Director of Public Prosecutions v Owens

[2015] VCC 555

Pages 1 - 12   IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00036

DIRECTOR OF PUBLIC PROSECUTIONS

v

LAWRENCE OWENS (A pseudonym) 

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial January 21 - 28 2015 Plea April 1 2015
DATE OF SENTENCE:	1 May 2015
CASE MAY BE CITED AS:	DPP v Owens
MEDIUM NEUTRAL CITATION:	[2015] VCC 555

REASONS FOR SENTENCE
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Subject:
Catchwords:  Sexual penetration 10-16
Legislation Cited:
Cases Cited:
Sentence:  7 1/2 years imprisonment.
  Non-parole 5 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F Pace
For the Offender	Ms D Lamovie

HIS HONOUR: 

1In these sentencing remarks, I refer to you by a pseudonym Lawrence Owens.  That is done to protect not only your identity, but most importantly, the identity of your victim.

2After a short trial in this court at Bendigo, a jury has convicted you of the following offences:

3One charge of Indecent Assault (Charge 1), on a person under your care supervision or authority for which the maximum sentence is five (5) years imprisonment;

4Three charges of taking part in an act of sexual penetration with a person of or above the age of 10, but under the age of 16, whilst the person was under your care supervision or authority (Charges 2, 4 and 7), for which the maximum sentence is fifteen (15) years imprisonment;

5One charge of indecent act with a child under 16, (Charge 3) for which the maximum sentence is ten (10) years imprisonment; and,

6One charge of attempted sexual penetration with a child under 16, whilst the person was under your care, supervision or authority (Charge 5), for which the maximum sentence is ten (10) years imprisonment;

7As can be seen from the maximum sentences proscribed by the Parliament, it regards this kind of offending as very serious.

8You have prior convictions for having committed sexual offences.  Those prior convictions are relevant because they enliven various legislative provisions which I must have regard to in arriving at an appropriate sentence.

9In November 1988, you were convicted in the Northern District Criminal Court in South Australia on two counts of indecent assault.  You were sentenced to a term of imprisonment of three years on each count, concurrent and a non-parole period of one year was fixed.

10Further, subsequent to the offending for which I must sentence you, but before your trial on these charges, in 2009, you were convicted in this state on a charge of indecent assault on a child under the age of 16.  You were sentenced to undergo a Community Based Order for 18 months.  No term of imprisonment was then imposed..

11Because of prior relevant convictions, you now fall to be sentenced on each charge as a serious sexual offender within s.6B(2) of the Sentencing Act 1991, which I shall hereafter refer to as (“the Act”).  The convictions on the two counts of indecent assault in South Australia for which you received a term of imprisonment, are sexual offences for the purposes of Part 2A of the Act by virtue of the operation of sub-paragraph 1(g) of Schedule 1 of the Act.

12Because you fall for sentence as a serious sexual offender, the nature of the subsequent offending is also relevant to a consideration of the sentence I impose because I must regard the protection of the public as the most important factor in arriving at the sentence imposed.

13I turn to the circumstances of your offending.

14The prosecution case which must be taken to have been accepted by the jury may be briefly summarised as follows.

15You were born on 21 February 1955 and you are now 60 years of age.  In 1991, through mutual friends, you met the complainant’s mother.  By about mid 1991, you had commenced a sexual relationship with her. 

16The complainant was born on 25 March 1980 and so he was then aged about 11 years.

17The complainant’s mother was employed as a nurse in aged care.  She worked different shifts.  Charges 1 and 2 occurred on an occasion referred to in the trial as the “Darts Night”.  The complainant’s mother went to work night shift leaving the complainant in your care.  You were thus in a position of trust at the time of the commission of these offences and your offending was a gross breach of that trust.

18You attended with the complainant at a hotel where you consumed alcohol and played darts.  After the darts finished, you returned home with the complainant who went to his bedroom.  You entered the bedroom whilst holding a common table knife which you held against the complainant’s stomach compelling him to come into his mother’s bedroom and undress you and then himself.   You  grabbed hold of his hand and, placing it on your penis, you had him rub your penis with his hand.  (Charge 1 indecent assault).

