Director of Public Prosecutions v Palmer (a pseudonym)
[2018] VCC 675
•10 May 2018
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN PALMER (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE MEREDITH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 10 May 2018 | |
CASE MAY BE CITED AS: | DPP v Palmer (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 675 | |
REASONS FOR SENTENCE
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Subject:Historical offending, indecent assault and indecent act of a child under the age of 16 years.
Sentence: TEFS 2 years 4 months, suspended sentence.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Ms J. Swiney | Rainer Martini & Associates |
HIS HONOUR:
1 John Palmer,[1] you have pleaded guilty to Charge 1 of indecent assault and Charge 2 of committing an indecent act with a person under the age of 16. The respective maximum penalties for these offences are five and ten years' imprisonment respectively.
[1] John Palmer is a pseudonym.
2 Your matter was listed for trial before me and on the first day of the trial, discussions ensued and you entered pleas of guilty to a reduced plea indictment containing the two offences which I have set forth.
3 Consequent upon you entering these pleas, your matter was then adjourned and your bail extended, initially to 21 March and then 10 May, to enable reports and plea material to be obtained on your behalf.
4 The circumstances of your offending are set forth in a prosecution summary. This will remain on the court file and having regard to this, I will summarise them somewhat more briefly.
5 Charge 1 occurred between late-April 1988 and late-April 1990; Charge 2, between January 1994 and the end of December 1995. Your victim, Ms Michelle Levy,[2] your daughter, was aged between six and 11 years of age over this time. You were aged between 34 and 39.
[2] Michelle Levy is a pseudonym.
6 You and the child’s mother formed a relationship in 1982, then lived together and married in 1988. You separated in 1991. For a period after this you continued to have access to your child whilst you were living in Melbourne.
7 Charge 1 concerns your victim at around age six being in the bath with you when you were both naked and you telling her that you were going to teach her how to correctly wash herself. You then proceeded to fondle her vagina and inserted a face washer into her vagina, which caused her to flinch in pain. She told her mother later that day and when confronted, you denied the allegation and told her mother that she was being paranoid.
8 In or around 1991, after the separation from your wife, as a result of something said by your victim to her mother, police became involved, however no action was taken against you at this time.
9 By way of background to Charge 2, during your daughter's visits to you, you would massage her and she recalls telling you it made her feel uncomfortable, but you sought to reassure her, telling her that it was okay and that she would enjoy it. She also she recalls you walking around naked on occasions.
10 Charge 2 concerns an occasion when she was around 11 years of age and visiting you at your then address in Bayswater. You got into bed with her, when you were naked and massaged her naked body, including her groin area. When your then partner arrived home from work, in conversation, your victim told her words to the effect that you had both been in bed together until the afternoon. She recalls however, that you looked at her in a way that caused her to say nothing further.
11 In April of 2014 she made a formal complaint to police. By this stage she had not seen you for many years.
12 When interviewed by police in October of 2014, you denied wrongdoing and sought to place an innocent gloss on your conduct in the bath with the complainant.
13 Victim impact statements from your daughter and former wife have been tendered on the hearing.
14 In her victim impact statement, your daughter speaks of the profound and ongoing impact which your conduct has had on her.
15 In her victim impact statement, your wife speaks of the substantial consequences that your offending have had on her.
16 I will have appropriate regard to the contents of the victim impact material and in doing so, I do remain conscious of the fact that I am sentencing you on only two charges and not on the whole of the conduct attributed to you, as was set forth in the trial opening.
17 Much of your background is referenced in a psychological report of Mr Warren Simmons. You are now 63 years of age and have no relevant prior convictions.
18 At around the age of seven, your family immigrated to Australia and you lived in the Ferntree Gully area. You recount a largely uneventful and in the main positive childhood and adolescence.
19 You worked at various unskilled and semi-skilled occupations and these are catalogued in Mr Simmons' report. Ultimately you worked for some time in computer maintenance, however have not worked since around 2007.
20 You have had a number of relationships, both before and after the breakdown of your marriage to the mother of your victim. In this regard you have two children to that marriage, your victim now aged 35 and a son aged 32.
21 You are presently in a relationship and this has been the case for about five years, however you do not live together. You have indicated to Mr Simmons that you have separated and reunited on a number of occasions and your present partner remains supportive of you and has attended court to offer her support of you.
