Director of Public Prosecutions v Pearson (a pseudonym)
[2020] VCC 1891
•26 November 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SALVATORE PEARSON (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE McINERNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 22 October 2020 |
| DATE OF SENTENCE: | 26 November 2020 |
| CASE MAY BE CITED AS: | DPP v Pearson (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1891 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Indecent assault upon a female – Incest – Indecent assault – Brother and sister – Historical - Unrelated subsequent offending – Functionally illiterate – Imprisonment – Wholly Suspended
Legislation Cited: s.55(1) Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967 - s.52(3) Crimes Act 1958, as in
operation between the 1st day of April 1959 and the 28th day of February 1981 - s.44(1) Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980
Cases Cited: R v AMP [2010] VSCA 48
Sentence:Total effective sentence of 1 years and 4 months. Direct that the sentence be wholly suspended with an operational period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole (Plea) Ms V. Toong (Sentence) | Office of Public Prosecution |
| For the Accused | M J. Williams | Farrelly Legal |
HIS HONOUR:
1On 22 October 2020, we heard the plea to Indictment K12510980. Salvatore Pearson[1] was born in March 1961 he is now aged 59. He was at the time of the offending, which is set out in Charges 1 and 2, aged between 14 and nine months and 15 years, and then at the time of the offending in Charge 3 at the time set out, somewhere between 21 and 22.
[1] A pseudonym.
2As I say, on 22 October 2020, Mr Pearson pleaded guilty to the three charges in the indictment. The first is indecent assault upon a female under the age of 16. Mr Pearson in fact was aged between 12 and 13 given the time frame set out in the indictment, 1 January 1976 to 31 December 1976. The offence is a rolled-up charge.
3The sentence pursuant to s.55(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 1967, was a maximum of three years imprisonment. The circumstances as to the rolled up aspect of this charge relates to the details as set out in [11] and [14] of Exhibit A, being the prosecution opening on the plea dated 9 October 2020. These crimes occurred in Mortlake at a property owned by Mr and Mrs Pearson senior.
4Pursuant to [11], the first of the occasions, which make up this rolled up count, occurred in the bathroom of the premises where the family then resided. The details are set out as I said at [11] and they involved Mr Pearson touching the victim's breasts and her vagina, and digitally penetrating her vagina. The second part of the rolled up charge is set out in [14] and involves similar activity which in this instance occurred at the same premises, but in a work shed. As I stress, the victim at the time was between 12 and 13, having been born in September 1963.
5The second charge occurs in the same time frame. The victim who, is Mr Pearson's sister, was aged between 12 and 13. The incest was that sexual intercourse took place between Mr Pearson and the victim. The victim's statement indicates not only that she was a virgin, and therefore her innocence was taken by her brother, but as she said, this intercourse was such that ‘it really hurt’ and 'I hate it'.
6This is an offence, as it then was, under s.52(3) of the Crimes Act 1958 and that section remained operational until 28 February 1981 when the Act was amended. As has just been referred to by Ms Toong, the Crimes Act at the time provided a maximum penalty for an offence against s.52(3), which was then known as incest, of seven years. That, at [42], was the maximum sentence set out in Exhibit A by the prosecution. In fact, as I will come to, pursuant to the provision of s.114 of the Sentencing Act, the maximum penalty is five years.
7I then come to Charge 3 which is indecent assault upon a female over the age of 16. The period was between 1 January 1983 and 31 December 1983. At that stage, Mr Pearson was 21, and the victim was 19. They had been living apart for some time and indeed bizarrely, if I might say, the prisoner was in fact married at the time of this criminality, his wife was then present at his home.
8The circumstances of this indecent assault were that, consistent with the history between both Mr Pearson and the victim, he sought to touch her body and indeed, did in fact touch her bare breasts. It is noted that her reaction thereafter was similar to her reaction to the other matters but she determined that at no time in the future would she ever allow her brother to touch her again.
9I referred to s.114 of the Sentencing Act because of the changes in penalties which have occurred since that time. In particular, the Court of Appeal in R v AMP [2010] VSCA 48. It is necessary and important, I think, for the victim to understand that as a result of the provisions of s.114 of the Sentencing Act, the sentences that your brother is subject to are affected by statute.
