Director of Public Prosecutions v Old

[2020] VCC 1917

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL JURISDICTION

Revised

Not Restricted

Suitable for Publication

GENERAL LIST

CR-20-01010

Indictment No. L10195255.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

KENNETH GEORGE OLD

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JUDGE:	HER HONOUR JUDGE DALZIEL
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2020
DATE OF SENTENCE:	4 December 2020
CASE MAY BE CITED AS:	DPP v OLD
MEDIUM NEUTRAL CITATION:	[2019] VCC 1917

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW

Catchwords:              Sentence – Indecent Assault – Plea of guilty

Sentence:Total effective sentence of 3 years imprisonment, wholly suspended.

Section 6AAA declaration: 5 years imprisonment with a non-parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Piggott	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M. Habib	Nicholas WJ Rolfe & Associates

HER HONOUR:

1Kenneth George Old, you have pleaded guilty to six charges of indecent assault upon a child under the age of 16 years.

2These offences are particularised as having occurred between 25 January 1988 and 24 January 1995.  Between those dates the victim was aged between 6 and 12 years old.  You were 41 years old as at 25 January 1988 and 48 in January 1995.

3At that time you were living in Tongala, near to the property owned by the victim’s family.  You and her family were good friends.  They treated you as one of the family and the victim and her siblings referred to you as Uncle Ken.  You and the victim’s family used to spend time together and they would regularly visit your property for barbecues and other social engagements. At these barbecues you and the adults would be outside having a few drinks and smoking, whilst the children would play football or chasey and other games.

4You had a bedroom set up in your house where the children could stay.  This bedroom had a bunk bed in it.  When the victim and her sisters stayed at your house after the barbecues, their mother would tell them to go to bed and then they went to bed in the bunk room.  The victim always chose the bottom bunk.  Their mother would say good night and return to join the adults and then go home leaving the children at your house overnight.

Charges 1 and 2

5Charges 1 and 2 occurred when the victim was either between six or eight years old.  On this occasion the victim’s family allowed her and her sister to stay overnight at your house.  They had a bath, ate dinner, and you read them a bedtime story.  You had a few drinks and then went to bed.  You woke up in the middle of the night.  You went into the bedroom where the girls were sleeping.  You pulled back the doona of the bed in which the victim was sleeping, and moved her underwear to the side.  You kissed her on the outside of the vagina.  She woke up and was crying.  She jumped out of bed.

6The victim’s memory of this occasion is that she was around eight years old when it occurred.  She remembers that she was in the bottom bunk, and that you came into the bedroom and sat on the bed.  You placed your hand under the doona and touched her between her legs over the top of her nightie.  Her memory is that she pretended to stir in her sleep and rolled over onto her side.

7Your memory is that after you kissed the victim on the outside of her vagina she woke up and was crying.  She jumped out of bed, put the doona around her and you walked her into the lounge room where you sat with her on the couch and held her until she stopped crying.  You asked her if she was okay, and when she had settled down you put her back to bed and she went to sleep.

8I note that the prosecution have charged Charges 1 and 2 on the basis that they occurred on the same occasion, despite the differences between your recollection of this in your interview with the police and the victim’s recollection.

9You told the police that you are ashamed of what you did and that you have regretted it for the rest of your life.

Charge 3

10Charge 3 is based upon your memory rather than an allegation made by the victim.  You told the police that you were in the shower one afternoon when the victim came into the bathroom.  She was looking at you for a minute or so and then her sister came in and they left, leaving the victim in the bathroom with you.

11You told the police that you finished your shower, got out, and dried yourself and went into your bedroom to get dressed.  You were naked in your bedroom when the victim came into your bedroom and was watching you.  This aroused you.  You had an erection and once you had got dressed you hugged to the victim from behind with your erect penis pressing against her back.

Charge 4

12Charge 4 occurred when the victim and one or more of her siblings were visiting you.  You asked the victim to sit on your lap, whilst you and the children were sitting at the kitchen table playing a card game or colouring in.  Whilst she was sitting on your lap you reached under the table and touched her on the vagina over her underwear.

