Director of Public Prosecutions v Payne
[2015] VCC 411
•1 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-02065
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN PETER PAYNE |
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JUDGE: | HER HONOUR JUDGE COTTERELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 1 April 2015 | |
CASE MAY BE CITED AS: | DPP v Payne | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 411 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. McKenry | Office of Public Prosecutions |
| For the Accused | Ms A. Locke |
HER HONOUR:
1 John Payne, you have been found guilty by a jury of one charge of maintaining a sexual relationship with a child under the age of sixteen. The maximum penalty for that offence is 25 years’ imprisonment. This offending occurred over a six month period between 15 October 2002 and 30 April 2003.
2 You were aged 31 to 32 at the time of the offending, which occurred in the context of your friendship with the mother of the complainant. The complainant was aged 13. You took an interest her as she had a difficult relationship with her mother and was interested in sport and clearly wanted something to do. You introduced her to a lifesaving club where she became a member and lifesaving became a major part of her life for that period of time.
3 You became a regular visitor to the household of the complainant’s mother and sister and another friend of yours, who was also a lifesaver, was an equally regular visitor. The offending continued over the six month period at the complainant’s home, at the lifesaving club, at your home and in your motor vehicle at various beaches.
4 The complainant identified a number of sexual acts and the occasions on which they occurred but her evidence was that these acts were numerous and regular and she could not identify them all, hence the charge. The occasions that she described and the acts which she says occurred on those occasions form the basis for the charge on the indictment. The jury, by its verdict, accepted that, on at least three separate occasions, offences of the type occurred.
5 The acts and occasions which were identified during the evidence of the complainant in relation to the charge of maintaining a sexual relationship with a child under 16 years of age are in summary as follows.
6 There were some 13 acts of sexual penetration, the first of which was digital penetration alleged to have occurred in the spa at a lifesaving club in December 2002, whilst you were both in the spa and you were talking to another member of the club who was seated outside the spa but nearby.
7 A further act of digital penetration was described as occurring on your water bed at your home while the complainant was there to watch the movie. Her mother and younger sister were also in the room, sitting on a couch, although they had no memory of seeing anything untoward or even of seeing you on the bed with the complainant.
8 The complainant's evidence was that the first incident of penile penetration occurred on 25 January 2003. That occurred at your house when you had gone with her to get something for lunch before returning to be on patrol at the beach.
9 Between 27 January and 31 January 2003, the complainant described acts of penile penetration whilst you were at her house, following an incident of tickling her. In that same period, there was a sleepover at the lifesaving club, where the complainant described you penetrating her vagina with your penis early in the morning, whilst surrounded by a number of other members of the club all sleeping in sleeping bags on the floor.
10 A further allegation of penile penetration was described by the complainant which occurred one evening after school when she was driven by you to Half Moon Bay and sexual intercourse occurred on the back seat of your motor vehicle.
11 Between 1 February and 31 March 2003, the complainant gave evidence of penile penetration which occurred in your car in The Waves swimming pool car park in Mordialloc.
12 Between 14 February and 28 February 2003, on a carnival day with various lifesaving clubs, she described penile penetration which occurred on your bed at your house, on the day of that carnival. She also described a further act of penetration which does not form part of the offences charged.
13 Between 1 March and 31 March 2003, the complainant described penile penetration in the early morning after you had stayed the night at her home. She went out in the early hours of the morning and joined you on a bed on the floor of the sitting room. She described in detail how she ended up kneeling on top of you and how you were giving lessons on how to move her hips.
14 Between 1 March and 31 March 2003, there were two occasions on which her evidence was that you went to the car park at Greens Beach and penile penetration occurred in the car park on each of those occasions.
15 The complainant also gave evidence of six incidents of indecent acts. The first two allegedly occurred between October and November 2002 on an occasion when you were at the home of the complainant's mother, when you were watching the film American Pie. You were alone in the room with the complainant and at a certain point in the movie there was an act of masturbation, you then touched her breasts, then pulled your hands away and asked if you could touch her breasts and she replied, “You just did”.
