Director of Public Prosecutions v Pryse

[2017] VCC 211

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 16-01034

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER GLENN PRYSE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Bendigo
DATE OF HEARING:	14, 15, 16, 20 February 2017
DATE OF SENTENCE:	9 March 2017
CASE MAY BE CITED AS:	DPP v Pryse
MEDIUM NEUTRAL CITATION:	[2017] VCC 211

REASONS FOR SENTENCE
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Subject:  Four counts of sexual penetration of a child under 16 years
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Three years' imprisonment with a non-parole period of two years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson
For the Accused	Mr P. Higham

Pages 1 - 17

 

 

HIS HONOUR: 

1Peter Glenn Pryse, you have pleaded guilty to four charges of sexual penetration of a child under the age of 16 years.  Each charge is a representative charge.  The complainant in each charge is the same person. 

2The maximum penalty for each of these offences is ten years' imprisonment. 

3Your offending spanned a period of about two-and-a-half years between 22 March 1994 and 5 October 1996.  There has been a long delay in these matters coming before the court for reasons that I will shortly deal with.

4The circumstances of your offending are summarised in a prosecution opening in writing dated 1 March 2017.  That document was read in open court by the learned prosecutor Mr Gibson, and was tendered in evidence, and marked as exhibit "A".  Your counsel, Mr Higham accepted that the prosecution opening forms a proper basis of fact upon which I can proceed to pass sentence upon you.

5It is not necessary that I again set out in full that which is contained in the prosecution summary.  These sentencing remarks however must be read in conjunction with what is set out in full in the prosecution summary.

6The complainant was born on 22 March 1981.  At relevant times she was a child attending school and growing up whilst living with her parents and a sibling in Echuca.  The offending commenced when she was 13 years of age.  When it ceased she was 15 years and nine months of age.

7You were born on 4 June 1976.  At relevant times you were working as an apprentice mechanic in Echuca.  You were approximately four years and nine months older than the complainant.  You were obviously more mature than her.  I was told on the plea that you had been sexually active since the age of 16.   The offending commenced when you were 17 years and nine months old.  It concluded when you were 20 years and five months of age.

8The complainant lived with her family in a house opposite the house where you lived with other young men, and it was in that context that you met the complainant, and commenced a sexual relationship with her that results in the charges.  When you did so you knew her age, and you knew that having a sexual relationship with her was contrary to the law.  Nevertheless you persisted. 

9It is true that the complainant was infatuated with you and was a willing participant in the sexual acts that took place between the two of you.  Consent on the part of the complainant is not a defence, and it is not a mitigating factor.  However, it is a factor to be taken into account in assessing all of the circumstances of your offending and the extent of your culpability in the offending.

10What is clear from the summary is that you were the leader in identifying the sexual acts that you would carry out with the complainant, and you introduced her into the conduct that followed.  You began the relationship by touching her sexually but very quickly moved to the various acts of penetration that are described in detail in Exhibit A. 

11Charge 1 is a charge of digital penetration by you of the complainant's vagina and is representative of one another occasion described in paragraph 15. 

12Charge 2 is a charge of penetrating the complainant's mouth with your penis and is representative of one another occasion when this occurred also described in paragraph 15. 

13Charge 3 is a charge of penile/vaginal penetration and represents eight other occasions on which this offending occurred as described in paragraphs 19, 21, 22, 27 and 28.

14Charge 4 is a charge of penetration of the complainant's vagina by you with an object.  In Charge 4 the object was a peeled banana.  Charge 4 also represents two other occasions when you carried out this act described in paragraphs 25 and 26.  On those other occasions you used different objects to penetrate the complainant namely, ice cubes on the second occasion, and a candle on the third occasion.

15You treated the complainant as an object for sex.  When you first had penile/vaginal intercourse with her (Charge 3) you knew that she was a virgin.  When you were engaged in the act of intercourse she told you, "It doesn't feel right", and you told her "it's meant to hurt".  The complainant tried to get you to stop but you continued to thrust in and out of her vagina.  You later apologised for hurting her.  You also had sexual intercourse with her on the day when the complainant had her first period.

