.

25I have given considerable leniency for your plea of guilty in these circumstances, and after I have imposed sentence I shall tell you what your sentence would have been, had you been found guilty after a trial of these offences or of this offence, rather than having pleaded guilty.

26There is, however, still a need for general deterrence and community denunciation of this conduct and in my view those are the principle sentencing purposes in this case.

27I turn now to your personal circumstances.  You are now aged 53, and still live in the same regional area where you grew up, and where you did when this offending occurred, although no longer in that town.  Your parents operated a dairy farm for many years, and although now retired they still live in that area, as do you. 

28You left school during Year 10 and have worked ever since, at first on dairy farm, then at a piggery, and then started work at a milk factory where, although, you left to work elsewhere in the meantime, you returned and have now been employed, overall, for some 30 years.  You also do some extra truck driving for a friend on a casual basis.

29You apparently moved out of home aged 19 and were living, initially, with a girlfriend.  About a year later you moved to the country town where this offending occurred, and where you remained until about nine years ago.  You married in 2000 but that marriage ended, I am told, in about 2003, without producing any children.  You subsequently formed another relationship, about ten years ago, and you and that partner have lived together ever since, and together you moved back to where your parents still live.  You and your partner have your own home.  She has three children from a previous relationship who lived with you as teenagers, but are all now living independently.  You are described as having been a good stepfather to them.

30You come before this court with no prior criminal record and indeed none since this offending.  At your age this is significantly to your credit.  In cases of historical sexual offending, it is often otherwise good character that has enabled the offender to be trusted with access to the child or children that they abused,  such as in cases where there are teachers or clergy or other trusted people minding children.  This is not a case such as that.  Although you knew your victim’s parents, you were in no particular position of authority or trust towards her. I also note that although not a single isolated occasion, your offending lasted a relatively short period and was ceased by you.  In the circumstances I regard your otherwise good character to be a factor to be given considerable weight.

31Unlike so many people who come before this and other courts, you have no history of using illicit drugs, excessive use of alcohol, nor any underlying personality disorder or significant psychological condition.  I say unlike so many other people who come before the court, because those are often factors that contribute to or precipitate offending.

32You were assessed by Ms Cidoni, a consultant psychologist, early this year for this case.  On cognitive testing you performed in the low-average range, with some aspects stronger and others weaker.  You showed current psychological turmoil and discomfort, feeling anxious and worried, with concentration difficulties, but this was attributed to your experiencing what is called ‘situational stress” - in other words, stress relating to this case and your anticipation of it.  Some of that stress was also through having to tell people close to you of the circumstances and that the case was coming up. Personality testing indicated no evidence of a personality disorder. 

33Ms Cidoni applied assessment tools which indicated that you are within the low risk category for future sexual offending, and there was no evidence of sexual deviation.

34In light of you having no other criminal history, no risk factors from substance abuse, no personality disorder or significant mental health disorder, and noting the assessment of low risk of future sexual offending, I consider that specific deterrence is of minimal, if any, role as a sentencing factor in this case.  That means that the sentence need not carry much weight in trying to deter you from any further similar offending.

35I have read a number of personal references.  One was from your partner who was present in court to support you, and it is clear that the revelation of this offending in your past has been particularly stressful and embarrassing, and it will have put stress on your relationship.  She describes you as being a wonderful stepfather to her three children, who had lived with you and her from their teens. She describes you as a wonderful partner and a hard worker, sometimes doing two jobs to provide a good home, and that you have also contributed financially to her daughter attending university, which she could not have afforded without your contribution.  She describes you also giving support to her father, and particularly in a particular activity of his to which you give your time freely.

36There were also references from longstanding friends, some of whom are connected with your employment, or even in the role of employer.  One was from a friend who is also in a senior position at the factory where you have been employed for so long, another from a friend who also employs you on a causal basis as a truck driver. Another friend and co-worker who has known you for some 30 years tells not only of your personal qualities of reliability and honesty, but your particular skills and mechanical aptitude, which have been, he says, a valuable asset where you are employed.

37It cannot have been easy for you to reveal this offending from your past to any of these people, and I accept that it has caused you great humiliation and embarrassment, and that your expressions of deep regret have been genuine.  It was pointed out by the prosecutor that these matters are likely to have become widely known because of the nature of the regional community in which you live.

38I have already said that delay in this offending coming to light does not mean lesser the need for your sentence to reflect community condemnation of sexual offending against a child.  The intervening years, unfortunately, seem to have impacted, as I have said, more seriously on your victim than on you.  It cannot be said that the delay has meant that you have been burdened, for all of that period, by having the threat of discovery hanging over you. However, I accept that since December 2015, when you were interviewed by police, you have been living with that stress.  It seems, also, that your comments to your victim in the pretext call reflected that you were still thinking at that stage of consequences to yourself, rather than to her.  Your comment that you did not regret what had occurred, on your comments to her and to police that she looked 16 or had the body of a 16 year old, did not reflect much insight at the time into the gravity of this offending.