22 Mr Simmons utilised an actuarial method known as the "Static 99" to assess your risk of re-offending. Using this tool it is estimated to be a low risk. In making this assessment, Mr Simmons appeared to emphasise your advancing age. In terms of any assessment of you however, in regard to the offences, you are reported as having told Mr Simmons that there are what he references as “some questions in [your] mind about the offences.” Further, Mr Simmons notes that while you are pleading guilty to the charges, you offered no particular insight into your actions and that it is difficult to obtain any particular motivation for your actions.
23 I have also had regard to the contents of the brief and in my view largely superficial medical report of Dr Sivapalan. In this Dr Sivapalan states:
“He is unemployed since 2007 due to medical reason, mainly due to his mental illness, depression and he is on Centrelink benefit since 2007.”
24 According to Mr Simmons, the depression manifested itself after the strangulation of a former partner, of which it appears you were a person of interest to investigators. You have not, however, been charged with this and I recite this only to place your reported depression in its context. Mr Simmons details you having ceased medication and your self-reporting of difficulty sleeping, variations in your weight, long-term issues with memory and concentration and panic attacks.
25 In the wash up, Mr Simmons opines at page 6 of his report that whilst you did report a history of anxiety and there were some symptoms of depression, these do not appear marked and you appear to be managing without any treatment.
26 You have pleaded guilty to a negotiated resolution of the charges that you faced. Your plea of guilty came after a contested committal and was fairly late in the piece. Your plea of guilty has facilitated the course of justice and it has meant that the community are saved the cost and time of a trial on these matters. It also has meant that your victim has been relieved of the need to give evidence a second time in the presence of the jury. By that I mean, a second time from the committal hearing. The prosecution have also been relieved of the need to prove the offending against you. Of itself, your plea evidences some remorse, however, there is little other evidence of this in your case.
27 As I have said, aside from your plea of guilty, there is little other evidence of remorse in my view. I am not entitled to, nor will I aggravate the penalty I impose on you, consequent upon this, however, you are not entitled to the mitigatory benefits that would flow if this was present.
28 Your offending represents a gross and egregious breach of trust in regards to your then young daughter. Charge 1 involving penetration with an object, is a relatively serious example of this offence. I am bound to apply the maximum applicable penalty of the time, which was only five years, however, I note, had your conduct occurred in more recent times, the penalty for the offence of indecent assault was increased to ten years.
29 Charge 2 involves you getting into bed naked with your then young daughter and proceeding to massage her in the way that you did, including over her groin. This is also, relatively speaking, a serious example of the offence of committing an indecent act.
30 Your offending conduct was degenerate and disgraceful. As a parent, you were entrusted with the welfare of your daughter. Instead of safeguarding this, you abused her and the trust given to you for your own perverted sexual gratification.
31 You are now, as I have said, 63 and aside from some surgery for a liver cyst, are in relatively good health. Although I note that Dr Sivapalan states that you suffer from chronic abdominal pain, you take no medication for this. You were aged between 34 and 39 years of age at the time of your offending.
32 The lapse of time since the commission of offences of this kind is not unusual. It is often the case with offending such as yours that victims do not come forward for many years after the offending. In this case your victim did come forward, however her complaint did not result in prosecution of you. Your victim was young at the time and you were in a position of power over her. So far as your victim is concerned, feelings of fear, embarrassment and other matters may all have contributed to the delay in her formally complaining to the police about your conduct as an adult. These types of feelings are not uncommon in offending such as yours and it is to be remembered, that so far as your victim is concerned, these feelings are unjustified, as she is the victim and the innocent party in all of this.
33 The delay in your prosecution, while relevant, however, cannot result in the imposition of an inadequate sentence. For offending such as yours, general deterrence and the court's denunciation of your conduct, must be adequately emphasised.
34 Having said that, however, your age is a significant sentencing factor in a number of ways.
35 Your age is likely to make an actual term of imprisonment more onerous for you.
36 Your advancing years are also relevant to the issue of your risk of re-offending. You have not been charged with any offending said to have occurred in the interim between your offending and my sentencing of you. As your age increases, it could reasonably be expected in your case to further diminish the risk of you re-offending.
37 In addition. your nephew and his wife have provided written reference material speaking of your contact with their children and your lack of offending in regards to them.
38 I accept your counsel’s submission that given your advancing age and the historical nature of the offending and the lack of offending in the intervening years, you are not someone who poses a considerable risk of re-offending. Additionally, any risk which you pose today will be less still as your age further advances. I am prepared to conclude that you are unlikely to re-offend again and consequently, specific deterrence has a reduced role to play in my sentencing of you.
