Director of Public Prosecutions v Raymond (a pseudonym)
[2023] VCC 874
•1 June 2023
| IN THE COUNTY COURT OF VICTORIA AT BAIRNSDALE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHARLES RAYMOND (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2023 | |
DATE OF SENTENCE: | 1 June 2023 | |
CASE MAY BE CITED AS: | DPP v Raymond (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 874 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Indecent assault upon a male – Indecent assault of a person under 16 – Sexual penetration of a person aged between 10 and 16 – Care, supervision and authority –– Historical offences – Class 1 offence – Class 2 offence
Legislation Cited: S 44(1), S 48(1), S 68(3A) Crimes Act 1958 (Vic) – s 6AAA, S 6F(1), S 27 Sentencing Act 1991 (Vic)
Cases Cited:R v Clarkson [2011] VSCA 137 – R v AMP [2010] VSCA 48 – DPP v Toomey [2006] VSCA 90 – R v Kovac [2006] VSCA 229 – Mackie v The Queen [2022] VSCA 28 –– DPP v Conos [2021] VSCA 367 –– Worboyes [2021] VSCA 169
Sentence: 2 years and 3 months imprisonment – Partly suspended to serve an immediate period of 12 months – Suspended for 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Fisher | Mr D Marino |
| For the Accused | Ms K Rolfe | Mr C Yang |
HIS HONOUR:
1Mr Charles Raymond[1] is aged sixty-eight and was born in December 1954. He is now retired, having worked in warehousing roles in the transport and logistics industry most of his life, after serving 14 years in the army. He now lives in North Bayswater.
[1] A pseudonym.
2At the Plea on 23 May 2023, Mr Raymond pleaded guilty to three charges in Indictment number N11071181. Mr Raymond was represented by Ms Rolfe, and she appears today. The DPP was represented by Mr Fisher, and he appears remotely today.
3Charge 1 is an indecent assault upon a male contrary to S 68(3A) of the Crimes Act 1958 (Vic). The offending occurred between 1 December 1978 and 31 December 1979. The maximum penalty prescribed is 5 years’ imprisonment.
4Charge 2 is an indecent assault of a person under 16 contrary to S 44(1) of the Crimes Act 1958 (Vic). Charge 2 is a rolled up charge. The offending occurred between 1 March 1981 and 31 December 1981. The maximum penalty prescribed is 5 years’ imprisonment.
5Charge 3, is a sexual penetration of a person aged between 10 and 16 contrary to S 48(1) of the Crimes Act 1958 (Vic), while being under the care, supervision and authority of Mr Raymond. Charge 3 is also a rolled up charge. The offending took place between 1 January 1983 and 31 December 1983. The maximum penalty prescribed is 15 years’ imprisonment where the complainant was either generally, or at the time of offending, under the care, supervision and authority of the offender.
6Charges 1 and 2 are each class two offences, and charge 3 is a class one offence. Given the pleas of guilty to a class one offence and two class two offences, the sex offender registration provisions apply, and Mr Raymond is required to comply with the reporting obligations for life.
7Section 27 of the Sentencing Act 1991 (Vic) is still applicable to this sentence, and is available to be invoked where the sentence does not exceed three years and the requirements of S 27(1A) are satisfied.
Background
8The offending occurred from 1978 to 1983 when Mr Raymond was between 23 and 29 years old. The victim in charge 1 is Arnold Sikes[2], who was born in February 1964 and was aged 14 to 15 at the time of charge 1. The victim in charges 2 and 3 is Timothy Sikes[3], who was born in November 1968 and was 12 at the time of charge 2 and 14 at the time of charge 3. Arnold and Timothy are both children of Rhonda Raymond[4] (then Sikes) and Paul Sikes[5].
[2] A pseudonym.
[3] A pseudonym.
[4] A pseudonym.
[5] A pseudonym.
