Director of Public Prosecutions v Petch

[2018] VCC 663

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-02262
CR-17-00422

DIRECTOR OF PUBLIC PROSECUTIONS

v

RONALD PETCH

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	11 May 2018
CASE MAY BE CITED AS:	DPP v Petch
MEDIUM NEUTRAL CITATION:	[2018] VCC 663

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Warren	Office of Public Prosecutions
For the Accused	Ms K. McFarlane	McFarlane Criminal Lawyers

HIS HONOUR:

1Ronald George Petch, you have pleaded guilty to six charges of indecent act with, or in the presence of a child; one charge of recklessly causing injury; one charge of possessing child pornography; one charge of being a non-prohibited person possessing a longarm; storing a firearm in an insecure manner whilst unlicenced; and possessing a drug of dependence.

2Those crimes carry maximum penalties, as I understand it, of ten years, five years, five years, five years, four years, and a monetary penalty; respectively.

3You pleaded guilty to a settled indictment and I take that very much into account, in terms of the utilitarian benefit of that plea.  As it has all panned out, I accept for these purposes that there is appropriate remorse.

4There has been a delay now of some three years from your first interview.  That has been very much brought about by your denial of the offending, certainly insofar as the sexual offences are concerned, and your entering a plea of not guilty at the committal.  Be that as it may, I do take into account that you have now spent at least two years under the apprehension as to what would occur to you in the event of an ultimately - an adverse verdict.

5Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made I advise you that should you refuse to provide a sample, police may use reasonable force to take it from you, and that order is made and handed down.

6You have no prior convictions of any description.  Though, of course, this offending took place over a period of roughly a decade.  As I understand it there are no matters pending.

7Because of the nature of the sentences I am to impose on Charges 3 to 6, inclusive, you are to be sentenced as a serious sexual offender.  I am aware that community protection becomes a principle sentencing purpose.  The Crown do not ask for a disproportionate sentence and I am aware that sentences are to be cumulative unless otherwise ordered.  I will be so otherwise ordering because of reasons of totality.

8Next, because of the nature of the offending you will be placed on the sex offenders register and I advise you that the reporting conditions will be for life and you will be now handed that documentation.  Ms McFarlane, if you could accompany my associate please.

9All right, Charges 1, 2 and 6 are representative charges.  As I raised with counsel before commencing these sentencing remarks, I must be careful to treat them as representative charges and not as rolled up charges or course of conduct charges.  The nature of the matter tends to have one thinking in that way, but you are to be sentenced for individual acts, not a multitude of them.  I simply take into account that those individual acts occurred in circumstances where they could not be described as out of character or one off, or indeed, opportunistic.

10You, Mr Petch, are now 60 years of age.  You have no prior convictions as I have indicated.  You were operating - a part of at least - a family business in Trafalgar; known as YGP Grain and Hardware.  On the plea it was put to me that that was a longstanding family business and at one stage had four outlets, employing in excess of a dozen people.  You are obviously a person who has, throughout his life, worked hard and I am also advised that your wife, and mother of your children, left some years ago and you raised the children by yourself.

11You were well-known within in the Trafalgar community and indeed, around the area as I understand it.  You have employed many people over the years at the store as both on a full time basis and a part time basis.  You had been involved in local speedway racing and were well-known in that regard.

12Young people would often come to the store, sometimes to work, sometimes by reason of family connections, and in each of the matters I am about to refer to there was a family connection of sorts, or a work connection of sorts.  Each of these offences took place where you were in a position of trust and people allowed their children to be in your company.

13The nature of the offending was indicated during the course of plea as such to cause concern within a country town. Once the town knows that this sort of offending has been going on for in excess of a decade it causes great anxiety and causes them to query what may have indeed happened to their own children.  However, you are to be sentenced for three victims, and no more than that.

14Before outlining what has occurred, I take into account what your counsel said on your behalf yesterday, that you have been very much ostracised in the town of Trafalgar because of this.  It having become well know what you are charged with.  You indeed have left Trafalgar, sold the business and now reside in Melbourne.  And I take those matters into account.  You would also appear to have suffered threats and your store been graffitied.

15In any event, the first victim in the matter, Victim 1, was born in 1980, and of course would now be around 37, 38 years of age.  He was known to you via his mother.  He worked for you on a casual basis when he was aged approximately 13 to 14 years.  He would work on Saturday mornings for four hours doing small tasks; sweeping floors, helping customers, and the like.  He would be paid at the end of the Saturday shift.

