Director of Public Prosecutions v Pratt (a pseudonym)
[2022] VCC 927
•22 June 2022
| IN THE COUNTY COURT OF VICTORIA AT LA TROBE VALLEY CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALLAN PRATT (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TIWANA | |
WHERE HELD: | La Trobe Valley | |
DATE OF HEARING: | 24 May 2022 | |
DATE OF SENTENCE: | 22 June 2022 | |
CASE MAY BE CITED AS: | DPP v Pratt (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 927 | |
REASONS FOR SENTENCE
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Subject:Criminal law – Sentence
Catchwords: Indecent assault of a person under 16 – Gross indecency with a person under 16 – Historical sexual offending committed between 1987 to 1988 – Uncharged acts - Young victim aged between 7 and 8 years old at the time of offending – Offending occurred 34 years ago – Offender now aged 66 – Breach of trust – Early guilty plea – No prior or subsequent convictions – Low risk of future sexual offending.
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Cases:Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296; DPP v Toomey [2006] VSCA 90; Stalio v The Queen (2012) 46 VR 426;The Queen v Pridgeon [2006] VSCA 250; Morgan v The Queen [2014] VSCA 303; DPP v Hoff (a pseudonym) [2018] VCC 263; DPP v Webb [2019] VCC 1706; DPP v Corrigan (a pseudonym) [2016] VCC 275; DPP v Fennell [2016] VCC 486; DPP v Holbery [2016] VCC 625; DPP v Conolly (a pseudonym) [2018] VCC 1917; DPP v Bellew (a pseudonym) [2019] VCC 903; DPP v Burton (a pseudonym) [2019] VCC 1537;
Sentence:Total Effective Sentence of 2 years and 6 months. 5 months to serve and the remaining sentence suspended for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms P. Thorp | Office of Public Prosecutions |
| For the Accused | Mr T. Bourbon | Slades & Parsons Solicitors |
HIS HONOUR:
Introduction
1Allan Pratt[1], you have pleaded guilty on indictment to four charges. Charge 1, 2 and 4 are offences of indecent assault of a person under 16 contrary to s44(1) of the Crimes Act1958. Charge 3 is a rolled-up charge of gross indecency with a person under 16 contrary to s50(1)(a) of the Crimes Act 1958.
[1] A pseudonym.
2Indecent assault of a person under 16 carries a maximum penalty of five years' imprisonment. Gross indecency with a person under 16 carries a maximum penalty of three years’ imprisonment.
3The circumstances of your offending are set out in the amended summary of prosecution opening for plea dated 16 May 2022.[2] Your counsel took no issue with the opening, other than clarifying the factual agreement of the first act forming part of Charge 3.[3]
[2]Exhibit A.
[3]It is accepted that the victim’s hand wasn’t guided by Mr Pratt onto his penis in respect of Charge 3.
Circumstances of the offending
4At the time of the offending for which I am to sentence you, you were aged between 31 and 32. The victim, Claire Rice,[4] was only 7 and 8 years old.
[4] A pseudonym.
5You and Claire’s father grew up together and were best friends. You became Claire’s godfather. When she was around six years old, her family moved to regional Victoria. You lived and worked in Melbourne but would stay with Claire’s family most weekends and spend your holidays with them.
6In 1991, having lost your job, you lived with Claire’s family for a while. You would buy Claire gifts and give her money.
7The offending relates to two separate incidents.
First Incident
8Claire was seven years old at the time of the first incident which occurred between 2 January 1987 and 1 January 1988. You were with her in her brother’s bedroom. You explained to her what ‘mummy’s and daddy’s’ do and said that it was normal. You told her that the two of you were going to play a game and showed her how to touch your penis. You guided her hand up and down your penis showing her how to masturbate you. You told her if she loved you, she would want you to feel good. You then told her to masturbate you on her own and to touch you on your testicles, stating that it felt good. She touched your penis until it was erect. You did not ejaculate. (Charge 1 – indecent assault with a person under 16). You went on to say to her that you could not wait until she grew breasts as they would be fun to touch. You also explained to her the process of putting your finger into her vagina and that it was ok if it hurt a little and that it would not hurt after the first time.
