Director of Public Prosecutions v Quick
[2015] VCC 735
•27 May 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-02362
Indictment D11454958.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SIMON QUICK |
---
JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 27 May 2015 | |
CASE MAY BE CITED AS: | DPP v Quick | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 735 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Champion | |
| For the Accused | Mr S. Norton |
HER HONOUR:
1 Simon Quick, you have been found guilty by way of jury verdict on eight charges of indecent act with a 16 or 17-year-old child (Charges 2, 4, 5, 6, 10, 13, 14 and 18) and five charges of sexual penetration of a 16 or 17-year-old child (Charges 3, 9, 11, 12 and 20). It is an offence to commit an indecent act with a 16 or 17 year old child or sexually penetrate a 16 or 17 year old child if the child is under your care, supervision or authority. The maximum penalty for indecent act with a 16 or 17-year-old child is five years’ imprisonment. The maximum penalty for sexual penetration of a 16 or 17-year-old child is ten years’ imprisonment.
2 The prosecution made application for the taking of a forensic sample from you. The making of this order is not opposed.
3 The offences of indecent act with a 16 or 17-year-old child and sexual penetration of a 16 or 17-year-old child are both “sexual offences” and “relevant offences” for the purposes of Part 2A of the Sentencing Act 1991. If you are sentenced to a term of imprisonment in respect of two of those charges then you fall to be sentenced as a serious sexual offender on the remaining charges pursuant to those provisions.
4 Victim Impact Statements were read by the complainant (Exhibit A), the complainant’s father (Exhibit B), and the complainant’s mother (Exhibit C).
5 Your offending occurred between May 2010 and September 2011. At the time of the offending the complainant was 16 and 17 years old. At the time of the offending you were between 47 and 49 years old. You met the complainant during September 2008 when she was 14 years old. You were a cycling coach and the complainant participated in a cycling course run by you. Subsequently the complainant joined the group of cyclists who were trained by you. In the course of coaching the complainant, you often gave her massages. These massages were usually given at the complainant’s home on the dining room table with either or both of her parents and, at times, her sister being in the house or in the same room.
6 On a day between May 2010 and June 2010 the complainant had been on a group ride from the Ringwood Clock Tower. You took her home. The complainant’s family was not home. You gave her a massage. During the massage you pulled her underwear to her knees while you were massaging her thighs (Charge 2, indecent act with a 16 or 17-year-old child). You then put your finger in the complainant’s vagina for what she described as “an instant” (Charge 3, sexual penetration of a 16 or 17-year-old child). After the massage finished, the complainant put a towel around her and was going to have a shower but you chased her around the house, trying to get her to tell you which boy she liked. You put your arms around the complainant from the back to try and get the towel off her front with both your arms (Charge 4, indecent act with a 16 or 17-year-old child). The complainant told you who she liked and you left.
7 On an occasion about June or July 2010 the complainant attended a cycling tour in Canberra. Shortly after that, you went with the complainant and other young cyclists and stayed in Eildon Caravan Park. The complainant went for a ride to Mount Pininger with you following in your van. When the complainant got to the top she got off her bike. You grabbed her and kissed her on the mouth in what she described as “a forceful peck” (Charge 5, indecent act with a 16 or 17‑year-old child). During this you grabbed her arms and her shoulders. Later that day you took the complainant to the local shops. You pulled over on the side of the road. You were grabbing the complainant and trying to kiss her. You put your face near hers. She said that you only managed to kiss her around her face but not on her mouth (Charge 6, indecent act with a 16 or 17-year-old child). She was pushing your head away with her hands. You said you were trying to show her how grateful you were to coach her and that another girl cyclist would not care if you kissed her. The complainant said that she did care. After that you took her back to where you were staying.
8 Around August 2010 the complainant was ill and during this period she put on weight. You went to her house to give her a massage. You gave the complainant a massage on the dining-room table. Her father was in the lounge room or kitchen. You talked to the complainant about how disappointing it would be if she quit cycling. You pulled her underpants down, massaged her thighs and put your finger in her vagina. She said that your finger was in her vagina for “an instant” (Charge 9, sexual penetration of a 16 or 17‑year-old child).