9My Raymond was a friend of Paul. Paul introduced Mr Raymond to Rhonda. In 1980 or 1981, Paul was incarcerated and became estranged from the family. Around this time Mr Raymond and Rhonda started a relationship. The couple married in 1982.
10Exhibit A was tendered by the Prosecution as the Summary of Prosecution Opening dated 16 May 2023, and was accepted by Ms Rolfe as disclosing the facts upon which I am to sentence her client.
Offending against Arnold Sikes (charge 1)
11When Mr Raymond was 23 to 25 years old, he took Arnold, who at the time was 14 or 15 years old, on a trip to Philip Island. The offender and Arnold were “play fighting” in their underwear. They found themselves on one of the beds, and the offender performed oral sex on Arnold for about five minutes. This conduct is the subject of charge 1.
Offending against Timothy Sikes (charges 2 and 3)
12In 1981, Rhonda and Timothy moved houses. At this time, Arnold had left the family home, and their two other siblings, Dianne[6] and Ian[7], had run away.
[6] A pseudonym.
[7] A pseudonym.
13One night, when Timothy was about 12 years old, he was sleeping in his bedroom when he woke up to Mr Raymond sitting next to him, Timothy’s pants were pulled down at the front, and the offender’s hand was on his penis. Mr Raymond moved his hand up and down Timothy’s penis. Timothy kept his eyes shut while this happened. The offending stopped when he realised that Timothy was awake, and Mr Raymond left the room.
14This happened on another occasion, where Timothy woke up in the night to Mr Raymond’s hand touching his penis under his underwear, moving his hand up and down. This time, Timothy pushed his hand away and Mr Raymond left the room.
15These two incidents make up the rolled-up charge 2.
16In 1983, before Timothy’s 15th birthday, Timothy slept in after a night out of drinking with friends. When Timothy woke up, he started drinking again. Mr Raymond entered Timothy’s room and told him he could drink more, which he did and then Timothy fell asleep.
17Timothy woke up, and found himself naked from the waist down. Mr Raymond was seated on the bed next to him and was performing oral sex on him. Mr Raymond then masturbated Timothy, before rolling him onto his stomach. Mr Raymond’s penis was exposed and Timothy felt Mr Raymond’s penis against the cheeks of his buttocks before it pressed against his anus.
18Timothy vomited, rolled over and sat up in his bed. Mr Raymond kissed Timothy. The offender had covered Timothy’s lower body with a sheet when Rhonda opened the bedroom door. The offender left the bedroom with Rhonda.
19This offending forms the conduct in rolled-up charge 3. As Rhonda and the offender were married at this time, the offending occurred while Timothy was under the care, supervision or authority of Mr Raymond.
20Charges 2 and 3 are rolled-up charges, charge 2 consists of two incidents of offending on two separate occasions, and charge 3 relates to two incidents of offending on the one occasion.
Victim Impact Statements
21Both victims had their victim impact statements read out in Court. The victim impact statement of Arnold Sikes was tendered as Exhibit B, which was read by the Prosecutor at the Plea. Arnold, now fifty-nine years old, wrote of his constant feelings of stress and anxiety, inability to focus, and mental health conditions that permeate his daily life. He was also diagnosed with epilepsy which he associates with his experience living at home, feeling unsafe and being unable to sleep. His ongoing mental and physical health issues have impacted his ability to work and support himself financially. Arnold also noted his difficulties sustaining intimate relationships and admitted to often feeling lonely.
22The victim impact statement of Timothy Sikes was tendered as Exhibit C, and was read by a support worker at the Plea. Timothy, now fifty-four years old, wrote in some detail of his experience at school, where he remembers himself shifting from a “carefree kid… with childhood friends” to “a self-loathing, self-isolating, self-destructive teen” in the wake of the abuse he suffered at home. He wrote that he now has difficulty socialising, experiences depression and PTSD, and clearly still harbors strong feelings of resentment and anger towards the offender. He struggles with alcohol and can’t maintain stable employment.