16On the fifth occasion represented by Charge 3 the complainant was asleep in your bed in the afternoon and she woke up with you on top of her having sexual intercourse with her.  She tried to push you off and you grabbed her arms and held them above her head and you held her down telling her she was a filthy slut, and a whore, and she should not pretend that she did not like it. 

17On the sixth and seventh occasions represented by Charge 3, you had sexual intercourse with the complainant after first having tied her hands together.  On the eighth occasion represented by Charge 3 the complainant tried to resist you having sexual intercourse with her.  She tried to push you away but you held her down on the bed.  You later apologised for having mistreated her.  I have concluded that by offending as you did in representative Charge 3, you took full advantage of the complainant and of the opportunity she had presented you with.  At times you used force to penetrate her.

18I have concluded that the occasions of offending represented by Charge 4, where you introduced objects into the complainant's vagina, were actions by you to satisfy your own somewhat perverted sexual appetite.  You ate the banana after having first used it to penetrate the complainant.  You forced the ice cubes into the complainant using your mouth, and the complainant tried to push you away.  Before you penetrated the complainant with the candle you first dripped hot candle wax onto her breast and her vagina.  By your actions you humiliated the complainant.

19What comes through from the summary is that you were in control of the sexual relationship.  You were in charge of what occurred at the various times you sexually penetrated the complainant.  You did what you wanted. 

20Yet there seems to have been two sides to you.  What comes through is that at times you did care for the complainant and expressed tenderness towards her.  You probably loved her or thought you that you did, although you were unfaithful to the complainant and had sex with her best friend, a matter you later said you very much regretted after the complainant ended your relationship.  See your letter to her in the depositions at p.432.

21When it came to having sex with the complainant you did what you wanted, knowing that she was but a schoolgirl under the age of 16 years, and you knew that what you were doing was contrary to law. 

22As the summary shows, at times the sexual activity between you and the complainant was rough.  When you were not having sexual activity you were capable of showing love and affection towards the complainant and at various times you purchased gifts for her which I take as a sign of affection for her.

23When you offended you were a young offender and at the time of offending you had no relevant prior convictions. You do have a number of subsequent relevant convictions which I will shortly turn to. You fall to be sentenced as a serious sexual offender for each of these charges because of your subsequent convictions. That is because of the application of ss.6B, 6C and 6D of the Sentencing Act 1991 ("the Act").

24Mr Higham submitted that your moral culpability should be reduced because your offending occurred in full knowledge of the parents of the complainant.  There was a period of about six months during your relationship with the complainant where you stayed and lived in her house and were welcomed by her parents.  You slept in her bedroom.  Mr Gibson referred to the depositions where the complainant's mother said that you suddenly came into the lives of the members of the family and she trusted that you were not having a sexual relationship with her daughter.  I think it is fair to conclude that the complainant's parents probably realised that you were having a sexual relationship with their daughter but they did not know what to do about it and chose to do nothing.  You carefully forged a trusting relationship with them and I have concluded that they naïvely went along the relationship that you and the complainant had developed. 

25In my judgment there is substance in the submission advanced by Mr Higham that the complainant's parents knew you and the complainant to be in a sexual relationship and they did nothing to protect their daughter from you.  That is one factor to take into consideration in assessing your overall culpability for this offending.  There is no evidence to suggests the complainant's parents appreciated the high level of sexual penetration that you had initiated with their daughter, or the rough and demeaning way in which you treated the complainant on some occasions when you were alone with her, engaged in sexual acts.

26I have concluded that your culpability for this offending must be considered as being high.  You used a young girl as a sexual object for your own gratification.  You were the one who was always in control of the relationship.  You knew that what you were doing was wrong and you went on regardless.  You took sexual advantage of a child.  The factual matrix describing your offending in the summary suggests out a number of serious examples of what are serious offences. 

27In such a case where there has been a crime against children the sentence must be guided by proper application of the principle of general deterrence, and in this case, protection of the public.

28You have pleaded guilty to the charges and I treat you as having indicated that you would do so at an early time.  The chronology leading to this plea is a complicated one and it is necessary that I deal with it in some detail because it in part helps explain the delay in these matters coming before the court.

