Director of Public Prosecutions v Pittard (a pseudonym)
[2019] VCC 1536
•9 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM PITTARD (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE D. SEXTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 9 September 2019 |
| CASE MAY BE CITED AS: | DPP v Pittard (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1536 |
REASONS FOR SENTENCE
---Subject:
Catchwords:
Legislation Cited: Sentencing Act 1991; Sex Offenders Registration Act 2004; Crimes Act 1958
Cases Cited:Guden (2010) VR 288; Allouch v R [2018] VSCA 244; Loftus V R [2019] VSCA 24; Magedi v R [2019] VSCA 102; Dalgliesh (2017) 262 CLR 428; Stalio v R [2012] VSCA 120; R v Verdins 16 VR 269; R v Khem [2007] VCC 1546
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Borg (Plea) Mr M. Fisher (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr R. Lawrence (Plea) Ms B. Coath (Sentence) | Pica Criminal Lawyers |
Background
1HIS HONOUR: William Lachlan Pittard[1], you have pleaded guilty to an indictment containing nine charges. One charge of carnal knowledge of a girl aged between 10 and 16 years[2], five charges of indecent assault,[3] and three charges of indecent act with or in the presence of a child under 16[4]. The maximum penalty for carnal knowledge of a girl aged between 10 and 16 years (Charge 1) is 10 years' imprisonment. The maximum penalty for indecent assault in relation to Charges 2, 3 and 4 is five years' imprisonment, and in relation to Charges 8 and 9 is 10 years' imprisonment. The maximum penalty for indecent act with or in the presence of a child under the age of 16 years (Charges 5, 6, and 7) is 10 years' imprisonment.
[1] A pseudonym
[2] Contrary to s48(1) of the Crimes Act 1958 as in operation between 1 April 1959 and 28 February 1981
[3] Contrary to s44(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1980 (relating to Charges 2, 3 and 4) and contrary to s39(1) of the Crimes Act 1958 as amended by the Crimes Amendment (Rape) Act 2007 (relating to charges 8 and 9)
[4] Contrary to s47(1) of the Crimes Act 1958 as amended by the Crimes (Sexual Offences) Act 1991
Circumstances of Your Offending
2Your offending spanned a 36-year period between 1978 and 2014, occurring in five time periods within that 36 years; 1978, 1988 to 1991, 2002 to 2003, 2006, and 2003 to 2014. Your offending affected seven victims, one step-sister, five nieces and one step-nephew, all aged between six and 26 years of age.
3The details of your offending were set out in an Amended Summary of Prosecution Opening dated 14 March 2019, tendered at your plea hearing and marked Exhibit A. No issue was taken with the contents of this document, which I regard as an agreed statement of facts.
4You were one of six children born to Mary Pittard[5] and Alex Pittard[6], who passed away in 1975. In 1976 when you were 15, your mother remarried Liam Hart[7], who had two daughters, Victoria Stow[8] and Natalie Hart[9]. You sexually offended against your step-sister, Victoria Stow, as well as six children of your siblings.
[5] A pseudonym
[6] A pseudonym
[7] A pseudonym
[8] A pseudonym
[9] A pseudonym
Your Offending Against Victoria Stow
5Ms Stow was born in May 1963. She is approximately two years and three months your junior.
In December 1976, after your mother and Mr Hart married, your family moved in with the Hart family. Your offending against Victoria began one to two months after the two families moved in together, and after the school holidays finished in 1977. It occurred on school nights, once a week or sometimes twice a week, when your mother and Mr Hart were out. The offending started with masturbation of your penis and touching of Ms Stow's vagina, before escalating to sexual intercourse. The sexual intercourse took place when Ms Stow was about 14 or 15 years old, and you were aged 16 or 17 years of age. The sexual intercourse occurred on about 20 occasions. It never lasted long and would be the same, in the missionary position, with both you and Ms Stow with your jeans down around your knees or ankles. Ms Stow had gone through puberty when she was 13 years of age, and was not on birth control. A condom was not used during the sexual intercourse.
6The offending in relation to Ms Stow stopped when she was around 15 years of age, when she had missed a period and told your sister, Emma Fossey[10], who in turn told your mother, Mary, that you had been having sexual intercourse with Ms Stow. Upon taking Ms Stow to a medical clinic and ascertaining that Ms Stow was not pregnant, your mother proceeded to blame Ms Stow and told her that if it happened again she would tell Ms Stow's father. Following this episode, Ms Stow refused later attempts by you to engage in intercourse.
[10] A pseudonym
7Ms Stow moved away from her family at the age of 19 when she married and did not have anything to do with your family for next 25 years.
8She finally disclosed your offending to her husband in 1996.
9Your conduct in relation to Ms Stow forms the basis of Charge 1 on the indictment, carnal knowledge of a girl aged between the ages of 10 and 16. This is a course of conduct charge in relation to the sexual intercourse occurring on about 20 occasions within 1978.
Your Offending in Relation to Lola Fossey[11]
[11] A pseudonym
10Lola Fossey is one of your nieces, born to your sister, Emma Fossey. She was born in July 1980, and was seven going on eight years of age at the time of your offending.
11Your offending took place approximately 10 years after your offending against Victoria Stow, and occurred mainly at the home of your sister, Chelsea Pedley, in the context of your babysitting, at family events, or whilst playing games like ‘chasey’ and hide-and-seek.
12On 21 July 1988, on the day of your grandmother's funeral, you were at Chelsea Pedley's house and sat Lola Fossey on your lap and rubbed your penis against her bottom. Lola Fossey recalls another occasion where she was at her grandmother's house, in a room with a pool table, when you placed her on your lap and rubbed your penis against her bottom. Your conduct on these occasions forms the basis of Charge 2 on the indictment, indecent assault, and is a representative charge in relation to the two occasions I have described.
