Director of Public Prosecutions v Ramsay (a pseudonym)

[2017] VCC 1595

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MALCOLM RAMSAY (Pseudonym)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	19 October 2017
DATE OF SENTENCE:	2 November 2017
CASE MAY BE CITED AS:	DPP v Ramsay (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1595

REASONS FOR SENTENCE
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Subject:- Criminal law – sentence
Catchwords: Found guilty of 2 charges of sexual penetration of a child under 16 as a course of conduct,3 charges of indecent act with a child under 16 as a course of conduct, 1 charge of  using a carriage service  to transmit indecent communications to a child under 16 -  offences commenced when victim was 7 or 8 years of age and  Defendant  17 years of age over a 7 – 8 year period - victim  was son of defendant’s mother’s de facto partner – no other criminal offending -  physical disability – Attention Deficit Hyperactivity Disorder – depression – anxiety – sexually abused as child -  limited employment – general deterrence important – reasonable prospects for rehabilitation.
Sentence:  Total effective sentence 4 years non-parole period  2 years.

NOTE  PSEUDONYMS HAVE BEEN USED TO PROTECT THE IDENTENTY OF THE COMPLAINANT AND OTHER FAMILY MEMBERS

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APPEARANCES:	Counsel	Solicitors
For the Director of Public	Ms J. Piggot	OPP
Prosecutions
For the Offender	Ms J. Clark	Ann Valos  Criminal Law

1HER HONOUR:  Mr Ramsay, you can remain seated for the moment.  I will ask you to stand later.  Malcolm Ramsay[1], you have been found guilty by a jury of two charges of sexual penetration of a child under 16, and three charges of committing an indecent act with a child under 16, all as course of conduct charges.

[1] pseudonym

2You have also been found guilty of one charge of using a carriage service to transmit indecent communications to a person under 16.  These are all charges numbered on the indictment:  1, 2, 3, 4, 6, and 7.  The complainant was your stepbrother, Richard Knight[2].  You were acquitted of a charge of attempted sexual penetration of a child under 16 in relation to Richard, and two charges of committing an indecent act with a child, Richard's older sister, Samantha[3].

[2] pseudonym

[3] pseudonym

3Mr Ramsay, I will be sentencing you to four years' imprisonment, and you will have to serve two years before being eligible for parole.  I will now explain my reasons for this in detail.

4Richard Knight’s parents are Simon Knight[4] and Brenda Taylor[5].  Their family and yours had lived as close neighbours and friends for some years.  In about 2007, Mr Knight and Ms Taylor separated, and after some time, Mr Knight began residing with your mother.  The dates alleged as particulars of offences on the indictment are of importance in this case, because of your age at the time and that of the complainant.  The between dates range from 1 January 2008 to 30 May 2015. 

[4] pseudonym

[5] pseudonym

5Richard was born in March 2001, so in 2008, he was seven or eight years old.  At that time, you were aged 16 or 17, having been born on 24 September 1992.  From the time of their parents' separation, the Knight children, Richard and Samantha, regularly visited their father, Simon Knight, in his home, which he shared with your mother and you and your brother.  They would come to stay every second weekend, and this continued until 2015, although Samantha visited less often as she grew older. 

6You moved out of that house in mid-2015, by which time you were aged 22.  Several months later, on 14 September 2015, Samantha found a series of indecent text messages, photos and videos on Richard's phone, sent by you to him.  She disclosed this to her boyfriend and to her mother, who were in the room with her at the time.  Over the next two days, she and Richard both disclosed allegations of sexual abuse of them by you commencing in 2008.  As I said, you were acquitted in relation to Samantha's allegations.  

7The text messages were relied upon by the prosecution as evidence of tendency by you to act upon your sexual interest in Richard.  The messages referred explicitly to sexual activity between you, leading to the inference that this has happened in the past.  The photos depicted your penis and Richard's penis.  All of the charges of which you were found guilty involved Richard from when he was seven or eight years old until he was 15.  You were aged between about 16 and 22 years of age. 