Second Incident
9The second incident took place around 1988 when Claire was eight years old. Her parents had gone out and her brother was at a friend’s house. You took Claire into her brother’s bedroom and made her remove her clothes. You removed your pants. You then kissed her vagina and said, ‘doesn’t this feel good I am going to get you to do that to me.’ (Charge 2 – indecent assault with a child under 16). You then got Claire to touch and fondle your penis. Having done so for a while, you made her kiss your penis (Charge 3, rolled up – gross indecency with a child under 16). Claire told you that she did not like kissing your penis. You then proceeded to place your finger inside her vagina. (Charge 4 – indecent assault with a child under 16). You then put her on her side and ejaculated on her back.
Other uncharged incidents
10In addition to the charged offending, the prosecution by agreement, have outlined other sexual acts for which you do not fall to be sentenced.[5] These other acts demonstrate that your offending wasn’t isolated to the two incidents I have outlined, but continued until Claire was around 12 years old.
[5]Exhibit A, see [10] – [14].
Complaint
11In 1990, Claire told two of her friends about your abuse. Her friends did not believe her.
12In 1993, Claire told her boyfriend who insisted she tell her parents. Despite telling her parents, a decision was made by them not to report it to the police as they thought the court process would be difficult for Claire to deal with.
13In 2004, Claire was told by her mother that you were dead. It was not until 2010 that Claire discovered this was not true.
14About 2011, Claire reported the offending to the police but was not ready to make a formal statement. It was in August 2019 that Claire made a formal statement to the police.
Arrest and interview
15On 22 December 2020, you were arrested by appointment at Preston Police station. During the interview, you emphatically denied the offending. You said it was all lies, claiming the allegations were “sickening” and “rubbish”. You added that you were the victim. You went on to say that you treated Claire as your daughter.
Impact upon the victim
16Claire read out her victim impact statement declared on 10 May 2022 in this Court.[6]
[6]Exhibit B.
17It is beyond plain that the impact of your offending upon Claire has been and continues to be profound.
18Her life has been marred by nightmares, panic attacks, immense fear, self- harm and significant mental health issues.
19She states:
I constantly struggle. With all of my complex issues, it has not been only me who has suffered, but my family do alongside me, my husband, my daughter, they have had to witness and go through with me, numerous BPD episodes, major anxiety attacks, years of depression, years of financial strain and too many hospital visits to count. Due to all of this taking a toll, my daughter now suffers with mental health issues herself. As for me, I get no enjoyment from life, am constantly scared and anxious to try new things and meet new people. The really sad part for me is, I was never meant to be this person, I know without a doubt, that if what happened to me had never come to pass, I would have gone onto do great things with my life, achieve so much and been happy… [the offender] stole from me my innocence, my ability to trust, my confidence, my future, my life.
20I take into account the impact of the offending upon your victim as one of the many factors in the sentencing synthesis.
Defence Case
21Mr Bourbon on your behalf prepared detailed written plea submissions.[7] They set out your background. In addition to the written and oral submissions, I have also had regard to the psychological report, including an addendum report, prepared by Mr Patrick Newton,[8] medical report prepared by Dr Michael Shepherd[9] and a reference from Mr David Hoy.[10]
[7]Exhibit 1.
[8] Exhibit 2.
[9]Exhibit 3.
[10]Exhibit 4.
Personal Circumstances
22In his written submissions, Mr Bourbon set out your background in detail.
23You grew up in the northern suburbs of Melbourne, living with your parents and nine siblings. Your father drank heavily. Alcohol made him violent. He assaulted your mother repeatedly. You recall fighting with your father in order to protect your mother. When you were aged 15, your father suffered a workplace injury as a result of which he was not able to continue working. He stopped drinking and the physical violence came to an end. However, he remained abusive towards your mother in other ways.
24At school, you were an average student. In high school you were the victim of bullying. You began to physically retaliate, and this led you to be expelled at the conclusion of 4th form (the equivalent of year 10).
25At the age of 15 you began drinking alcohol in order to deal with your father’s abuse and the bullying at school.
26After school, you began working. You worked as a storeman, a sprinkler fitter and a factory hand for short periods before commencing employment as a tyre fitter at Goodyear in 1976. You were promoted at Goodyear to the role of a supervisor.
27At this stage in your life, around 1976, you were drinking heavily and continued to do so over the next 20 years.
28You were born with a malformed penis. It is small and you’re only capable of keeping it erect for a brief period. This has caused you a lot of anxiety throughout your life, and consequently affected your ability to develop intimate relationships with others. Mr Newton comments in his report that the malformation of your penis has resulted in you suffering from “multiple experiences of humiliation and rejection” and left you feeling “inadequate and unworthy”.[11]
[11]Exhibit 2, [63(10)].
