Director of Public Prosecutions v Parker (a pseudonym)
[2015] VCC 1903
•17 December 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HERBERT PARKER[1] |
[1] Although the prisoner has changed his name, neither name will be used in the published version. To avoid the possibility of the complainant being identified, pseudonyms will be used for the prisoner and the complainant.
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JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 December 2015 | |
DATE OF SENTENCE: | 17 December 2015 | |
CASE MAY BE CITED AS: | DPP v Parker (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1903 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to one charge of committing an indecent assault and one charge of committing an act of sexual penetration of a child aged 16 years – historical offence – victim was 16 year old nephew of offender – acts were pre-meditated – offender committed numerous sexual offences but after this offence, so is sentenced as a person having no criminal record but not sentenced as a person of good character in 1992 – risk of reoffending low due to combination of physical ill health, lack of vision, lack of mobility and rehabilitation undertaken for offences subsequent to these offences -
Legislation Cited: s.6F Sentencing Act 1991 (Vic), Sex Offenders Registration Act 2004 (Vic)
Sentence: Total effective sentence of 26 months’ imprisonment. Whole of the sentence suspended for three years.
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr Manning | Ms Fitzpatrick |
| For the Accused | Mr Brand | Slades and Parsons |
HER HONOUR:
1 Herbert Parker[2], you have pleaded guilty to one charge of committing an indecent assault and one charge of committing an act of sexual penetration of a child aged 16 years. You committed these offences 23 years ago and at that time, the maximum sentences for these offences were terms of imprisonment of ten years and three years respectively.
[2] Although the prisoner has changed his name, neither name will be used in the published version. To avoid the possibility of the complainant being identified, pseudonyms will be used for the prisoner and the complainant.
2 I proceed to sentence you on the basis of the prosecution opening[3]. In brief, in 1992, you sexually assaulted your then 16 year old nephew, Brett Sutton[4], by rubbing his penis until ejaculation (Charge 1) and, a few weeks later, by sucking his penis until ejaculation (Charge 2). On both occasions, he was staying at your house and was under your care.
[3] Exhibit A
[4] A pseudonym.
3 The gravity of such offending was recognised in the same year of your offending, when the maximum sentence for indecent assault was increased to ten years and the gravity of sexually offending against a person under the age of 18 years, was eventually recognised by Parliament in 1997, when the maximum sentence for the offence of sexual penetration of a 16 year old was also increased to ten years’ imprisonment.
4 Your crimes are made even more serious by the following:
5 First, you committed the offences on your nephew whilst he was in your care, thereby abusing not only his trust, but the trust of his parents;
6 Next, the abuse of trust was made even more egregious by the grooming you engaged in, treating your nephew in a way that made him feel special which set him up for your abuse of him and greatly increased the impact on him of the offending;
7 Next, the two events occurred several weeks apart, so that you had time to reflect before committing the second crime, but you did not desist and committed what, objectively, is an even more serious crime of penetration;
8 Next, the acts were pre-meditated to the extent that you had been engaged in sexual activity when you were a teenager and found it pleasurable[5] and you mistakenly, without any thought for your nephew, decided you would provide him with the same experience; and
[5] There is no information as to the age of the other participant.
9 Lastly, there was an age difference of 35 years between you and your nephew.
10 Your nephew is the son of your twin sister. Although he immediately told his parents in general terms that you had assaulted him and after the second occasion, he and his family never had anything further to do with you, he did not want to deal with it in any other way at that time, principally as he did not want to upset his grandmother, your mother. This is completely in keeping with what the research on sexual abuse of children shows, and the fact that child victims of sexual abuse may take years to report their abuse to police, if ever, is now recognised in Victorian law[6]. As it happens, it seems that your mother learned of the offending, and told you not to contact your twin sister or her family again. You have therefore been aware of the allegations for many years, although understood they were not then to be proceeded with in accordance with your nephew's wishes.
[6] Section 52(4) Jury Directions Act 2015
11 The impact on your nephew has been nothing short of devastating and his parents have suffered immensely as well. Brett Sutton and his father read out their victim impact statements in court, and his mother’s statement was read out by the prosecutor as Mrs Sutton was unable to attend court due to a back injury[7].
