Director of Public Prosecutions v Page
[2019] VCC 299
•13 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA
CRIMINAL JURISDICTIONCR 18-01455
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRY PAGE |
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| JUDGE: | HIS HONOUR JUDGE SMITH |
| WHERE HELD: | Wodonga |
| DATE OF HEARING: | 25 February 2019 |
| DATE OF SENTENCE: | 13 March 2019 |
| CASE MAY BE CITED AS: | DPP v Page |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 299 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW - SENTENCE
Catchwords: Indecent assaults upon a male – offences in 1974-75.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Sentence:On each charge sentenced to 2 years and 6 month imprisonment. 2 years of the second term to be served concurrently with the term imposed for the first term. Both terms to be wholly suspended for 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Morgan (Plea) Mr M. Vaccaro (Sentence) | Mario Vaccaro Lawyer |
HIS HONOUR:
1Terry Dennis Page, you have pleaded guilty to two charges of indecent assault upon a male. The details of your offending were set out in some detail in summary of prosecution opening, which was tendered as Exhibit A at your plea hearing.
2In summary, the circumstances of your offending were as follows.
3On a date between January 1974 and December 1975, you invited the first complainant, then aged 11 or 12 years, to stay at your farm over a weekend. The complainant's mother had agreed to this.
4At the time, you were a serving police officer.
5You picked the complainant up from his family home on your motorbike. He rode in the pillion passenger position with his arms around your waist. During the ride, you pushed the complainant's hands down onto your erect penis. He was scared. He considered jumping off the bike. He moved his arms up and held onto your police jacket instead. This was an uncharged act.
6At your house, after dinner, you and he retired to your bedroom, where there was a double bed and a single bed, separated by approximately one metre. The complainant got into the single bed and you got into the double bed.
A short time later, you got into the single bed with him. You pulled his underpants down and you masturbated his penis, causing him to ejaculate.
He cried whilst you were doing this to him. On the following day, you drove him home.7The complainant did not tell anybody about this incident until approximately 34 years later, when he told his mother and brother.
8With regard to the second complainant, you met him in 1973 through a family with whom he was then living. On a day in August 1975, when he was aged 16, you picked him up from school in Wodonga, as part of an arrangement with that family, whereby you would pick him up from school, have him stay at your home overnight and take him to Wangaratta on the following morning.
9You invited him to stay in your double bed. You asked him, "Do you want to play with me and I'll play with you?" The complainant felt frightened and vulnerable and not knowing what to do, complied with your invitation. He masturbated you for about a half hour to an hour. He was scared, but eventually fell asleep. The following day, you drove him to Wangaratta.
10The second complainant did not see you again until 20 or 30 years later.
11Both these matters came to light in the course of the Royal Commission into the handling of child abuse by religious and other organisations.
12On 16 June 2007, you attended at Wodonga police station and took part in a record of interview. With regard to the first complainant, you stated that he had slept in a bed with you and that you did touch him, but that it was not anything sexual. I reject that denial.
13With regard to the second complainant, you admitted to police that you had masturbated him.
14I note that your plea in this matter is one of guilty to a charge of committing an indecent assault on him, by having him masturbate you, and it is on that basis that I shall sentence you.
15The maximum penalty for a charge of indecent assault upon a male, is five years' imprisonment. The assault in each case being non-penetrative.
16By way of background, you are currently aged 76. You have no prior convictions for any offence. You were the eldest child of a family of four children, initially brought up in Victoria. You and your family moved to Queensland when you were about 15 years old.
17You reported an unhappy childhood. Your parents had a stormy marriage. You described your mother as a "lovely person" and your father as a "nasty and violent man". You attended a boarding school in Queensland and left at the age of 17.
18You obtained a number of different jobs, including that of a farmhand, wool classer and you later joined the Victorian police force in 1962 when you were aged 19. In the police force you reported difficulties coping with the job from the start. You have reported that alcohol use in the police force was, at that time, expected. You did not drink alcohol and as a result, felt that you were something of an outcast. During your time with the police force, you served in the traffic branch and were stationed in Wodonga for some time. You were seconded to serve in Cyprus as part of a peacekeeping force for some two years. When you returned to Wodonga, you continued to have difficulties coping with your police duties and colleagues.
19You have reported that you were diagnosed around that time with manic depression. You were placed on medication for a bipolar disorder and still remain on that medication.