13Lola Fossey also recalls occasions when you inserted your finger into her vagina. On the occasion of your grandmother's funeral on 21 July 1988, you rubbed Ms Fossey's vagina over her underpants and then proceeded to pull her pants aside and insert your fingers into her vagina over and over again. Lola also recalled an occasion when she was playing hide-and-seek with her cousins at Chelsea Pedley[12]'s house. She was hiding on a bottom bunk and you rubbed her vagina over her clothing before putting your fingers into her vagina. You then rubbed over her underpants and then slipped them to the side and began to insert your fingers into her vagina over and over again.
[12] A pseudonym
14Ms Fossey also recalls an incident which took place at the restaurant of your brother, Leigh Pittard[13], where she was playing tag with you in the cellar of the restaurant when you inserted your fingers into her vagina. Your conduct in this regard forms the basis of Charge 3 on the indictment, indecent assault. It is a representative charge, representing insertion of your fingers into Ms Fossey's vagina on the occasions I have described.
Your Offending in Relation to Hannah Pedley[14]
[13] A pseudonym
[14] A pseudonym
15Hannah Pedley was born in December 1981 and was aged eight or nine years at the time of your offending against her. Ms Pedley is the daughter of your sister, Chelsea Pedley.
16Ms Pedley recalled an occasion when she was on a couch or mattress on the floor of her grandmother's house, where she was woken up by you, rubbing up and down on her. You lay on top of her and slid your body up and down, humping her for “a good minute or two”. Your conduct in this regard forms the basis of Charge 4 on the indictment, indecent assault.
Your Offending in Relation to Sophie Pedley[15]
[15] A pseudonym
17Sophie Pedley is the younger sister of Hannah Pedley, having been born in April 1996. In 2002 to 2003 when she was six years of age, Ms Pedley was staying at her grandmother's house, where you then resided. Ms Pedley recalls being picked up by her grandmother and taken to her grandmother's house and you were present when she arrived.
18After lunch, Ms Pedley's grandmother went to have a nap, leaving Ms Pedley sitting on the couch watching television with you. You asked her to sit on your lap and gave her a bag of lollies. You grabbed her hand and undid your fly. You put her hand on your penis and told her to grab it. Ms Pedley put her whole hand around your penis and you told her to move it up and down. You then put your tongue in her mouth, at which point Ms Pedley moved away to another couch. However, you followed her and lay on top of her and “humped” her by thrusting and rubbing your groin into Ms Pedley's groin. You then told Ms Pedley to keep quiet or she would not see her grandmother again.
19Your conduct in this regard forms the basis of Charge 5 on the indictment, indecent act with or in the presence of a child under 16. It is a rolled-up charge, covering the two incidents as I have described.
Your Offending in Relation to Edward Birchill[16]
[16] A pseudonym
20Edward Birchill is the step-son of your brother, Michael[17], and accordingly your step-nephew. He was born on in July 1993, and was approximately 13 years of age at the time of your offending. Due to some family difficulties, the Department of Human Services placed Mr Birchell in the care of your mother, in a property where you also lived at the time.
[17] A pseudonym
21In 2006, you shared a bedroom with your step-nephew at your mother's property. Mr Birchell recalled one night when you and he were watching a movie on television in the bedroom. According to Mr Birchell, he was dozing and then felt a hand on his pyjamas around his penis area, on top of his boxer shorts and for a duration of no more than three seconds. Your conduct in this regard forms the basis of Charge 6 on the indictment, indecent act with or in the presence of a child under 16.
Your Offending in Relation to Georgia Pittard[18]
[18] A pseudonym
22Georgia Pittard is the daughter of your brother, Michael, and accordingly is your niece. Ms Pittard has an intellectual disability and was about 14 years of age at the time of your offending against her in 2013/2014. Ms Pittard recalled a time when she was living at your mother's house with her father and her brother.
23There were two occasions when she was aged about 14 when you touched her vagina and breasts. She described an occasion when she was lying down in her school uniform on a couch, when you touched her vagina and breasts. She also described her grandmother sleeping one afternoon when you touched her breasts on top of her bra.
24Your conduct in relation to Ms Pittard forms the basis of Charge 7 on the indictment, indecent act with or in the presence of a child under 16. This is a rolled-up charge, covering two occasions when you engaged in this conduct.
Your Offending in Relation to Amelia Pittard[19]
[19] A pseudonym
25Amelia was born inSeptember 1988, and was 26 years of age at the time of your offending against her. Ms Pittard is the daughter of your brother, Michael, and accordingly is your niece. She has an intellectual disability.
26On an occasion in June 2014, Ms Pittard was staying at your mother's house on the coach, waiting for her father to pick her up to take her to the dentist. Ms Pittard was laying on the couch with a painful tooth, when you “came and jumped on” her. She pushed you off and then you “came back to try and kiss” her. According to Ms Pittard, when you jumped on her you touched her breasts. You also tried to put your hand down her pants, but Ms Pittard did not let you. Ms Pittard got up and went to the bathroom, but you followed her and tried to kiss her in the bathroom, before you were pushed away and went out the door.
27Your conduct in relation to touching the breasts of Ms Pittard, and trying to put your hand down her pants, forms the basis of Charge 8 on the indictment, indecent assault. This is a rolled-up charge covering the actions that I have just described.
28Ms Pittard also described an incident where she fell asleep in bed and you came up behind her and woke her up. You put your hands inside her underpants and touched the outside of her vagina. When Ms PIttard told you to 'piss off', you did not listen, until hearing your mother arrive in a car and jumping off her. Your conduct in touching the outside of Ms Pittard's vagina but inside her underpants forms the basis of Charge 9 on the indictment, indecent assault.
Victim Impact Statements
29At your plea hearing on 14 March 2019, Victim Impact Statements from six of your seven victims were tendered[20]. I have read and taken into consideration each of those Victim Impact Statements in consideration of an appropriate sentence in your case.
[20] Exhibits B, C, D, E, F and G
30Lola Fossey was present at your plea hearing on 14 March 2019, and read her Victim Impact Statement to the court. In a lengthy and heartfelt statement, Ms Fossey indicates:
“You put your own agenda above being an uncle, you took that trust my mother had in you and abused it for your own sick, twisted amusement.”