29At the age of 25 you were dating a woman and you were affectionate towards each other. However, one evening, she put her hand down your pants and said “what’s going on? There’s nothing down there”, referring to the size of your penis. You felt humiliated and ashamed as a result of this. I was told that you went on to drink a bottle of Pine O Cleen and became violently ill for a number of days.
30This experience affected your ability to engage in appropriate sexual relationships. You have never had sexual intercourse.
31Your mother passed away when you were 27 years old. The heavy drinking continued. You would visit the victim’s home and drink with her father. I am told you were under the influence of alcohol at the time of the offending.
32In 1992, you went interstate, living and working in Western Australia and the Northern Territory. You worked as a fishing trawler and continued drinking heavily.
33In 1996 you returned to Melbourne after learning that your father had suffered multiple strokes. You had no meaningful relationship with him since leaving home at the age of 18. You told your father that you had forgiven him. You became his carer until his death in 2003.
34You then worked as a Patient Services Assistant at Freemasons Hospital and the Austin Hospital between 2003 and 2018. Your most recent employment was at the John Fawkner Private Hospital where you worked as an Orderly/Environment Services Assistant until recently. Mr David Hoy in his letter of reference says you were a ‘diligent and reliable employee.’
35Upon your return to Melbourne in 2003, inspired by your brothers, you were baptised as a Pentecostal Christian. You vowed never to drink again and have maintained abstinence ever since.
36You have remained invested in your church and rarely miss Sunday service.
Gravity of the offending
37In DPP v Toomey, Buchanan J said:
The courts have recognised that those who commit crimes against one of the most vulnerable groups in society, which almost invariably have long-term effects on their victims, should be severely punished.[12]
[12][2006] VSCA 90 at [10].
38There can be no argument that your offending was extremely serious.
39Your victim was a vulnerable young child, aged 7 and 8 at the time of the offending subject to the indictment. You were an adult in your thirties. Not only was she the daughter of your best friend, but you were her godfather. The offending represented a significant breach of trust. You breached her and her families trust in you. You abused her to satisfy your deviant sexual desires. In doing so, you manipulated an innocent child, telling her that what you were doing was perfectly normal and you were playing a game. You attempted to legitimise your offending conduct. You told her if she loved you, she would want you to feel good. The offending occurred in her home, a place where she was entitled to feel safe. Your repugnant offending has had a devastating impact upon your victim’s life.
40I note for completeness, the prosecution made no submission that you were grooming your victim by buying her gifts. I do not take into account the giving of gifts as an aggravating factor.
41The charged offending occurred over a period of time between 1987 and 1988. It represents two separate incidents. However, the charged offending wasn’t isolated. It continued until about 1991. You are not being sentenced for the uncharged acts, but they are relevant in precluding you from submitting that your offending was isolated and limited to just the two incidents.
42In respect of Charge 1, you made a seven-year-old child masturbate you, telling her how to do it by guiding her hand up and down your penis. Having guided her hand on your penis, you told her to do it on her own. In respect of Charge 2, when she was aged 8, you made her remove all her clothes and you kissed her on her vagina, saying to her “doesn’t this feel good I am going to get you to do that to me.” You then made her touch your penis and kiss it. These two acts represent Charge 3. She told you that she didn’t like kissing your penis. You went on to commit Charge 4, placing your finger inside her vagina. Having done that, you placed her on her side and ejaculated on her back.
43I regard your moral culpability for the offending as high. You knew what you were doing was wrong but that didn’t stop you from violating the victim and stealing her innocence. The fact that you struggled to form intimate relationships with others gave you, as conceded by your counsel, no right to prey on a vulnerable child.
Matters in Mitigation
44Mr Bourbon on your behalf relied upon the following mitigating factors:
(i) Plea of guilty.
(ii) Remorse.
(iii) Lack of any prior or subsequent convictions.
(iv) Delay and your demonstrated rehabilitation.
(v) Your age, physical and mental health issues.
45You pleaded guilty on the first day of the contested committal hearing. The victim was not cross-examined. The resolution involved the prosecution not proceeding with some of the charges filed against you. Charge 3 on the indictment was filed on the day of the committal. Accordingly, I accept that your plea can be characterised as an early plea.
46By pleading guilty, you have facilitated the course of justice and taken responsibility for your actions. You have also saved the community the time and expense of a trial and, more importantly, spared the victim from further trauma by having to relive the offending in court. Your acceptance of responsibility has also vindicated the victim. It is hoped it brings a degree of closure for her.