8The evidence was that Richard would often spend time with you in your bedroom, playing computer games or watching a movie.  Sexual activity would occur regularly and frequently, every second weekend, when he stayed in the house.  It involved sexual touching, which led to mutual masturbation.  Charge 3 covers the instances when Richard would masturbate your penis, and Charge 4 covers the reverse, when you would masturbate him.  These are two of the charges of committing an indecent act with a child under 16 as a course of conduct.

9Charges 1 and 2 deal with sexual penetration of a child under 16.  Richard gave evidence of numerous occasions when you would take off his pants and suck his penis.  That is Charge 2.  You would then get Richard to suck your penis.  That is Charge 1.  Again, both are course of conduct charges.

10Charge 6 is a further charge of committing an indecent act as a course of conduct, with you touching Richard's penis and moving it towards your anus.  Charge 7 is the charge of using a carriage service to transmit indecent communications, as already described.  You were interviewed by the police on 5 November 2015, and you admitted sharing pictures with Richard and sending indecent messages to each other.  You denied any sexual touching or abuse. 

11Turning now to your personal background, you are now aged 25, a single man, with no previous criminal history.  You were recently assessed by a neuropsychologist, Dr Linda Borg, who identified that you have some mild difficulties in mental functioning due to psychological distress, and that you were, by your own reports, using alcohol and cannabis heavily at the time of the offending, but there is no evidence that your cognitive difficulties contributed to your offending behaviour. 

12As a child, you suffered from bullying at school and left early.  As an infant, you had surgery to correct a club foot, but this was unsuccessful, and you were left with one leg shorter than the other.  You suffer ongoing pain, discomfort, and limitations on your physical capacity.  The condition led to misalignment of your hip and the development of scoliosis.  You were diagnosed early with ADHD, and later with longstanding depression and anxiety.  You have recently reported having been subjected to sexual abuse as a child. 

13You have only had some very limited vocational training and employment since leaving school.  Your parents separated in about 2008 or 2009, and initially you stayed with your father.  Later, you lived with your mother and Mr Knight.  Between July and September 2015, when Charge 7 occurred, you were no longer living with your mother and did not have a stable home.  Your relationship with both your parents was strained. 

14At the time of being interviewed by the police in November 2015, you were living in a rented flat, from which you were evicted for non-payment of the rent.  You then moved to a house in Braybrook, which burnt down, and in February 2016 your mother helped you to obtain a room in a share house.  Again you were evicted for non-payment of rent, and you were homeless for a time.  You were placed in a youth refuge, but had to leave there when charged with these offences.  You eventually lived in a boarding house, until you were remanded at the time of the jury's verdict in June 2017. 

15Over approximately a 14-month period, from April 2016 to June 2017, you were assisted by both the Royal District Nursing Service and the Salvation Army.  The Royal District Nursing Service assisted you with medication for depression and with attending podiatry and physiotherapy sessions, as well as dental treatment.  You participated in the Young Adults Program run by the Salvation Army, and were supported by them since October 2016.  A letter from your case worker there confirms that you made significant progress in addressing your health issues, maintaining stable housing, and developing life skills.

16Whilst in custody, you have been receiving medication for depression, but unfortunately, you have been subjected to bullying, threats, and an assault.  Your attempts to address that have only resulted in further unwanted attention.  However, you told Dr Linda Borg, the clinical neuropsychologist who assessed you in July, that, and I quote,

"I've been okay.  It's not as hard as I thought it would be in here, but I do miss the outside world." 

This is perhaps at odds with the bullying you have described, and with having told Dr Borg of fleeting suicidal ideation.

17Your ongoing need for treatment for depression also tells a different story.  Interestingly, you told Dr Borg that since being abstinent from drugs in custody, you considered that your thinking had become clearer, and you do not miss drugs.  Dr Borg considered these responses suggested that you have broadly intact insight and an ability for self-reflection. 

18It is not unusual to hear conflicting accounts of prison experience, and more positive accounts can perhaps be explained by developing resilience.  But your disability and longstanding vulnerability to bullying, together with the need for medication for depression, suggest your experience of prison will be more difficult than for others who do not have these disadvantages, and I take that into account in determining the length of your sentence. 