16 On that same occasion, she gave evidence that she became aware of your erect penis and you asked her if she had ever touched a penis. She gave evidence that, at your invitation, she put her hands down your pants and touched your erect penis.
17 The complainant also gave evidence of an incident which occurred on the deck of the lifesaving club when she asked you to apply sun cream to her back. You did so and began rubbing it on her legs. You moved your hands between her legs, pulled your Speedos down to expose your penis, pulled her bathers to the side and rubbed your penis over her vagina.
18 The complainant also gave evidence of an incident which occurred in the changing rooms below the lifesaving club when you entered and she was alone in the cubicle. You rubbed your penis against her hip through your bathers until you ejaculated into the drains of the shower.
19 She gave evidence of a further incident which occurred in the bar of the lifesaving club when you had arrived an hour before training. You lay on top of her in front of the bar, kneeled over her and rubbed your penis on her vagina while her skirt was pulled up above her waist. The complainant indicated she was paranoid that somebody could walk into this open space, and that she had said no when you asked if you could penetrate her vagina with your penis.
20 The final indecent act occurred during a camping trip to Yea over the weekend of 17 and 18 January 2003, when the complainant entered your tent. Her evidence was that she slept the night there, that you were lying down on the air mattress on your back and you rubbed your penis over her vagina while you were both clothed and while she was on top of you. The next day there was an argument between the complainant and her mother about her sleeping in your tent and the family left that day, a day early.
21 The complainant gave compelling evidence and was cross-examined for four days. In addition to the occasions referred to in the indictment, the complainant also referred to a number of acts which were not the subject of any charge saying, for example, that sexual activity in front of the couch in her mother’s house occurred so often that she could not be specific in identifying most of those occasions.
22 You have always denied all of the alleged acts and cross-examination was on the basis that the complainant was lying. Cross examination concentrated on the unlikelihood of these events occurring, the improbability of you carrying out these acts at a busy club and in areas where you could easily have been caught. The complainant’s evidence, in fact, was that she was very frequently afraid that would occur, that is that you would be discovered. In relation to the occasion on 25 January, which was the first act of penile penetration, she was cross examined at length about the time they left the club, when they arrived at your house, what the traffic was like and it was put to her that it was impossible to have arrived back at the club in time to be on parole at 12:30pm as the surf club log book demonstrated. The complainant maintained, whatever the times were, that the events she had described occurred on that day.
23 I am satisfied overall the evidence that sexual penetration occurred on numerous occasions, that penile penetration occurred without the use of a condom, and that the pregnancy which resulted in the complainant having a termination at the age of thirteen, which brought the relationship to an end, resulted from the acts of unprotected sexual penetration described by the complainant in her evidence.
24 There was further and extensive cross-examination in relation to other people who could have been responsible for the pregnancy that eventuated. The cross-examination of the complainant and the complainant’s schoolmate did nothing to establish penetration or ejaculation during the attempt at sexual intercourse described by them both which had occurred earlier. I also accept that you told a friend, who gave evidence about the pregnancy and your responsibility for it.
25 The jury clearly found the complainant a credible witness and found unanimously, as I indicated, that on at least three of the alleged constituting offences occurred. The offence of which you have been found guilty has been drafted in such a way that I am not aware which occasions or how many the jury found proved. However, I find the following facts proved.
26 That is that you became involved with the complainant and her family to an extent where you spent a great deal of time at the house and regularly stayed overnight. I find that you formed a close relationship with the complainant, who was vulnerable and not getting on with her mother and that you introduced her to a lifesaving club where you were a person with significant status. I further find that you exploited your relationship with the complainant and began to engage her in playful physical activity, then sexual activity such as touching while wrestling on the couch, then to specific acts which are the occasions of indecent acts which form part of the constituting behaviour for the charge of which you have been convicted.
