Director of Public Prosecutions v Pollard (a pseudonym)
[2024] VCC 1257
•15 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THEODORE POLLARD (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE D. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 May 2024; 30 May 2024; 31 May 2024; 3 June 2024; 4 June 2024 | |
DATE OF SENTENCE: | 15 August 2024 | |
CASE MAY BE CITED AS: | DPP v Pollard (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1257 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Indecent Act With a Child Under 16; Sexual Penetration of a Child Under 16
Legislation Cited: Sentencing Act 1991; Sex Offender Registration Act 2004
Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Avery (a pseudonym) v R [2014] VSCA 86
Sentence: Four Years and Four Months Imprisonment with a Non-Parole Period of Three Years Imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Koufidis | Office of Public Prosecutions |
| For the Accused | Mr P. Berenger | Wards Barristers & Solicitors |
HIS HONOUR:
Introduction
1At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offence case is prohibited by an Act of Parliament. In my published remarks, a pseudonym will be used for the name of the victim.
2Theodore Pollard,[1] on 4 June 2024, a jury unanimously found you guilty of three charges of indecent act with a child under 16, and one charge of sexual penetration of a child under 16.
[1] A pseudonym.
3The maximum penalty for the offence of indecent act with a child under 16, Charges 1, 3 and 4 on the indictment, is 10 years’ imprisonment.[2] Charge 5 on the indictment, sexual penetration of a child under 16, was amended on application by the prosecution on 8 August 2024, and I refer to my ruling in relation to the amendment on that date, in relation to the circumstances giving rise to the amendment.[3] Accordingly, the maximum penalty for Charge 5 on the indictment as amended is 10 years’ imprisonment. For the sake of clarity, I note that the higher maximum penalty of 15 years’ imprisonment for this offence is not applicable in your case, given that the allegation of 'care, supervision and authority' was not alleged on the indictment as a circumstance of aggravation, and the jury were not asked to deliver a finding on this circumstance when delivering its verdict.
[2] After Defence Counsel for the Accused made a no case submission regarding Charge 2 on the indictment, ‘Indecent Act With a Child Under 16’, a verdict of not guilty in respect of Charge 2 was entered into the records of the Court by direction of the Judge, Trial Transcript page 101
[3] Ruling by his Honour Judge D Sexton amending the indictment.
Circumstances of offending
4As a result of the jury’s verdicts in your case, I proceed to sentence you on the basis that the jury were satisfied beyond reasonable doubt of your victim’s account of the offending. Furthermore, I am conscious of the need to ensure that any findings of fact made against you must be arrived at beyond reasonable doubt.[4]
[4]Cheung v The Queen (2001) 209 CLR 1 at page 1
5Your offending occurred on two separate occasions within a 14-month period in 2016 and 2017, when you were aged 37 to 38 years old, and your victim, Bree Boucher,[5] was aged between 13 and 15. At the time, you were married and lived with your wife and two sons. You owned and managed a number of bakeries in the surrounding region.
[5] A pseudonym.
6You had known Ms Boucher since she was a very young child, due to the friendship between her mother and your wife. When Ms Boucher was 12 or 13 years of age, she commenced working at one of your bakeries, her work included the morning shifts at the bakery which commenced at around 6 am. As the baker, you worked night shifts, and would often be finishing at around this time, where the two of you would be alone at the bakery.
7According to Ms Boucher,[6] as she had grown up, a dynamic had developed between you which included mutual joking and 'horse play', essentially playful physical contact. Upon commencing work at your bakery, however, the touching became more personal, leading to the incident captured by Charge 1 on the indictment, indecent act with a child under 16.
[6]Trial transcript page 32 and onwards
8According to Ms Boucher, one morning you both started 'mucking around', throwing flour at each other, and then Ms Boucher went out to the back area of the bakery to grab something, at which point you followed her. You then bear‑hugged her from behind and rubbed your hands all over her chest while she was standing in line with the back door in front of the mirror which is next to the toilet. Ms Boucher could see herself in the mirror, at which point you were touching her breasts, both outside and under her clothes. You pulled up her T‑shirt and bra, exposing her breasts, to facilitate the touching. Ms Boucher asked you not to do it. The incident ended with her walking back to the front of the shop. Some time after this incident, on 2 July 2016, Ms Boucher sent you a message telling you to stop the touching, as she was getting quite uncomfortable with it.