[7] Exhibit C
12 You heard the impact your sickening conduct has had. Brett Sutton’s life was changed immeasurably from the age of 16. From a healthy active teenager with a bright future, excelling in his studies and sport, who despite these features had low self-esteem which was initially enhanced through time spent with you, he changed to be a young man struggling in every area of his life: study, employment, intimate relationships, family relationships and accommodation. He has been so affected by your crimes that he has attempted suicide. He copes only by the misuse of alcohol. You stole from your nephew the life he should have had.
13 Crimes committed against young people under the age of 18 are never their fault. An adult must never commit such acts on a person under 18 years and it is not the responsibility of the child to stop the offender.
14 Brett Sutton was entitled to the protection and genuine affection that a close relationship with a treasured relative can bring. While he had that relationship for a time, when you abused him, the closeness of your relationship made the shock all the greater.
15 However, I want to speak positively of Brett Sutton now. Reporting your crimes against him and standing up in court to tell you and me, the devastation you have wrought in his life, are powerful indicators that there is a life to be led, and that he has taken the first steps to throw off the shackles that your offending has kept him in for 23 years. Mr Sutton, you must try to not have this define your life from here on. At 39 years, you are still a young man. These are not platitudes. I am tremendously impressed with your courage and I want you to take something positive away from this court process. You have been on a long process of social and personal recovery and the court’s response to the crimes committed against you should facilitate that recovery. It is to be hoped that the imposition of sentence today will constitute both a practical and ritual completion of a protracted painful period[8]. I do urge you to try counselling again; seek out a counsellor who suits you and see if you can learn to deal with your pain. I do wish you well for your future.
[8]DPP v Toomey [2006] VSCA 90 at [21]
16 Returning to you Mr Parker, these offences were committed during a time in your life when you had begun offending against young boys who were your students. Between 1986 and 1988, you committed indecent assaults against four boys aged 13 and 14. These acts were very similar to those later perpetrated against your nephew, involving fondling the penis and waking the sleeping boys by touching their genitals, although no penetration was alleged. Between 1991 and 1995, you committed indecent assaults against nine boys who were your students.
17 When you abused your nephew, none of these offences had been alleged and dealt with. As a result, the law requires me to sentence you as a person who had no criminal record at the time of committing the offences against your nephew. However, because of the admitted facts surrounding your other offending and the timing of it, I do not sentence you as a person of good character in 1992.
18 Your first conviction was in 1996 for 25 charges of indecent assault for the offences committed in 1991-1995, and on appeal from the Magistrates’ Court, you were sentenced in this court to two years’ imprisonment with a minimum of one year and sentenced as a serious sexual offender for Charges 3-25. In 1997, while still undergoing that sentence, you were sentenced in this court to 18 months’ imprisonment and with partial cumulation of the earlier sentence, a total of three years’ imprisonment with a new non-parole period set of 18 months was imposed for the offences of indecent assault committed between 1986 and 1988. Then, in 1998, you were sentenced to six months’ imprisonment for a charge of indecent act of a child under 16 years in respect of another young victim.
19 As a result, it can be seen that the offences committed against your nephew were not isolated examples of criminal behaviour. It can be confidently stated that you did not reform between the time you committed the crimes against your nephew to your incarceration in 1996 and your high risk of re-offending was proven by your subsequent behaviour in those intervening years.
20 However, your rehabilitation since that time is relied on by your counsel as a factor that mitigates the seriousness of your offending and combined with other factors, is submitted to reduce your current risk of re-offending to a very low level.
21 Before you received your first prison sentence, you participated in a group sex offender treatment program with psychologist Mr Ball. He informed psychologist Mr Newton, who provided a report to the court for this hearing[9], that you made good progress. However, Mr Ball seems to have provided a report to the court in 1996 and when sentenced in 1997, the sentencing judge noted that you had “lied to Mr Ball…when you in effect denied committing any offences other than those for which you were ultimately sentenced” in 1996[10].
[9] Exhibit 4
[10] Sentencing remarks of His Honour Judge RPL Lewis 21 January 1997.