29In 1997 you were charged with aggravated burglary and one count of rape of the complainant.  At around the same time you were also charged with one count of burglary and one count of indecent assault in respect of another separate complainant, whom I shall refer to as M1.  You were also charged with one count of rape of a third complainant, whom I shall call M2.  You were committed for trial on these charges.

30The Director of Public Prosecutions filed a presentment in the Bendigo County Court in 1998 and you appeared to contest the charges in the presentment before His Honour Judge McInerney in February 1999.  His Honour ordered separate trials in respect of the three separate complainants and a trial commenced before His Honour in respect of the charges against M1.  His Honour discharged the jury without verdict and you were released on bail to again face the County Court in Bendigo at the May 1999 circuit.

31Between February and May 1999 there were negotiations between your legal representatives on your behalf, and the prosecution, in the result that the three trials resolved into a plea of guilty by you to the first two counts on the presentment namely, burglary and indecent assault of complainant M1.  The prosecution filed over a new presentment containing these two counts and you pleaded guilty to them.

32Your plea was heard by His Honour Judge Hart in May 1999 and the prosecution agreed to tell His Honour that a non-custodial sentence was within the sentencing range.  His Honour sentenced you to 18 months' imprisonment on each charge, concurrent, and wholly suspended the operation of the sentence for a period of 18 months.  You served that sentence.

33Nothing further occurred in relation to the allegations of rape and aggravated burglary that had been made by the complainant in this matter until around 2014 when the informant contacted the complainant as part of his investigation of another complaint.  During that investigation the complainant in these matters apparently enquired as to what had become of her complaint of aggravated burglary and rape against you made approximately 17 years earlier.

34When the complainant in these matters spoke with the police in 1997 she told the investigator that she had been in a relationship of a sexual nature with you over a period approximately two-and-a-half years.  She told him that you had raped her on a number of occasions but that she only wanted you dealt with in respect of an allegation of rape against her after the relationship had been ended by her on account of your infidelity with her friend.  This is how the charge in 1997 of rape and aggravated burglary came about.

35When the complainant in these matters was approached by the informant in 2014 she made a further statement in which she detailed the sexual relationship that had existed between the two of you over a period of about two-and-a-half years.  It is that statement which forms the basis of the charges I must now sentence you on.

36In 2015 you were charged with these offences and there was a contested committal.  The Director filed an indictment numbered E-14320375 .1 and that presentment came on for trial before me at the February sittings.  It contained 20 charges.  Charges 1 to 17 inclusive related generally to the matters before the court.  Charge 18 was an allegation of rape of the complainant in 1997 and charges 19 and 20 are the charges that were previously Counts 4 and 5 on the presentment filed in 1998.  In other words, the prosecution sought to have the court proceed with charges that had been the subject of the plea bargain in 1999.  The prosecution also sought to have you dealt with in a separate trial on a presentment containing one count of rape relating to the complainant M2.

37Pre-trial, there was a great deal of argument about this and I ruled that the charges 19 & 20 on the indictment be permanently stayed as an abuse of process, and for the same reason I refused the prosecution leave to file a presentment containing one count of rape relating to the complainant M2 because that presentment was also in my view an abuse of process.

38In my ruling I did not stay Charges 1 to 18 for reasons set out in my ruling, which should be read in conjunction with these sentencing remarks.

39There followed discussions between the prosecution and the defence which has resulted in you pleading guilty to the four representative charges of sexual penetration of a child under 16.  Your legal advisors had previously lodged with the court a response to the summary of prosecution opening that was prepared for the trial of the 20 charges on the original indictment.  In the second response lodged on your behalf you admitted that you, "Became romantically involved and began an intimate physical relationship", with the complainant.  In paragraph 4 your response said as follows:

"Insofar as he was concerned the relationship between he and the complainant was a genuine and loving relationship, and, whilst recognising that she was the younger partner and importantly incapable in law of giving consent, the sexual acts between them were always ones to which he understood the complainant to be giving 'ostensible consent'".

40Your response went on to say that your sexual life with the complainant included experimentation and exploration.  You denied having raped the complainant.

41I have set all this out in some detail because it shows that you by your response admitted the essential elements or ingredients of the offences that you have now pleaded guilty to whilst at the same time denying that you raped the complainant.