23It is difficult to understand with precision the exact impact child abuse can have on victims. As the Prosecutor put it in oral submissions, the victim impact statements clearly demonstrate that the victims have been, and remain severely impacted by the offending.
24I accept each of the victim impact statements, which were not challenged, as evidence of the ongoing effect that the offending has had on the victims’ lives. I thank both victims for their courage in sharing their opinions with the Court. Given the time which has elapsed and the role of depression, and alcohol in Timothy’s life and epilepsy in Arnold’s life, one cannot be certain as to causation.
Objective Culpability
25I come now to consider the objective culpability of Mr Raymond on each of the charges. I consider your behaviour to be predatory. You created opportunities to assault and abuse each victim.
26This is serious offending and there are multiple aggravating factors that should be noted:
(a) The victims were vulnerable young boys, having grown up in difficult circumstances;
(b) There was an age disparity between you and the victims (between 9-14 years);
(c) The motivation of the offending was your own sexual gratification;
(d) The offending behaviour as to Timothy extended over a three year period; and
(e) You abused an established relationship of authority and power, in charge 3.
27I will address each of these factors in more detail.
28First, the victims were young vulnerable boys, having grown up in difficult circumstances. Their father became estranged and incarcerated shortly after you entered their lives. You abused your position as their mother’s partner (in respect of charges 1 and 2), and as step-father (in respect of charge 3), to isolate them. You took advantage of your relationship with their mother to abuse them, while you were living under the same roof. In all the circumstances, the offending is a gross breach of trust.
29Second, you were clearly aware of their respective ages, with both boys being under 16 during the period of offending, and Timothy being as young as 12 during the offending the subject of charge 2. The age difference between you and your victims was between 9 to 14 years. While not an extremely large age disparity, this is still significant given the young age of the victims, particularly in regard to Timothy in charge 2. I note that charge 1 is ‘indecent assault upon a male’, as at the time, the offence created no discernment as to age, however clearly the young age of the victim in regard to charge 1 is an aggravating factor.
30Third, the offending behaviour was seemingly motivated by your own sexual gratification and you used the victims to satisfy your own urges with flagrant disregard to the impact such offending might have on their lives.
31Fourth, your offending occurred over a five year period, with charge 1 occurring between December 1978 and December 1979, and charge 3 occurring some time in 1983. As Mr Fisher put in further oral submissions during the Plea, there has clearly been an escalation of the seriousness of offending from charge 1 to charge 3.
32And finally, charge 3 is aggravated by the offending taking place in circumstances where the victim is under the care, supervision or authority of the offender. Such of course leads to the higher maximum penalty applied to charge 3.
Delay
33While the offending took place between 1978 and 1983, the offender was only charged in November 2020, following a pre-text call in August 2020 with Arnold, when Mr Raymond made various admissions. The record of interview took place in November 2020, approximately thirty-seven to forty-two years after the offending.
34At the Committal Mention in October 2022, the offender entered a plea of guilty to the charges on the indictment. In the Defence Submissions on Plea, Exhibit 1, the Defence submitted that the Plea was entered at the earliest opportunity, which I accept.
35Mr Raymond now comes to be sentenced in 2023, approximately forty years after the offending occurred. There has been approximately a 2 and half year delay between the record of interview and the sentence today.
36It is clear that the delay from offending to interview was lengthy. It is accepted that this delay has not been the fault of Mr Raymond. Delay is a difficult consideration here, as we know from the authorities that children who have been abused only come forward and make a complaint much later in life. Child victims often feel shame associated with the offending and this leads to delay in disclosing what has happened to them.
37As to sentencing principles where there has been such a significant delay, I refer to R v AMP [2010] VSCA 48, [34], where the Court stated that it must be accepted that the range of sentences imposed for these charges were generally lower than the present range of sentences for similar offences.
38The delay in finalising legal proceedings is a mitigating factor, which must be balanced against other sentencing principles. As Vincent JA said in DPP v Toomey [2006] VSCA 90:
‘Ordinarily, when an adult offender is to be sentenced for offences involving the sexual abuse of a young child, the principles of general deterrence and denunciation remain at the forefront of a sentencing process.’