19Dr Borg's opinion was that you have cognitive deficits in higher level attentional and executive functioning which impact on your memory, caused by a likely combination of factors, including current psychological distress.  These deficits played no part in your offending, and according to Dr Borg, neither do they preclude your ability to engage in positive steps towards rehabilitation, such as a sex offender program, for example, as well as education and training while in prison.

20Perhaps your capacity for insight is reflected in the remorse and regret you have expressed in relation to the sending of the text messages in response to questions by Dr Borg.  You said the messages would have been embarrassing for the complainant, and the whole process has caused a huge strain for your family.  Of course, you have denied the other offending, and so there is a limited extent to which remorse can be taken into account.

21Clearly, these are all serious charges, reflected in the maximum penalties, which are ten years' imprisonment for committing an indecent act, 15 years for sexual penetration, and seven years for transmission of the messages.  As course of conduct charges, they attract higher sentences than other charges, while at the same time taking into account all the other sentencing factors.

22You have no prior convictions, as I said before, and you are still a young man.  You have struggled with disadvantages stemming from your physical disability, and you have not succeeded in achieving useful vocational qualifications, stable housing, sound health, or, indeed, a satisfying independent adult life.  There is some indication, from the reports and letters I have read, that you are capable of creating goals of this kind and of working towards them if given    adequate professional assistance.  That suggests there may be reasonable prospects for your rehabilitation, particularly given that you had not been diagnosed with paedophilia and have no other mental disorder that might explain your offending, apart from depression. 

23As to the course of conduct charges, Mr Clark submitted that I should approach the factual basis for sentencing by first considering the time frame over which the offending was likely to have occurred.  It is convenient to set out verbatim Ms Clark's submission on this point in full.  She submitted:

·   that they are framed as “between” dates, but the dates are not an element of the offences, and therefore, a finding of guilty is not necessarily a finding by the jury that the offending commenced and finished on the dates contained in the charges;

·   (b) further, the finding of guilt as a course of conduct is not necessarily a finding that the offences occurred during the whole of the time frame alleged;

·   (c) the finding of guilt required satisfaction the alleged conduct occurred, and that it occurred more than once and amounted to a course of conduct;

·   (d) the jury clearly did not accept all of the complainant's evidence.  They found Mr Ramsay not guilty of Charge 5;

·   (e) there is other evidence from Brenda Taylor and Simon Knight that contradicts the complainant's evidence about the commencement and end of the offending, which he does by reference to his age. 

24Accordingly, Ms Clark submitted, you should not be sentenced on the basis that the offending commenced when the complainant was seven or eight, as alleged, but rather on the basis that it occurred more than once.  Richard Knight gave evidence that it happened frequently and regularly, almost every time he visited his father on alternate weekends.  The fact that the jury acquitted you of Charge 5, a charge of sexual penetration, does not necessarily mean the jury did not accept all of Richard's evidence.  The elements of the charge are particularly technical, and doubt resulted in an acquittal, which is all that can be said of the jury's verdict in relation to that charge.

25There is nothing to suggest that the jury did not accept that the other offending happened during the entire between-dates period of time.  Richard's evidence did not distinguish any one occasion from any other.  Accordingly, I will be sentencing you on the basis that the offending occurred regularly and frequently, and began when Richard was seven or eight and you were 16 or 17. 

26A further submission by Ms Clark was that you should be sentenced on the basis that no force was used by you, nor any coercion or gratuitous violence, and the prosecution takes no issue with that.  Richard's evidence was that he continued to go into your room in order to play games and watch movies, and that he knew sexual activity would take place when you secured the door using a guitar case to prevent anyone from entering.  Sometimes, you had picked him up and carried him into your room.  Once you started the sexual activity, he would resist by trying to back away from you, but you carried on with what you wanted to do.  That is the context in which you secured Richard's participation. 

27You were a child yourself at the time of the earlier offences, and a youthful offender when the offending ceased in 2015, having turned 21 on 24 September 2011.  As I said before, your prospects for rehabilitation can be assessed as reasonably good, given your age, the absence of criminal convictions, and the indications of insight.  You have experienced considerable delay since being interviewed in November 2015 and charged in August 2016.  It is not an inordinate delay in the context of this type of case, as the chronology shows, but the process began two years ago, and over that time, it appears you have struggled to achieve stability in your life. 

