Director of Public Prosecutions v Povey
[2017] VCC 854
•20 June 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01922
CR-16-01923
Indictment No. C1610736.1
G10652870
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS NORMAN POVEY |
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| JUDGE: | HIS HONOUR JUDGE JORDAN |
| WHERE HELD: | Warrnambool |
| DATE OF HEARING: | Trials: CR-16-01922: 22, 23, 24, 25, 26, 29, 30 and 31 May 2017 CR-16-01923: 6, 7, 8, 9 and 13 June 2017 Plea hearing: 16 June 2017 |
| DATE OF SENTENCE: | 20 June 2017 |
| CASE MAY BE CITED AS: | DPP v Povey |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 854 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – indecent assault (six charges)
Legislation Cited: Crimes Act 1958, s44 (as amended by the Crimes (Sexual Offences) Act 1980) – Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases Cited: DPP v Povey [2014] VCC 1409
Sentence:Convicted and sentenced to a total effective sentence of six (6) years’ imprisonment with a non-parole period of four (4) years and six (6) months. Registrable Sex Offender for life.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr R Gibson | John Cain Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr M Turner | Melville Orton & Lewis |
HIS HONOUR:
1You are before the Court for sentence on six offences involving indecent assaults on children. This follows two jury trials that ran back to back.
2The first trial, Trial 1, on Indictment No. C1610736.1, involved offending that occurred years after the offences the subject of the second trial,
Trial 2, Indictment No. G10652870.3In Trial 1, you were found guilty of five charges of indecent assault on two young girls following a trial from 22 May to 6 June 2017. These were Charges 1, 2, 3, 6 and 9 on Indictment No. C1610736.1. Charges 1, 2 and 3 occurred on one occasion with the victim and the same child was the victim in Charge 6 which took place on a later occasion.
4Another child was the victim in Charge 9 which occurred later again.
5You were acquitted on four other charges of indecent assault. These were Charges 4, 5, 7 and 8 on the Trial 1 indictment.
6Immediately following Trial 1, you had Trial 2. In Trial 2 on Indictment No. G10652870, you were found guilty of unlawfully and indecently assaulting a girl then aged between ten and 12 years. This offence occurred between
25 December 1975 and 31 December 1977.7The maximum penalty for each offence on both indictments is five years’ imprisonment. Accordingly, across both indictments you have to be sentenced on six historical sex offences of indecent assault on very young girls.
8Both the prosecution and defence agreed you fall to be sentenced as a Serious Sexual Offender under the Sentencing Act 1991. This enlivens the provisions particular to such an offender such as protection of the community and cumulation but there is no disproportionate sentence sought in your case. It is also agreed that you are subject to mandatory life reporting as a Registrable Sex Offender under the Sex Offenders Registration Act 2004.
9At the time of your offending, with respect to all the charges before the Court, you then had no criminal convictions although I was quite properly informed of subsequent offending. You committed nine child sex offences in 2013 and are currently serving a sentence of six years with four years’ non-parole period. This sentence was given by his Honour Judge Taft on 26 August 2014. His Sentencing Reasons[1] were provided to the Court, as was the summary of the charges from the Magistrates’ Court dated 29 May 2013.
[1]DPP v Povey [2014] VCC 1409
10Returning to the offences before me, as already stated, the events relevant to Trial 2 came long before the events dealt with in Trial 1.
11Dealing then with these six offences chronologically, the first offence for sentence was in Trial 2 and was committed between 25 December 1975 and 31 December 1977.
12Next in time, you assaulted another victim and this involved the first four offences in Trial 1 - Charges 1, 2, 3 and 6. These four offences were all committed between 1 January 1989 and 14 May 1990. The last of the six offences in time was Charge 9 in Trial 1. It was committed later, on 15 September 1990, and involved a third young victim.
13There was thus a progressive involvement of child victims across these years of offending.
14I will deal with your sentence for the six offences in the chronological order they occurred rather than the order in which the trials ran.
Indictment No G10652870, Trial 2
15The circumstances of your offending were the subject of the jury trial and I will only very briefly refer to them. The offence occurred in the small rural town where you lived. The child victim resided in the same town. She was then aged between ten and twelve years. You came to her home one evening when she was alone. Her parents were a short distance away across the road, attending to helping out at an RSL function where they were often engaged on weekends. You invited the child to sit next to you on the couch and you placed your hand between her legs and rubbed hard in that area. You then moved your hand inside her pyjamas pants and inserted your finger into her vagina. She was in pain and said it hurt. You then got up and told her not to tell her brother that you had been there.