22 However, you undertook a sex offender treatment program during your prison sentence and refused parole when it was offered in order to complete the program. You have not offended since your release at the end of your sentence in July 1999. Further, Mr Newton is of the opinion that the program has enabled you to develop insight, victim empathy and a strong relapse prevention program. He expresses the view that you are no longer to be diagnosed as having a paraphilic disorder and rates your current risk of reoffending as low, due to a number of factors protecting against that risk being realised.
23 Mr Newton is also of the opinion that you are currently suffering from significant anxiety related to your serious health problems, continuing adjustment to becoming blind, concern about the potential outcome of this hearing and the effect of this case on your family.
24 Two of your children provided references, as well as a close friend and your full time carer[11]. All are aware of your criminal record, and all attest to the sort of person they have found you to be for the last 16 years you have been out of prison: kind, generous and thoughtful. Your daughters, who struggled to deal with your crimes, state that they have recognised the changes in you since you completed the sex offender program and your full sentence. They refer to the remorse that you feel for the consequences of your actions on your nephew, their cousin, Brett.
[11] Exhibit 5
25 I find that due to the passage of time and the rehabilitation you have undertaken, combined with your physical ill health, lack of vision and lack of mobility, your risk of reoffending is low.
26 There are a number of other factors I must take into account in your favour. The first of these is that you pleaded guilty and did so at the earliest possible time. This reflects your remorse, as well as an acceptance of responsibility and a willingness to facilitate the course of justice by obviating the need for a trial and for witnesses, especially your nephew, to give evidence. As a result, the sentence I will impose will be far less than would have been imposed if you had been found guilty after a trial.
27 The next matter that I take into account is that 23 years have passed since the offending. This passage of time is not in itself a mitigating factor but I cannot ignore the fact that since then, you have undergone a term of imprisonment for similar, although less serious offending, undergone rehabilitation and not re-offended.
28 Next, and of significant importance, are your personal circumstances, particularly your current situation. You are now 74 years old and were aged 51 at the time of the offences. In your early life, you were married with four children. A son drowned aged six and your marriage deteriorated after that tragedy. You later began a relationship with another woman, intending to marry, but she was murdered by her former husband when he learned of her plans. For over 30 years, you were considered a successful teacher, a career which of course ended abruptly when you were charged with sexual offences against your students.
29 You now have multiple health problems[12], including skin cancer which has possibly metastasised, lupus, bladder and bowel problems, high blood pressure and heart disease. In the last few years, you have gone blind. You have a full time carer and can only move with some ease in your own home and you cannot travel outside without assistance. Although the cancer appears stable or in remission according to your doctor, your ill health does not indicate a good prognosis. I accept that, for you to serve a term of imprisonment, would be extremely onerous.
[12] Exhibit 3
30 Before I turn to the sentence to be imposed, I refer to the application that has been made for an intimate forensic sample to be taken from you. You have not opposed this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is to be taken by wiping a swab inside your mouth. Although you have consented, if you change your mind, I must inform you that the law is that the sample that will then be taken will be a blood sample and the police may use reasonable force to enable that procedure to take place.
31 The prosecutor submitted that only a term of imprisonment could serve all the purposes that a sentence must meet in this case. However, because of the circumstances in your case, it was conceded that any term of imprisonment could be wholly or partially suspended.
32 Your counsel submitted that if I considered that a term of imprisonment was the only appropriate option, I should wholly suspend that term. If imprisonment was not considered the only option, then he submitted that the only other option was for an adjourned undertaking to be of good behaviour.
33 For sexual offences committed against children, general deterrence is a paramount consideration. That is, by my sentencing of you, I must seek to deter others from committing such crimes against the vulnerable in our society. Further, however long ago the offences were committed, it is incumbent upon the court to express the denunciation of the community of such behaviour[13].
[13]DPP v Toomey [2006] VSCA 90 at [19]
34 In 2006, a judge of the Court of Appeal said[14],
“The rehabilitation of victims of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.”
[14] Ibid at [22]
35 That is very much the situation in this case, for you have rehabilitated as an offender and Brett Sutton as the victim is still in recovery.