9 The next day after that massage the complainant went for a ride from the Ringwood Clock Tower with other people that you coached. You drove the complainant back to her house and again gave her a massage on the dining-room table. The complainant’s parents were not home on this occasion. At one stage during the massage the complainant rolled onto her back. You kept rubbing her legs and took off her underwear. The complainant had a towel covering her stomach and legs. You kept massaging her thighs (Charge 10, indecent act with a 16 or 17-year-old child). You then put your finger in her vagina. The complainant could not remember for how long (Charge 11, sexual penetration of a 16 or 17-year-old child). The complainant then rolled onto her stomach. You kept massaging her on her upper thighs and backside, with her underwear still off. You then put your finger in her vagina again. The complainant said that she was not sure for how long but thought it was for “an instant” (Charge 12, sexual penetration of a 16 or 17-year-old child).
10 After the massage was finished, the complainant was going to have a shower but you kept chasing her around the house. You were trying to grab her, and when you did you kissed her around the face, on her cheeks and her forehead (Charge 13, indecent act with a 16 or 17-year-old child). The complainant told you to stop and you left.
11 In about March 2011 the complainant went to Shepparton for a competition. You brought her back to Melbourne and suggested she needed a massage. The complainant’s father and possibly her sister were home. During that massage you pulled the complainant’s underwear down and continued to massage her thighs and upper thighs (Charge 14, indecent act with a 16 or 17-year-old child).
12 In September 2011 you were still giving the complainant massages. During a massage in that time you pulled her underpants down to her knees and kept massaging her thighs (Charge 18, indecent act with a 16 or 17-year-old child). You then put your finger in her vagina for “an instant” (Charge 20, sexual penetration of a 16 or 17-year-old child).
13 In sentencing you I have taken into account your personal circumstances which were set out by your counsel and in the psychological report of Mr Patrick Newton dated 7 May 2015 which was tendered as part of a folder of material relied upon by defence which was tendered as Exhibit 1. You were born and raised in England. Your upbringing was unremarkable. You completed a carpentry apprenticeship with your father. You began your involvement in cycling when you were nineteen. That involvement developed into a passion which became the central focus of your adult life. You competed at a high level in amateur cycle racing. You studied to obtain qualifications as a coach.
14 You came to Australia in 1993 after you had established a relationship with an Australian woman whom you married in 1996. You have lived in Australia since that time, although you separated from your wife in 2007. You had a subsequent relationship and in 2011 met your current partner. Your current partner is supportive of you and has visited you during the time you have been in custody.
15 You have maintained consistent employment since your arrival in Australia, principally in cycling-related matters. In 2004 you suffered an ankle injury in a motor vehicle accident which prevented you riding until 2009. You became a very successful cycling coach particularly in respect of junior cyclists. You were suspended as a cycling coach in late 2012 as a result of these allegations.
16 Mr Newton assesses you as follows:
“My assessment of Mr Quick indicates that he is essentially a normal person. While he is continuing to experience noteworthy emotional distress in response to his recent verdict, this is not extreme. More generally, he is not suffering any diagnosable condition, his intelligence is above average, his social functioning is not disordered, he can establish and maintain mature relationships, he has relatively good coping skills and he does not abuse substances. All of this suggest that in ordinary circumstances his long term prospects for positive adjustment should be good.”
17 Mr Newton goes on to say that an important rehabilitative factor would be your capacity to participate in an appropriate sex offender treatment program. If you are able to do so, Mr Newton’s opinion is that your prognosis for full recovery would be very good. Mr Newton assesses the risk of you reoffending as being moderate at present, which would be expected to reduce towards a low risk level if you could participate in sex offender treatment. Your participation in such a program would be affected by your ability to discuss your offending in a way in which you are not presently able to in view of your not guilty plea.
18 Your counsel relied in mitigation of sentence on a number of matters including:
(a)your prospect of deportation;
(b)being required to serve your sentence in protection;
(c)your previous good character;
(d)your good prospects of rehabilitation;
(e)the availability of good family and friendships support network;
(f)your good work history; and
(g)the delay involved in this matter.