19You then inserted your penis into the complainant’s mouth whilst you held his head and you continued to penetrate his mouth for a period of time.  (Charge 2 sexual penetration of a child aged between 10 and 16)

20At some point, you ejaculated, although it is unclear precisely when this occurred.

21The remaining charges of which you were convicted occurred after you had participated in a game of cricket which the complainant also attended whilst in your care.  You attended a hotel after the cricket and you took the complainant with you.  You were affected by alcohol.

22Whilst the complainant was in the lounge room watching television, you entered the room holding a wooden spoon.  By forcing the wooden spoon into the complainant’s stomach, you demanded he go into his mother’s bedroom where you required him to undress you and you partially undressed him.  You pushed him onto the bed and you caused the complainant to masturbate you.  (Charge 3 Indecent Act with a child aged between 10 and 16)

23You then forced the complainant’s head down to your penis which you inserted into the complainant’s mouth.  (Charge 4 sexual penetration of a child aged between 10 and 16)

24You then positioned yourself behind the complainant and attempted to penetrate his anus with your penis. (Charge 5 attempted sexual penetration of a child aged between 10 and 16)

25I directed that an acquittal be entered in respect of Charge 6 on the indictment, because in his evidence the complainant gave no evidence to support that charge.

26Having at first unsuccessfully tried to penetrate the complainant’s anus with your penis, after a short time, you again tried and succeeded in penetrating him anally.  You ejaculated on the complainant, although it is unclear when this occurred.  (Charge 7 sexual penetration of a child aged between 10 and 16)

27The complainant then left the room and had a shower.  You entered the bathroom and showered with him. 

28At trial, you did not give evidence as is your right.  However, the jury was shown a record of interview conducted with you in which you denied the charges.  You relied upon your Record of Interview as your evidence of denial of the charges.  The jury obviously accepted the evidence of the complainant.  You have shown no remorse for your actions.  Whilst you cannot be punished for having gone to trial on these charges in the exercise of your right, equally you cannot receive the benefit of any reduction in sentence that would usually occur, had you pleaded guilty.

29I turn to your background circumstances.  Your counsel Mr Payne prepared a very helpful outline of submissions and I borrow from it.

30At the time of this offending, you were 36 to 37 years of age.  The victim delayed in making a complaint to police, although he had raised the offending with his mother at an earlier time.  The offending here thus occurred more than 20 years ago.

31You were born into a family of six children, but maintain contact only with a sister who has supported you.  Your parents separated when you were about 10 years of age and you and your brothers and sisters stayed with your father.  You did not get to see your mother again until you were around 19 years of age.  Your mother later told you she wrote to you on a regular basis,    but you never got to see her letters.

32You have described your childhood as tough and your father as a violent man, given to hitting you and your siblings with pieces of wood.  When aged about 13, you were placed in State care as a result of allegations of sexual impropriety by your sister.  You were in State care for around 12 months.  I have regard to this matter only to complete as best I can the full picture of your background.

33You struggled as a school student completing Year 10 before you left.  You were picked on at school because of your appearance wearing glasses as you did because of a lazy eye.  You have no other education.

34Notwithstanding your limited education, you have a reasonably good work record in a range of unskilled and labouring type occupations.  This is to your credit.  I have assumed that the periods that you have had from time to time without employment have been caused by economic factors not your unwillingness to work.

35You married in 1976 and have two children, a boy and a girl now aged 38 and 36 respectively.  Your daughter was the victim of your offending in 1988.  You and your wife separated consequent upon your offending and you have not seen your children since.  You have no other family, but have had some further relationships, but have otherwise remained single since around 1988.

36You own your own home subject to a mortgage.  This is the first home you have ever had.  As you are incarcerated and unable to meet mortgage repayments, it is likely you will lose your home.  That is a consequence of you being gaoled for this offending.

37You were remanded in custody immediately after the jury’s verdict and you have served 93 days pre-sentence detention.  Most of that time has been served at the Melbourne Remand Centre.  You have used your time well working as you do in the sheet metal area.  You have been isolated receiving no visits other than professional visits.  Only your sister and a nephew are aware you are in prison.  Your sister phones you twice a week.  You have not made friends in prison and you apparently speak to few people inside the prison.  You are held in protection because of the nature of your offending and I accept this will make your time in prison harder than might otherwise have been, but for the kind of offending you have engaged in.