47Furthermore, your pleas of guilty attract a greater utilitarian benefit, as they have been entered when the courts are facing significant delays in relation to criminal trials. The courts must encourage those who are guilty to so plead, and such encouragement must come from an ‘actual and palpable’ amelioration of sentence.[13]
[13]Worboyes v The Queen (2021) 96 MVR 344; Rossi v The Queen [2021] VSCA 296.
48You told Mr Newton:
I came to the realisation earlier in life that what I did was wrong and made a promise I will never do it to anyone else again. That was 31 years ago and I have and will always keep that promise.[14]
[14]Exhibit 2, [35].
49Despite these comments to Mr Newton about your early realisation of your appalling conduct, when arrested and interviewed by the police, you strenuously denied your offending. You told the police that the allegations were lies, they were sickening, and they were rubbish.
50Plainly, there was not a hint of remorse at that stage. The case was listed for a contested committal hearing but as already stated, did resolve.
51I am prepared to accept that your pleas of guilty, along with your apologies to Mr Newton and your efforts at rehabilitation, that you are now displaying a degree of genuine remorse. Mr Newton states at paragraph 52 of his report:
He was clear that he abhorred his conduct, and he could discuss some of the negative consequences it would likely have had upon the complainant. Furthermore, he could demonstrate awareness of issues associated with the age of consent and did not seek to rationalise or excuse his conduct. Beyond this, [the offender] expressed some remorse for his conduct and a determination never to repeat the behaviour. Both of these appeared to be genuine.
52You appear before this Court, now aged 66, without any prior convictions and no subsequent offending.
53Ms Thorp on behalf of the prosecution, relying upon s5AA of the Sentencing Act 1991, submitted that I must not have regard to your previous good character and lack of prior convictions. She submitted you gained access to the victim because you were a trusted friend of her father, and you were her godfather.
54I agree with Mr Bourbon’s submission that there is no evidence placed before me upon which I could be satisfied that your good character and lack of priors assisted you to become a trusted friend and godfather and thus be in a position to commit the offending. Accordingly, s 5AA is not invoked.
55I accept that your prospects of rehabilitation, when gauged against the significant delay, are very positive. During the last 34 years, not only have you not re-offended, but maintained a strong work ethic. You have remained abstinent from alcohol for over 25 years and have been devoted to your Christian faith.
56The passage of time means there is no basis now to assess you as suffering from a paedophilic disorder. Mr Newton, not surprisingly, assesses you as being of low risk of future sexual offending.
57Your demonstrated rehabilitation over the last 34 years is an important matter that I will take into account in your favour.
58You suffer from a range of medical conditions, including type-2 diabetes, osteoporosis, asthma, hypertension, high cholesterol and reflux oesophagitis. You are prescribed medication for high blood pressure, cholesterol and diabetes.
59As a result of your diabetes, you suffer from swollen feet causing you real discomfort.
60In terms of your mental health, you suffer from anxiety. Mr Newton has diagnosed you with an adjustment disorder with anxiety and an avoidant personality disorder. Mr Newton opines, and I accept, that your physical health ailments and your mental health will make any term of actual imprisonment more onerous for you. The restrictions placed by the pandemic will also add to any time in custody being more difficult.
Sentencing Purposes
61Despite the delay and your excellent progress, I must not allow that to devalue the gravity of your offending. General deterrence and denunciation remain integral sentencing considerations.
62The Court must send a clear message to those who are minded to sexually abuse children, that they will be met with stern punishment. Further, on behalf of the community, your offending must be denounced. The sentence this Court imposes must also justly punish you.
63I accept that bearing in mind your positive progress over the last 34 years, specific deterrence has no meaningful relevance. You also currently present with no danger to the community.
Serious Sexual Offender Provisions
64Pursuant to s6B of the Sentencing Act 1991, upon conviction and being sentenced to a term of imprisonment on Charges 1 and 2, you fall to be sentenced as a serious sexual offender with regard to Charges 3 and 4 on the indictment. Pursuant to s6D of the SentencingAct, in determining the length of any sentence on Charges 3 and 4, I must regard community protection as the principal purpose for which the sentence is imposed. For reasons already articulated, I do not regard you as currently posing a risk to the community.
65It has not been suggested, and nor do I consider that a disproportionate sentence is necessary to achieve the protection of the community.
66Pursuant to s6E of the Sentencing Act 1991, there is a presumption of accumulation with regards to sentencing for serious sexual offender offences. However, I must bear in mind the overarching principle of totality. I must ensure that the totality principal is applied in a manner that does not undermine the legislative policy inherent in s6E of the Sentencing Act 1991.