31Ms Fossey indicated that your offending against her had been detrimental to her mental health, her relationships, and to how she parents today. She indicated that, that as an adult, it is very hard for her to trust anyone, including family, and that life growing up for her around your family was a difficult one. Ms Fossey referred to having a “lot of very tough years”, turning to drugs, not caring about herself or what happened her. She referred to shutting down on people, including her husband and children, and being an overprotective mother due to your offending against her.
32Ms Victoria Stow's victim impact statement was read out by the prosecutor at your plea hearing on 14 March 2019. According to Ms Stow:
“I was made to feel this was all my fault. Will stole my innocence, my self-confidence, my trust in males, as I thought they were all the same. I felt dirty, ashamed and guilty that I let this happen. I dare not tell anyone. I had trouble in relationships with intimacy and trust in my partners. …I abused my body and mind with alcohol and drugs in an attempt to block out the nightmares that haunted me daily from what had happened at my family home.”
33The victim impact statement of Sophie Pedley was read out by the prosecutor at your plea hearing on 14 March 2019. Ms Pedley described a period of self-harming in the years following your offending against her, and alcohol and drug abuse. She described significant sleep disturbance for a number of years, missing a lot of school due to her behavioural changes, the onset of depression as a result of your offending, and the presence of “deep psychological scars”.
34Ms Pedley referred to suffering from panic attacks, and referred to counselling of a psychologist. She indicated that she had experienced a lack of trust with her mother, and also a negative impact on her relationship with her partner.
35According to Ms Pedley:
“I feel that my life is ruined by the impact of this incident… I feel like I cannot work or make a commitment to study or further education because of a lack of confidence, anxiety, and a lack of self-esteem…. I don't feel safe when I am by myself and I really only feel safe when I am with my partner.”
36The victim impact statement of Hannah Pedley was read out by the prosecutor at your plea hearing on 14 March 2019. According to Ms Pedley:
“Going to court and reliving the crime has brought back horrible memories and I felt like I was going through it all over again… I just want this nightmare to be over… I still have trust issues when it comes to men, especially any men who are around my children.”
37The victim impact statement with accompanying psychological report in relation to Edward Birchell was not read out by the prosecutor at your plea hearing on 14 March 2019, at the request of Mr Birchell. Likewise, the Victim Impact Statement of Georgia Pittard was also not read out at Ms Pittard's request. However, I have read both of these statements carefully, and taken them into consideration in the sentencing exercise.
38Whilst a victim impact statement was not obtained from Amelia Pittard, I accept the submission made by the prosecution that it is likely that Ms Pittard also has suffered as a result of your offending against her.
39The ability of victims to provide Victim Impact Statements is a legitimate means through which the court can be apprised of the impacts of your offending against your victims. It provides your victims with an opportunity to meaningfully participate in the sentencing process. The statements from your victims graphically highlight the physical, psychological, emotional and social impacts of your offending, which can last for many years and be extremely debilitating. The sentiments expressed by your victims graphically highlight the gravity of your offending, and the damage done to your young and vulnerable victims. Your victims are to be commended for their strength and bravery in the making of their statements.
Nature and Gravity of Your Offending and Your Level of Culpability
40Collectively, your conduct involved serious sexual offending against a number of children over a significant period of time. The protection of children against such sexual offending is clearly of paramount importance, and the community rightly expects such conduct to attract significant punishment. Given the breadth and diversity of your offending, an assessment to the gravity and your level of culpability requires an analysis of your criminal conduct in relation to each of your victims.
Victoria Stow
41I accept the submission made on your behalf that the criminality involved in Charge 1: carnal knowledge of Victoria Stow, is of a different character to the other charges on the indictment. Whilst Ms Stow was aged 14 and 15 at the time of the offending, you were only then aged 16 and 17 years, some two years and three months older than your victim.
42Accordingly, the significant age disparity which is a feature of the remainder of your offending is absent in relation to Charge 1. Moreover, your conduct occurred when you yourself were a child as defined by the law. Further, unlike the remainder of your offending, there is no breach of trust accompanying your offending.
43Whilst I accept that the absence of a condom constitutes an aggravating feature to your offending,[21] the degree to which it aggravates the conduct must necessarily be informed by the fact that you were then aged 16 or 17 years, and presumably not yet mature.
[21]R v Khem [2007] VCC 1546 at [54] and [55]
44Nevertheless, the sexual intercourse with your victim took place on approximately 20 occasions, reflecting sustained misconduct on your part. As this charge is a course of conduct charge, I must impose a sentence that reflects the totality of your offending against Victoria Stow, in much the same way as I would for a rolled up charge.
Lola Fossey
45As conceded by your counsel, the remaining charges on the indictment have, as a common feature, the abuse of trust by you, as you are an older family member in a position of greater power than the complainants.
46Your conduct in relation to Charge 2, indecent assault, involved rubbing your penis against the bottom of Ms Fossey on two occasions, when you were both clothed. The specific incident described by Ms Fossey on 21 July 1988 occurred just before her eighth birthday. Accordingly, she was extremely young at the time of your sexual offending against her. There was a considerable age disparity between you and Ms Fossey, you then being aged 27, and, as I have described, in a position of trust which you seriously breached through your conduct.
47As conceded by your counsel, your conduct in relation to Charge 3 represents a more serious example of the offence of indecent assault in relation to Lola Fossey. Your conduct in relation to this charge involved penetrating the vagina of your seven to eight year old niece with your fingers on four occasions. Accordingly, your conduct represents a very serious example of this crime.
48Charges 2 and 3 in relation to Lola Fossey are representative charges. Whilst they each specify an offence date, 21 July 1988, they are representative as I have explained, of other occasions of offending. The fact that they are representative charges does not increase the maximum sentence for the offence or attract any additional penalty, but puts the offences in context, in that they were not isolated occasions.
Hannah Pedley
49Your conduct in relation to Hannah Pedley occurred when she was just eight or nine years of age, and you were then aged between 28 and 30. The age disparity, together with the young age of your victim and the abuse of trust that I have previously described, accentuates the gravity of your conduct. However, your conduct in relation to Ms Pedley involved a single episode or rubbing your body up and down Ms Pedley when you were both clothed, for a minute or two. Whilst not in any way diluting your culpability for your conduct, I accept that your offending in this regard is a less serious example of the crime of indecent assault.