39However, I am told that you were not saying that to deny that you knew she was younger, but so as to not upset her or provoke her into reporting the matter to police.  This was a very poor response at the time, but I accept that you were very surprised by the contact from her and indeed, in the pretext call, you had been driving and pulled over and did not have time to think about it further or how to react.

40While the delay does not decrease the seriousness of the offending itself, it has enabled you to show that not only did you cease this offending of your own accord, but you went on to establish yourself as a hardworking, responsible and contributing member of the community.  The intervening 32 years reflect that this was a relatively short lived period of offending by you, when you were a youthful offender who realised that what he was doing was wrong, brought it to an end, and who has not offended in any way since.

41I was urged by your counsel to impose a non-custodial sentence, either by way of a wholly suspended sentence or a community corrections order.  Were this offending to have been committed in the last three or so years, a suspended sentence would not be available.  However, there is such power in the court because that sentence was available at the time of the offending.

42Sentencing principles, as already mentioned, of general deterrence and denunciation of offending of this nature, are in my view the primary sentencing purposes in this case.  There is no need for rehabilitative measures as you have lived a law abiding, responsible life for more than 30 years since the offending, and have been a well functioning, contributing member of the community.

43You do not suffer any underlying significant psychological or personal disorder, nor any addictions which require treatment to prevent any further offending or indeed, to re-establish you in a stable lifestyle.  Although you were found to be suffering some symptoms of anxiety when assessed by Ms Cidoni, this was attributed to your predicament in facing these charges, rather than any other aspect of your life. It is therefore not necessary for your sentence to promote rehabilitation, because you have done that yourself over the last 32 years, having terminated the offending conduct yourself and never repeated it with the same or any other person.

44I am required to impose a sentence no more severe than is necessary to meet sentencing principles in the particular case.  I have considered whether a community corrections order would be sufficient.  The only condition which I would impose, would be of unpaid community work, as no rehabilitative or therapeutic conditions would be necessary, nor any supervision.

45However, in my view, in order to sufficiently convey the sentencing priorities of general deterrence and community denunciation, the appropriate sentence in this case is for a term of imprisonment, which will be wholly suspended.  Current sentencing practice in relation to sexual offending against children will usually require a term of imprisonment and some to be served, to adequately convey community denunciation and general deterrence.  In the circumstances that I have already outlined, I am of the view that it is appropriate that it be wholly suspended.  That means that you should not have to spend any time actually in custody, but it will stand as a term of imprisonment on your record.  You will also be a registered sex offender and need to report for 15 years.  That occurs by operation of the legislation and Parliament has left no discretion to judges about that.

46Stand up, please, now, Mr Newton.

47Timothy Newton, on the charge of sexually penetrating a person between ages ten and 16, you are convicted and sentenced to a term of imprisonment of ten months.  I direct that that sentenced be wholly suspended for a period of 12 months.

48I must explain to you how this operates and what it means.  As I have said, it will stand as a term of imprisonment on your criminal record, but you will not need to serve any time actually in prison, provided that during the period it is suspended, that is 12 months starting today, you do not commit any further offence which could be punished by imprisonment.  That includes not only sexual offences but any offence of dishonesty, such as theft, violence, or many other matters.  As you have no criminal record of any other offending, I have no reason to believe that you would offend in the next 12 months, but you must understand that if you were to commit any such offence then that would constitute a breach of this suspended sentence, and you could expect to be brought back before me. Then, unless exceptional circumstances have arisen after today which would make it unjust, you would be required to serve the whole of the actual sentence.  In other words, the sentence of ten months would be restored and have to be served, unless I found exceptional circumstances had arisen which would make it unjust.

49Now I must ask you at this stage, do you understand the consequences of that?

50OFFENDER:  Yes, Your Honour.

51HER HONOUR:  I state, as I must, what your sentence would have been, but for the plea of guilty.  As usual, this is artificial, especially as this is a representative charge.  But if you had not pleaded guilty but been found guilty of this charge after a trial, and if all other circumstances had been the same, I would have imposed a sentence of two years' imprisonment, with a non-parole period of 12 months.

52I was asked to make a forensic sample order, that is to enable your DNA to be placed on the state’s database.  I need it clarified whether this charge comes within the mandatory ones for the making of this order.  If not, I am not inclined to make the order, but I did not have a chance to look up whether this is mandatory.

53MR CORDY:  Just pardon me a moment, Your Honour.

54HER HONOUR:  Yes.

55MR CORDY:  I'll just double check that, Your Honour, while
Your Honour's associate deals with the ‑ ‑ ‑

56HER HONOUR:  Yes.

57MR CORDY:  ‑ ‑ ‑ sex offender registration.

58HER HONOUR:  Yes.  Yes, that was coming next.

59MR CORDY:  Yes.

60HER HONOUR:  The documentations has been prepared.

61MR CORDY:  I'll just have Mr Boyd Wilson check that and whether that is - if it is, whether it's a retrospective operation, so.

62HER HONOUR:  That's ‑ ‑ ‑

63MR CORDY:  Thank you.  And ‑ ‑ ‑

64HER HONOUR:  That legislation didn't, in fact, exist at the time of this offending.

65MR CORDY:  That's right.

66HER HONOUR:  But it's changed a couple of time since.