42By your pleas of guilty you have saved the time and cost of a trial.  Importantly you have saved the complainant the indignity and the embarrassment of having to give evidence against you, and be cross-examined by your counsel about your intimate activity with her more than 20 years ago.

43Because of your pleas of guilty and the fact that you made admissions of the relevant facts at an early time I treat you for sentencing purposes as having pleaded guilty to the charges now before the court at an early time and this will be reflected in the sentence that I will impose.  In my view, had it not been for the fact the prosecution attempted to proceed in a way that included charges that were the subject of a plea bargain and disposed of in 1999 it is highly likely you would have pleaded guilty to these charges now before the court at the earliest available opportunity because the facts that found the elements of the offences are not in dispute.

44There has been delay of more than 20 years in these charges coming before the court to be dealt with.  The delay was in part caused by what occurred in 1999 when all of the parties concerned appear to have acted on the basis your plea of guilty to the two counts concerning M1 was of finalisation of all matters.  The police did not pursue the complainant's complaint further even though she had given them enough information to at least trigger further investigations.  The Director of Public Prosecutions did nothing and the complainant in these matters did not make any further statement to the police until 2014 when she gave the police a much more detailed statement, but only after she was first approached by the current informant.

45I am obliged to take the fact of the delay into account in arriving at my sentence and I will do so.  There are many reasons why complainants in sexual offending cases do not come forward sooner and this case is no exception.  I admitted into evidence a victim impact statement from the complainant in which he detailed the impact which your offending has had on her life.  The complainant read her victim impact statement in open court and is not necessary that I here repeat what she has there set out.  It is suffice to say what you did to her has had a profound effect upon her and it may be lasting.

46From a sentencing point of view what you have done with your life during the period of delay is very important because you have in the intervening period committed a number of relevant offences.

47Between 17 January 1995 and the 10 January of this year you have had 15 court appearances. One of those court appearances related an appeal to the Supreme Court against a sentence imposed in this court on 9 November 2004. A number of the appearances relate to offences of dishonesty and social disorder. However, after you were dealt with by his Honour Judge Hart on 25 May 1999, you were convicted in the Melbourne County Court on 9 November 2004 of four counts of indecent act with child under the age of 16. I was told that offending related to sexual misconduct that you carried out with a young girl aged six, who was the daughter of a woman with whom you had formed a de facto relationship. You were sentenced to a total effective sentence of four years and nine months' imprisonment with a non-parole period of three years. You were sentenced on counts three and four is a serious sexual offender pursuant to S.6F of the Act.

48In May 2005 you appealed unsuccessfully to the Supreme Court.

49In November 2005 you were again before the County Court in Bendigo where you pleaded guilty to another charge of indecent act with a child under the age of 16.  The child was a sibling of the victim in the charges which had resulted in your imprisonment.  You were again sentenced to a term of imprisonment of three years, 21 months of which sentence was to be served concurrently with the sentence you were then undergoing, and a new non-parole period of four years was fixed.  Whilst undergoing these sentences, and before you were paroled, you completed the Sex Offenders Program.  I was told that made you compare what you have learned with the way you had been living your life and you have now changed your ways. 

50Your convictions for sex offences in the County Court meant that you had become a registrable offender for the purpose of Sex Offenders Registration Act ("SORA") with reporting obligations for life. Since being released from prison for sexual offences, you have been convicted on seven occasions in different hearings for breach of the SORA by failing to comply with reporting obligations of one kind or another. In respect of those various charges you have received various dispositions including imprisonment, a suspended sentence, fines and a community corrections order.

51In summary whilst there has been delay in this matter coming before the court you have not used your time well during the course of the delay and now find yourself before the court for sentencing as a serious sexual offender.  However, these charges aside you have not committed another offence of a sexual nature since you were dealt with in the County Court in November 2005.

52In a powerful plea on your behalf your counsel commenced by apologising on your instructions to your victim and he made it clear that you do not in any way blame her for the offending.