10In R v AMP, at [32], the Court of Appeal said:
'Section 114 is reflective of the common law position. Its purpose is to ensure that the punishment for an offence does not exceed that which was applicable at the time the offence was committed.'
11And indeed, in regard to Charges 1 and 3, that applies because if I explain to the victim, at the time that you were assaulted in regard to Charge 1, the penalty maximum prescribed under s.55(1) was three years. The relevant maximum under the Crimes Act now, that is s.49D, is 10 years imprisonment. That is an indication of the different view that society takes of these offences and in particular, the reflection of that view in the legislation passed by Parliament. However, as a matter of fairness, as set out by the common law, your brother cannot be subject to a sentence, the maximum of which is any more than was in place at the time of the offending.
12Hence, though in regard to Charges 1 and 3, the maximum penalties now applicable are 10 years imprisonment, the respective penalties that your brother faces are imprisonment of three years in regard to Charge 1 and five years in regard to Charge 3.
13The issue as to Charge 2, being the incest offence, goes the other way, that is the result of s.114(2). You would have heard that the Crown have indicated to the Court that they were mistaken, putting to the Court that the maximum penalty for Charge 2 was seven years. That comes about as a result that at the time of the offending, pursuant to s.52(3) of the Crimes Act, the maximum penalty for the offence committed upon you by your brother was seven years. Pursuant to the provisions of s.114(2), where there is a change in penalty and that penalty is reduced, which has happened in this case, your brother cannot be subject to a maximum penalty any higher than the reduced penalty by way of statute.
14I should indicate to you that pursuant to such amendment, the crime of incest that was committed upon you, then Charge 2, pursuant to s.52(3) of the Crimes Act is now s.50(F)(2). Essentially, it is now described as sibling incest.
15The maximum penalty that applies today to sibling incest is five years imprisonment. Pursuant to the provision of the Sentencing Act s.114(2), that maximum penalty must apply to your brother.
16I should while I am referring to R v AMP refer to one extra statement made by the Court of Appeal which is relevant. It was a statement made at [34] and it refers to the issue as to current sentencing practice 50 years ago. The Court said:
'The best that a sentencing judge could do in these circumstances would be to have regard to the fact that the range of sentences imposed for this offence were generally lower than the present range of offences for the same or similar offences.'
17As I said to you earlier, remarkably, the reality in this case insofar as the incest offence is that is not true. Apart from that summary of circumstances, can I indicate that both of you were a part of a family at the time of seven children. Mr Pearson was the eldest, yourself, Yvette[2] was third in the family.
[2] A pseudonym.
18Subsequent to these crimes, you finally made a complaint to your husband somewhere between 1988 and 1990. The matter was reported to the police in June 2014, approximately 31 to 38 years after these offences occurred. Nothing happened as a result of that. However, in 2019, the police decided to proceed to lay charges which ultimately led to this indictment.
19Your brother entered into and answered a record of interview which is in the depositions dated 30 March 2019. Ultimately, your brother was charged on 9 September 2019. The matter resolved very shortly thereafter, by July 2020. Your brother comes before the Court with no priors. Insofar as the sexual reporting regulations, the matter for this Court is a discretionary matter and I have decided not to exercise such discretion.
20I want to come to your victim impact statement. Such statement was tendered as Exhibit B. As I described during the hearing, I thought it was both thoughtful and restrained. I note in particular the references to the shame that you felt, the grief and the heartfelt guilt. I note in regard to these proceedings, to which your brother has pleaded guilty, your comments, to use your words, as to the return of shame to your brother, the need for him to feel guilt and to suffer the consequences for his crimes.
21Importantly, in regard to the offending, albeit confined to three charges of which I am dealing, it is by consent to be seen in the context of ongoing assaults by way of touchings of your breast and vagina, as set out in [26] of the prosecution opening.
22As best as I can understand it, pursuant to your statement, in particular, [24] such touchings continued for a period up to somewhere in 1983. After the commission of the last charge, that is Charge 3, you left the family home and went to work in Warrnambool. As I understand the position, the family became aware of the assaults in approximately 1999 and you decided, given what had occurred to you and the crimes committed on you by your brother, to use your words that he was no longer a brother to you.
23I find, given the crimes committed against you that your attitude was totally understandable. Subsequently, you told your husband about these crimes.