Sophie Pedley
50Your conduct in placing Ms Pedley's hand around your exposed penis and telling her to move it up and down, then following her when she moved away to another couch, and laying on top of her and thrusting and rubbing your groin into her groin, through clothing, must be seen in the context of Ms Pedley's age at the time, she was just six years of age. As conceded by your counsel, your conduct in relation to Sophie Pedley is accordingly more serious, and represents a significant example of the crime of indecent act with a child under 16.
51Further, as conceded by your counsel, your conduct in telling your six year old niece to keep quiet or she would not see her grandmother again, represents an aggravated feature of your offending.
Edward Birchell
52It was submitted by your counsel that your conduct in relation to Edward Birchell, who was then approximately 13 years of age, by sexually touching his penis area over Mr Birchell's clothing for no more than a matter of seconds on one occasion, is at the lower end of seriousness. Again, without in any way diluting your culpability for your conduct, I accept this submission.
Georgia Pittard
53It was submitted on your behalf that whilst Ms Pittard, who was 14 years of age at the time of your offending, had a cognitive impairment, your offending against her did not deliberately take advantage or exploit that feature. This was conceded by the prosecution, and accordingly I will not sentence you on that basis. Nevertheless, your offending represents a further example of the abuse of trust placed in you as an older family member. Whilst you did not target Ms Pittard due to her disability, she was clearly a young and vulnerable victim.
54As I stated earlier, Charge 7 is a rolled-up charge, covering conduct on two occasions. Clearly, touching the vagina and breasts of your 14 year old niece must be considered serious misconduct. I accept, however, that your contact with Ms Pittard's vagina was under her dress but over her shorts that she wore underneath, and the contact with her breasts was over her bra.
Amelia Pittard
55It was also conceded by the prosecution that whilst Ms Pittard, then aged 26, had an intellectual disability, you did not target her because of her disability, and I will accordingly not sentence you on that basis. Again, however, Ms Pittard was clearly vulnerable victim. As an older family member, you were in a position of trust in relation to her, and through your offending you have breached that trust.
56Your conduct in relation to Ms Pittard involved touching the breasts and trying to put your hand down her pants (Charge 8, a rolled-up charge), which was unsuccessful. It is unclear whether your contact was underneath the clothing of Ms Pittard, and accordingly I am unable to make an adverse finding in that regard to the requisite criminal standard.
57As conceded by your counsel, your conduct in relation to Charge 9 regarding Ms Pittard is more serious, as it involved touching Ms Pittard's vagina directly, and continuing to assault her over her protestations.
58Having dealt with your conduct in relation to each victim, I make one final comment regarding nature and gravity of your offending and your level of culpability. In submissions before me on 24 June 2019, your counsel accepted that there was no reduction in your moral culpability due to any mental impairment or Verdins’[22] principles. Accordingly, I sentence you on the basis that your level of culpability for the offending, viewed as a whole, is high. I will return to the issue of your psychological functioning later in my reasons for sentence.
[22]R v Verdins [2007] 16 VR 269
Background and Personal Circumstances
You are currently 58 years of age, having been born in Scotland in 1961. You are one of six children born to your parents, with three younger brothers and two older sisters. Your mother was a qualified nurse and your father was a plumber. You migrated to Australia with your family in 1971, initially living in Queensland before the family moved to Melbourne in 1973. Later in 1973, you returned to Scotland with one of your brothers to reside with your paternal grandparents. You attended high school there. Two years later, your father and remaining brothers moved to Scotland with the intention of the rest of the family following, however your father suddenly passed away in 1975 following a heart attack. You and your brothers then returned to Melbourne.
60Perhaps unsurprisingly, you informed consultant psychologist, Carla Ferrari, according to Ms Ferrari's report dated 7 March 2019, tendered on your plea hearing and marked Exhibit 1, that the death of your father when you were aged 13 was a very difficult time for you and your family.
61In 1976, your mother remarried Mr Hart who, as I have earlier described, had two daughters, one of whom is your first victim, Victoria Stow. Your family and the Hart family combined, and began living together in 1976.
62The following year, 1977, you started an electrical apprenticeship. You had earlier left school after the completion of Year 10. Unfortunately, after completing some two and a half years of your apprenticeship as an electrician, the business closed and you were unable to complete the apprenticeship. You then left home and returned to Scotland for approximately six months, before returning to Australia in 1980 and residing with one of your sisters in Bayswater.
63After moving back to Australia, you worked in a cabinetmaking business amongst other types of employment. You joined the army, where you remained for about seven months, stationed in Healesville.
64You later worked for a furniture business in Fitzroy for about two years, after which you undertook a number of short-term jobs, of no more than six months' duration up until the late 1980s. You informed Ms Ferrari that you had worked intermittently in various employment, including cabinetmaking, ceramics, catering, foil coat printing, industrial piping, door manufacturing, and factory work. Your longest period of employment was assembling furniture for a three year period. You also worked regularly in the family businesses, including hospitality and hardware industries.
65Your last paid job was in your brother's restaurant in around 2014. Since then, you have been in receipt of Centrelink benefits, and as at March 2019 you had a pending disability pension due to a back injury sustained in 2016.
66You informed consultant clinical neuropsychologist Mr Martin Jackson in an assessment undertaken on 29 March 2019, and referred to in a report dated 18 April 2019, a report tendered at your plea hearing on 24 June 2019 and marked Exhibit 2, that you had never got around to becoming an Australian citizen, although you are an Australian resident.
67In terms of your relationship history, you appear to have had a very limited history of romantic relationships. You informed Ms Ferrari that you had had two significant romantic relationships, one of whom you described as the “relationship” with your first victim, Victoria Stow. Ms Ferrari opines, at paragraph 41 of her report that,
“Mr Pittard did not appear to identify that a relationship with his step-sister was inappropriate.”