39 The prosecutor submitted that nothing other than an immediate term of imprisonment was warranted in your case. Your counsel submitted that a wholly suspended sentence was, in all of the circumstances, an appropriate disposition. I have had regard to the various authorities the parties have referenced.
40 In addition, your counsel submitted that I ought take into account sentencing practices at the time of your offending. This involves the principle that equal justice requires that an offender not receive a higher sentence due solely because of the lapse of time between offending and sentence. Here there is now a more complete understanding of the true extent of the harm offending of this nature may have upon a victim and in your case, has had. In addition you denied any wrongdoing at the time of the initial police intervention and thus by your own actions, contributed to the lack of a timely prosecution. Notwithstanding this, to the extent that I can determine them, I will have regard to what I accept was a pattern of lower sentencing at the time of your offending.
41 I remanded you in custody in the interim between plea and sentence and after giving your matter anxious consideration, on balance, I have decided to wholly suspend the terms of imprisonment that I am going to impose on you. This is due, in part, to the lack of offending of a similar nature in the interim period.
42 Balancing all matters then, I sentence you as follows:
43 Would you stand up.
On Charge 1, 14 months' imprisonment.
On Charge 2, 20 months' imprisonment.
Charge 2 is to be the base sentence and I cumulate on it eight months of the sentence I have imposed on Charge 1. This makes a total effective sentence of you of two years' and four months' imprisonment and I will wholly suspend this for a period of three years from today.
44 This means that if you commit another offence punishable by a term of imprisonment during the operational period of the suspended sentence, you will most likely be brought back before me, as that will constitute a breach of the suspended sentence and amongst other powers, I can require you to serve the sentence that I have suspended. You have briefly experienced custody and I have suspended the sentence of imprisonment to reflect the seriousness of your conduct, in combination with the personal mitigating matters that operate on you.
45 By virtue of my sentencing of you today, you do become a registrable offender under the Sex Offenders Registration Act of 2004. This is by operation of Schedule 1, Clause 3 of the legislation in regard to both of your offences. You will be required to report your personal details and begin a regime of reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the remainder of your life.
46 Shortly I will have my associate hand you a form and this notifies you of your reporting obligations. I would ask you to sign where indicated to acknowledge that you have received it.
47 In addition, the prosecution seek a DNA sampling order from you. Your counsel opposed this on the basis essentially of the delay between your offending and today. She referenced, in particular, your limited antecedents and your lack of subsequent offending and current age.
48 Notwithstanding these matters, I am of the view that the seriousness of your offending justifies the making of the order and in addition, having regard to your limited remorse and notwithstanding my finding that you are not someone who poses a considerable risk of re-offending, in my view, it is in the public interest that I order that you provide the sample.
49 I am obliged to tell you that should you refuse to provide a sample, reasonable force can be used to obtain it from you.
50 Finally, I am required by legislation to state the sentence that I would have imposed, but for your plea of guilty. Isolating one matter on its own is highly artificial and far removed from sentencing in practice. Notwithstanding this, pursuant to s.6AAA of the Sentencing Act, I will indicate that I would not have considered suspending any portion of the sentence that I would have imposed on you and I would have imposed a total effective sentence of three years' imprisonment and fixed a non-parole period of 20 months, but for you plea of guilty.
51 Have a seat for now.
52 Now, the Sex Offenders Registration Act document will have to be signed by him.
53 MS SWINEY: Yes, Your Honour.
54 HIS HONOUR: If you could assist in regard to that.
55 MS SWINEY: I can, Your Honour.
56 HIS HONOUR: And if you could also please ensure that Mr Palmer understands the consequences of a potential breach of his suspended sentence?
57 MS SWINEY: Yes, Your Honour.
58 HIS HONOUR: All right. If we could attend to the signing of the documents please.
59 Are there any further orders required?
60 MR PICKERING: No, Your Honour.
61 MS SWINEY: No, Your Honour. Can I just confirm, I'm sorry, which - that Charge 2 was the base sentence?
62 HIS HONOUR: That is correct.
63 MS SWINEY: And eight months of Charge 1 was cumulated?
64 HIS HONOUR: Correct.
65 MS SWINEY: Thank you, Your Honour.
66 HIS HONOUR: Yes. All right, thank you both for your assistance. I will adjourn.
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