39In R v Kovac [2006] VSCA 229, there was a delay of 27 years. At [28] of those reasons, Neave JA said:
‘It has been recognised that delay that is common in sentencing sexual offenders does not give an automatic right for a reduction or discount in sentence. It seems to me that this must be because delay in such cases cuts both ways. Although it may seem harsh to punish an offender for offences committed many years ago, the long delay has also affected the three victims of these offences, who have had to wait for many years for the offender's wrongdoing to be recognised and punished. It is common for child victims of sexual offences to have difficulty in telling others about the offences which have been committed against them.’
40In Mackie v The Queen [2022] VSCA 28, which was an appeal from a sentence of mine in 2021, the Court also considered the significance of the delay from interview to sentence. The delay in that case was approximately 7 years in relation to one of the charges, and 3 years in relation to another charge. At [33], the Court said the offender was entitled to a ‘sentencing benefit arising from being left in a state of uncertain suspense’ for the 3 to 7 year period. In the same paragraph the Court went on to say that ‘this is known as the “unfairness limb” of the effects of delay on sentence.’ The delay here is one of two and a half years between interview and sentence, and I take that into account in my sentence, as I do the delay from the dates of offending.
Mitigating Factors
41Ms Rolfe’s written submissions was tendered as Exhibit 1.
42As to the offender’s personal life, Mr Raymond grew up in difficult family circumstances where he experienced emotional neglect and an absence of love and warmth within the family unit. From grade 6, the offender spent extended periods of time in Turana Boy’s home, and after that in Burwood Boy’s home. While at the Boy’s homes he had no family contact. During school, the offender didn’t form any close friendships and was bullied.
43Ms Rolfe submitted that Mr Raymond has consistently found employment and had a good record in the army. Ms Rolfe referred to Mr Raymond’s age and health, and made reference to Dr Carla Lechner’s comments in her report, tendered as Exhibit 2. Ms Rolfe submitted that Mr Raymond had suicide ideation at a very young age, was prescribed anti-depressants in the 1990s and still has thoughts of suicide, although has not self-harmed and does not present as psychologically distressed.
44Mr Raymond comes before the Court with no prior criminal history. I accept, as the Defence put in submissions, the extended delay from offending to sentencing is of significance as there has been no further offending since 1983. Mr Raymond has successfully effected rehabilitation.
45Ms Rolfe emphasised Dr Lechner’s belief that the offender currently presents as a low-risk of sexual reoffending. His offending was situational. At the time of the offending, the offender was struggling to come to terms with his own sexual orientation and felt shame over his sexual preference. Dr Lechner considered his offending to be the result of hebephilic sexual interests, that are now in remission.
46In Exhibit 2 at page 4, Dr Lechner considered the offender to have Schizoid Personality Disorder: he has not developed close relationships, does not find pleasure in many activities, is emotionally detached and cold, and appears indifferent to praise or criticism. As I commented in the Plea, it is ironically unfortunate the many parallels between the offender’s life and the victims.
47I accept, as Dr Lechner explained in [5] of Exhibit 2, that given Mr Raymond’s age and lack of contact with the legal system, he is likely to struggle in a custodial setting and has expressed concern about his elderly mother, as he is currently her Power of Attorney. However, Ms Lechner also considered that Mr Raymond is not suitable for any particular treatment services, as he is not experiencing psychological distress.
48The fact that there was no apparent physical coercion or violence involved in the offending was discussed. Reference was made by the prosecutor to Clarkson v The Queen [2011] VSCA 157. At [3], in that case the Court commented that “the absolute prohibition on sexual activity with a child is founded on a presumption of harm”. At [78], the Court referred to the Sentencing Judge’s reasons that:
‘In cases involving abuse of children the Court of Appeal has said on many occasions that general and specific deterrence are paramount considerations. It was apparent from the facts in this matter that you took advantage of a young girl’s attraction towards you. You took advantage of her trust and your friendship with her family to abuse her in the family home…. You are the adult, she is the child, it was you who should not have let it happen. The sentence I deliver must reflect the community’s disgust for such conduct and the need for both general and specific deterrence.’