27 I accept that you then began to penetrate her digitally and then to engage in penile penetration, which continued throughout the time that you were involved with the complainant after 25 January 2013. This behaviour was a gross breach of the trust placed in you by both the complainant and her mother. You had virtually unfettered access to the complainant who trusted you and looked up to you and who gave evidence that you frequently told her that you loved her. I accept her evidence that, when she became pregnant as a result of your actions, you told her to lie about who was responsible, not to tell anyone that it was you and you made her promise not to reveal that information. I do, however, accept that there was no force used in the relationship at any stage and that it just went on given the imbalance in your relationship and the feelings that the complainant had for you.
28 Your counsel made submissions that your responsibility for the pregnancy could not be proved beyond reasonable doubt, which is the required standard of proof for an aggravating factor. However, the evidence of the complainant was that she had not had sexual intercourse with anyone else and the witnesses counsel suggested as being possibly responsible, denied any sexual relationship with her.
29 These events have had a very deleterious effect on the complainant, and a victim impact statement declared by her was tendered as Exhibit A on the plea and read aloud to the court. She describes the anger, hurt, fear and shame she felt when she realised that, having trusted you and believed everything you told her, your conduct in extracting her silence was just to protect yourself.
30 The complainant further indicates in her statement that her relationships with her mother and sister have been affected and that these events have also affected her own sexuality. She has felt that her childhood was taken from her and she is constantly reminded of the termination of the pregnancy whenever she has gone to hospital or been pregnant or when she looks at her own children.
31 In the witness box, she at times struggled to recall details of the events that occurred some 12-13 years ago, seeming almost anxious to give the most accurate answer and being frank when she could not remember details. Despite her ordeal, she explained that she had had treatment from a psychologist and has attempted to remake her life as a young married woman with small children.
32 You are not entitled, Mr Payne, to any credit for remorse nor are you entitled to any mitigation you may have obtained by accepting responsibility in relation to these matters. You have denied these allegations from the time they were raised and, on your behalf, it was suggested repeatedly to the complainant that she had fabricated all of her allegations against you and was lying.
33 I now turn to matters personal to you. You are now 44 years old. You are the youngest of five children and you were supported throughout the trial by the presence of two of your sisters, at times, by your mother and I note that you are supported again today by your sisters.
34 You were not a good student and underwent periods of bullying at school which led to you continuing your sporting interests which your mother, Noelle, had instilled in you and in all her children when she was left alone to raise the family when your father left the home when you were aged five. You have, since that time, had very limited contact with your father.
35 After leaving school in Year 11, you worked briefly as a wood turner through your interest in becoming a boat builder, like your father. Then you then did a two year apprenticeship at a bakery and completed your training as a baker at Safeway Mentone where you worked until 1994. You had qualified as a bakery-pastry cook in 1992. When you left in 1994 you moved to Queensland and worked as a professional life guard until 1999. You also used your baking skills during that period and further qualified as a sous chef. You worked at Coles Southland as a bakery production manager which you found very arduous and you remained there only for a period of 12 months.
36 From 2001 on, you have had various casual employment positions, including as an integration aid teacher and, at the time of the trial, you were a self-employed lawn mower, gardener and handyman. You have clearly been a hardworking man, frequently working two or more jobs at one time.
37 You have four sons from three separate relationships. Your oldest son was in your primary care until the investigation of your current offending. You have two sons aged four and five from a woman to whom you were married and up until the time you were charged with these offences, you had fortnightly contact with those children. You are currently remarried, although separated, and you have one two year old son from that relationship. You have not seen your youngest child since September last year.
38 The most significant activity in your life appears to have been your dedication to swimming and your involvement in lifesaving. You were a lifesaving volunteer for some 15 years and you remain involved with the lifesaving club. From 2003 to 2055 you moved to the Brighton Lifesaving Club to join a specialist rescue squad. You have been a patrol captain, club captain and teacher. At one stage you were the Victorian Ironman champion and through the course of your lifesaving, you have been involved in a number of rescues and offered first aid to people who found themselves in difficulties both in relation to swimming and boat rescues but also matters which occurred on dry land, administering CPR to affected persons. You are clearly a person with the interests of the community at heart in that respect.