24Mr Pearson comes before the Court with no prior offences. He has subsequent matters which are unrelated. They are, compared to the offences committed against the victim, truly minor and were essentially dishonesty matters which were dealt with by way of fines.
25Mr Pearson is now 59, having been respectively between 14 and 15 years in regard to Charges 1 and 2, and aged 21 in regard to Charge 3. Mr Pearson is a person who has throughout the subsequent period been gainfully employed, given his disabilities. He has sustained a family for 12 years. He was unfortunately subsequently divorced and has maintained such lifestyle, despite some personal issues, to the stage that he is now aged 59.
26It was the submission of the prosecution that the seriousness of these offences are such that there is no alternative but for gaol, however, in the particular circumstances of this case to which I will come to, that a suspended sentence was within the range, and I refer in particular to [21] of the sentencing submissions of the prosecution which were set out at Exhibit C.
27Crimes such as this committed upon young children are very serious and seen as such by the Courts. They are and remain serious despite the passing of time and given such seriousness, the principles of specific deterrence, general deterrence and denunciation are of utmost importance.
28In such circumstances, it is important for this Court by way of social responsibility, especially for victims, to explain the basis of the submission by the prosecution, which has ultimately been adopted by the defence.
29As to how it is that despite the seriousness of such crimes a suspended sentence is the joint submission of both counsel, that comes about from the development of the law as set out by the Court of Appeal in R v PJB [2007] VR 300, being that where such charges as detailed here, in particular Charges 1 and 2 are committed by a child that such brings to a Court, involved in sentencing an offender many years later, particular challenges. In regard to Charge 3 of course, he was no longer a child but certainly was an adolescent, and comes within the definition of a young offender under the Act.
30At [15], the Court of Appeal said, and it is important to understand what they have said because had Mr Pearson, your brother, been sentenced at the time of offending:
'He would have been sentenced as a child or, in the case of some the counts, a young offender, that his moral culpability would have been judged to be less, particularly in the case of the offences committed while he was a child; and that great weight would have been given to maximising his prospects of rehabilitation, with the result that he may have been sentenced to either custody in a youth training centre or been given a non-custodial sentence. Further, counsel points out that although the judge stated in his sentencing remarks that he took into account the appellant's youth at the time of offending, and that if the matter had come to light at the time, he would have been sentenced in the Children's Court, at least in respect of the early offences, the judge also said that general deterrence "must be an important sentencing consideration for this Court" and that the offence the subject of [Count 3, which I interpose was a matter of incest in that time] was committed by the appellant when the appellant was a young offender for the purposes of the Sentencing Act.'
31 'I will now go to [16]:
'In my view, there is no more force in those submissions. Decisions of this Court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. General deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults.'
32As we know but for the subsequent matters, which are unrelated, Mr Pearson has not at all reoffended in a like manner. In R v PJB, the offences took place 24 years before the sentence. Here, as best my maths can calculate, we are talking respectively 44 years and 37 years.
33I refer again to [22] of that case, when talking about the sentence the Court of Appeal said:
'The sentence which the judge imposed did not sufficiently recognise that, at the time of sentencing more than 24 years had passed since the offending without the appellant reoffending, especially given the judge's finding that the appellant had excellent prospects of rehabilitation and was unlikely ever to reoffend. In effect, the appellant had used the intervening quarter of a century to remake himself into a useful member of society. In those circumstances, I am unable to follow the logic of imposing a substantially greater sentence than would have been imposed before that improvement had occurred.'
34The Court went on at [22] as follows:
'Of course, it does not follow that the same considerations apply in all cases of sexual offences where offending is not exposed until long after the event, or even in all such cases where the offender has been substantially rehabilitated in the meantime. As Vincent JA explained in Director of Public Prosecutions v Toomey ordinarily where an adult offender is to be sentenced for offences involving the sexual abuse of a young person, the principles of general deterrence and denunciation remain at the forefront of the sentencing no matter how long ago the offences may have occurred. But, for reasons I have already explained, it is different where the offender was a young offender at the time of the offending and has been rehabilitated in the meantime. Prima facie general deterrence and denunciation do not play the same role in the sentencing of young offenders, and in my view it would be illogical and unfair to lose sight of that when it comes later to sentencing the offender as an adult. As Buchanan JA put it in R v Better, the lapse of time since the commission of the offences and the rehabilitation effected by the appellant militate against the imposition of a sentence longer than that which is proportionate to the gravity of the offences in order to protect the community from the appellant.'
