Director of Public Prosecutions v Newton (a pseudonym)
[2023] VCC 782
•10 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL JURISDICTION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD NEWTON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 26 April 2023 |
DATE OF SENTENCE: | 10 May 2023 |
CASE MAY BE CITED AS: | DPP v Newton (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 782 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Sexual assault of child under 16
Legislation Cited:
Cases Cited:
Sentence:2 years' imprisonment, 14 months non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Plummer | Office of Public Prosecutions |
For the Accused | Ms A. Roodenburg | Dribbin & Brown Criminal Lawyers |
HIS HONOUR:
1Richard Newton[1], you have pleaded guilty to two offences of sexual assault of a child under the age of 16. Each offence carries a maximum term of imprisonment of 10 years.
[1]1 Richard Newton is a pseudonym.
2The victim of your offending was your then three-year-old granddaughter. The offending occurred between 1 November 2021 and 25 December 2021.
3The facts briefly are that during that period of some seven weeks in November and December 2021 there were a number of occasions upon which you and your wife babysat your granddaughter whilst her parents were working. On four occasions, the subject of Charge 1, you took advantage of the absence of your wife from the room in which you were looking after your granddaughter and you touched your granddaughter on her vagina on the outside of her underwear.
4In relation to Charge 2 there was one additional occasion upon which you touched your granddaughter's vagina, this time under her underwear.
5In early January your granddaughter told her father what you had done to her. Her father then alerted others and, ultimately, on 3 January your wife asked you directly if you had touched your granddaughter inappropriately. You admitted to your wife that you had done so four or five times over a couple of months, including once inside her underwear.
6On the following day you went to your local Police Station and reported that you had committed those offences. You were interviewed by police and you made what seemed to me to be frank admissions to your offending conduct.
7There is no victim impact statement.
8You have prior convictions, all of which were dealt with on one occasion in May 1996 when you were sentenced to a 12-month suspended sentence, a community-based order and fines for offences that were committed upon an eight-year-old female who was also a relative.
9On that occasion your counsel was able to persuade His Honour Judge Barnett that you were unlikely to offend again and you were sentenced on that basis by His Honour. Albeit that there is a substantial gap between that offending and the offending the subject of this indictment, that assessment by His Honour has proved to be wrong.
10The community-based order upon which you were placed as part of the sentencing order involved, amongst other things, the requirement that you undergo treatment to deal with your sexual offending.
11Your counsel provided me with an outline of submissions dated 24 April 2023 along with a report of Dr Loretta Evans, neuropsychologist, dated
1 August 2022, a letter from your general practitioner, the health records of your wife, a letter from your wife and a report in the form of a letter from
Mr Peter Hanley, psychologist.12The history of your early life and education as set out in your counsel's submissions, and indeed in the reports, does not indicate anything particularly remarkable about your working life or your education. It is clear that until the time you retired at the age of 70 you had led an industrious life.
13You suffer from a number of physical health issues as well as some mental health issues involving anxiety and reactive depression.
14I am not persuaded that any of the Verdins principles apply in reduction of sentence; however, it is clear that your physical health issues along with your depression will make your time in custody significantly harder to bear.
15That is coupled with the guilt that you undoubtedly feel for the difficulty that you have placed your wife in. You have been a significant support for her in assisting her with her own physical ailments and assisting to look after her. You will serve your sentence with the knowledge that you will be depriving her of the enjoyment of retirement.
16All of those matters will combine to make your period of incarceration the harder to bear and I take that into account.
17The submissions of your counsel, balanced as they are, accept the seriousness of your offending but urge me to consider that your offending conduct was below the midrange. I am inclined to accept that, albeit that the offending was serious and involved a very serious breach of trust placed upon you by your son and his wife in looking after your granddaughter.
18You also breached your wife's trust in that you offended against your granddaughter in her absence from the room and you took advantage of a very vulnerable three-year-old grandchild. These are serious aspects of your offending, but I am persuaded that the offending falls into the range below the midrange.
19That is of significance in that this offending involves offences which are standard sentence offences, the standard sentence being imprisonment for a period of four years.
20That standard sentence is only a guidepost, and whilst it is incumbent upon me to explain how the sentence relates to that standard sentence it does not require me to impose that sentence upon you.
21Your counsel has urged me to impose a community correction order. I am not persuaded that a community correction order is available to me in the proper exercise of my sentencing discretion.
22Your prior conviction for similar offending requires me to give proper weight to individual deterrence. Although I accept, as your counsel submitted to me, that your age and physical ailments and your remorse significantly reduce the risks of you committing offences of this kind in the future and therefore the need for specific deterrence accordingly.
23The principles of just punishment, of denunciation, of general deterrence and protection of the community militate in favour of a term of imprisonment rather than a community correction order or a combination sentence involving a sentence of in the order of 12 months or less and a community correction order.
24In my judgment a proper exercise of the sentencing discretion requires me to impose a more severe sentence than would be available in combination with a community correction order.
25Nevertheless, I accept that your prospects of rehabilitation are good. I think it is unlikely now that you will offend again. It is certainly unlikely that you will have the opportunity of offending against the particular victim again. You have been, as a result of your conduct, effectively isolated from your family and the victim, unfortunately, not just to your detriment but to the detriment of others. That will weigh heavily on you during your period of incarceration.
26I have been assisted by reference to other court decisions in identifying current sentencing practice. Your counsel drew my attention to a number of cases all of which involved accused persons who were of good character. Nevertheless, that has been of assistance in identifying what is current sentencing practice for offending of this kind.
27The prosecution has tendered an outline of submissions on the plea and has urged me to conclude that a sentence of imprisonment with a non-parole period is required and to conclude that your moral culpability for this offending, which occurred five times, albeit in slightly different circumstances each time, over a period of seven or eight weeks, is high.
28The prosecution accepts that you must get a significant discount of sentence for the acceptance of your criminal responsibility by going to the police and admitting to the offending by your pleas of guilty, which support the contention that you are remorseful.
29It is noteworthy that your pleas of guilty were made at the earliest available opportunity and they were made at a time during the COVID pandemic which gives increased value to the pleas of guilty, all of which militates in favour of a substantial reduction in sentence.
30Doing the best I can to balance the various sentencing considerations, I sentence you as follows.
31Richard Newton, on Charge 1 you are convicted and sentenced to imprisonment for 20 months.
32On Charge 2 you are convicted and sentenced to imprisonment for 20 months.
33The sentence on Charge 1 is the base sentence.
34I order that four months of the sentence on Charge 2 be served cumulatively upon the sentence of 20 months on Charge 1, making a total effective sentence of imprisonment for 24 months.
35I accede to your counsel's submission that, having regard to the various matters in mitigation to which she has referred, in particular your health and the undoubted burden that you will suffer during your period of incarceration as a result of your pleas of guilty and the knowledge that your wife is going to be subjected to increased difficulties by your absence from the home, it is in the interests of justice to impose a non-parole period which is less than 60 per cent of the head sentence.
36In those circumstances I fix a non-parole period of 14 months.
37I declare 14 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed.
38But for your pleas of guilty I would have sentenced you to imprisonment for a period of four years with a non-parole period of two years and eight months.
39You will be subject to the reporting requirements of the Sex Offenders Registration Act for a period of 15 years. You will receive details of those requirements.
40I sentence you as a serious sex offender on each of Charges 1 and 2.
41Are there any other orders that I need make?
42MS ROODENBURG: No, Your Honour.
43HIS HONOUR: No. All right.
44MR LEW: No, Your Honour.
45HIS HONOUR: Thank you.
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