19 Your counsel also made submissions on the application of the totality principle to the sentencing task.
20 Simon Quick, the offending in respect of which you have been found guilty can only be described as serious wrongdoing. Your offending varied in seriousness but constituted a course of serious sexual misconduct in respect of a young woman who was under your care, supervision and authority. On a number of occasions you used the opportunity given to you by the conduct of frequent massages to violate her. I am satisfied beyond reasonable doubt on the evidence presented during the trial and the findings of guilt by the jury that you had a sexual interest in the complainant which continued over a period of time. You took advantage of her youth and vulnerability and the trust she and her parents had in you. When she objected to the continuation of the massages, albeit without disclosing your offending, you pressed her to continue. Her parents trusted you and accepted your view that the massages ought to continue.
21 The harm your offending caused is clearly set out in the Victim Impact Statements. On the material before me I am not able to conclude that the complainant’s anorexia was directly due to your sexual abuse of her. I do consider that she was a vulnerable person and that your sexual abuse of her and the disclosure of that by her has made her life, including being able to deal with her anorexia, much more difficult and distressing. She has suffered and so have her parents who understand that it was you who offended but who regret that they were unable to prevent your offending. The impact of your offending and the consequent legal proceedings have caused considerable difficulty for this family.
22 Family members gave evidence during the trial and presented their Victim Impact Statements in a courageous fashion before this court and with support for each other. It is to be hoped that in the future with support they will be able to deal with the situation with which they are faced and in some way at least be able to put your behaviour behind them.
23 You were considerably older than the complainant and offended against her over a period of about 16 months. I wish to make it clear that I am not able to conclude that you planned the massages as a cover for your sexual offending. It is clear that there were many massages when you did not sexually offend against the complainant. The penetrations were brief when they occurred. I do conclude that you used the cover of the massages and the opportunity thereby provided for access to the complainant’s body to sexually abuse her in a brazen way. You made sexual advances to her in that context but also in the context of cycling trips. I consider that your moral culpability is high.
24 Your behaviour must be strongly denounced and justly punished. That punishment must be severe enough to deter others from similar offending. A sentence of imprisonment is clearly warranted for the purposes of denunciation, just punishment and general deterrence.
25 There are a number of matters which I have taken into account in mitigation of sentence.
26 I accept that, apart from this offending, you have been a person of very good character and that this offending is out of character for you. The folder of material tendered as Exhibit 1 contains 27 character references which might be described as glowing. Three witnesses gave character evidence on your behalf. There are some references from your family but principally the references are from people whom you coached and their parents. There are common themes in those references and in the evidence given on your behalf. It is clear that you are regarded by those people as having been an extremely hardworking, thoughtful and professional cycling coach. The references speak highly of your mentoring and support for those whom you coached, particularly young people. There are frequent references to your generosity with your time, equipment and commitment. You are described as having been a very positive influence on the young people in your care. Many of the references speak of that person’s desire to continue an ongoing friendship with you and to support you. A reference from a person who employed you in 2013 and 2014 says that he would be happy to employ you again. Your partner’s reference suggests that she cares for you greatly and wishes to continue to support you.
27 I accept that you have a strong network of support available to you in your family, friends and within the cycling community. Many of those people were in Court to support you. Your offending is known to them and you have suffered a significant fall from grace and loss of your principal means of livelihood. The matter has been hanging over your head for some time. There has been no subsequent offending. Knowledge of your offending will be a protective factor in reducing the likelihood of you reoffending. You have no prior criminal history and otherwise good character. I accept Mr Newton’s opinion and am satisfied you have good prospects of rehabilitation. I consider that specific deterrence need not be given significant weight as a sentencing consideration in this case.
28 Submissions were made during the course of the plea hearing in respect of the impact that the prospect of deportation ought have in sentencing you. I subsequently drew the parties’ attention to the recent decision of the Court of Appeal in DPP v Zhuang [2015] VSCA 96. Both prosecution and defence supplied written submissions.
29 Defence counsel made supplementary submissions on the issue of your potential deportation in the light of the decision in Zhuang. In a written response, the prosecution accepted the defence analysis and application of that case. That means that given changes to the Migration Act 1958, you now face a quantifiable risk of deportation being “some certainty” that you will be deported. I accept that this will cause an additional burden on you in terms of your concern about your deportation. I accept that deportation would be particularly burdensome for you. You have been in Australia for many years. You have a relationship with an Australian woman and considerable friends, social supports and business connections as demonstrated in the references provided and the number of persons who attended Court in support of you. I accept that deportation would have an additional punishing effect on you and also reduces the need for specific deterrence in sentencing you.
