Director of Public Prosecutions v PDR
[2012] VCC 1651
•24 October 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WODONGA
CRIMINAL DIVISION
Case No. CR-12-01633
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| P D R |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Wodonga | |
DATE OF HEARING: | 24 October 2012 | |
DATE OF SENTENCE: | 24 October 2012 | |
CASE MAY BE CITED AS: | DPP v PDR | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1651 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: Indecent act with or in the presence of a child under the age of 16 years – familial relationship – grandfather/ granddaughter – significant age difference – intellectual impairment – principles of Verdins applicable – no prior criminal convictions
Legislation Cited:Sentencing Act 1991 – Crimes Act 1958
Cases Cited:R v. Verdins (2007) 16 VR 269 – EDv. R [2011] VSCA 397 – DPP v DDJ [2009] VSCA 115 – R v. Sposito (unreported, Court of Criminal Appeal Victoria, 08/06/1993) – R v. Wakime [1997] 1 VR 242
Sentence: total effective sentence of 9 months imprisonment wholly suspended with an operational period of 3 years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A.J. Moore | Ms R. Heley (Office of Public Prosecutions) |
| For the Accused | Ms D. Price | Greg Duncan |
HIS HONOUR:
1 In this matter, Mr P.D.R, pleaded guilty to two charges in the filed over Indictment No. C10054327.1. Both were charges of commit an indecent act with Ms E.K. Both offences occurred on 26 May 2011, and their seriousness is comprehended from the fact that Parliament, representing the people of this State, has proscribed as a maximum penalty for such crime, imprisonment of ten years.
2 The learned prosecutor tendered as Exhibit A, with consent, the prosecution summary. Mr Moore pointed in particular to the circumstances surrounding these sexual assaults. Firstly, the age difference between the parties, such is particularly exacerbated in this instance by the familial relationship, being that of grandfather and granddaughter.
3 Mr P.D.R used to see the complainant when he would attend at the premises of his ex-wife, Ms C.K, who has the responsibility currently, and for some years of Ms E.K's care. Ms C.K and Mr P.D.R had earlier been married and beget two children, Ms E.K is the child of one of them.
4 On the day of these two offences, that is, 26 May 2011, Mr P.D.R had gone into the bedroom of Ms E.K where she had been laying down. The grandmother had gone down the street to buy some clothes. Insofar as the precise circumstances of Charge 1, Mr P.D.R manipulated or moved the breasts of Ms E.K out of her underclothes and proceeded to kiss them. The particular of Charge 2 is simply that he kissed Ms E.K on the lips. As set out in the summary, despite a request by Ms E.K for Mr P.D.R to stop, he persisted.
5 It is important to point out, as set out clearly in the prosecution opening that the prosecution case concerns only this one occasion of sexual assault.
6 Tendered by the prosecution as Exhibit B was the victim impact statement of the complainant, and as Exhibit C the victim impact statement of the grandmother, Ms C.K. I have read each of those statements. The comments of Ms E.K, given her background and my understanding of her intellectual and emotional difficulties, seemed most temperate and responsible. Indeed it is heartening, as against some statements I have to read, to read her optimistic outlook in regard to her life, and this is particularly so considering the problems that she has encountered in her life, apart from this one.
7 Equally, but for the comments I made as to the last sentence in the grandmother's statement, the reaction, the impact, upon Ms C.K of these offences and the fact that these offences were committed by her ex-husband, the grandfather of Ms E.K and the shock and effect that that has presented, seems again quite temperate and nothing out of the ordinary in regard to what she has stated.
8 The learned prosecutor referred, if it was necessary, to the community revulsion as to such offences. As I said, the penalty imposed indicates that. However there is general concern within the community as to sexual crimes committed against children, in particular in circumstances where there is a familial relationship.
9 The most recent reference to expression of such was an appeal from a judgment of Judge Lewitan, determined by the Court of Appeal, EDv. R [2011] VSCA 397. I will not detail the oft reported cases referred to by the learned prosecutor at [87] thereof however they are, as set out, DPP v DDJ [2009] VSCA 115, at [37] – [38], and the well recited comments of Marks J in R v. Sposito (unreported, Court of Criminal Appeal Victoria, 08/06/1993) and also the comments of the President in R v. Wakime [1997] 1 VR 242, 244. They are, of course, the general principles which guide the Courts in sentencing in these matters.