38You suffer from asthma and suffered a slight stroke in 2004.  You are no longer on medication for these ailments.  You suffer from some back and shoulder pain.  You suffer depression and experience symptoms of low self-esteem.  I admitted into evidence as Exhibit 2, a psychological report from Simon Candish, who interviewed you in custody on 23 February 2015.  You maintained your denial of this offending to him.  You admitted your past convictions, but provided little detail of the offending which Mr Candish thought was because of your shame at having previously offended. 
Mr Candish thought you have suffered from chronic depressed mood, but he thought it unclear whether you currently meet the criteria for a diagnosis of Major Depressive Episode.  He also thought you meet the criteria for a diagnosis of Pedophilic Disorder (non-exclusive where you also display a capacity and interest for sexual activity with adults).

39Mr Candish carried out various tests to try to establish the risk of you reoffending in this way.  Overall, he thought you fall into a moderate risk of reoffending in this way.  Because of matters you disclosed to him at interview, he thought you “appears to have issues with sexual deviance” but he did not place over emphasis upon this noting that you have not re-offended since 2009 whilst living in the community.  A period of six years.

40Mr Payne submitted and I accept that the matters of your personal background and the matters referred to by Mr Candish in his report, warrant moderation of the sentence I impose.  Mr Payne asked that I not impose a crushing sentence, whilst at the same time acknowledging that the seriousness of the offending, warranted a reasonably lengthy term of imprisonment.  I accept this submission generally knowing that I must have regard to principles of totality in sentencing.

41I turn to some of the principles to be applied by sentencing courts when dealing with crimes of this kind.

42General Deterrence:  Appellate courts in all jurisdictions in this country have repeatedly said that crimes against children and young persons are to be regarded as abhorrent and, that the courts have a duty to the victims and to the community generally to protect such persons from people such as yourself, who might be minded to take advantage of them for personal sexual gratification.   Experience of the courts has shown that where such offences are committed the effects upon the victim can be both profound and lasting. 

43In this case, there was no victim impact statement filed but in his sworn deposition forming part of the committal depositions, the victim of your crimes said that because of what you did to him, he had become depressed and untrusting of others.  I have no doubt that is the case.  The victim here, gave his evidence in a persuasive and impressive manner and I have no reason not to accept what he said.  Your offending here was a very serious example of what are serious offences.  Your victim was young and in your care.  You used a degree of force, arming yourself with a knife after the darts night and a wooden spoon on the second occasion.  You ejaculated and penetrated him orally and anally.  These must have been most degrading experiences for the victim, not yet a teenager, to have to endure at your hands and whilst you were affected by alcohol.  I have no doubt that what occurred remains sadly vivid in the memory of your victim.

44Accordingly, any sentence I impose on you must send a clear message to those in the community who might be of the inclination to offend against children as you have, that if they do so and they are detected, the punishment from the court will be condign.  In cases such as this, application of the principle of general deterrence is a very important factor in sentencing. 

45Specific deterrence must remain an important objective in sentencing you.  You have now been convicted in relation to three separate episodes of sexual offending.  The sentence I impose must, so far as is possible, serve to deter you from further sexual offending.  If you re-offend you will most likely receive a disproportionate sentence.

46The protection of the community from you and, the likelihood of your re-offending, is of paramount importance in crimes of this type.  The sentence I propose, I believe adequately protects the community from you.

47Rehabilitation:  I think your prospects for full rehabilitation are poor without proper access to counselling and treatment within the prison system.  I cannot say you are unlikely to re-offend.  There is some chance of you doing so if you found yourself in a trusted environment with children, for example in a family situation.  I accept you have few friends and limited family contacts and when released from prison, you will be 65 years of age and on parole.  I would hope that these factors would all reduce the likelihood of you reoffending, but there is some chance you could reoffend, given the right environment and circumstances.

48The sentence imposed must appropriately denounce your conduct and must reflect just punishment..

