Director of Public Prosecutions v Payne (a Pseudonym)

[2014] VCC 1726

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BAIRNSDALE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND PAYNE (A Pseudonym)

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JUDGE:	HER HONOUR JUDGE SEXTON
WHERE HELD:	Bairnsdale
DATE OF HEARING:	15 October 2014
DATE OF SENTENCE:	16 October 2014
CASE MAY BE CITED AS:	DPP v Payne (A Pseudonym)
MEDIUM NEUTRAL CITATION:	[2014] VCC 1726

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Slim	OPP
For the Accused	Mr C. Morgan (For Plea) Mr D. Taylor (For Sentence)	VLA

HER HONOUR: 

1Raymond Payne,[1] you have pleaded guilty to a charge of sexual penetration of a child under 12 years, an offence with a maximum sentence of 25 years' imprisonment.

[1] A pseudonym.

2I proceed to sentence you on the basis of the summary read out by the prosecutor.[2] 

[2] Exhibit A.

3I will not recite the details but, put briefly, in January 2014 you sexually abused your eight-year-old nephew when he and his parents stayed the night at your house.  He was in your bedroom, where there were two single beds, and his parents were in the lounge room not far away.  When he woke, because of what you were doing, he jumped out of bed and made up a story to get him out of that room and spent the night in his parents' bed.  The following day, after the family returned to their home, he disclosed what had happened. 

4This is a very serious offence.  It is inexplicable how a person who has never committed a sexual offence could, at the age of 52, commit such an act of gross violation of the trust residing in you as a family member. Your counsel told me that you had consumed a large quantity of alcohol that night, perhaps apprehensive of meeting up with your younger brother, your nephew's father, after a period of time when you had already fallen from grace in other ways, which I will come to in a moment.  But this consumption of alcohol merely explains your lack of recollection of the event.  Nothing explains the event itself.

5I received three victim impact statements, one each from your nephew, his mother and his father, the first two being read out by the mother in court.  I pause here to say that I am deliberately refraining from using their names and identifying details in an attempt to not add to their distress by publication and not because I do not acknowledge them as individuals.

6Their impact statements outline more eloquently than any words of mine the deep hurt and anger they feel as a result of what you did and the effect on their lives as they all grapple on a daily basis with the enormity of what you did.  I will not repeat or attempt to summarise their statements, but they should all rest assured that I have taken the contents very much into account in reaching a decision on your sentence.

7You heard two of them read out, and there should be no doubt in your mind of the far-reaching impact your act has had.  This has included fracturing the extended family, as your nephew refuses to visit the place where the crime occurred and the family in that location cannot travel to visit elsewhere.  Further, the shock of the revelation has made it difficult for all family members to comprehend and deal with, and communication between them is difficult, if not stopped altogether.  The devastating ripple effect of one act of casting a stone – your crime - is an all too familiar story in this court.  In saying that, I emphasise that I am treating you, your crime and its impact on the victims with individual attention. 

8Before I leave this aspect of my sentencing remarks, I note that your nephew is receiving professional help, and that is something that his parents may want to consider for themselves.  It is still a recent event, psychologically speaking, and I express my fervent hope that things will eventually improve.  I wish them all the best.

9Having dealt with the severity of your crime and its impact, I turn now to the matters personal to you that I must take into account in determining the appropriate sentence.

10First, I take into account the fact that you have pleaded guilty.  By your plea, you have spared the community the time and cost of a trial.  Most importantly, you have spared your nephew, his parents and other family members from the ordeal of giving evidence in your trial.  As a result, I can tell you that the sentence I will impose is far less than would have been imposed had you been found guilty after a trial. 

11I also take into account that you indicated your intention to plead guilty at an early stage.  Because of your lack of recollection, and perhaps the difficulty in comprehending what you had done, initially you were unable to admit to such an act.  However, ultimately you did, some months after DNA analysis supported the complaint made by your nephew.  In the circumstances, I do accept that your plea of guilty reflects your remorse for your actions. 