36 I consider that my sentence must still provide some specific deterrence to you, but the need for that is much reduced by the factors personal to you. Because of your criminal record, even though there are no prior convictions, you are to be sentenced as a serious sexual offender and I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed. If necessary, in order to achieve that purpose, I may impose a sentence greater than is proportionate. I do not consider it necessary in this case.
37 In all the circumstances I have decided that I have no alternative to imprisonment on both charges, but I have come to the conclusion that a suspended sentence is appropriate in this case. It remains available as a sentencing option because that was the law when you committed the offences.
38 I am satisfied that a sentence of imprisonment to be wholly suspended adequately manifests the denunciation by the Court of your conduct, provides adequate deterrence and adequately reflects the gravity of the offences.
39 I think there is little risk of you committing an offence punishable by imprisonment during the operational period of the sentence, which I will announce in a moment.
40 The purpose of imposing a term of imprisonment is to act as a deterrent to others who would think to commit offences against children. The purpose of suspending that term of imprisonment is to recognise the circumstances that exist in your case, which may be characterised as, ‘strong and special circumstances’.
41 The operational period is three years. Within the next three years, you must not commit another offence punishable by imprisonment or you will almost certainly serve the sentence of imprisonment which I will impose today.
42 If you do breach your suspended sentence by committing any other serious offence, you will come back before me and I can tell you that you will almost certainly be required to serve time in prison. Mr Parker, do you understand the consequences of breaching that suspended sentence?
43 OFFENDER: Yes, Your Honour.
44 HER HONOUR: You are convicted and sentenced as follows:
45 Charge 1 – 9 months’ imprisonment.
46 Charge 2 – 20 months’ imprisonment.
47 Charge 2 is the base sentence.
48 As you are to be sentenced as a serious sexual offender on both charges, the sentences are to be cumulative unless otherwise directed. I do direct otherwise: I direct that three months of the sentence imposed on Charge 1 be served concurrently with the sentence imposed on Charge 2. With six months being cumulated, that results in an effective sentence of 26 months’ imprisonment.
49 I direct that the whole of that sentence be suspended for three years. In the event that this sentence is to be revisited, I note that you have served no time in custody for these offences.
50 I also direct that, pursuant to s.6F of the Sentencing Act 1991, it be entered in the records of the court that I have sentenced you in respect of both charges as a serious offender within the meaning of that Act.
51 If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed is a total of three years and six months’ imprisonment with a minimum of two years.
52 As a result of my sentencing you today, you continue as a registrable sex offender under the Sex Offenders Registration Act 2004.Charge 1 is a class two offence and Charge 2 is a class one offence. You will be required within seven days to report your personal details and continue a regime of annual reporting required by the Sex Offenders Registration Act 2004 and be otherwise subject to the Act for the remainder of your life under s.34. I will now have my associate hand to you a form which notifies you of your reporting obligations. I do not require you to acknowledge by signing that you have received it.
53 Mr Brand, would you accompany my associate to the dock to provide
Mr Parker with this document.
54 MR BRAND: Your Honour, as I have not been through this particular document, I have been through a document which is identical in substance to that.
55 HER HONOUR: Thank you.
56 MR BRAND: That is acknowledged, Your Honour.
57 HER HONOUR: Thank you. Ms Fitzpatrick, I am not sure that I received draft orders for the s.464ZF application?
58 MS FITZPATRICK: Well perhaps somewhat embarrassingly, I do not have them with me. I will undertake to email them to Your Honour's associate on my return to the office.
59 HER HONOUR: That is all right. Yes, it may be that they are in my chambers having already been provided but I apologise if that is the case. In any event, if they are sent through, I will sign those when provided.
60 MS FITZPATRICK: Certainly, Your Honour.
61 HER HONOUR: Yes, there are no other orders required?
62 MR BRAND: No, Your Honour.
63 MS FITZPATRICK: No, Your Honour.
64 HER HONOUR: Thank you. Well Mr Parker may be released from the dock when the court is adjourned.
65 MR BRAND: As Your Honour pleases.
66 HER HONOUR: Yes, thank you. We will adjourn then until 9.30 tomorrow.
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