68According to Ms Ferrari, your subsequent relationship began in 1983 to a woman that you intended to marry. You were together for two years before that relationship ended. You informed Ms Ferrari that following the separation from this woman you reported that your mental health suffered and you experienced suicidal ideation, alcohol abuse, and a decreased interest in hobbies and pleasurable activities, which resulted in no motivation.[23]
[23] Paragraph 42 of her report
69You reported to Ms Ferrari that since that period you have only engaged in casual relationships, and that you began drinking heavily during the period following the separation. I note that your commencement of excessive alcohol consumption appears to date back from your period of time in the army in the early 1980s.
70You have never been married or had any children.
71I turn now to health related matters. You informed Mr Jackson that you drank heavily in the 80s and 90s, before stopping drinking altogether in the 1990s. You have denied any illicit drug use. You reported having had difficulties with hearing in your left ear for approximately 15 years and you also reported issues with your eyesight. You reported a back injury from 2016, for which you had previously taken Panadeine Forte and received physiotherapy.
72Your mother died from cancer in 2018. Prior to her death, and for some years, you had been extremely close with your mother. In fact, you had lived with her and played a role in caring for her in her later years. You reported to Mr Jackson that approximately one week after cremating your mother you had a breakdown in approximately July/August of 2018. You called your general practitioner, who organised for you to be admitted to the psychiatric unit at Maroondah Hospital, where you remained as an in-patient for about three days. You reported some ongoing contact after your discharge with a psychologist. You reported to Mr Jackson that you had been prescribed an antidepressant medication in prison, which had caused you to become extremely tired. Mr Jackson noted a Centrelink medical certificate dated 29 January 2019, which notes a diagnosis of anxiety and depression, which dates from 15 August 2018.
73Mr Jackson also referred to a letter from Dr Michael Ward, general practitioner, dated 29 January 2019, noting that your medical conditions were anxiety, depression, back pain and shoulder pain for which you had been prescribed a variety of medications. Mr Jackson also noted a GP Mental Health Care Plan, which referred to a recent presentation of depressed mood in the context of bereavement following the death of your mother and a short admission to the Maroondah Hospital Psychiatric Unit, and that you had been discharged on antidepressant medication.
74Mr Jackson also reported consideration of a letter from Ms Anna Hames, psychologist, dated 14 December 2018, which documented that you had attended some four sessions with Ms Hames, but upon Ms Hames leaving the relevant organisation you had decided not to get a new therapist at that time.
75Many of these details were supported by Ms Ferrari in her report.[24] Ms Ferrari referred to you having been prescribed Doxepin, an antidepressant, however you had voluntarily ceased taking this medication due to unpleasant side effects.
[24] Page five of that report
76According to Ms Ferrari, you had reported abstinence from alcohol since 2010.
77In terms of your personal circumstances in the period leading up to your remand in custody on 14 March 2019, it appears that you led an isolated and lonely existence, particularly following the death of your mother. You informed Ms Ferrari[25] that you remained in contact with one of your sisters and two of your brothers, but that other than contact with these specific family members, you reported that you were very isolated and had no friends.
[25] Paragraph [28]
78I was informed at your plea hearing on 14 March 2019, that you wished to be remanded in custody, notwithstanding the substantial adjournment needed in order to undertake a neuropsychological assessment. You have been in custody since that date.
Progress Since Remand in Custody
79At your further plea hearing on 24 June 2019, I was informed that you found your initial period in custody to be most difficult. You were placed at the Melbourne Assessment Prison, where you were threatened by other inmates in relation to your tobacco patch which you had been provided. You were then moved to Hopkins Correctional Centre in Ararat, and placed in the Wimmera Unit. You have tried to keep yourself busy in that time, obtaining work in the industries area, working five days a week from 8 am until 2.30 pm in the area of metal fabrication.
I was also informed that you had undertaken an occupational health and safety course in relation to obtaining your White Card. You were on the wait list in relation to drug and alcohol courses, and otherwise spent your time reading, an endeavour that you had not previously undertaken for many years. As earlier indicated, you have a prior diagnosis of Depression, but have been un-medicated in the custodial setting due to unpleasant side effects. You remain isolated from your family. As at 24 June 2019, you had only received a handful of phone calls from your sister, Emma, and her son. You had received no visits, and I was informed that you would be unlikely to receive visits from the family in the future, save perhaps for visits from your sister, Emma, and her son, and your brother Michael.
80I was also informed of your anxiety in relation to the potential for deportation following the expiration of any custodial sentence. As I earlier indicated, you are not an Australian citizen, and you hold fears that you may be deported after release, given the offending for which you now fall to be sentenced.
Factors in Mitigation
Mental Impairment
81In your counsel's Outline of Plea Submissions for your plea hearing on 14 March 2019, your counsel indicated that Ms Ferrari's psychological assessment and report raised the real possibility that you may have executive functioning difficulties caused by brain injury which it was said may enliven the Verdins’ principles regarding mental impairment. In that regard, Ms Ferrari indicated[26] that testing revealed poor executive functioning, suggestive of impairment in your ability to control your behaviours, regulate your emotions or consider future outcomes. According to Ms Ferrari, your history and the nature of your offending behaviour was consistent with a paedophilic disorder. According to Ms Ferrari:
“Mr Pittard's mental health at the time of offending appeared to be compromised initially due to his grief related to the breakdown of his relationship, as well as other family stressors he was experiencing at this time which caused disruption to his usual environment. This led to deterioration of his mental state, as well as increased risk of alcohol misuse to cope in lieu of any adaptive coping mechanism… Whilst it is not considered that his depressive symptoms led to his offending, it is important to note that these were operational at the time.
….
His alcohol (sic) during his period of offending may have both alleviated and exacerbated his depressive symptoms, increased his risk of impulsive and disinhibited behaviour, as well as impaired his judgment and decision-making.
….
Mr Pittard's cognitive screening also indicates limitations in his executive functioning and memory which require more comprehensive assessment by a neuropsychologist. There is empirical evidence that confirms the correlation between neurological factors (poor brain functioning) and paedophilia. If Mr Pittard does indeed suffer from intellectual capacity issues, this may help to explain fundamental attitudes in relation to pursuing intimate relationships.”