9On another occasion, after the bakery incident, Ms Boucher was babysitting your two young children at your family home. This would occur after you had worked a night shift at the bakery, where you were at home but needed to sleep. On this occasion, sometime between 2 July 2016 and 30 July 2017, Ms Boucher was babysitting your children at the home. At the time, she was suffering from back pain due to a previous injury. You and Ms Boucher were sitting in the lounge room, with Ms Boucher sitting on the floor, and you on a recliner.
10You asked if Ms Boucher wanted you to massage her back to try and make it feel better.[7] You started massaging her back for a couple of minutes, before your hands started wandering inside her clothing from her lower back down to her legs. At this point, you were sitting over Ms Boucher, who was on the floor, straddling her backside, with Ms Boucher lying face-down on the ground. You ran your hands down Ms Boucher’s sides and under her clothing, and brushed your hands over her breasts. This conduct forms the basis of Charge 3 on the indictment, indecent act with a child under the age of 16.
[7]Trial transcript page 42 and onwards
11You then ran your hands up her legs and touched her vagina over the underwear. Your conduct in this regard forms the basis of Charge 4 on the indictment, indecent act with a child under 16. Ms Boucher told you to stop, which you did.
12You then said you were going to bed, and Ms Boucher went into your bedroom to move the children, who were in the bedroom watching television, outside. The children left the bedroom. However, you entered the bedroom whilst Ms Boucher was still there. At this point you were just wearing underwear.[8] You grabbed Ms Boucher and told her to get on the bed. As she started to walk out, you grabbed her and pulled her on top of you from around the waist. You ended up lying on the bed with Ms Boucher in a straddling position on top of you. You held Ms Boucher in that position, with her hunched over you, basically on top of your penis, facing you. You managed to pull her underwear aside, and pulled your own underwear down, before putting your penis inside Ms Boucher’s vagina. In her evidence, Ms Boucher described you 'pushing it in and out, and it felt very painful, like it – like I was tearing'.[9] Ms Boucher was telling you to stop as she tried to manoeuvre herself out of this position. Your conduct in this regard forms the basis of Charge 5 on the indictment, sexual penetration of a child under 16. This incident ended when the children came running into the room and you pushed Ms Boucher off you forcefully.[10]
[8]Trial transcript page 50
[9]Trial transcript page 51, line 26
[10]Trial transcript page 52, line 8
13Ms Boucher ultimately disclosed the offending to her mother a few days after the incident, and you were arrested and interviewed by police on 23 June 2021, making a 'no comment' interview.
14On 31 July 2024, Ms Boucher completed a victim impact statement, setting out the impacts of your offending upon her.[11] As a result of your serious sexual offending against Ms Boucher, when she was just a child, many aspects of her life have been adversely affected. Ms Boucher described herself turning from a loving, affectionate, happy and carefree girl into an angry and emotional person engaging in risky behaviour. Her family relationships have been affected. Her romantic relationships have been affected. She clearly carries both physical and mental scars as a result of the impacts of your offending upon her. Ms Boucher has received counselling, has been prescribed anti-depressants, and, in her words, has self-medicated on Oxycodone and Endone because she feels angry and empty inside. Her education was impacted. She lost her job in the hospitality industry and now finds it exceedingly difficult to work for male employers. Living in a small rural community she has felt anxious, as you were apparently well-known in the local area and everyone was aware of what had happened, leading Ms Boucher to feel that home is no longer home anymore. Ms Boucher clearly thought of you as a father figure, and she feels angry at you for taking advantage of her. Ms Boucher concluded:
'All I want is to go back to being a normal happy healthy girl, but I do not even know what that is anymore.'
[11]Exhibit 3 at your plea hearing on 31 July 2024
15Victim impact statements are an important means through which victims of crimes can meaningfully participate in the sentencing process, by informing the court of the often far-reaching and catastrophic impacts of offending upon them. In formulating an appropriate sentence in your case, I have had regard to the victim impact statement of Ms Boucher.
Nature and gravity of your offending and your level of culpability for it
16As evidenced by the maximum penalties applicable to the offences, this type of offending is objectively serious. Indeed, given that your offending involves sexual offences against a child, every example of this type of offending must be seen as serious.
17In your case, there was a significant age disparity between you and your victim. Ms Boucher was quite young, aged between 13 and 15 at the relevant times. She was vulnerable. She had known you since she was a very young child. To Ms Boucher, you were essentially a father figure, a role model. In relation to the first incident, she was working at the time as your employee, alone, in the early hours of the day, at the bakery. In relation to the second incident, she was in your home, babysitting your young children. Your offending therefore must be seen as a significant breach of trust.