Charge 5

13The victim continued to stay at your home from time to time.  She has memory of an occasion when you came into the bedroom and lay behind her under the covers, spooning her.  She could feel your erection against her bottom.  You placed your fingers inside her underwear and on the outside of her vagina.  These two events give rise to Charge 5.

14The victim recalls the smell of beer and cigarettes on you when you were behind her.

Charge 6

15Charge 6 is another occasion when the victim was in bed in the bunk-bed.  You pulled down her underwear and rubbed your penis against her back.  She remembers that after you left the room she had to pull up her underwear.

16When the victim was 12 years old, she told her mother that she did not like being around you, as you made her feel uncomfortable.  She was concerned for her younger sister who had been starting to spend time at your home.  Following this conversation with her mother, the victim no longer stayed at your home and she no longer visited you as much.  You never touched her again.  The victim’s parents also distanced themselves from you.

17In 2004, a few months after the victim had married, she rang you and had a conversation with you about what you had done. You told her 'I was just loving you' and 'Beautiful girl, it’s okay' and 'But I just loved you'.[1]

[1] Depositions, 29-30.

18Following this, the victim called her parents and told them of the phone call and what had occurred.  Her father drove interstate to be with her.  After her father had left Tongala to go and comfort the victim, you went to her parents' house and gave the victim’s mother a cheque for $10,000.  You told the victim’s mother that this was the result of winning a raffle which you had entered on behalf of the victim.  The victim believed that the money was an acknowledgement of what you had done.  You agree that you provided the money to the victim as some recompense for what you had done.[2]

[2] Depositions, 31.

19After an unintended Facebook request was sent by you to the victim’s brother, the victim decided to report the matter to the police.  She made a statement to the police on 13 December 2018, and took part in a pretext telephone call with you.  In that call you said that you thought you only touched her once, but you said that you would not argue with her.  You said that you remembered kissing her on the vagina.  When the victim asked you about the incident of you standing behind her and feeling your erection against her back, you said that you did not remember this.  You told the victim that your conduct was a stupid drunken thing and that you would regret it to the day you die.

20You were interviewed by the police on 27 March 2019.  You made admissions to the two incidents that you could recalled.

21There was a filing hearing in February 2020, and after several mentions the matter was listed for committal, however it resolved at committal hearing before any witness needed to be called.  The prosecution have conceded that this matter resolved at a relatively early stage and that there are utilitarian benefits of the plea to the victim, to the community and to the court.

22Your conduct has had a significant effect upon the victim and her quality of life.  She writes that she is still triggered by the smell of beer and cigarette smoke from her memory of what you did to her.  Your offending has challenged her relationships with her parents and her friends.  She has tried a number of avenues such as yoga and meditation to cope and has had counselling but she continues to have significant issues regarding her mental health as a consequence of your offending against her.[3]

[3] Victim Impact Statement dated 18 November 2020.

23The victim's mother prepared a victim impact statement in which she described the guilt that she, and her husband, feel about not protecting the victim from you.  They had no idea what was happening to her, but nevertheless as parents they are deeply affected by learning that you offended against their daughter in the way that you did.[4]

[4] Victim Impact Statement dated 20 November 2020.

Personal circumstances

24You are presently 74 years old.  You were born and raised in country Victoria, in what you have described as a caring family.  You left school at 16 years of age and started working with a local stock and station agent.  You have worked in connection with stock and animal husbandry all your working life.  You learnt how to do embryo transfers and were engaged in that work from around 1983 to 1998, working for yourself, and then from 1998 to 2014 working for a vet doing the same type of work.

25After you retired you moved to a property in New South Wales, close to the border with Victoria.

26As to your personal life, you formed friendships with various people, such as with the family of the victim, but you did not form a long-lasting romantic relationship with anyone.  You had two relationships with age appropriate women when you were in your late 20s and early 30s but when these did not work out you did not pursue further relationships.[5]

[5] Psychological Report of Mr Jeffrey Cummins dated 2 October 2020, pp 3-4.