67MR CORDY:  Yes.

68HER HONOUR:  And I'm not sure about whether it catches the retrospective charge or not.

69MR CORDY:  Yes.

70HER HONOUR:  While your instructor's checking that, I'll deal with the ‑ ‑ ‑

71MR CORDY:  Sex offender registration.

72HER HONOUR:  ‑ ‑ ‑ Sex Offender Registration Act provisions.  As I have said already, Mr Newton, the operation of that legislation does not give me any discretion.  You will be placed on the register of sex offenders and required to report for 15 years.  I am signing the notice of that now.  That will be brought to you by my associate and you will be asked to - or first, I suppose, checked by Mr Kelly.  But you are asked to sign it to acknowledge you have received that notice.  As I understand it, you are required to report to a police station within seven days of today for your first reporting, and you will be given further directions then.

73You can take a seat, Mr Newton, while we just clarify about the 464ZF order.

74MR CORDY:  We're just having that enquiry made now, Your Honour.

75HER HONOUR:  All right.

76MR CORDY:  While that's being made, can I draw Your Honour's attention to a slight error in ‑ ‑ ‑

77HER HONOUR:  Did I?

78MR CORDY:  ‑ ‑ ‑ the factual scenario.

79HER HONOUR:  What?

80MR CORDY:  It's one that should be corrected in Your Honour's sentencing remarks.

81HER HONOUR:  All right.

82MR CORDY:  It relates to the pretext call, Your Honour.  Your Honour, indicated that the pretext telephone call was recorded by police.  That is not correct, it was recorded by the complainant.  So I would ask Your Honour to correct it.  It mightn't seem like much of a big deal to ‑ ‑ ‑

83HER HONOUR:  All right, if you both agree that's so I'll correct it.

84MR KELLY:  I agree with that.

85HER HONOUR:  But I was invited to listen and the initial words were from the SOCIT member.

86MR CORDY:  But what happens is, they leave.

87HER HONOUR:  They leave, I see.

88MR CORDY:  Yes.

89HER HONOUR:  I see.

90MR CORDY:  Yes.

91HER HONOUR:  All right, I hadn't ‑ ‑ ‑

92MR CORDY:  Yes.

93HER HONOUR:  I ‑ ‑ ‑

94MR CORDY:  And it's important investigative tool and it needs to be ‑ ‑ ‑

95HER HONOUR:  I'm not criticising it as an investigative tool, as such, but on being asked to listen, I did listen to the recording.

96MR CORDY:  Yes.

97HER HONOUR:  And it commenced with the SOCIT member ‑ ‑ ‑

98MR CORDY:  The practice ‑ ‑ ‑

99HER HONOUR:  ‑ ‑ ‑ setting it up.

100MR CORDY:  The practice, Your Honour, is for police to leave because to do otherwise would be breaching Commonwealth law, so.

101HER HONOUR:  All right.

102MR CORDY:  Yes.

103HER HONOUR:  When the sentencing - I'll withdraw that expression that it was recorded by police.

104MR KELLY:  Yes, Your Honour.

105HER HONOUR:  And when the sentencing remarks come through to revise I will correct them.

106MR CORDY:  Thank you, Your Honour, I'm just trying to ‑ ‑ ‑

107HER HONOUR:  That was my misapprehension because of what I listened to.

108MR CORDY:  It's the prosecution submission that this is not mandatory, Your Honour.

109HER HONOUR:  Not mandatory.  If you want to be heard on why I should make it I'll let you be but ‑ ‑ ‑

110MR CORDY:  No, I understand, perfectly, the rationale behind Your Honour's decision.

111HER HONOUR:  Well it seems to me - the rationale of putting someone's DNA on the database is to detect further ‑ ‑ ‑

112MR CORDY:  Yes.

113HER HONOUR:  Both the nature of this matter, but the 30 years that's passed, and the lack of prior or subsequent offences ‑ ‑ ‑

114MR CORDY:  Yes.

115HER HONOUR:  ‑ ‑ ‑ is in my view a reason not to order this be taken in this case.

116MR CORDY:  Yes, there are some old cases on recidivism, Your Honour, that indicate that that's the underlying purpose in relation to this.  So I've got no submissions to make, Your Honour.

117HER HONOUR:  All right.  Well in that case the applications been made but I decline to make an order ‑ ‑ ‑

118MR CORDY:  Yes, Your Honour.

119MR KELLY:  Yes, Your Honour.

120HER HONOUR:  ‑ ‑ ‑ for a forensic sample.  I think that's all that needs to be covered on this matter.

121MR KELLY:  Yes, Your Honour.

122HER HONOUR:  All right.  I will, again, stand the court down for a short period and then resume with - there is another matter.  Not yours, Mr Kelly.

123MR KELLY:  Yes, Your Honour.

124(At this stage the court proceeded with another matter.)

125HER HONOUR:  I have just realised, although we don't have the visual up.

126MR CORDY:  No.

127HER HONOUR:  We have (indistinct words) at the end of the video link.  We'll now disconnect the video link, this is the end of the sentencing of Mr Newton.  Thank you.

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