16The first charge is indecent act with him.  On one occasion he was standing at the counter and you walked past him and put your hands down his pants and touched his buttocks.  That type of offending occurred approximately once a week over a two year period, during that time frame I have mentioned.  The touching would be both over his clothing and under his clothing.  Obviously that occurred whilst he was working at your store.  That is a representative charge.

17Second charge is also representative.  On another occasion, standing at the store counter, you walked past him and used your hand to touch him on his genitals, under his clothing.  That type of offending also occurred approximately once a week over the two year period that I have referred to.  That touching would be both over his clothing and under his clothing.  Again, as I have indicated, occurred whilst he was at work with you.

18You, throughout that period of time, would often make sexually inappropriate comments towards him and you would touch him on his buttocks or genitals, and make further comments in an attempt to portray your conduct as being, "Funny".  He used to simply tell you, "Fuck off".

19The next complainant is Victim 2 and his father was employed by you for separate periods of time, and during that time you got to know him and the child.  You formed a relationship with Victim 2, who would now in my calculation be around about 28 years of age.  He got to know you while his father was working for you and from the age of 15 would regularly visit his father at work.  You would ask him to help with things at the store like sweeping, filling shelves and other smalls jobs.  During that time he began stealing small amounts of money from the cash register.  You became aware of that.

20On an occasion when he was 15 he was walking home from school along Contingent Street in Trafalgar. He was opposite a restaurant when you pulled up.  You offered him a lift home, you took him back to your house and you, for some reason, went in and turned the shower taps on and left them running.  You went back into the lounge room where he had remained.  You then grabbed his crutch and started rubbing his penis over the top of his school shorts.  He attempted to stop you from doing this, however you continued and you said that, "I know that you have been taking money".  He told you to, "Fuck off", and was shocked by your actions.

21You continued to say that you knew what he had done.  You then removed his uniform shorts, leaving him in his boxer shorts.  You then continued to rub his penis over the top of the boxer shorts, and again said to him that you knew what he had done.  He then asked you why you had not have him charged by police and you did not reply.  You kept that up for about ten or 15 minutes and then placed $100 on the kitchen bench and said, "This is yours".

22He continued to attend the store to help and continued to steal money from you.  You then began asking him to visit you at your home rather than at the store.  He described himself as being confused, as he was stealing money in the order of $100 to $200, and you would be asking him to come to your house.

23A second occasion - and these are specific charges as opposed to representative - of sexual abuse occurred approximately three weeks to a month after the first incident.  He again attended at your home, you grabbed him by the crutch and began rubbing his penis over his clothing; that is
Charge 4.

24Charge 5, you then removed his pants and his underpants, and continued to rub his penis, causing him to get an erection.  After you ceased your actions you walked him into the kitchen and told him to take the money from the bench.  There was at least $300 sitting on the bench, he took the money and he left.

25The third complainant is Victim 3, who on my calculation would now be around about 26 years of age.  His father had an account with your business and he became involved in speedway racing.  When he was 13 years of age he would go, and go with you and others to the speedway races in Rosedale.  It was during conversations with the father that you arranged for the victim to travel to the raceway with you.

26On one occasion, at the speedway, you came up from behind him, put your hand down between his legs, grabbed him on the testicles over the top of his clothing.  You held onto them for about ten seconds, and he could feel what he describes as, "A bit of pressure", from that hold.  He had a friend present at the time who saw what had occurred.  He says that for months after this act every time he went into the store you would speak to him about the incident, and made comments like, "There's barely enough there for me to play with", implying that his testicles were small.  You spoke about this on a lot of occasions and again, would speak as though you were joking around.  He estimates that you touched him on the genitals on approximately 30 occasions, during the period of time when he was aged 13 to 15.  Again, that is representative and I treat it in that regard.

27There are uncharged acts, so far as Victim 3’s concerned, involving you putting your hand down the back of his pants into what he described as his, "Arse crack".  He recalled that this would occur when you were bending over.  He would again, as did the others, tell you to, "Fuck off", when you committed these acts, but you would continue on.  He again estimates that that sort of behaviour would have occurred on a similar amount of occasions.  Again, that is not a charge and it does not add to the seriousness of the other charges, expect he puts that there was a situation of you subjecting him over a period of time to this sort of offending, and that this singular incident for which I sentence you was just simply one of a pattern.  As I have indicated to counsel, I am well aware of what a representative charge involves.