16Your offence is very serious. Some of the factors which make it so are that you were a mature age man and the victim was a very young girl. You penetrated her. You physically hurt her. She knew you as a friend of her family and in particular, of one of her brothers. In that sense, there was a certain trust breached. You used the pretext of wanting to see her brother to enable her letting you come in and wait in the lounge with her. You told her not to tell anyone about what occurred.
17There has been delay in this case and I will address some comments on delay later. I will treat this offence as the base sentence.
Indictment No C1610736.1, Trial 1
18I will now deal with the five offences for sentence arising from Trial 1. This offending also occurred in that same small rural town where you lived. The two child victims were also neighbours in the town.
19The first four charges you were convicted of in Trial 1 involved a girl aged six to seven years at the time of the offending which was between 1 January 1989 and 14 May 1990. The fifth charge you were convicted of in Trial 1 involved another girl who was aged ten years at the time of the offending which was on
15 September 1990.20These two girls were neighbours of yours in the town and you were trusted as a family friend. All the offences occurred inside your home. The first four offences in Trial 1 involved two separate occasions when that child was alone with you at the house.
21On the first occasion, three offences occurred – Charges 1, 2 and 3. The six to seven-year-old victim was at your house and you engaged her in a game of “Doctors”. You fondled her vagina over her clothing, Charge 1 on the Indictment. You then licked her vagina as she lay on the couch with her pants down while you knelt on the floor – Charge 2 on the Indictment. You then placed her hand on your penis over your clothing – Charge 3 on the indictment.
22Some time later, on a second occasion she was at your house, you took her into the bedroom. This is Charge 6. You took her there on a pretext that you wanted to show her something. You closed the curtains. You took your pants off. You fondled her vagina over her clothing. This went on for more than a few minutes. This offence occurred after you asked her to lie beside you on the bed. A further dimension to this offence is that it was only the arrival of an unexpected visitor in a vehicle that caused this offending to stop. You heard a car, jumped up and said, “Oh shit” as you rushed to put your trousers on.
23The final offence in Trial 1 involved another time and a further victim – Charge 9. At your house, you attempted to pull this young girl’s pants down. This was after engaging her in a game of “Simon Says”. She was then ten years old. You were not successful in your intention but that was only due to her determined resistance to what you were trying to do. She held on tightly as you tried to get her pants down.
24I regard all these offences as very serious. It was agreed that Charge 2 was the most serious of the offences in Trial 1. It involved you placing your tongue between the first complainant’s vaginal lips as you licked around her vaginal area. This went on for more than a few minutes.
25Some of the factors which make all these offences in Trial 1 serious include the very young age of the victims. You were a mature age man. They knew you as a close neighbour in their town and as an acquaintance of their parents. They trusted you. You engaged them in games that gave the appearance of fun to young children. You directed them as to what do in the course of games which were no more than a pretext for your sexual offending. You enticed their feeling comfortable with you at your house by providing sweets and fizzy drinks, together with dolls and toys.
26With respect to the first victim, you told her not to tell anyone. You said no one would believe her after the three offences occurred on that first occasion at your house. You then further assaulted her on a separate second occasion when she attended your house and you enticed her into the bedroom.
27Victim Impact Statements from each of your three victims were tendered into evidence – exhibits A, B and C.
28In their own words, these victims convey far more eloquently than I could ever describe, the dreadful lifelong and life-changing effects of your offences on each of these young girls.
29You have admitted the contents of a criminal record but at the time of the offending dealt with in each of the trials, you had no criminal record. There has been subsequent offending that is relevant to the view I have formed regarding prospects of rehabilitation.
30I now turn to matters personal to you. You are 71 years old. You are single and have a very limited formal education.
31A number of documents have been tendered on your behalf. Exhibit 1 is an Outline of Defence Submissions. Exhibit 2 is a bundle of reports. These are directed basically to some general health issues you have suffered over the years and are still suffering.
32A psychiatric report from Dr Ivers is dated 14 April 1998. A report from Ken Dungey, clinical psychologist, is dated 24 April 2002. In 2014, there are reports from a general practitioner, Dr A Bowman, dated 24 March; from Dr L Thompson from a Coleraine Medical Centre dated 23 April 2014; a Chronic Healthcare Plan criteria from the Melbourne Assessment Prison dated 30 August and a medical imaging report from the East Grampians Health Service dated 23 December.
33There is also an email from some 2015 clinical notes taken at Langi Kal Kal Prison, mostly concerning your serious cardiac condition.
34I will not go into any detail about these documents as they speak for themselves and describe a number of significant past events in your life and health problems you suffer from.