[26] Paragraph [90] of her report
82Given the recommendation of Ms Ferrari, a neuropsychological assessment was undertake by Mr Martin Jackson, whose findings were set out in the earlier mentioned report dated 18 April 2019.
83According to Mr Jackson, neurological testing was considered “to determine the extent of cognitive functioning, as these may explain his gravitations towards age-inappropriate behaviours.”[27]
[27] Page 6 of Mr Jackson’s report
84According to Mr Jackson at page seven of his report, you reported that you only experienced cognitive difficulties since the death of your mother in 2018.
85Mr Jackson undertook extensive neuropsychological examination of you, and in his report provided his opinions regarding your cognitive functioning.
86In relation to executive functioning, Mr Jackson opined:
“Overall, the majority of Mr Pittard's executive skills were in the low average to average range including planning, organisation, verbal abstract reasoning, letter fluency and mental arithmetic. Visual logical thinking was borderline. There was no evidence of a disorder of impulse control.”[28]
[28] Page 11 of Mr Jackson’s report
87Mr Jackson further opined:
“Overall, the results of the current neuropsychological assessment indicate that Mr Pittard is a man of estimated low average to average premorbid abilities, who demonstrates mostly intact cognitive functions (low average or better)(page 13 of report).
…
It is clear from the above results[29] that the vast majority of Mr Pittard's cognitive skills are intact, with the exception of fluctuating processing speed, difficulties with attention to detail and problems with multiple task processing. These attentional issues affected visual logical thinking, but all other cognitive skills are relatively intact.
[29] Page 14 of Mr Jackson’s report
It is also clear that Mr Pittard continues to have a significant mental health condition and reports ongoing problems with depression, anxiety and stress, as well as presenting with symptoms suggestive of depression, anxiety and stress.
…
Mr Pittard clearly does not have an intellectual disability, given that his full-scale IQ is 83 (page 14 of report).
…
'I am also of the opinion does Mr Pittard does not have an acquired brain injury (page 15 of report).
…
…it is highly likely that his cognitive impairments have arisen as a result of the deterioration in his mental health following the death of his mother in 2018 (page 15 of report).
Given that I am of the opinion that it is highly likely that his cognitive impairments (due to his mental health condition) commenced in mid-2018, they clearly not present at the time of the offending.”
And further, Mr Jackson opines:
“'I am of the opinion that there is no connection at all between Mr Pittard's intellectual/cognitive functioning and the offending.”[30]
[30] Page 17 of Mr Jackson’s report
88In further plea submissions before me on 24 June 2019, your counsel conceded that the Verdins’ principles were not enlivened in a way which would otherwise have reduced your moral culpability for your offending, nor were the Verdins’ principles enlivened in relation to the hardship in custody principles. It is relatively clear that any of your cognitive impairments have occurred after the commission of your offences.
Plea of Guilty and Remorse
89Pursuant to s.5(2)(e) of the Sentencing Act, I must have regard to whether you pleaded guilty to the offences, and if so the stage in proceedings at which you indicated - sorry, and if so, the stage in proceedings at which you did so or indicated an intention to do so.
90In relation to Charge 1, carnal knowledge of Victoria Stow, I accept that you indicated an intention to plead guilty to those allegations on the first day of a contested committal hearing in December 2017, and that Ms Stow was not required to give evidence prior to that aspect of your case resolving to a plea of guilty. I accept that your plea of guilty to this charge was entered at an early stage in proceedings in all the circumstances, and a significant sentencing discount is therefore applicable due to your plea of guilty.
91In relation to all other allegations, the matter was listed for trial before me in February this year, but on 30 January this year, the court was advised that the matter had resolved to a plea of guilty, and you entered pleas of guilty at an arraignment on 4 February 2019. Whilst your pleas of guilty in relation to these remaining charges were entered relatively late in proceedings, I accept that your pleas of guilty followed negotiations that reduced both the number of charges and the nature and severity of the allegations originally on the trial indictment. I accept that your plea of guilty has substantial utilitarian value, saving a trial which was estimated to have lasted many weeks. The victims and other family witnesses have been saved from the ordeal of giving evidence, and I note that Amelia and Georgia Pittard were never cross-examined. I accept that your plea of guilty is of particular value in the circumstances of your offending which involved family members and concerned sexual offending mainly committed when your victims were children. There is significant value in encouraging pleas of guilty in relation to offending of this nature, and a sentencing discount will be afforded to you.
92In both written and oral submissions, your counsel submitted that to a certain degree, your pleas of guilty to the charges were reflective of remorse, such that a further sentencing discount was applicable. Particularly in relation to Charge 1, your counsel submitted that your early plea of guilty was reflective of remorse on your part. Your counsel also relied upon the opinions of Carla Ferrari, as contained in paragraph 68 to 79 of her report dated 7 March 2019. In that regard, Ms Ferrari referred to you admitting guilt in relation to the charges and expressing “sincere remorse” for your actions, and Ms Ferrari referred to you describing feeling extremely ashamed and embarrassed. Ms Ferrari opines:
“He has…acknowledged the traumatic impact of his behaviour on the victims and has expressed sincere empathy.”[31]
[31] Paragraph 77
93As I indicated to your counsel, however, those opinions appear to be at odds with other aspects of Ms Ferrari's report. Ms Ferrari indicated:
'Mr Pittard is pleading guilty to all offences laid against him, though appeared to minimise some of the details of certain offences. He claimed that three of the charges did not involve him and that there were no acts of sexual penetration with any of the accusers apart from Ms Victoria Stow with whom he indicated he had a consensual sexual relationship.'[32]
[32] Paragraph 68
94In relation to Edward Birchell, you denied any intentional fondling of him to Ms Ferrari,[33] you denied any intentional sexual abuse of Amelia Pittard,[34] and you denied any involvement in relation to the allegations made by Lola Fossey.[35] As I indicated to your counsel in the course of plea submissions, it is hard to reconcile those indications by you with the submission that you are remorseful for your conduct.