49While not put forward by defence counsel, in oral submissions during the Plea, Mr Fisher raised the issue of consent. Mr Fisher referred to the offender’s comments to Dr Lechner during his psychological assessment which are set out on page 5 of Exhibit 2. Regarding the offending behaviour, the offender had expressed that “by not saying “no”, [he] thought they’d given consent”. He thought that at 15 years of age, you could give consent.
50While there was no suggestion of attraction on the victim’s side or “consent” raised by defence, the fact that in some instances the victims “just let it happen” does not reduce the gravity of the offending.
51As to the victims being 14 to 15 years old during the offending the subject of charge 1 and 3, Mr Fisher referred to Clarkson at [62], where the Court quoted Vincent JA in Sulemanov:
‘The age of the victim of such an offence cannot, in my opinion, of itself constitute a mitigatory factor for sentencing purposes, although it may, in some situations be seen to aggravate its commission. The offence was created by Parliament to provide protection to young persons. That protection is not to be regarded as becoming less significant simply because the young person is approaching his or her sixteenth birthday. On the other hand, the younger, more vulnerable or less mature the victim is, the more heinous is the perpetrator’s behaviour. The disparity in the ages of the offender and the child is, accordingly, a relevant consideration.’
52As to remorse, I accept that Mr Raymond entered his Plea at the earliest opportunity. Mr Raymond made admissions in the pre-text call with Arnold and in his record of interview. I accept this is an indication of Mr Raymond’s remorse. I accept that such plea brings with it the benefits of utility, an indication of acceptance by Mr Raymond of his offending and an indication of his remorse. Such guilty plea attracts a sentencing ‘discount’, which I accept.
53I accept that Worboyes v R [2021] VSCA 169 is applicable, and I give significance to the principles therein as to the enhanced benefit of a plea during COVID, given in particular the impact that COVID has had on the justice system.
Sentencing Principles
54As to the relevant sentencing principles, the Prosecutor submitted general deterrence, denunciation and just punishment are important principles to be considered here, and specific deterrence is less relevant in this instance. In Exhibit 1, Ms Rolfe accepted that general deterrence, denunciation and punishment were integral to this sentencing consideration, and submitted that specific deterrence and protection of the community were less significant considerations given the lengthy delay from offending to sentence, in circumstances where there has been no further offending.
55Ms Rolfe referred to the principle of equal justice which requires the Court to have regard to sentencing practices as at the date of the offences (1978-1983). Ms Rolfe considered this to be in tension with current sentencing practice. I do not agree, in my experience as at the time the offences were committed, the offending in charge 1 could have resulted in a prison sentence, and in relation to charges 2 and 3, almost certainly would have resulted in a prison sentence.
56The prosecution did not seek a disproportionate sentence.
57As to the impact of rolled-up charges 2 and 3, the Prosecutor referred to DPP v Conos [2021] VSCA 367, at [74], where the Court said:
‘A rolled-up count is a collection of counts bundled together into a single count… Whereas in a representative charge, the court sentences only for a single offence, the sentence on a rolled-up charge must take into account all of the individual offences it comprises.’
58And at [75]:
‘It is clear from the Court’s authorities that a significantly higher sentence is justified on a rolled-up charge than would be the case for a single offence. Thus in R v Samia[8], Nettle JA (with whom Dodds-Streeton JA agreed) said:
Of course the sentence to be imposed on a rolled-up count is not invariably the sum of the individual sentences which would have been imposed if the rolled-up offences had been presented as individual counts. But whereas here there are only two offences rolled-up and the rolled-up count stands to be considered among a number of other individual counts relating to similar offences, a penalty of twice as much for the rolled-up count is not necessarily incorrect.[9]
[8] [2009] VSCA 5.