28A long period in prison is not warranted in this case.  You will likely benefit from an extended parole term, which would enhance your prospects for rehabilitation, and I will sentence you accordingly.  During the plea hearing, I indicated that I would not be imposing a Community Correction Order combined with imprisonment, as that would not meet the requirements of this case, with serious offending against a boy who was very young initially, continuing over a long period of time as part of a course of conduct. 

29It is convenient at this point to note that both the Knight children and their mother provided victim impact statements.  Richard Knight described having felt scared at the time, when he was very young, but also that he did not know how to feel.  He is sad that he cannot see his father more often, because he feels trapped when he is in their home.  He fears having to one day tell his partner. 

30His sister, Samantha, described feeling sad and traumatised because of what happened to Richard, and was similarly sad about not seeing her father often.  Ms Taylor, Richard's mother, says in her statement that she has suffered greatly from learning what happened, and has struggled to maintain a normal family life for her children.  

31The need for general deterrence is of great importance, as I am obliged to indicate, and protection of the community will likely be provided by imprisonment, initially, followed by parole.  I must consider these matters as well as your personal circumstances in determining a just and appropriate sentence. 

32A final matter for consideration is that of current sentencing practice.  Recent authority is that this is only one factor to be considered, but there are very few cases available for guidance in dealing with course of conduct charges in any event. 

33Would you stand now, please, Mr Ramsay. 

34I sentence you to three years' imprisonment for each of Charges 1 and 2;

two years' imprisonment of each of Charges 3, 4, and 6;

and 18 months imprisonment for Charge 7. 

The sentence for Charge 1 is the base sentence for purposes of cumulation.  Charge 7 is a Commonwealth offence, so that sentence will commence today.  When you have served two months of that, you will start serving the State sentences.  Under s.19AC(4) of the Commonwealth Crimes Act, I decline to make a Reconnaissance Release Order, given the non-parole period I will be fixing. 

In relation to the State sentences, there will be orders for modest periods of cumulation, as follows:  four months of the sentence for Charge 2, and two months of each of the other State sentences, that is, for Charges 3, 4, and 6.  This results in a total effective sentence of three years and ten months. 

35Because the State sentences commence two months after the Commonwealth sentence begins, the overall total effective sentence is four years. 

36I order that you serve a minimum period of two years before being eligible for parole.  That provides for an extended period during which you will have structure and support in building a better life and avoiding any reoffending. 

37The prosecution seeks an order for a forensic sample of saliva to be obtained.  Ms Clark, do you have any instructions? 

38MS CLARK:  I apologise, Your Honour.  I can obtain them quickly. No opposition to that, Your Honour.

39HER HONOUR:  Thank you. Through your counsel, you don't oppose that, and I make that order.  I advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary. 

40You will be required, under the Sex Offender Registration Act, to provide your details to the police every year for the rest of your life. 

41The provisions of the Sentencing Act as to serious sex offenders apply to all charges from Charge 3 onwards, except Charge 7, but the prosecution does not seek a sentence that is disproportionate in the circumstances.

42You have been in custody for 129 days not including today.  I declare that time to have already been served, and I shall cause that to be noted on the court record. 

43Now, are there any matters that I have omitted or neglected, Ms Piggott?

44MS PIGGOTT:  No, Your Honour.

45HER HONOUR:  Ms Clark?

46MS CLARK:  No, Your Honour.  If Your Honour pleases. 

47HER HONOUR:  All right, thank you.  Is Mr Ramsay' family in court, Ms Clark? 

48MS CLARK:  Yes.  

49HER HONOUR:  All right.  Well, I will remain on the Bench, so that they can have a word with him before he's taken down. 

50MS CLARK:  If Your Honour pleases. 

51HER HONOUR: He has to sign the Sex Offender Registration forms.  Would you like to approach the dock, Ms Clark?

52MS CLARK:  Yes.  

53HER HONOUR:  I would like to thank both  counsel for those written submissions, they were very helpful, and I appreciate that.  More generally, I thank both you and your instructors for your assistance, both during the trial and the plea process.  Thank you.

54MS CLARK:  If Your Honour pleases.  Thank you. 

55HER HONOUR:  I'll leave the Bench now.  Thank you. 

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