[33] Paragraph 71
[34] Paragraph 70
[35] Paragraph 73
95Given your relatively early plea of guilty in relation to Charge 1, and the indications by Ms Ferrari that you are remorseful, I am prepared to make some modest mitigatory allowance on the basis of remorse. However, for the reasons I have outlined, I am unable to make any significant allowance.
Absence of Prior Convictions
96At age 58, you come before the court with no prior convictions of any kind. Your absence of prior convictions reduces the degree to which any sentence I impose must reflect the sentencing purpose of specific deterrence. However, as conceded by your counsel, your limited insight and denials as articulated to Ms Ferrari impact on the need for specific deterrence in your case.
Prospects of Rehabilitation
97Your counsel submitted that in all the circumstances, you have reasonable prospects of rehabilitation. It was submitted that you had indicated a willingness to engage in the sex offender programs whilst in custody, and that whilst there were some limitations to your acknowledgement of your offending and acceptance of it, you had nonetheless expressed shame, embarrassment and guilt to Ms Ferrari. Ms Ferrari conducted a risk assessment of you,[36] and concluded that you represented a moderate risk at present, and that, “this can be mitigated through specialised sex offender treatment.”
[36] Paragraph 103 of her report
98According to neuropsychologist, Mr Jackson, in his report dated 18 April 2019:[37]
“From a cognitive perspective, Mr Pittard's prospects for rehabilitation are good in that he has intact intellectual abilities, working memory, new learning, and memory and executive skills. He clearly has the capacity to benefit from cognitive behavioural therapy or any other type of therapy that may be given to him.
I note that Mr Pittard does not have a cognitive profile that would result in an increased risk of reoffending.”
[37] Page 17
99Whilst I remain concerned in relation to some aspects of your account to Ms Ferrari in relation to the offending, I acknowledge that you were open and transparent with Ms Ferrari in relation to these matters, and that you have indicated a willingness to engage in sex offender treatment which you so clearly are in need of. In all the circumstances, given your absence of criminal history, your pleas of guilty, and the matters to which I have already described, I am satisfied that your prospects of rehabilitation are reasonable, though dependent upon specialist intervention whilst you are in custody.
Hardship in Custody
100As I previously outlined, I accept that you have endured difficulties whilst in custody, and that you have remained largely isolated from your extended family. I also accept that you have exhibited considerable anxiety in relation to the possibility of being deported. According to Mr Jackson,[38] you expressed to him significant anxiety:
“of the possibility of being deported back to Scotland, as he has no family or social support there having been in Australia for almost 50 years. On the DASS, he reported symptoms suggestive of extremely severe depression and anxiety, as well as severe stress.”
[38] Page 6 of his report
101I accept that you will serve your sentence of imprisonment with the spectre of possible deportation hanging over your head, which will likely continue to cause you considerable anxiety, which will bear upon the hardship of a custodial sentence in your case. Having considered the authority of Guden,[39] and more recent decisions of the Court of Appeal in relation to the impact of deportation on sentencing,[40] in formulating an appropriate sentence in your case, I have taken into consideration the hardship that you will likely experience, being in a state of uncertainty as to whether at the end of your sentence you may face deportation.
Other Sentencing Factors
[39]Guden (2010) VR 288
[40]Allouch v R [2018] VSCA 244, Loftus v R [2019] VSCA 24 and Magedi v R [2019] VSCA 102
Maximum Penalties
102Pursuant to s.5(2)(a) of the Sentencing Act, I must have regard to the maximum penalty prescribed for the relevant offence.
103In formulating an appropriate sentence in your case, I have had regard to the maximum penalties as set out at the beginning of my reasons for sentence. In particular, I note in relation to the charge of indecent assault, that the maximum penalty for the indecent assault charges covering the period of 1988 to 1991 (Charges 2, 3 and 4), was just five years' imprisonment. In contrast, the maximum penalty for the indecent assault charges covering the offending period in 2014 (Charges 8 and 9), was 10 years' imprisonment. The lower maximum penalty applicable in relation to Charges 2, 3 and 4 is of some significance in your case. As I earlier indicated, I regard your offending against Lola Fossey, involving multiple occasions of penetrating Ms Fossey's vagina with your fingers and multiple occasions of rubbing your penis on her bottom, to be particularly serious examples of indecent assault. However, the maximum penalty applicable to the charges regarding Lola Fossey, Charges 2 and 3, is five years' imprisonment.
Current Sentencing Practices
104Pursuant to s.5(2)(b), I must have regard to current sentencing practices as part of the exercise of formulating an appropriate sentence in your case. As confirmed in the High Court decision of Dalgliesh,[41] current sentencing practices are but one of the factors to be considered, with no one sentencing factor dominating. Ms Borg, who appeared on behalf of the Director of Public Prosecutions in this matter, previously submitted that it is difficult to rely upon previous decisions going to the issue of current sentencing practices, given the range of complications in your case. In particular, your offending spanned a 36-year period from 1978 until 2014. Your case involved a complex matrix of single incident, rolled-up, representative, and course of conduct charges, spanning a period of time when the maximum penalty in relation to indecent assault was doubled. The gravity of the particular offending varied considerably between your victims.
[41] (2017) 262 CLR 428
105Save for some previous authorities provided to me by the prosecution in the context of course of conduct charges, which I note involved offending with considerably higher maximum penalties, I was not provided with any previous decisions which were said to constitute current sentencing practices. I was provided with two sentencing snapshots from the Sentencing Advisory Council in relation to indecent act with a child under the age of 16 (referable to Charges 5, 6 and 7), and sexual assault (referable to Charges 8 and 9), and I have considered those documents.