53Mr Higham on instructions told me much of your background from the Bar table and I accept and act upon what he told me.  You are approaching your 41st birthday.  You are one of 11 children born of the marriage of your parents over a period of 18 years.  Your father was a beekeeper and I am told and accept that he was violent man with your mother acting as a protector.  The home is said to have been filled with fear.  I was told and accept when you were aged about nine years you were sexually abused by a man who was staying in the house.  The abuse was witnessed by your sister who told your mother but it was not reported to police.  The abuser was asked to leave the house, which he did, but your father supported him.

54You were educated in Echuca at local schools but when the family moved to Ouyen you completed grade four in primary school by correspondence.  You later attended years seven to ten in secondary school in Echuca and left school after year ten.  I was told and accept that you did reasonably well at school up until about the age of 14 when your life fell into difficulty.

55When you were aged 14 you were informed by your sister that she and others had been sexually abused by your father.  Your sisters, with whom you were close, left the house at an early age, the abuse having occurred in circumstances of secrecy.  When one of your sisters married she told her husband, who reported her abuse by your father to the police.  Your father was subsequently charged and in 1994 he was jailed.

56Your parents separated and you were about 18 years of age.  Since then you have had no contact with your father and you enjoy a positive relationship with your mother, who is supportive of you.

57At about the age of 14 your education ceased because you began to perform poorly.  I am told and accept that you began consuming alcohol and at the age of 16 you were sexually active.  You left home and moved to New South Wales where you obtained a licence to ride a motorcycle.  You shared houses with male friends and that brought you into contact with the complainant who was living across the road.  At this time you were an apprentice mechanic in a motorcycle shop in Echuca.

58Mr Higham told me on instructions that you accept full responsibility for the offending because you were the older sexual partner and the complainant was young.  Your expressions of love towards the complainant is somewhat inconsistent with your infidelity involving her best friend.

59I accept that your relationship with the complainant came at the time when you were trying to find your way following the breakup of your family because of your father's crimes.  Mr Higham described the complainant as, "A port in a storm" from your point of view.

60I accept that your offending did not involve a breach of trust, and nor was predatory.  It is best described I think as opportunistic or situational.

61On the plea I was told that your recent life has been made difficult to by a man known as Michael Monahan who operates a website known as "Aussie Sex Offender" which has as its main purpose of informing the public of the whereabouts and activities of serious offenders.  He has apparently hounded you and I accept these activities have made life difficult for you.

62You do seem to be making some satisfactory progress with your life notwithstanding your criminal history and having served a number of terms of imprisonment.  You are living in a relationship with a woman and the relationship that is of two years standing.  Together you operate a business in the construction industry.  Your partner has recently been diagnosed as suffering from cervical cancer, for which she is receiving treatment.

63The SORA is legislation deliberately drafted to place onerous reporting obligations on registered of offenders. Your most recent conviction against the provisions of this Act occurred in January of this year after it was found you have two pages on Facebook. One such page was the name of "Pete Pryse" not "Peter Pryse" and that was enough to find you again convicted of breaching the SORA and fined $1,200.

64Mr Higham submitted that your background, and the way you have lived your life in recent years shows that you are attempting to move on and put your offending behind you.  He also submitted, and I accept, that you are remorseful for your conduct towards the complainant.  In these circumstances he submitted that specific deterrence has a reduced role to play in the sentencing of you.

65Whilst I generally accept that there are grounds for optimism so far as your rehabilitation is concerned, I cannot say that you will not reoffend again in this manner.  You are still relatively young and you are a serious sexual offender.  There is no evidence put forward of you having received any psychological treatment or counselling towards identifying and resolving the reasons that might be a cause for your sexual offending. 

66Since these offences you have re-offended in two very bad instances involving young children.  I accept you have been punished for that offending, and you cannot, and should not, be punished again.  But it cannot be said that there is no role for application of specific deterrence in the sentence that I must pass.

67Mr Higham asked me not to impose a sentence which would require you being immediately placed into custody.  He asked me to consider imposing a term of imprisonment wholly suspended.  In particular he relied upon your pleas of guilty and your remorse, the age of the offences and the delay which he submitted imparted an unfairness to you.  He asked me to take into account and have regard to the principle of totality with regard to the sentences of imprisonment that you have undertaken during the period of the delay.  Finally he submitted that I should regard the circumstances of the offending, occurring as it did with the knowledge of the complainant's parents, as calling for a disposition reflecting reduced reliance on the application of general deterrence. 