39 You have prior Court appearances which I do not find relevant to the offending for which I am to sentence you today.
40 Tendered as Exhibit 1 on the plea was a report by Carla Lechner, psychologist, dated 8 February 2015 which sets out your personal history. Following her interview with you and the administration of the Beck Depression Inventory, she indicates that your score in relation to the inventory, that is your depression, falls into the extreme range consistent with your presentation at interview and a diagnosis of clinical depression.
41 You also have symptoms of an adjustment disorder which relate to your situation within the prison system. I take those matters into account in sentencing you.
42 Two references were tendered as Exhibit 2 on the plea; one from Tammy Van Weiss, who was also present in the Court, who indicated she had known you in the context of the lifesaving club from when you were teenagers; that you achieved the status of patrol captain which would only be bestowed upon respected members of the club given the responsibility that it involves. The second reference is written by Anthony Phillips, who testifies as to your friendship with his daughter, a friendship which you maintained when she was later diagnosed with bi-polar disorder. You were one of the few friends who remained in contact both with her and the family. The friendship has continued as a platonic relationship which has been of enormous support to his daughter. Both he and his daughter have visited you on numerous occasions in the Remand Centre. These references stress the positive side of your character and Mr Phillips describes also that you may lack the maturity which would be expected from a person of your age.
43 I take into account all those matters put in mitigation on your behalf and I now turn to the other matters I am required to take into account in sentencing you.
44 Firstly, any sentence I impose must act specifically to deter you from ever committing an offence of this nature again. I accept that any period that you serve in custody, given your experience thus far, would be a significant deterrent and I also accept that you are unlikely to commit an offence of this type again in your life.
45 Secondly, I am to take into account the principle of general deterrence, that is that others in the community who may think to take advantage of children who are entrusted into their care and exploit their naivety, youth and insecurity as you did, will realise that when they are detected, serious consequences will flow.
46 I am required to denounce your offending on behalf of the community and I do so absolutely. Your actions have had a devastating effect on the complainant, which has continued into her adult life. The sexual abuse of children offends against the values of any civilised community. Indeed, the courts have taken a very serious view of the abuse of children and Parliament recognises the seriousness of such offending by the maximum penalty applicable to this particular offence which is, 25 years’ imprisonment.
47 The physical and psychological subordination of any child to the perverted indulgences of an adult and the gross breach of the trust placed in the offender by the complainant herself, and by her mother and the community, as well as the irreparable fundamental damage caused to any victim of such behaviour are all matters that I take into account in sentencing you.
48 The final matter I am required to take into account is that I am required to impose just punishment in all the circumstances. I am required to balance the matters that have been put on your behalf in mitigation against those matters I have just listed and, in doing so, I have reached the conclusion that the only appropriate sentence for your offending is a term of imprisonment to be served immediately.
49 I have also taken into account current sentencing practices in relation to this type of offence and I have compared this offending with other similar offending and I take into account the relatively short duration of the relationship, being a period of six months, and I balance that against the aggravating features of the occurrence of the pregnancy and the breach of trust.
50 John Payne, in relation to the charge of maintaining a sexual relationship with a child under sixteen, you are convicted and sentenced to seven years' imprisonment with a minimum term of four and a half years to serve before being released.
51 I declare the period of 126 days that you have spent in custody is deemed time served and I direct that that fact be entered into the records of the court.
52 I make an order pursuant s.464ZF of the Crimes Act which relates to you providing a sample, which will be a scraping from your mouth, for placement on the database. I do so having considered the seriousness of the offence which you committed; the seriousness of the circumstances of your offending warrant the order; the order is not opposed; and the granting of the order is in the public interest. I have to warn that that if, at the time the procedure is sought to be carried out, you were not to comply a member of the police force may use reasonable force to ensure that the procedure is conducted.
53 Thank you.
54 MR McKENRY: Sex offenders' registration, Your Honour.
55 HER HONOUR: I further order that as a result of this conviction, you will be required to comply with the Sex Offenders' Registration Act and that is you will be required to report, pursuant to that legislation, for life. You will be handed documents which tell you what your obligations under that legislation and you will have notification of how you must go about the reporting once you are released.
56 MR McKENRY: As Your Honour pleases.
57 You can remove the prisoner.
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