49In sentencing you, I must have regard to application of Part 2A of the Act.  That means, that in determining the length of any prison sentence imposed, I must regard protection of the community from you as the principal purpose for which my sentence is imposed.  In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances. 

50However, this does not mean that the principles of proportionality and totality of sentencing are to be disregarded, unless in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason. 

51I do not consider that a disproportionate sentence is called for here.  In my opinion, the overall effective sentence I propose will properly and adequately provide for protection for the community whilst at the same time paying due recognition to the proper application of the principle of proportionality and totality.  I note the prosecution does not submit I should impose a disproportionate sentence.

52Every term of imprisonment imposed on you as a serious sexual offender, for a serious sexual offence must, unless otherwise directed by me, be served cumulatively on any other sentence I impose.  I will impose some cumulation, and order some concurrency, which I regard as appropriate, taking account of all of the circumstances discussed. 

53In passing sentence, I must also have regard to current sentencing practices.  I accept I must have regard so far as is reasonably possible to what the practices were at the time of your offending.  Mr Payne helpfully provided to me a number of decisions of the Court of Criminal Appeal in this State in the late 1980’s to early 1990’s.  I have read all of these decisions and taken them into account in passing sentence.

54I am also required to cause to be entered in the Court’s records that I sentence you as a serious sexual offender. 

55On Charge 1, indecent assault you are convicted and sentenced to a term of imprisonment of two (2) years.

56On Charge 2, sexual penetration of a child under 16 under your care, supervision or authority, you are convicted and sentenced to a term of imprisonment of four years.

57On Charge 3, indecent act, you are convicted and sentenced to a term of imprisonment of two (2) years.

58On Charge 4, sexual penetration of a child under 16 under your care, supervision or authority, you are convicted and sentenced to a term of imprisonment of four years.

59On Charge 5, attempted sexual penetration of a child under 16 under your care, supervision or authority, you are convicted and sentenced to a term of imprisonment of three years.

60On Charge 7, sexual penetration of a child under 16 under your care, supervision or authority, you are convicted and sentenced to a term of imprisonment of five years.

61I direct that the sentence imposed on Charge 7 be the base sentence and, that two (2) years of the sentence imposed on Charge 2 and, six (6) months of the sentence imposed on Charge 4, cumulate upon the sentence imposed on Charge 5.   Otherwise I direct that the sentences imposed this day be served concurrently.  This makes a total effective sentence of seven and a half years imprisonment.

62I direct you serve a minimum of five (5) years imprisonment before being eligible for release on parole.

63Pursuant to s.6F(1) of the Sentencing Act 1991, I direct that I have sentenced you on each charge as a “serious sexual offender” within s.6B of the said Act and, I direct the fact of my having done so, be entered into the records of the Court.

64I recommend that whilst in prison, you be referred for assessment and treatment under any relevant sexual offender treatment programs and that this matter be brought to the attention of the Parole Board at the relevant time. 

65I note that there has been 93 days pre-sentence detention under the sentences past this day and I direct that 93 days be reckoned as having been already served under the sentences passed this day and deducted administratively.

66The crime of sexual penetration of a child under 16 years is a Class 1 offence pursuant to Schedule 1 of the Sex Offenders Registration Act 2004.  The crimes of indecent assault and indecent act are Class 2 offences pursuant to Schedule 2 of the same Act.

67Pursuant to the application of ss.6 and 34 of the Sex Offenders Registration Act 2004, you are a registrable offender within the meaning of that Act with reporting obligations for life. 

68I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act 2004.  You will have to comply with the reporting obligations upon your release and for the remainder of your life.   

69The prosecution seeks the making of a forensic sample order under s.464ZF of the Crimes Act. The application was not opposed and I have made the order for the reasons stated in it. Having made the order, a member of the police force may use reasonable force to take a sample from your body, in this case, a swab from your mouth.

70Are there any matters arising out of that?

71MS PACE:  No, Your Honour.

72MS LAMOVIE:  No, Your Honour.

73HIS HONOUR:  Very well.  Could you remove Mr Owens please.  Nine-thirty, Monday.

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