30 I have also taken into account that you have been in protection whilst on remand and will continue to be in protection whilst serving your sentence.
31 Sections 6D and 6E of the Sentencing Act 1991 apply in sentencing you. Pursuant to s6D, community protection must be the principal factor in sentencing you. Given your prospects for rehabilitation I do not consider that a disproportionate sentence is required in order to provide community protection.
32 Section 6E provides that any sentences of imprisonment imposed on you as a serious sexual offender must unless otherwise directed be served cumulatively on other sentences of imprisonment imposed. I note the statements by the Court of Appeal in Barbat v The Queen [2014] VSCA 202. I have given effect to s6E and to the principle of totality by some moderation of individual sentences and by ordering partial concurrency in sentences. Total cumulation with this number of individual sentences would result in a disproportionate sentence and offend against the principle of totality. I have provided for a greater degree of concurrency where offences occurred within the same incident or to reflect the less serious nature of some offending.
33 In fixing the non-parole period I have taken into account your good prospects for rehabilitation, that you will be in protection and the prospect that you will be deported.
34 Charge 2 – convicted and sentenced to three months' imprisonment.
35 Charge 3 – convicted and sentenced to two years' imprisonment.
36 Charge 4 – convicted and sentenced to two months’ imprisonment.
37 Charge 5 – convicted and sentenced to two months' imprisonment.
38 Charge 6 – convicted and sentenced to two months' imprisonment.
39 Charge 9 – convicted and sentenced to two years' imprisonment.
40 Charge 10 – convicted and sentenced to three months' imprisonment.
41 Charge 11 – convicted and sentenced to two years' imprisonment.
42 Charge 12 – convicted and sentenced to two years' imprisonment.
43 Charge 13 – convicted and sentenced to three months' imprisonment.
44 Charge 14 - convicted and sentenced to three months' imprisonment.
45 Charge 18 – convicted and sentenced to three months' imprisonment.
46 Charge 20 – convicted and sentenced to two years' imprisonment.
47 The sentence on Charge 3 is the base sentence. The sentence on Charge 2 is to be served concurrently with the sentence on Charge 3. In respect of Charges 4, 5, 6, 9, 10, 11, 12, 13, 14, 18 and 20, you are sentenced as a serious sexual offender. One month of each of the sentences on Charges 4, 5 and 6, two months of each of the sentences on Charges 10, 13, 14 and 18, 16 months of each of the sentences on Charges 11 and 12 and 13 months of each of the sentences on Charges 9 and 20 are to be served concurrently with the sentence on Charge 3.
48 In application of s6E of the Sentencing Act 1991 the balance of each of the sentences on Charges 4, 5, 6, 9, 10, 11, 12, 13, 14, 18 and 20 is to be served cumulatively on each other and on the sentence on Charge 3.
49 The total effective sentence is 69 months imprisonment. I fix 39 months as the period you are required to serve before being eligible for parole.
50 I declare that you have served 99 days of this sentence by way of pre-sentence detention, which is to be deducted administratively.
51 By virtue of provisions of the Sex Offenders Registration Act 2004 you are regarded as having been found guilty of two Class 2 offences and three Class 1 offences. You must therefore comply with the reporting conditions of that Act for the remainder of your life. Shortly you will be given documentation in relation to that obligation. You will be asked to sign a form indicating your receipt of those documents.
52 I have also made the order for a taking of a forensic sample from you. I make that order because of the seriousness of the circumstances of your offending, that the order is not opposed and that the granting of the order is in the public interest.
53 Mr Quick I am required to inform you that you are required to cooperate with the authorities when they come to take a sample from you. The authorities will take a sample by way of a saliva swab, a buccal swab from your mouth. I am sure that you will cooperate with them. If you do not cooperate they are entitled to use reasonable force and to take a blood sample.
54 Thank you Mr Quick, could you please take your seat.
- - -
0
2
0