28Charge 7 is one of recklessly causing injury.  In that situation you placed a cattle prod onto his buttocks and electrocuted him, effectively.  He received welts from that, it hurt, and took a while to heal.  When police executed a warrant, they found child pornography in equipment owned and possessed by you.  The circumstances were that there was a relatively small amount of child porn obtained.  I do not accept the reasons that you endeavoured to give to police for your ownership of it.  However, the images are not of great number, and do not include the higher categories of child pornography.  As indicated to counsel, had this matter - that is the child pornography - remained in the Magistrates' Court, there would have been very little chance of you being incarcerated.

29When the police executed the warrant, they found .25 ammunition, they found an air rifle, and they found some cannabis.  None of those matters are of great significance in this sentencing process.  And on the possession of the small amount of cannabis, I simply convicted and discharge.

30As was discussed during the course of the plea, I do not propose to fine you on any of those matters, which would be the normal disposition.  You are to be incarcerated for the sexual offending, and it seems to me that rather than have you with fines hanging over your head, and various applications have to be made, it is much simpler to give a very short gaol sentence for each of those offences, and make it concurrent with the overall sentences being imposed for the sexual offending.

31The offending is serious, it is a breach of trust.  It involved your domination, if you like, of young boys for your own sexual gratification over an extended period of time.  It calls very much for the application of general deterrence.  In your situation, I doubt very much whether you will ever do this again.  So specific deterrence probably are not of great significance.

32However, when this sort of offending takes place within a country town - prolonged, and the effects it has not only the victims themselves, but on the community, it required denunciation, and obviously there must be an appropriate punishment.

33I have before me victim impact statements from each of the victims, which eloquently describe the shame, the humiliation, the anxiety, and the ongoing psychological difficulties that offending of this nature causes.  Each of those boys will carry the consequences of what you have done to them for a very long time, if not for the rest of their lives.

34Your counsel, as I very briefly indicated, you are 60 years of age, you have raised a family, you have had a successful business; or been part of a successful business for a long time.  Character references were tendered on your behalf, but in a situation like this they are of little use.  You would seem to be, in other areas, a worthwhile member of your community.  But obviously, what you were doing to these three boys was a secret from all the others.  But you can call into aid good character, and I certainly take it in that regard.

35In this situation, it is conceded by your counsel, very properly, that a custodial sentence is inevitable.  General deterrence, in my view, demands that.  However, when I look at - as I have indicated - the matter, insofar as representative charges are concerned - the gravity of the acts, there is no penetrations, either oral or anal, and each individual charge, in one sense, can be regarded at the lower end of this sort of offending.  Other than the charge of, obviously, the masturbation of the penis to erection.

36However, in all the circumstances, even though they be at the lower end, and if they have been charges in isolation the matter probably would never have come to light.  There must be a custodial sentence, but it need not be one of any great duration.  The lesson can be learnt from a relatively short, active period of incarceration.

37As discussed with counsel yesterday, I think that the prospects of your rehabilitation should be good.  The risk of you reoffending should be slight in this situation, and the matter fits easily within the auspices of a partially suspended sentence, and that is what I propose to do. I direct one day of presentence be reckoned as having served under this sentence.

38So taking all those matters into account on your behalf, you are sentenced as follows:  Charge 1, six months; Charge 2, six months;  Charge 3, two months; Charge 4, two months; Charge 5, six months; Charge 6, six months; Charge 7, seven days, concurrent; Charge 8, seven days, concurrent; Charge 9, seven days, concurrent; Charge 10, seven days, concurrent; Charge 11, convict and discharge.

39I direct that two months of the sentence imposed on Charge 1, two months of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3, and two months of the sentence imposed on Charge 6 be served cumulatively upon each other, and upon the sentence imposed on Charge 5.  That gives an effective head sentence of 13 months.  I direct that nine months of that 13 months be suspended for a period of two years, because I regard it in the interests of justice to do so.  Obviously that is with conviction, as it must be, because it is a sentence of imprisonment.  Accordingly, there is an effective term of four months to be served under that sentence.

40I say this to you, s.6AAA does not apply in this, given the situation.  But I say this to you Mr Petch, so that both you and your family understand:  that had you fought these matters out the Crown clearly would have proceeded with course of conduct charges, and had you been convicted by a jury of course of conduct charges, having put these boys through a trial, the sentence I would have imposed would have been something in the order of three years, with a two year minimum.

41No other orders I have to make?

42MS MCFARLANE:  I've got custody management issues, Your Honour.

43HIS HONOUR:  No, I know, that's a matter for you and them, not me.

44MS MCFARLANE:  All right.  Then no, Your Honour.

45HIS HONOUR:  All right, yes.  Yes, if you can take him now, thank you.

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