35I consider your prospects of rehabilitation are very limited. Your offending has encompassed many years of your life as mature adult. There has been no remorse.
36Your counsel pointed to a number of matters you are entitled to have taken into account in mitigation. These include the absence of any criminal record when these offences occurred. Your age and health issues have been pointed out. Delay has also been relied on but I only give it very little weight in your case. Clearly, there has been considerable delay in the legal process concerning your trials. I do not accept the years have shown any evidence of rehabilitation in your case. In fact, you were offending against children as late as 2013. After considering the limbs usually relied on in delay cases, I give delay no more than some very limited weight in the overall sentencing task, involving, as it does, totality and just punishment.
37General and specific deterrence must be given weight in this sentence I impose. I must seek to not only deter you but others from such serious offending. Your sentence must manifest the community’s denunciation of your conduct and impose just punishment. You are a Serious Sex Offender and I must treat protection of the community as the principal purpose of this sentence, as well as considering that status in determining appropriate cumulation.
38Your counsel responsibly conceded the seriousness of your offending and agreed it was predatory and opportunistic. I have taken both the written and oral defence submissions into account. In particular, it was submitted that totality was relevant and overriding in the sentencing considerations. It was also submitted that in spite of s6E, cumulation should be limited. It was submitted that community protection needed to be looked at in a context of your advanced years and declining health. Also, the strictness of future supervision if you are released was referred to. Delay of course was referred to as a consideration and I have already given my views on that.
39The prosecution submitted that looked at overall, you have a long history of offending in spite of there being no criminal record at the time of these offences taking place. The seriousness of Charge 2 on Indictment No C1610736.1 was pointed to, as was the gravity of the offence on Indictment No G10652870. Charge 6 involved the further element of you taking the young victim into your bedroom and you both being on the bed. The offence was only interrupted by an unexpected visitor turning up. While it could be argued that Charge 9 was at a lower level of offending, it needed to be looked at in the context of you locking the door and sexualised game-playing. Of course, this offence involved yet another child as the victim of your predatory offending.
40I will impose sentence in a chronological order of your six offences.
41You are convicted and sentenced on the charge in Trial 2, that is Indictment No G10652870, to three (3) years’ imprisonment. I will treat this as the base sentence.
42You are convicted and sentenced on Charge 1 in Trial 1, that is Indictment No C1610736.1, to nine (9) months’ imprisonment with three (3) months’ cumulation.
43You are convicted and sentenced on Charge 2 on Indictment No C1610736.1 to three (3) years’ imprisonment with eighteen (18) months’ cumulation.
44You are convicted and sentenced on Charge 3 on Indictment No C1610736.1 to nine (9) months’ imprisonment with three (3) months’ cumulation.
45You are convicted and sentenced on Charge 6 on Indictment No C1610736.1 to nine (9) months’ imprisonment with six (6) months’ cumulation.
46You are convicted and sentenced on Charge 9 on Indictment No C1610736.1 to nine (9) months’ imprisonment with six (6) months’ cumulation.
47This amounts to a total effective sentence of six (6) years’ imprisonment. I direct that you serve four (4) years and six (6) months before becoming eligible for parole.
48You have already become registered as a Sex Offender for life and that registration is also triggered by this sentence so my associate will give you some paperwork to sign.
49Gentlemen, I was going to leave the Bench so you could just check that the draft orders reflect the sentencing disposition that I have determined. Is it convenient to do that?
50MR GIBSON: The only matter that I can think of is the new non-parole period date, Your Honour.
51HIS HONOUR: Yes, well, I was going to ask you that, Mr Gibson, in terms of how I fix that date under the provisions but I have indicated to you the total effective sentence and the ‑ ‑ ‑
52MR GIBSON: I will discuss it with my friend and perhaps ‑ ‑ ‑
53HIS HONOUR: Yes. All right. Well, I will just ‑ ‑ ‑
54MR GIBSON: And do the arithmetic, Your Honour.
55HIS HONOUR: I will just wait.
56(Short adjournment.)
57HIS HONOUR: All right. Thank you for attending to those orders, gentlemen. So I will just formally announce if I need to that the new non-parole period date is 18 February 2023. And Mr Povey, you are again registered as a Sex Offender and you must comply with the stipulations that are incumbent in that. And you have got a copy of the paperwork with respect to that.
58COUNSEL: As Your Honour pleases.
59HIS HONOUR: Nothing else gentlemen?
60COUNSEL: None, Your Honour.
61HIS HONOUR: All right. Thank you for your assistance.
62Take Mr Povey, thank you.
63I will just adjourn till we see what is in the reserve list.
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