20You left the police force in 1979 on medical grounds. Since then, you have been involved in the videoing of horse events, including horse races in the Albury region. You built up your own business as a camera operator at various events, generally involving horses of one sort of another. You have reported that in the 1970s, you were under considerable financial stress trying to build up that business.
21You reported a low consumption of alcohol and that you have never used illegal drugs.
22You were first diagnosed with prostate cancer in 1996. It seemed that it had been treated successfully for a time, but it re-emerged in 2006, some 13 years ago.
23You do have other convictions, which although not prior convictions, are relevant to the issue of your prospects of rehabilitation. In 1982 you pleaded guilty to nine charges of indecently assaulting two male persons under the age of 16. These offences occurred on various dates between August 1981 and July 1982 and involved two different complainants. Those offences occurred approximately seven years after the offences for which you are currently before this court.
24At your 1982 plea hearing in this court, reports from a psychologist, Maurice Whitta, dated 26 October 1982 and a psychiatrist, Dr Howard Whitaker, dated 10 November 1982, were tendered. Both appear to have examined you and reported on a medico-legal basis for the purposes of that plea hearing. Neither was a treating practitioner. At the time it appears you were under treatment from a psychiatrist, Dr John Riley and had been seeing him every three months. You had also seen a Dr Gold. Reports from those practitioners were not in evidence before me.
25You were sentenced in respect of the 1981 and 1982 offences by His Honour Judge Ravick of this court at Wangaratta in December 1982. In his sentencing remarks, His Honour said:
"I am prepared, taking into account the interests of the community and your own interests, those of the community, of course, taking priority, nevertheless, to put you on a bond to be of good behaviour for a period of three years. I have imposed a special condition that you continue to seek treatment from Dr Whitaker and that you do so for such time as he considers to be necessary and also undertake such treatment as he continues, to be necessary. The other special treatment that I feel bound to impose, is that you do not engage in any activity where you spend time alone with male persons under the age of 16 years. So I impose those two conditions, otherwise you will be released on a bond to be of good behaviour for three years. The amount of the bond is $500."
26The history taken by Mr Whitta at that time, was that for most of life, you had had no extraordinary interest in younger boys. You had reported to him that this was a new development which only began in the previous year or so, that is, in about 1981. Mr Whitta considered that this was a truthful account that you had given him. Dr Whitaker reported slightly to the contrary, that you had told him that all the sex offences started after 1978.
27In his reasons for sentence in 1982, Judge Ravick, in referring to Dr Whitaker's opinion, said that it probably indicated that you did not in fact have any sexual contact with young persons, at least before 1978. And for the purposes of his sentence, he adopted that view.
28Clearly, in view of your current plea of guilty to the offences of 1973-5, for which you are presently before this court, those assumptions by Mr Whitta,
Dr Whitaker and His Honour Judge Ravick, were incorrect. None of those persons had been made aware of you offending between 1973 and 1975.29Your counsel informed me that as at the time of your arrest by police in 1982 in relation to the 1981 and 1982 offences, you had advised police at that time, that there had been other offending, but the police did not appear to be interested in other matters. I consider that it is doubtful that you made such a statement to police, having regard to the fact that at roughly the same time, you had provided Mr Whitta and Dr Whitaker with information to the contrary.
30In 1982, Mr Whitta regarded you as being a "sick man", rather than one who deliberately set out to break the law. He considered that there was a good chance that you would recover and go on as a useful citizen.
31In 1982, Dr Whitaker noted that Dr Riley had prescribed you the medication, Stilboestrol, in an attempt to reduce your libido. This was a drug used in the treatment of sex offenders, based on the premise that a reduced libido was likely to reduce the prospect of sexual offending against other persons, including young persons.
32In your current plea hearing, a report from a clinical and forensic psychologist, Ms Coleen Crutchfield, dated in February 2019, was tendered on your behalf. She noted that you had been taking medication for a bipolar disorder and that you had remained on unidentified tablets for that condition. She also noted that you had been prescribed Stilboestrol by Dr Whitaker intermittently to produce impotence and to reduce your libido, as part of the treatment for sexual offending. That medication does not appear to have been prescribed for you since 2009, however, she noted that your normal treatment for prostate cancer included anti-testosterone medication.
33She concluded a number of matters.
·You are currently functioning within the range of high/average intelligence.
·Assessment of your personality was not indicative of any psychopathy.
·You had willingly engaged in both psychotherapy and biochemical therapy over a number of years.
·There was no indication of anti-social attitudes, noting that you had had stable employment in the police force for 17 years and had since been self-employed, although now semi-retired.