18Your behaviour was clearly unwanted from the outset, with Ms Boucher telling you to stop when you were sexually touching her during the first incident. The fact that you later returned to what can only be described as significantly escalated sexual offending against your young victim must be seen as an aggravating circumstance.
19I accept in relation to the first incident that it appears to have been fairly short-lived in terms of its duration. Likewise, with regard to the second incident, there is no evidence that either the massage incident or the bedroom incident were protracted in length. The touching encapsulated by Charge 4 on the indictment occurred over Ms Boucher’s underwear rather than directly upon Ms Boucher’s vagina. Overall, other than the inherent violence and trauma associated with this type of offending, there is no evidence in this case of threats, violence, degradation or humiliation, nor is there any evidence of physical injuries to Ms Boucher.
20Your counsel submitted that the babysitting incident was essentially opportunistic and spontaneous, and if there was any premeditation it was extremely short in duration. Whilst this may be so, you utilised the ruse of a massage to facilitate the offending captured by Charges 3 and 4 on the indictment. In those circumstances, I find that your conduct was not entirely without forethought.
21Objectively, your conduct in relation to Charge 5 on the indictment must be seen as very serious conduct indeed. Though as I have stated, you fall to be sentenced in accordance with the reduced maximum penalty of 10 years, a matter which must be reflected in the actual sentence imposed for this offence. You sexually penetrated the vagina of your young victim. This penetrative conduct occurred in the bedroom in your home. The penetration caused physical pain to your young victim. It must have been a terrifying experience for her. Whilst there is no evidence that you used any form of protection at the time of the sexual penetration, having reviewed the transcript of Ms Boucher’s evidence, this topic was not canvassed with her. Accordingly, I am not satisfied beyond reasonable doubt of a circumstance of aggravation, namely, the absence of a condom. This incident occurred with your young children in the general vicinity, making your conduct, in my view, particularly brazen.
22In all the circumstances, I find your conduct overall to represent concerning examples of these particular offences, and your culpability is high.
Personal circumstances
23You are now 45 years of age. Save for what was clearly a minor matter dating from 2008 where you received a 'without conviction' fine for being drunk in a public place and assaulting police, you fall to be sentenced as a man with good character, and certainly with an absence of any prior convictions for sexual offences.
24Whilst your father is now deceased, your mother Rebecca[12] is alive, though unwell, and is likely to be moved into an aged-care facility soon. You have two older siblings, and I accept overall that you have maintained a close relationship with your supportive family, and that this support has continued throughout the duration of these criminal proceedings. In particular, I understand that your older brother has been trying to maintain the bakeries owned by you, but it is likely that the businesses will have to be sold or shut down due to your current custodial status.
[12] A pseudonym.
25You were educated to halfway through Year 11, and left to commence an apprenticeship in bricklaying. You ceased that apprenticeship in 1995 due to a lack of work, and moved into labour work in building and construction. You subsequently started working as a baker, initially as an employee before commencing your own business. Prior to your remand in custody following the guilty verdicts, you owned and operated three bakery businesses.
26You have had a significant relationship in your life, with Michelle,[13] the mother of your two children now aged 15 and 13 respectively. That relationship ended in February 2021 in the context of these allegations coming to light.
[13] A pseudonym.
27I accept overall that you have led a productive life to date, establishing a career of some 18 or 19 years in the baking industry, successfully operating multiple bakeries and no doubt employing a number of individuals. Save for the matter I have referred to, you have essentially avoided breaches of the law. You have maintained a longstanding intimate relationship and raised two boys. You have no history of prior sexual offending, and no subsequent history of sexual offending. I have also had regard to the two character references tendered on your behalf, highlighting both your productive background in general and the ongoing supports available to you in the community. In those circumstances, your prospects for rehabilitation must be seen as good, particularly if you manage to maintain the support of your family. I accept that the circumstances of your incarceration will have adverse consequences for your sons and your relationship with them, which will no doubt accentuate the hardship of a custodial sentence in your case.