27One of your sisters passed away around three years ago.  You have a brother and sister who are living, and you remain in regular contact with your sister, and intermittent contact with your brother.  You have not told them of these charges, partly out of shame and partly not to burden them with this matter.

28In respect to your current health, you have difficulty with your hearing if there is background noise.  You have consulted a GP for various ailments including psoriatic arthritis, high blood pressure, gout and high cholesterol levels.  You suffered from reflux which has damaged your oesophagus.

29You have no prior convictions.  This is a factor in your favour, as it indicates that you do not have a disregard for the law as a matter of course.  You have been a normal worthy member of society, aside for your criminal offending against the victim.

30There is an indication that alcohol was involved in at least some of the offences, but certainly it cannot be said that you offended because of alcohol abuse.  You still drink beer regularly, but it does not appear that this has made you offend or behave in an anti-social way.

31Your life now is quiet and fairly solitary.  You look after your property and see friends sometimes, but otherwise live a fairly reclusive life.  You told
Mr Cummins that one of your concerns about going to gaol was that you would be obliged to socialise or be in contact with many people, something you have avoided for years now.  I have read the references tendered on your behalf.  That these people have stood by you is an indication that they are genuine friends, and is also an indication of your general good character.

The offending

32As I have noted earlier, your offending has had a profound effect on the wellbeing of the victim.  Your explanation to Mr Cummins acknowledges that even at the time you knew that it was wrong to have any sexual contact with her.[6]

[6] Cummins, p 5.

33An aggravating feature of this offending was the very young age of the victim.  In view of her memory and your degree of uncertainty about her age at the time of the first offending, I will treat the first offence as having occurred when she was around eight years of age.  At that time you were 43 years old.  Furthermore, you were a trusted family friend.  The victim’s parents left her in your care, and you abused this privilege.

34Furthermore, the offending was repeated, which increases your culpability:  each time you had the opportunity to reflect on the wrongness of your conduct and cease, but you persisted.

Plea of guilty

35Your plea of guilty was entered at an early stage, and I accept that it has real utilitarian benefit.  The victim did not have to undergo the stress and emotion of giving evidence.  There were savings to the court’s time, and your plea has facilitated the administration of justice.  In view of the restrictions upon the court’s activities during the COVID-19 pandemic, this factor carries additional weight in mitigation.

Remorse

36I accept that you are remorseful for your offending.  First, there is the plea of guilty.  Secondly, you made admissions to offending against the victim when interviewed by police and admitted to conduct that she did not remember.  You have pleaded guilty to other offending described by her despite not recalling it.  Thirdly, you expressed remorse and shame to Mr Cummins, and you understand how badly the offending has affected the victim.  You told the police that you were ashamed of what you did, and your friends have written of this in their references, also.  Fourthly, when approached by the victim before she went to the police, you did not deny the offending, although your response seems to be a reflection of your disordered thinking about her.  Fifthly, I accept that the $10,000 you gave to the victim was an expression of remorse and acknowledgment of wrongdoing towards her.  Lastly, there is your letter of apology to the victim which seems to me to be sincere.

R v Doran

37Two of the offences to which you have pleaded guilty are founded upon facts that you recalled, and told the police about, rather than the victim’s recollection.  It is a well-established policy of the law to encourage offenders to make full confessions, and when an offence is proved by admissions of the accused this is reflected by mitigating the sentence on the relevant charge.

Risk of offending

38Mr Cummins assessed your risk of re-offending as low, taking into account the STATIC-99 testing and his clinical judgement.  I accept his assessment.  In view of your age and personal circumstances there seems to me to be a low risk of you committing any offence, let alone a sexual offence in the future.  I do not think that deterring you from committing further offences requires any real weight in the sentencing exercise.

Delay

39After the victim contacted you in around 2004 you must have been aware that there was a risk that you would face charges.  This became clearer in
March 2019 when you were interviewed by police.  Charges were filed in February 2020.  I accept that having this matter hanging over your head must have been very stressful for you, particularly with the awareness of the very real prospect of a gaol sentence.