12I was told something of your personal circumstances, and they also appear from the report I received from Mr David Ball, psychologist.[3] You are now aged 53 years.  You were married for 20 years and have two adult children.  Although you left school at the age of 15, you were in constant employment and reached senior positions in large companies.  In 1996 you received a global award for your leadership.  You were also involved in volunteering your time to local organisations in a range of aspects.

[3] Exhibit 1.

13In 2004, a so-called friend suggested that you could deal with the demands on your time from your paid and unpaid activities by the use of methylamphetamines – “ice”.  You took up this suggestion and soon this insidious drug took over your life.  Eventually, you lost your employment, your marriage, your honesty and then your liberty. 

14At the age of 46 you received your first criminal conviction, in 2008.  You were convicted again in 2012 and 2013, the last appearance resulting in a suspended prison sentence being restored, and you served a term of four months.  These were all drug-related in one way or another, and as I said at the outset, you have never before committed a sexual offence.

15On your release you returned to Gippsland, and while you have stopped your ice use, you were still using alcohol, and used it to excess on the night of this offence, perhaps because of your apprehension at meeting up with your younger brother again after your time in prison.  I take into account why you returned to Gippsland, as revealed in the material before me, but I do not provide details as these may lead to identification of you, and thus, your victim. 

16You have demonstrated an ability to rehabilitate yourself with respect to your drug use.  You still have the support of your former wife.  You have been in custody since your arrest in March and you have attained a position of peer educator within the prison. 

17The report of Mr Ball shows that you are not to be considered as having a diagnosis as a paedophile, and he found no other significant symptoms of any psychological or psychiatric disorder underpinning your offending behaviour.  Mr Ball assessed your risk of reoffending generally or in respect of a sex offence, using tools available to him, as being a low to moderate risk. 

18I must assess for myself your prospects of rehabilitation, and on the material before me I think that they are reasonable.  I do not put them as more than that, due to the lack of explanation for this offence.  It makes it harder to be sure that you will not commit another such offence.  However, I do accept, as your counsel said, that you will have no opportunity to reoffend against your nephew and your circumstances on release, including the lack of diagnosis which would otherwise increase your risk, are likely to be such that you are less likely to reoffend.

19However, as well as those matters personal to you to which I have referred, including that question of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case involving a sexual offence against a child.  That means that by my sentence, I must seek to deter other men who might consider committing such an offence.  Also, although I recognise that the effect of your crime on you, in that you have already served a period of time in custody and, of course, had such a devastating impact on your connection with your family, may have specifically deterred you from offending in such a way, because of the lack of explanation, again I consider that a purpose of my sentence remains to deter you from committing an offence in future. 

20I must also consider the question of the protection of the community from you and bear in mind the likelihood of your reoffending, which I find to be relatively low. 

21As a result of my sentencing of you today, you become a registrable sex offender under the Sex Offenders Registration Act 2004.  The charge is a Class 1 offence, being an offence committed against a child, and you will be required within seven days of your release from custody to report your personal details and begin a regime of annual reporting required by the Act and be otherwise subject to the Act for a period of 15 years. 

22I will now have my associate hand to you a form which notifies you of your reporting obligations and you will then be asked to sign where indicated to acknowledge that you have received this form.  Thank you. 

23Following the submissions received from your counsel yesterday, you were assessed for a community correction order, as I am now permitted by law to sentence you to a prison term up to two years as well as a community correction order.  You were assessed as suitable.  However, I have decided in all the circumstances that a term of imprisonment alone is the only appropriate sentence, allowing time for you to complete the sex offender program while in custody and providing for a period of parole.

24On the charge of committing an offence of sexual penetration of a child under 12 years, you are sentenced to three years' imprisonment.

25I direct that you serve a minimum term of two years before becoming eligible for parole. 

26I declare that the period of time you have already spent in custody is 224 days including today, and those days will be deducted administratively from your sentence.

27If you had not pleaded guilty but had been found guilty after a trial, the sentence I would have imposed is a term of imprisonment of four years with a minimum term of two years six months.

28Are there any other further orders required?

29MR SLIM:  No, thank you.

30HER HONOUR:  Yes, thank you.  Yes, Mr Payne may be taken out.

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