68He submitted the fact you have not reoffended with a sexual offence since being convicted in 2005, and the general way you seem to have got your life in order, means there is no need to impose a sentence influenced by the need to protect the public from you.

69Mr Gibson submitted that I should impose a sentence of immediate imprisonment.  He reminded me that these charges are representative and the offending is at a high level with a child aged between 13 and 15 over a period of two-and-a-half, and the offending has had a lasting and profound affect upon the complainant as is often the case with this kind of offending.  He submitted that this is serious offending and breaches a law aimed squarely at protection of children.  He submitted your prospects for rehabilitation are not good, as indicated by your subsequent offending with even younger children and protection of the public must be kept in mind.

70As I said earlier I regard your offending as serious and your culpability for it high. The sentence must properly reflect the application of the principle of general deterrence and specific deterrence and must properly denounce your offending. I have given some thought to the submission that I should suspend any sentence imposed. I appreciate that the SORA has imposed onerous obligations upon you, but you have repeatedly breached that Act, thereby committing other offences. There is a real danger I think, having regard to your criminal record, that you would breach a suspended sentence and such a disposition in my view is not appropriate. In any event, the offending here in my view is so serious as to fall outside the range of appropriateness for a suspended sentence.

71In arriving at the sentence imposed on the individual charges and consequently the overall sentence, I have reduced the sentence that I have imposed to some extent because of delay in having these matters dealt with which cannot be attributable to you.  In some ways it was in my view caused by lack of diligence of the then investigating officer, and to some extent by possible oversight by the then prosecutors.  At the very least you missed the prospect of coming before the court on these matters in 1999 as a young or youthful offender.

72Because I will sentence you to a term of imprisonment on each of the charges, you will be sentenced on each charge as a serious sexual offender. In determining the length of any prison sentence imposed each charge protection of the community from you must be the principal purpose for which the sentence is imposed. In order to achieve that purpose, I may impose a sentence longer than that which is proportional to the gravity of the offences considered in the light of their objective circumstances, within s.6D of the Act.

73This does not mean that the principles of proportionality and totality of sentencing are to be disregarded, unless in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason.  I do not consider that a disproportionate sentence is called for.  In my view, the overall effective sentence I propose will properly and adequately provide for protection for the community.  I note the position of the prosecution is, I have not been asked to impose a disproportionate sentence. 

74Every term of imprisonment imposed on you as a serious sexual offender for a serious sexual offence must, unless otherwise directed, be served cumulatively on any other sentence I impose on you.  I will impose some cumulation, and order some concurrency, which I regard as appropriate, taking account of all of the circumstances discussed. 

75I am required to cause to be entered in the Court's records that I sentence you as a serious sexual offender on each charge.  I direct that it be entered into the records of the court that I sentence you on each charge as a serious sexual offender.  Would you please strand, Mr Pryse?

76On Charge 1 you are convicted and sentenced to a term of imprisonment of 12 months.

77On Charge 2 you are convicted and sentenced to a term of imprisonment of 12 months.

78On Charge 3 you are convicted and sentenced to a term of imprisonment of two-and-a-half years.

79On Charge 4 you are convicted and sentenced to a term of imprisonment of two years.

80I direct that six months of each of the sentence imposed on Charge 4 cumulate upon the sentence imposed on Charge 3, making a total effective sentence of three years imprisonment.  I direct you serve a minimum term of two years imprisonment before being eligible for release on parole.

81For the purposes of s.6AAA of the Act, I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges, I would have imposed a total effective term of imprisonment of five years and I would have fixed a non-parole period of three years.

82MR GIBSON:  As Your Honour pleases.

83MR GEORGE:  If Your Honour pleases.

84HIS HONOUR:  Any questions arising out of that, Mr George?

85MR GEORGE:  No, Your Honour.

86HIS HONOUR:  Very well.  Mr Gibson?

87MR GIBSON:  No, Your Honour.

88HIS HONOUR:  Very well.  Would you remove Mr Pryse, please?  Adjourn the court until 9.30 tomorrow.

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