35Given the submission of the prosecution, joined in by the defence, I think it is important, and I apologise for having to refer to cases, but it is important for me to elucidate why that submission was made.
36In regard to the sentencing of Mr Pearson, added to the above principles is the issue of Mr Pearson's intellectual condition at the time of the offending and indeed now. In this case, the evidence of Mr David Sullivan, psychologist, is critical. I refer in particular to the report made by Mr Sullivan dated 18 September 2020, Exhibit 2. Mr Sullivan found that Mr Pearson's intellectual condition is developmental and applied from the date of his birth, see [7]. Mr Sullivan found that Mr Pearson is functionally illiterate. Mr Sullivan found that Mr Pearson’s intellectual functioning is at the lowest two per cent of his age cohort. Mr Sullivan further opined an explanation for the behaviour, that is the criminal acts committed upon Mr Pearson’s sister, 'may at least in part be due to the difficulties with disinhibition and diminished emotional regulation typical of children and adolescence during such years who have such intellectual disability.'
37It seems to me that such intellectual disability has played upon the natural sexual development and urges of a young 14 to 15-year-old boy and indeed a 21-year-old young adolescent to produce serious aberrant criminal behaviour upon his sister.
38Insofar as this sentence is concerned, the plea was conducted by Mr Williams and the following matters were put by way of written submissions, Exhibit 1, and the matters that he spoke to. The first matter was the plea of guilty. It was put to the Court that this was valuable and utilitarian. It saved the victim from going through the rigors of a trial. Mr Pearson thereby demonstrated acceptance of responsibility. All of those matters I accept and the appropriate discount is allowed.
39The second matter put by Mr Williams was that rehabilitation that has in this case been proved in fact. Despite the minor crimes committed as an adult, there has been no further serious criminaltiy such as this. It was a result of all of those matters that Mr Williams joined with the prosecutor in proposing that a suspended sentence was within range. It was the submission of Mr Williams that a suspended sentence should be passed by this Court.
40Can I indicate to all that these sentences are never easy. It is very difficult for a Court to take itself back so many years to circumstances which occur within a family, where crimes are committed upon an innocent girl. But the crimes were committed, certainly the most serious, by a person who was a child and also intellectually compromised.
41Taking all of the circumstances that I have referred to into account, I have accepted the submission of Mr Williams, a submission which the prosecution submit is within range, and a suspended sentence will be passed in this case.
42Mr Pearson, if you would stand please. Mr Pearson you will be convicted of the three charges in this indictment.
43On the first charge, you will be sentenced to imprisonment of six months’ gaol.
44On the second charge, you will be sentenced to imprisonment of one-year gaol.
45On the third charge, you will be sentenced to imprisonment of six months' gaol.
46Using Charge 2 as the base sentence, that is one year, I order that two months of the sentences imposed in regard to Charge 1 and 3, which means a total of four months, is to be added by way of cumulation to the base sentence, making a total effective sentence of one year and four months.
47I order pursuant s.27 of the Sentencing Act, as it formerly stood, that such sentence be fully suspended for a period of two years. It is of course imperative during that period of two years that you are of good behaviour. There is nothing in your background that would suggest you will not be.
48However, it is important for me to warn you that should there be any breaches of this suspended sentence over such period, it would not be in your favour. However, I have not made an order insofar as the reporting regulations as I do not anticipate that you would breach this order. However, it is necessary for me to tell you that should you come back having breached the order, the chances of you getting immediate imprisonment would be high.
49Does either counsel require me to clarify anything or to go over any matter that I have detailed?
50COUNSEL: No, Your Honour.
51HIS HONOUR: The provisions of s.6AAA I do not think applied at the time of this offence. I think the circumstances involved are such that it is just totally impossible for me to adhere to the request of Parliament to give some indication of what s.6AAA would have been in the circumstances.
52Yes, thank you both for your assistance. A copy of that order, Mr Farrelly, a copy of that will be emailed down to your office and no doubt, you will make sure you get a copy of it to Mr Pearson in due course and explain in full the terms thereof.
53I thank everyone in this case, but in particular the victim for coming forward and detailing the circumstances of her life which have been quite dramatically demonstrated in such statement. Yes, thank you.
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