10 Professionally, Mr Moore conveyed to the Court the view as to sentencing of the prosecution, and in particular that of the Crown prosecutor involved. The prosecution recognised the unique sentencing scenario presented by this case. On the one hand we have the general sentencing principles, averted to, that is, that persons who commit such offences should expect appropriate sentencing to be meted out and indeed in most instances that would be imprisonment.
11 In addition Mr Moore referred to the age difference, the familial connection, the breach of family trust involved and the need in such circumstances for an appropriate sentence effecting punishment and general deterrence. Balanced against that was the fact that in these particular circumstances the plea of Mr P.D.R is and can only be seen as a most valuable plea.
12
I have been involved with the learned prosecutor and counsel appearing on behalf of Mr P.D.R in a number of directions hearings leading up to this trial. My own reading of the material identified a number of significant issues which would have had to be explored at any trial. Not the least, was the capacity of each of the individuals involved, that is, both Mr P.D.R and
Ms E.K.
13
In determining the application by the prosecution to see the materials held by the psychologist, Ms Sowden, I had the benefit of being able to peruse the record held Ms Sowden in regard to her professional assistance provided to
Ms E.K over a period beginning in 2009. Clearly we are dealing, and we I mean everyone both police, the girl's grandmother and this Court, with a person who has had considerable periods of anxiety, and anxiety related concerns.
14 Ms E.K is clearly subject to disablement issues, and recently demonstrated such to Ms Sowden, apparently, requiring a consultation with Ms Sowden, concerns as to how she would cope in a trial. Those concerns were obviously recognised by the prosecution in this matter.
15 The other matter referred to by the learned prosecutor was the appropriate discount required to be given for a plea of guilty to these charges, of course in a context where Mr P.D.R has come before the Court at the age of sixty-five with no prior offences of any sort, much less offences of this seriousness.
16 Given all those matters, as I have said, professionally the prosecution submitted that ultimately the sentence was for this Court, however the submission was that in all the circumstances such sentence should not involve a period of immediate gaol.
17 On behalf of Mr P.D.R, Ms Price also stressed initially in her submission the importance of the plea, and the remorse expressed by Mr P.D.R, which she repeated on his behalf to the Court, his recognition that not only should these matters not have happened, but also his recognition and understanding that these offences would have had an effect, as demonstrated by the victim impact statement of Ms E.K, which as he said he recognised these acts would have made her, to use his words, "sad".
18 Mr P.D.R has had particular personal difficulties in coping himself with the circumstances which have emanated since this offending. Ms Price took me to his background: his early family disintegration, his problems with schooling, the fact that he only had some two to three years schooling, the assistance he had while working in the army, not many people who are conscripted and go in the army who can say that it has been a benefit to them but in this instance it appears it has been. In particular the impact of a particularly kindly officer.
19
Ms Price also took me to the personal background that I have referred to as to his marriage and children and his employment since he left the army. I am aware of his current position and the fact that he essentially lived with
Ms D for a period of some ten years, the circumstances of that relationship, where essentially the rent is split and also, of course, it is not to be forgotten that Ms D herself has made a statement in this matter.
20 In relation to all of those personal factors, Ms Price tendered Exhibits 2, 3 and 4, each of which I have read and which are confirmatory of all of the matters put.
21 One of the matters, of course, that again needs to be stressed, and was stressed by Ms Price, is that Mr P.D.R has no criminal offences at all. This Court has always taken the view that a person who lives to late mid age, without any prior offences of any sort, is a relevant sentencing factor, a factor that must be recognised by the Courts.
22 Ms Price tendered the report dated 17 May 2012, Exhibit 1, of the psychiatrist Dr Jago. It notes the IQ quotient which was basis of the original disability determination, and support received by Mr P.D.R, although I understand he has now gone on to what is generally known as the age pension. It is clear that it was as a result of that report that the learned prosecutor made the submission that he did.