Sentencing Principles

40Sexual offending against children is always repugnant.  Your offending has deeply damaged the victim, and her family.  They will suffer the consequences of your actions always.  A function of sentencing is for the court to express the community’s condemnation of your conduct.  Furthermore, the sentences I impose should deter others from committing such offences, and act as just punishment.

41As I have noted I think there is little prospect of you committing any further offences, and so this factor carries less weight in the sentencing discretion.  I have taken into account the maximum penalty, five years, for each offence.

42The sentences are as follows:

Charge	Sentence	Cumulation
Charge 1	6 months	2 months
Charge 2	2 years	Base
Charge 3	1 year	3 months
Charge 4	6 months	1 month
Charge 5	14 months	3 months
Charge 6	12 months	3 months

43Charge 1, six months; Charge 2, two years; Charge 3, one year; Charge 4, six months; Charge 5, 14 months; Charge 6, 12 months.

44The sentence on Charge 2, which was two years is the base sentence.  The orders for cumulation are as follows:  Charge 1, two months; Charge 3, three months; Charge 4, one month; Charge 5, three months; Charge 6, three months.

TES 3 years

45By my calculations that leads to a total effective sentence of three years' imprisonment.

46In view of the passage of time since these offences, your age and your prospects of rehabilitation, I have decided that the sentencing purposes can be met by the imposition of the above sentences, and then by the suspension of those sentences for a period of three years.

47I am obliged to warn you that if you commit any offence punishable by imprisonment during the period of the suspended sentence, you may be dealt with for breaching the suspended sentence, and the court may order you to serve some of the sentence in custody.

Serious Offender Provisions

48Having ordered a term of imprisonment on Charges 1 and 2, you are then by the operation of s.6B of the Sentencing Act 1991 a serious offender, for the purposes of sentencing on the remaining charges. I note that this is so and direct that this declaration be entered into the records of the court. This declaration means that there is a presumption that each sentenced imposed on Charges 3 to 6 should be served cumulatively. This presumption is subject to the principle of totality. Whilst I must treat protection of the community as the principal sentencing factor, the Prosecution have not submitted that a disproportionate sentence was called for.

49Pursuant to s.34(1)(c) of the Sex Offenders Registration Act 2004, you are subject to a mandatory reporting period for life.

50Are there any other matters, Ms Piggott?

51MS PIGGOTT:  No, Your Honour.

52HER HONOUR:  Mr Habib?

53MR HABIB:  Is Your Honour inclined to provide a 6AAA?

54HER HONOUR: Yes, apologies. Pursuant to s.6AAA of the Sentencing Act had you pleaded not guilty you would have been sentenced to a total effective sentence of five years with a non-parole period of three years.

55MR HABIB:  As the court pleases.

56HER HONOUR:  Now once I adjourn the court the link will remain open for a short time.  Ms Piggott, her instructor and the complainant and the police officers will go into the lobby to allow you, Mr Habib, a chance to speak to your client.  Once you have done, if you could keep it relatively short, you two will leave the meeting and then the prosecution people can remain on the link so that they can speak over the link.

57MR HABIB:  Your Honour, if it assists, as my client is in my instructor's office I can have my conference with the client via phone.  I just enquire whether there will be any documentation my client is required to sign at this stage in relation to the SORA registration.  If that could perhaps be emailed to my instructor so that Mr Old can complete that required paperwork.

58HER HONOUR:  Yes, although - - -

59MR HABIB:  I think he needs to sign a document, yes?

60HER HONOUR:  Mr Habib.  Mr Habib, thank you.  My associate will - - -

61MR HABIB:  Sorry, Your Honour.

62HER HONOUR:  Thank you for the reminder.  My associate will be forwarding the documentation via email and indeed has just done so to your instructor.  Thank you.  So I'll adjourn the court.

63MR HABIB:  As the court please.

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