Sentencing factors
28There has been a considerable delay in the disposition of your case, and I am satisfied that a mitigatory allowance is warranted due to the delay. Your offending dates from 2016 and 2017. You were not charged until 23 June 2021. The chronology contained in your counsel’s written submissions highlights the protracted nature of the criminal proceedings in this case, no doubt impacted by the COVID‑19 pandemic and its unprecedented effects on the administration of justice in this State. The committal hearing did not occur until May 2023, and the first listing of your trial did not occur until February 2024. Ultimately the trial which commenced on 26 February 2024 resulted in a jury discharge on 1 March 2024 due to no fault of yours, leading to the trial ultimately proceeding before me on 27 May 2024. I accept that this must be seen as a protracted delay, and therefore a considerable period of time during which this matter has hung over your head, so to speak, and the understandable anxieties caused by this delay warrant a mitigatory allowance. Whilst it cannot be said that you engaged in any rehabilitative activities during this extended period, the fact remains that you did not reoffend.
29I understand through your counsel that you maintain your denial of liability with regard to the offending. You took this matter to trial, which of course is your right, and you are not to be punished for doing so. However, in doing so you are now precluded from any sentencing discount on the basis of any plea of guilty, the associated facilitation of the administration of justice, or any remorse or insight.
30In formulating an appropriate sentence in your case, I have had regard to current sentencing practices for the offences for which you now fall to be sentenced. Your counsel provided a table of cases involving sentences for indecent act and sexual penetration of a child charges, and I have had regard to the submissions from both your counsel and the prosecution with regard to these cases, noting that not all of the decisions involved offences with the lower 10-year maximum penalty.[14] Of course, every sentencing decision is necessarily fact-specific. While sentences of other courts are not binding precedents but are merely historical statements of what has happened in the past, and current sentencing practices represent just one of the relevant sentencing factors to be considered, clearly sentences for this type of offending have resulted in significant sentences of imprisonment.
[14]For example, Avery (a pseudonym) v R [2014] VSCA 86 carried a maximum penalty of 15 years’ imprisonment
Principles and purposes
31Given the nature of your offending, the sentencing purposes of denunciation and general deterrence loom large in the sentencing exercise. Other likeminded offenders must know that engaging in serious sexual offending with children will result in significant sentences of imprisonment. Given your ongoing denial of responsibility notwithstanding the jury’s verdicts, specific deterrence also looms large in the sentencing exercise. Having formed a favourable view with regard to your prospects of rehabilitation, I am not of the view that community protection should be a paramount consideration in the sentencing exercise. Your offending involved one incident at your workplace, followed by two incidents at your home in the context of babysitting. There is a need, in my view, for a degree of cumulation to reflect this, and the discrete nature of your offending conduct, subject as always to the overarching principle of totality and the need to avoid a crushing sentence.
32The prosecution submitted in all the circumstances that a sentence of imprisonment involving a head sentence and non-parole component was warranted. Your counsel on your behalf did not take issue with such a disposition.
33Mr Pollard, I now come to the portion of my remarks where I announce the sentence or penalties to be imposed.
Sentence to be imposed
34On Charge 1 on the indictment, you are convicted and sentenced to 12 months’ imprisonment.
35On Charge 3, you are convicted and sentenced to 15 months’ imprisonment.
36On Charge 4, you are convicted and sentenced to 18 months’ imprisonment.
37On Charge 5, you are convicted and sentenced to three years and six months’ imprisonment. This is the base sentence.
38I order that four months on Charge 1, two months on Charge 3, and four months on Charge 4, be served cumulatively upon each other and upon the sentence imposed with regards to Charge 5, making a total effective sentence of four years and four months’ imprisonment.
39I order that you serve a period of three years' imprisonment before becoming eligible for parole.
40Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 72 days has been served by way of pre-sentence detention, and I order that this period be administratively deducted from your sentence.
41In relation to Charges 4 and 5 on the indictment, pursuant to s6F(1) of the Sentencing Act 1991, I declare that I have sentenced you as a serious sexual offender in respect of those charges, and I order that this fact be entered into the records of the court.
42I also declare that, having regard to the serious sexual offender provisions, in formulating appropriate sentences with regard to Charges 4 and 5 I have had regard to the presumption of cumulation contained in s6E of the Sentencing Act 1991.
43Finally, I note that pursuant to the relevant provisions of the Sex Offenders Registration Act 2004, upon conviction for these offences you are a registrable offender, with the mandatory reporting obligations under that Act for life. You will receive appropriate paperwork with regards to the Sex Offenders Registration Act obligations in due course.
44That completes my sentencing remarks.
45Ms Koufidis, any ambiguities or issues with regards to the sentence, or has anything been missed?
46MS KOUFIDIS: No, Your Honour.
47HIS HONOUR: Same question to you, Mr Berenger.
48MR BERENGER: No, nothing, Your Honour.
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