23 In regard to the offending itself Ms Price on behalf of her client, Mr P.D.R, acknowledged again the seriousness of the crimes but pointed out the short ambit of them, the fact that such involved the one occasion only. As I said, unfortunately, when compared to the types of matters that this Court has to deal with, the offences are not of the most serious nature. That is not to, in any way, take away their seriousness but the fact is we have far more heinous crimes to deal with in this Court.
24 Ms Price also stressed Mr P.D.R’s acknowledgment as to the impact upon his ex-wife of these offences, and the effect such had on the child. As I have said given the background of Ms E.K this was one additional difficultly she did not need. That is the trauma emanating from this offence, and the preparation for trial.
25 I accept the submission made by Ms Price that the plea has been made at the earliest opportunity, and indeed as a result of the impact upon Mr P.D.R himself of these circumstances, he was required to seek assistance from the Salvation Army and indeed the local disability support body for which I acknowledge in Court, and the broad assistance that that body gives to the Court in this State.
26 There is no doubt in my mind, and no doubt was the basis for the professional acknowledgement by the prosecution of this difficult sentencing scenario, that the full ramifications of R v. Verdins (2007) 16 VR 269 apply. There is no doubt that with the reduced intellectual capacity, as indicated by the testing, there is a reduction in this case of the prisoner’s moral culpability which has to be taken into account.
27 As I have said it is always difficult in these matters, however I have no doubt that we are dealing with a crime which was situational and developed simply because of that relationship. I have no concern in sentencing, that Mr P.D.R presents any greater or broader challenge, sexually, to the rest of the community. Indeed I am confident that, albeit that he will not be able to see his granddaughter again because of these circumstances, that such fact will effectively eliminate the risk of any further offending by him.
28 I accept in the circumstances that the principles of general and specific deterrence must be moderated in this case. It is also appropriate, given the circumstances of Mr P.D.R, to take into account the impact upon him of any immediate prison sentence.
29 The submission made, following all those matters by Ms Price, was that I should consider a Community Corrections Order. I do not think that such is appropriate given the seriousness of these crimes. In my view a period of imprisonment should be imposed, however that period of imprisonment should be fully suspended pursuant to the provisions of the Sentencing Act 1991. I note that this is neither a serious nor significant offence as currently defined under the Act.
30 Before I could do that of course it will be necessary for me to be assured by you, Ms Price, that your client understands the significance of such an offence. That is that should he commit an offence punishable by imprisonment over the next three years then any period of imprisonment imposed would have to be served by him. I should stress that it is important that it be pointed out to him that all of the special considerations that have been taken into account which have led to him not having a sentence of immediate imprisonment imposed, would very unlikely be seen as exceptional circumstances again. I think that needs to be pointed out to him.
31 MS PRICE: Yes, I've had those discussions with him already but I will be repeating them.
32 HIS HONOUR: He accepts that?
33 MS PRICE: He does, and understands the consequences if he committed such an offence.
34 HIS HONOUR: I should say that I do not have any concerns that he is a person who would again offend, especially of this type, and in that regard, because I do not see a risk of recidivism, I do not intend to make an order under s.464ZF of the Crimes Act 1958.
35 Mr P.D.R, if you would stand please.
36 You are convicted on both of these crimes pursuant to your plea of guilty.
37 On Charge 1, you are sentenced to a period of imprisonment of nine months.
38 On Charge 2, you are sentenced to a period of imprisonment of one month.
39 I order that the aggregate sentence of nine months imprisonment be fully suspended pursuant to the provisions of s.27 of the Sentencing Act 1991. I order that the operational period of such sentence be a period of three years.
40 Now what that means is although you a sentenced to a period of imprisonment you do not have to serve it. However if you breach that period of suspension during the next three years and have another conviction you would run the risk of having to go to gaol. Now I understand that has been explained to you and it will be explained to you by your counsel. All right?
41 To the extent that I am able to comply with the requirement of Parliament of s.6AAA of the Sentencing Act 1991, all I would say that had I not had the multifarious factors to take into account I would not have imposed a wholly sentence in this matter.
42 Mr Prosecutor, is there any other matters I need to attend to?
43 Yes thank you for that and thank you both for your assistance in this matter. Much appreciated.
44 MR MOORE: Thank you, Your Honour.
45 MS PRICE: May it please the Court.
46 HIS HONOUR: Yes.
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