·You had minimised your offensive behaviours, whilst pointing out that you had been molested as a child yourself and considered it as "normal stuff".
·Your view was that you had never physically harmed any of the boys.
·That thought process would likely have been supported and exacerbated, in the view of Ms Crutchfield, by your then treating practitioners who pointed out that boys who were sexually molested, were not necessarily harmed by their experience. She considered that this amounted to what was almost passive condoning of these sexual behaviours by trusted professionals. I should say that I consider that such views by professionals would, in this era, be most unlikely to be held or expressed.
·Your depression is now longstanding, according to Ms Crutchfield and permanent and that you will need to continue with medication to manage your mood disorder.
·Finally, she said that in the setting of your disturbed childhood, your lack of stable intimate relationships, your human needs for emotional and sexual connection, mood disorders and stress, these would have contributed to your offending behaviours.
34Ms Crutchfield expressed the view, and I accept, that imprisonment would be difficult for anyone of your age and that if you were imprisoned, you would lose your pets and prematurely end your business.
35Ms Crutchfield did not consider that you would find particular benefit from psychological therapy at this time, noting that you had successfully managed your mood disorders and have had no further offending over the past 30 years or so, indicating successful rehabilitation. She reported:
"It's considered most likely that providing he can continue to maintain his present lifestyle and medications, he's of low risk of re-offending in the future."
36I consider that statement to be somewhat vague and to say the least, it appears to say no more than, if you can continue your present law-abiding lifestyle, you are unlikely to re-offend. It is of little assistance to me. She may merely have meant that if you continue on your current medication, you are at low risk of re-offending.
37Nevertheless, I do accept that taking account of your age, your health problems and the fact that you have not re-offended for some 30 years, it now seems to me that your risk of re-offending is relatively low.
38The only purposes for which sentences may be imposed in Victoria, are to punish the offender, to an extent and in a manner which is just in all the circumstances; to deter the offender or other persons from committing offences of the same or similar character; to establish conditions within which it is considered by the court that rehabilitation of the offender may be facilitated; to manifest the denunciation by the court of the type of conduct in which you have engaged; and to protect the community from you.
39I am conscious of the provisions of s.5(4) and s.5(4C) of the Sentencing Act, which provide, in substance, that in determining the sentence to be imposed in respect of an offence, the court must not impose a sentence which involves the confinement of the offender, unless it considers that the purpose or purposes for which a sentence is imposed cannot be achieved by a sentence that does not involve the confinement of that offender, or cannot be achieved by a community corrections order with certain conditions attached.
40I am required by the Sentencing Act to take into account a number of matters, including:
·The nature and gravity of the offence.
·The offender’s culpability and degree of responsibility for the offence.
·The maximum penalty prescribed for the offence.
·The degree to which you have shown any contrition and remorse for the offence.
·Whether you have pleaded guilty to the charge in respect of the offence and, if so, at what stage of the proceeding.
·The deterrent effect that any sentence may have on you or other persons.
·The need to ensure that you are adequately punished for the offence.
·Your character, antecedents, age, means and your physical and mental condition.
·Your prospects of rehabilitation.
41I regard that the nature of your offending as serious, although I note that it did not involve penetration of any kind, which would have made it more serious.
42Your moral culpability for the offences is high. The maximum sentences prescribed by Parliament of five years' imprisonment demonstrates how seriously Parliament considers the offence to be.
43I consider that current sentencing practices for this or similar offence call for a far more severe sentence these days than any good behaviour bond, as was imposed in 1982.
44Notwithstanding, there are a number of matters that do go, or ought to go, in mitigation of your sentence.
45Firstly, you pleaded guilty to the two offences. Although you initially denied offending against the first complainant, I accept that at the time of your committal mention, you had indicated that you would plead guilty to that charge. In relation to the second complainant, I accept that you admitted your offending at the record of interview stage.
46Your counsel submitted and I accept, that your plea is an indication of remorse for your offending. Further, your plea has utilitarian benefit, in that witnesses were not required to give evidence at trial, and court resources were saved. You are entitled to a discount in penalty on account of those matters.
47I take into account the fact that you had been diagnosed with a serious illness, in the form of prostate cancer and that you have been diagnosed with a bi-polar condition. I consider that the fifth principle of Verdins is enlivened, in that given your age and your health, I accept that you are likely to find a term of imprisonment more onerous than would otherwise be the case, or would be the case with other prisoners without those problems.
48As previously stated, I accept that you have reasonably good prospects for rehabilitation, given your age and the considerable period that has passed since your last offending.
