Director of Public Prosecutions v Reeves (a pseudonym)

[2020] VCC 1426

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLARD REEVES (A pseudonym)

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JUDGE:	HIS HONOUR JUDGE C J RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 August 2020
DATE OF SENTENCE:	10 September 2020
CASE MAY BE CITED AS:	DPP v Reeves (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1426

REASONS FOR SENTENCE
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Subject:CRIMIINAL LAW

Catchwords:            being carnal knowledge of a girl under 10 - indecent assault – totality – old age – ill health - serious sexual offender – protection of the community – low risk of reoffending – general deterrence – denunciation – COVID-19

Legislation Cited:     Sex Offenders Registration Act 2004 - Sentencing Act 1991

Cases Cited:R v Bazley (1993) 65 A Crim R 154 - The Queen v Verdins (2007) 16 VR 269

Sentence:                4 years and 3 months' imprisonment, and I fix the period of 2 years and 6 months’ imprisonment as the period that you must serve before you will become eligible for parole – 6AAA: 7 years’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms R. Champion	Office of Public Prosecutions
For the Accused	Mr H. Moodie	James Dowsley and Associates

HIS HONOUR:

1       Willard Reeves[1], on 28 August 2020 you pleaded guilty to an indictment containing three charges, being carnal knowledge of a girl under 10 (Charges 1 and 3) and indecent assault (Charge 2).  Charge 1 occurred between 13 August 1975 and 31 August 1975, while Charges 2 and 3 occurred on the same day between 1 March 1976 and 31 May 1976.

[1] A pseudonym.

2       The maximum penalty for Charges 1 and 3 is 20 years’ imprisonment, while the maximum penalty for Charge 2 is five years’ imprisonment.

3       While you have no prior convictions, you have a number of subsequent convictions for offending that occurred both prior and subsequent to the instant offending.  On 17 March 1981 you were convicted and placed on probation, as well as being fined, for nine charges of indecent assault on a female under 16 years.  There was scant information provided to me in respect to this offending, and by reference to a newspaper article in the Border Morning Mail of Wednesday, 18 March 1981, which appears at page 93 of the depositions, your offending appears to have related to four young girls, where you touched or fondled their vaginas or “private parts” as it was recorded in the newspaper article.  Your offending appears to have been proximate in time to your court appearance and is therefore offending that occurred subsequent to the instant offending.

4       On 26 July 2018 you were sentenced by his Honour Judge McInerney to three years’ imprisonment with a non-parole period of 18 months’ imprisonment for one charge of carnal knowledge of a girl between 10 and 16 years.  Your victim was 10 years of age at the time of your offending, which occurred between July and August 1971, prior to the instant offending.

5       The sentence imposed by his Honour Judge McInerney will lapse on or about 12 July 2021.  You were eligible for parole on or about 12 January 2020, but you did not apply for parole because of this prosecution.  Accordingly, you still have about 10 months to serve on the sentence imposed by his Honour Judge McInerney.

6       It is to be noted that the maximum penalty for the offence his Honour Judge McInerney sentenced you for was 10 years’ imprisonment.  It should also be noted that his Honour, based on the material before him, in the exercise of his sentencing discretion, found that limbs 5 and 6 of The Queen v Verdins[2] applied to you.  History has proved neither eventuality contemplated by those two limbs came to pass.

[2](2007) 16 VR 269

7       Tendered as Exhibit A and read aloud in court was the prosecution opening for plea as amended.  Your victim is your niece.  Your offending occurred in 1975 and 1976 at your home and at your victim’s home.  At the time of your offending you were 31 years of age, and your victim was but six years old.

8       In respect to Charge 1, your victim and her family visited you at your house in West Heidelberg, as your then wife had recently had a baby.  During the visit your victim and her brothers played hide and seek with you.  You found your victim hiding in an upstairs bedroom.  You closed the bedroom door and stood behind her, pulled your victim’s pants and underwear down to her feet, and reached around her body and rubbed her clitoris with your fingers.  You then inserted your penis into your victim’s vagina whilst you were positioned behind her (Charge 1, carnal knowledge of a girl under 10).  Your child victim felt pain and burning as a result of your criminal conduct, and was too scared to scream or yell, as she felt intimidated by you.  After committing the offence that constitutes Charge 1, you pulled up your victim’s pants and continued playing hide and seek with the other children.

9       In respect to Charges 2 and 3, about six months after the commission of Charge 1 you stayed overnight at your victim’s home.  Your wife and children did not accompany you on this visit.  Your victim was still aged six years.  During a game of British Bulldog you caught your victim, lifted her up, putting both your hands between her legs, and rubbed her on her vagina on the outside of her pants (Charge 2, indecent assault).  Your victim commenced to cry in fear, because she remembered what you had done to her six months earlier.  She ran to her room.

10      Later that day, when your victim was asleep in her bedroom, you entered her room and removed her underwear, you woke her in doing so.  Your victim did not move and pretended to be asleep.  You lay on top of your victim and inserted your penis into her vagina whilst positioned behind her (Charge 3, carnal knowledge of a girl under 10).  You penetrated your victim for approximately five minutes, and once again your victim felt pain and a burning sensation as a result of your conduct.  After you withdrew your penis you left the room, and your victim cried herself to sleep.

11      In or about 1995, when your victim had been telephoned by another relative, you were put on the phone, and your victim froze when she heard your voice.  During what might be described as a conversation, you said to your victim “I’m sorry for doing the things I did to you, and I hope you can forgive me.”  Your victim told you that she would not do so and hung up the phone.