[9] Ibid [12].
59Charges 2 and 3 are rolled-up offences, each capturing two individual counts of offending. I take this into account in determining my sentence for charges 2 and 3, as compared to the single instance of offending in charge 1.
60Both counsel accepted that a term of imprisonment is appropriate in the circumstances.
Suspended Sentence
61Ms Rolfe submitted that, having regard to the mitigating factors, demonstrated rehabilitation, Mr Raymond’s personal circumstances and the significant delay, a wholly suspended sentence should be imposed. In oral submissions, after I had indicated I was not enamoured with such a sentence, Ms Rolfe submitted that in the alternate, the Court could impose a partially suspended sentence.
62I now come to consider S 27 of the Sentencing Act 1991 (Vic), as it then was.
“27 Suspended sentence of imprisonment
(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or a part of the sentence if it is satisfied that it is desirable to do so in the circumstances.
(1A) In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, a court must have regard to—
(a) the need, considering the nature of the offence, its impact on any victim of the offence or any injury, loss or damage resulting directly from the offence, to ensure that the sentence—
(i)adequately manifests the denunciation by the court of the type of conduct in which the offender engaged; and
(ii)adequately deters the offender or other persons from committing offences of the same or a similar character; and
(iii)reflects the gravity of the offence; and
(b) the degree of risk of the offender committing another offence punishable by imprisonment during the operational period of the sentence, if it were to be suspended.
63The real issue in this regard, which has required close consideration, Mr Raymond, was to balance the submissions of both counsel and take into account the provisions of S 27 as I have just detailed.
64In all the circumstances, I have determined that a partially suspended sentence is appropriate.
65Mr Raymond, if you could please stand.
66On charge 1, you will be convicted and sentenced to 10 months imprisonment.
67On charge 2, you will be convicted and sentenced to 6 months imprisonment.
68You are now deemed a serious sexual offender and the provisions of Part 2 of the Act apply. As I have said, the prosecutor did not submit that a disproportionate sentence was appropriate pursuant to S 6D(f).
69On charge 3, you will be convicted and sentenced to 2 years imprisonment.
70Pursuant to S 6E of the Sentencing Act 1991 (Vic), when sentencing a serious sexual offender the term of imprisonment imposed is to be served cumulatively on any other sentence of imprisonment, unless otherwise directed by the Court. There is always a particular tension in this regard between the dictate of Parliament and the principle of totality. See Redlich JA in Gordon v R [2013] VSCA 343, and Brennan J in McL v R (2000) 203 CLR 452, 476-477 [75]-[76].
71The base sentence will be the sentence imposed on charge 3. Two months of the sentence imposed on charge 1 and one month of the sentence imposed on charge 2 are to be served cumulatively upon each other and upon the sentence imposed on charges 3.
72The total effective sentence will therefore be 2 years and 3 months’ imprisonment.
73Pursuant to S 27(1) of the Sentencing Act 1991 (Vic), 15 months of such sentence will be suspended, Mr Raymond after you serve an immediate period of imprisonment of 12 months. Such sentence will be suspended for two years. During that time, you must not commit another offence. It is necessary for me to warn you, if in those two years you commit another criminal offence, then unless there are exceptional circumstances, and I stress exceptional circumstances, you will serve the balance of the period of imprisonment.
74Pursuant to S 6AAA of the Sentencing Act 1991 (Vic), doing my best to comply with the requirements of Parliament, but for your plea of guilty, I would have imposed a sentence of 3 years and 3 months and I would not have partially suspended your sentence.
75Pursuant to S 6F(1) of the Sentencing Act 1991 (Vic), it will be recorded in the records of the Court that in regard to charge 3, you are sentenced as a serious sexual offender.
76Finally, as I mentioned earlier in my sentence, the Sex Offender Registration provisions apply, and you will be required to report for life.
77Mr Prosecutor, is there anything further required?
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