Sentencing Submissions
67Mr Bourbon conceded that bearing in mind the seriousness of the offending and the prominence of general deterrence and denunciation, a term of imprisonment was inevitable. He was right to do so.
68He submitted that recognising the strong mitigating factors, a wholly suspended term of imprisonment would meet all sentencing objectives.
69On behalf of the prosecution, Ms Thorpe stressed the seriousness of the offending, in particular, the young age of the victim, the age discrepancy, and the serious breach of trust. Ms Thorpe submitted the committed acts subject of the charges were serious examples and your moral culpability was high. Ultimately, she submitted that a sentence of imprisonment requiring some actual period to be served was necessary.
70In sentencing you, I am required to have regard to current sentencing practices. The sentencing practices are those currently applied.[15] There is now a much greater understanding of the impact of such offending on child victims. However, the principle of equal justice requires that I take into account sentencing practices at the time of your offending. No material was placed before me to indicate sentencing practices in the 1980’s. I bear in mind the maximum sentences that existed at the relevant time and apply in your case.
[15]Stalio v The Queen (2012) 46 VR 426.
71I have had regard to the sentencing cases placed before me by Mr Bourbon and Ms Thorp relating to historical sexual offending.[16] Ultimately, each case turns on its own particular facts and circumstances and previous sentences are not precedents. However, the cases provide a yardstick of the range of sentences available.
[16]The Queen v Pridgeon [2006] VSCA 250; Morgan v The Queen [2014] VSCA 303; DPP v Hoff (a pseudonym) [2018] VCC 263; DPP v Webb [2019] VCC 1706; DPP v Corrigan (a pseudonym) [2016] VCC 275; DPP v Fennell [2016] VCC 486; DPP v Holbery [2016] VCC 625; DPP v Conolly (a pseudonym) [2018] VCC 1917; DPP v Bellew (a pseudonym) [2019] VCC 903; DPP v Burton (a pseudonym) [2019] VCC 1537.
72Having carefully analysed all the material that was placed before me and having regard to all competing sentencing considerations, I am not able to accede to your counsel’s submission on the ultimate disposition. In my judgment, a period of actual imprisonment is necessary.
73Can you please stand up Mr Pratt.
On Charge 1 you are convicted and sentenced to 15 months’ imprisonment.
On Charge 2 you are convicted and sentenced to 15 months’ imprisonment.
On Charge 3 you are convicted and sentenced to 14 months’ imprisonment.
On Charge 4 you are convicted and sentenced to 18 months’ imprisonment.
74The sentence on Charge 4 will be the base sentence. I direct that 6 months of the sentence on Charge 1, 2 months of the sentence on Charge 2, and 4 months of the sentence on Charge 3 be served cumulatively upon each other and upon the base sentence.
75This makes a total effective sentence of 2 years and 6 months’ imprisonment.
76I direct that you serve a period of 5 months’ imprisonment. The remaining period of 2 years and 1 month will be suspended for a period of 3 years.
77This means that once you are released having served 5 months, 2 years and 1 month will remain hanging over your head but suspended for a period of three years. If you were to commit another offence punishable by imprisonment during the period of suspension, that would breach your partially suspended sentence. That would mean you would come before me and I would be obliged to order that you serve the suspended portion of your sentence, namely the 2 years and 1 month - unless you can show that exceptional circumstances have arisen, and it is in the interest of justice not to activate the suspended sentence. Do you understand that?
78OFFENDER: Yes sir.
Pre-sentence detention
79I note there is no pre-sentence detention to be recorded.
Section 6AAA declaration
80Pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you pleaded not guilty and been convicted of these Charges, you would have been sentenced to a term of 4 years’ imprisonment with a non-parole period of 2 years and 6 months.
Serious Sexual Offender
81In relation to Charges 3 and 4, pursuant to s6F(1) of the Sentencing Act 1991, you are sentenced as a serious sexual offender and I order that this fact be entered into the records of the court.
Sex Offender Registration
82By reason of your finding of guilt on the four Charges, you will be subject to the requirements of the Sex Offenders Registration Act 2004 and required to report for life. I am about to provide you with a document that sets out your responsibilities in respect of the reporting requirements. Failure to comply with the reporting requirements is a criminal offence punishable by imprisonment. Therefore, non-compliance could breach the suspended part of your sentence. Do you understand?
83OFFENDER: Yes sir.
84I am now going to ask you to sign a document acknowledging receipt of your reporting requirements.
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