49Your counsel submitted that sentencing you to a period of immediate incarceration was not necessary and would not achieve any particular purpose. I accepted this submission, save for the importance in a case such as this to impose a penalty which is an effective general deterrent to others in the community not to commit such offences as these in the future.
50Notwithstanding, taking all of the circumstances of your case into account, I am satisfied that the purposes for which you are to be sentenced can be satisfied by a sentence which does not involve an immediate period of incarceration.
51I consider that a period of imprisonment, wholly suspended, is appropriate, taking into account all of the circumstances, but in particular, your age, your health and the 37 year period since you last offended.
52With regard to the offence of indecent assault upon the first complainant, contrary to s.68(3)(a) of the Crimes Act, 1958, as amended, you are convicted and sentenced to a term of imprisonment of two years and six months, which shall be wholly suspended for a period of three years.
53With regard to the offence of indecent assault against the second complainant, contrary to the same sub-section, you are convicted and sentenced to a term of imprisonment of two years and six months, of which two years is to be served concurrently with the sentence concerning the first complainant, and which shall also be wholly suspended for a period of three years.
54It follows that the total effective sentence that I have imposed is one of three years imprisonment, wholly suspended.
55Now, Mr Triandos and Mr Vaccaro, the offences involved here are, as
I understand it, Class 2 offences within the meaning of Schedule 2 of the Sex Offenders Registration Act 2004.56MR TRIANDOS: That is correct, your Honour.
57HIS HONOUR: Thank you. Accordingly, they are registerable offences, by reason of s.7 of that Act and Mr Page is a registerable offender, pursuant to s.6 of that Act. Let me just read out where I think that takes us and if either counsel want to say anything to me about the sex offenders registration aspects, you can then speak up please.
58Pursuant to s.12 of the Act, you must report your personal details to the Chief Commissioner of Police within seven days of being sentenced. Section 14 sets out the substantial number of details that you must report. You will receive shortly a document that sets out what those reporting obligations are.
59Pursuant to s.34 of the Act, you must continue to comply with these reporting conditions imposed by the Act for the next 15 years.
60MR TRIANDOS: Yes, Your Honour.
61HIS HONOUR: Thank you.
62Other ancillary orders sought, Mr Triandos, or not?
63MR TRIANDOS: Yes, there's a forensic sample order sought, Your Honour.
64HIS HONOUR: Yes.
65Pursuant to s.464ZF of the Crimes Act, the Crown seeks a forensic sample order, which is an order whereby police are entitled to take a small scraping from the inside of your cheek, for the purpose of registration with the DNA database.
66Mr Vaccaro, do you have instructions as to whether that ‑ ‑ ‑
67MR VACCARO: No, I wasn't aware of that application, but if I may seek instructions, Your Honour?
68HIS HONOUR: Yes, I will give you leave to do that.
69MR VACCARO: Thank you.
70HIS HONOUR: Has an order been prepared to do that, Mr Triandos?
71ASSOCIATE: I haven't received anything.
72HIS HONOUR: I don't have it sitting there on my folder. Let me double check that.
73MR VACCARO: I consent to that application, Your Honour.
74HIS HONOUR: Yes, thank you, Mr Vaccaro.
75Well I will indicate that I will make that order in chambers, there being no copy of it prepared as yet. And I will indicate that I will make that order, firstly because of the seriousness of the offences for which Mr Page is convicted. And secondly, because it is made by consent.
76Notwithstanding your consent to the procedure, I should point out to you that in the event that you do not consent to the sample being taken, police are, at that point, entitled to obtain a blood sample from you and use all reasonable force to do so.
77Is there any other matters that appear to be relevant and unattended?
78MR TRIANDOS: Because a term of imprisonment was imposed, Your Honour, there has to be a s.6AAA ‑ ‑ ‑
79HIS HONOUR: A s.6AAA. Yes.
80I declare, pursuant to s.6AAA of the Sentencing Act 1991, that had you not pleaded guilty to these two offences, I would have sentenced you to a term of imprisonment of two years and six months in respect of the first complainant and in respect of the second complainant, I would have sentenced you to the same term, two years and six months, two years of which would be served concurrently with the term imposed in relation to the first complainant. I would not have suspended the gaol sentences.
81MR TRIANDOS: If Your Honour pleases.
82HIS HONOUR: Anything else?
83MR TRIANDOS: No, Your Honour.
84HIS HONOUR: Good, thank you.
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