106Current sentencing practices refers to sentencing practices which exist at the time of sentence, rather than the time when the offence was committed.[42] As highlighted by the significant increase in the maximum penalty for the crime of indecent assault in recent years, over time there has been an increased recognition of the catastrophic impacts of sexual abuse of children, and the need for sentences to reflect the gravity of such offending.[43]
[42]Stalio v R [2012] VSCA 120 at paragraph [78]
[43]DPP v Dalgliesh (2017) 262 CLR 428 at paragraph [57]
Sentencing Purposes
107In formulating an appropriate sentence in your case, I have had regard to the sentencing purposes set out in s.5(1) of the Sentencing Act. There is a need for any sentence I impose to appropriately punish you for your offending, and to manifest the denunciation by this court of the type of conduct in which you have engaged, which, as I have stated, is extremely serious. Your offending took place when your victims were alone or isolated from family. As I have stated, it spanned many years and impacted on many members of your extended family, some of them extremely young. They should have been safe in a family setting. General deterrence is of considerable importance, given the nature of your offending. Any sentence I impose must deter other persons from committing similar offences. In imposing a sentence in your case, there is a need to reflect the sentencing purposes of specific deterrence, that is deterring you from engaging in such conduct again. As previously stated, whilst your lack of criminal history diminishes the need for specific deterrence in your case, your denials and lack of insight, as referred to by Ms Ferrari, mean that specific deterrence does remain relevant to some degree in the sentencing exercise. There is also a need to protect the community from you, when formulating an appropriate sentence. In that regard I again refer to the risk assessment of Ms Ferrari, who is of the opinion that you represent a moderate risk of reoffending, but that engagement in appropriate sex offender programs may reduce that risk. It is also appropriate that I consider the facilitation of your rehabilitation in any sentence. It is hoped that you will constructively engage in the specialist sex offender programs available to you in prison, so that any risk to the community upon your release can be minimised through such rehabilitative efforts.
Cumulation
108Your offending involved seven victims and, as I have outlined, discreet acts of sexual misconduct. There is, therefore, the need to order a degree of cumulation in your case, subject as always to the overriding principle of totality.
109Furthermore, pursuant to Part 2A of the Sentencing Act, upon being sentenced to a term of imprisonment for Charges 1 and 2, you fall to be sentenced as a “serious sexual offender” in relation to Charges 3 to 9 on the indictment, and I order that the fact of you being sentenced as a serious sexual offender in relation to those charges be entered to the records of the court. The consequence of this is that in relation to Charges 3 to 9 on the indictment, in determining the length of any sentence of imprisonment I must regard the protection of the community from you as the principle sentencing purpose. Whilst I may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of your offending, the prosecution in this case do not seek the imposition of a disproportionate sentence. Finally, in relation to every term of imprisonment imposed in relation to Charges 3 to 9, there is a presumption of cumulation. I have had regard to the serious sexual offender provisions in formulating an appropriate sentence in your case.
Sentence
110Mr Pittard, would you please stand.
111On Charge 1 of carnal knowledge of a female under the age of 16 years, you are convicted and sentenced to 20 months' imprisonment.
112On Charge 2 of indecent assault of a person under the age of 16 years, you are convicted and sentenced to 20 months’ imprisonment.
113On Charge 3 of indecent assault of a person under the age of 16 years, you are convicted and sentenced to three years and six months’ imprisonment. This is the base sentence.
114On Charge 4 of indecent assault of a person under the age of 16 years, you are convicted and sentenced to 12 months' imprisonment.
115On Charge 5 of indecent act with or in the presence of a child under the age of 16 years, you are convicted and sentenced to two years and ten months' imprisonment.
116On Charge 6 of indecent assault with or in the presence of a child under the age of 16 years, you are convicted and sentenced to eight months' imprisonment.
117On Charge 7 of indecent act with or in the presence of a child under the age of 16 years, you are convicted and sentenced to two years and two months' imprisonment.
118On Charge 8 of indecent assault, you are convicted and sentenced to 18 months' imprisonment.
119On Charge 9 of indecent assault, you are convicted and sentenced to two years and five months' imprisonment.
120I direct that four months on Charge 1, four months on Charge 2, four months on Charge 4, 10 months on Charge 5, two months on Charge 6, eight months on Charge 7, six months on Charge 8 and 10 months on Charge 9 be served cumulatively on each other and on the sentence imposed on Charge 3, making a total effective sentence of seven years and six months imprisonment. I direct that you serve five years and four months before becoming eligible for parole.
121Pursuant to s.18 of the Sentencing Act 1991, I declare that 179 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
122Pursuant to s.6AAA of the Sentencing Act, if not for your pleas of guilty, I would have sentenced you to a period of nine years and nine months' imprisonment with a non-parole period of seven years.
123As a result of the sentences imposed, you are subject to the reporting requirements pursuant to the Sex Offenders Registration Act 2004. Registration is mandatory and the period of registration is life. In a moment my associate will approach you and ask you to sign an acknowledgement and receipt of the relevant documentation in relation to your registration and reporting requirements.
124The prosecution have also made application for a forensic sample pursuant to s.464ZF of the Crimes Act. Through your counsel you have indicated that this application is not opposed. Given that, together with the seriousness of the circumstances of the offending, it is in the public interest that such an order be made, and I will sign the appropriate orders accordingly.
125Yes, if my associate can now go to the back of the court. Perhaps, Ms Coath, if you would ‑ ‑ ‑
126MS COATH: Yes, thank you, Your Honour.
127HIS HONOUR: ‑ ‑ ‑ accompany him for the purposes of signing the acknowledgement of the registration form. Whilst those documents are printing, any issues with my maths, either party?
128COUNSEL: No, Your Honour.
129HIS HONOUR: No. Any other orders I need to make, Mr Fisher, that you're aware of?
130MR FISHER: No thanks, Your Honour.
131HIS HONOUR: Mr Pittard, in relation to the application for a forensic procedure, I understand that the sample to be taken by an authorised member of the police will be a scraping from your mouth that doesn't hurt. I understand you are not opposed to that application being made. And granted, I need to inform you that if at the time of that request you do not consent to the taking of a mouth-scraping under the supervision of an authorised member of the police force, than the sample to be taken will be a blood sample, and police may use reasonable force to enable that procedure to be conducted.
132Yes, thanks, Mr Lavery. Ms Coath, I take it if you haven't already done so you will explain to Mr Pittard the obligations of the post-release in relation to reporting.
133MS COATH: Yes, Your Honour.
134HIS HONOUR: Yes, thank you. Yes, thank you, Mr Pittard can be removed. Thank you.
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