12      Your victim made a statement to the police on 15 January 2019 complaining about your conduct.  On 17 July 2019 you were interviewed under caution, and, whilst admitting that you would have indecently assaulted your victim in the manner that founds Charge 2, you denied that you carnally knew the victim.

13      Tendered as Exhibit B on the plea was the victim’s impact statement.  It is important to note that the victim had been frequently sexually abused by both her father and her half-brother, and the circumstances of that appalling conduct is set out in two statements made by the victim that were tendered as Exhibit 5 on the plea.  In her victim impact statement, your victim writes how she has been profoundly and adversely affected by your conduct.  However, your victim had been repeatedly offended against by being repeatedly sexually penetrated by her father and her half-brother.  Accordingly, whilst I must accept that your conduct caused harm to your victim, I am unable to apportion the adverse effect of your conduct on your victim in light of the appalling conduct of the victim’s father and half-brother towards her.

14      Mr Reeves, you are 76 years of age, having been born on 20 April 1944.  You were aged 31 years at the time of the offending.  You have not offended since 1981, a period of some 39 years.  Tendered as Exhibit 2 were the reports dated 8 June 2018 and 21 July 2020 of Ms Carla Lechner, psychologist.  In the history that you provided Ms Lechner, you said that you never met your father, and that you were raised by your mother and stepfather.  Your stepfather was a disciplinarian who believed in and practised corporal punishment.  You were unaware that your stepfather was not your father until you were aged 15 years of age, when your mother informed you of that fact.  Unsurprisingly, this caused you great shock.

15      You attended school and completed Year 9, or what would have been called Proficiency.  After leaving school you wanted to join the Army, but your stepfather would not allow this.  You worked as a sales assistant in a furniture store, and in a hotel as an apprentice chef.  You attended the William Angliss College for about a year.  At the age of 19 you joined the Royal Australian Navy and completed your apprenticeship and thereafter served as a cook for 11 years.  You informed Ms Lechner that part of your duties during your service in the Navy was aboard ships that took Australian troops to Vietnam during the conflict in that country.  On leaving the Navy you joined the Royal Australian Army in the Catering Corp in 1975 and had qualified for the rank of sergeant when you were administratively discharged in October 1981 as a result of your offending and court appearance in that year.

16      After being administratively discharged from the Army you continued to work as a cook in Canberra at the Woden Valley Hospital for 11 years and thereafter you worked at the Yarrawonga Hotel for a period of time until you moved to Benalla and worked at the Benalla Hospital as a cook for nearly 20 years before you retired in 2012, aged 68 years.

17      You informed Ms Lechner that you had been married four times and have four children.  You have two children from your first marriage who are aged in their fifties, and with whom you have no contact.  You had two children with your second wife, and they are aged in their forties, and likewise you have no contact with them.  There are no children arising out of your third marriage, although your wife brought three children to the marriage from a previous relationship, two of whom have died, one from suicide and another from a drug overdose.  Your fourth wife, to whom you have been married for a period of 30 years, has three children from a previous relationship.  At the time that you were sentenced by his Honour Judge McInerney that relationship was still on foot, and you had contact with one of your wife’s children, John.  However, by reference to Exhibit 3, a letter from Mr Robert Stevenson, prison officer, from Langi Kal Kal Prison, you are estranged from your wife and have had no contact with her for approximately 12 months.  In all likelihood, when you are released from prison you will reside on your own.

18      You are a man in poor health.  Mr Moodie of counsel, who appeared on your behalf, placed emphasis on the fact that you suffer from Type 2 diabetes which is treated by way of tablet, and that you also suffer from aortic stenosis, a heart defect that narrows the aortic valve, making it difficult for the heart to pump blood into the aorta.  However, by reference to Exhibit 4, a health summary sheet provided by the Ely Street Clinic printed on 16 August 2020, you suffer from a number of ailments, being:

·     aortic stenosis,

·     bilateral hip dysplasia (slight),

·     cervical spondylosis,

·     depression,

·     hearing impairment,

·     lumbar spondylosis,

·     reflux oesophagitis, and

·     Type 2 diabetes mellitus.

19      In summary, you are old and in ill health, and you are only going to get older and more ill as time passes.

20      Despite your age and ill health, Mr Stevenson in Exhibit 3 describes you as coping well at Langi Kal Kal Prison.  You have been housed in stable accommodation, meaning that you have had no cell movements for almost 12 months.  You are housed with five other quiet prisoners with whom you get on well.  You have a good daily routine, characterised by normal sleeping patterns, work/life balance, social interaction, and domestic chores.  You do not work within the prison because of your age; however, you do a great deal of cleaning and general domestic chores in what was described as your “pod”, and you enjoy doing this as it gives you a structured day, and your fellow inmates appreciate the efforts that you put in as they work during the day.  There is no suggestion in the letter from Mr Stevenson that there are any health concerns so far as you are concerned within the prison.

21      You have undertaken eleven courses whilst in prison, as is demonstrated by the certificates that make up Exhibit 3.  These courses include ‘Men who met Jesus’, ‘The Bible speaks’, ‘Healthy Living’, ‘Family, Friends and Community’, and ‘Certificate II in Cleaning’, amongst others.  It appears that you have adapted to the structured life within prison.

22      In her reports, Ms Lechner would have described you at the time of your offending as a paedophile, but in her 2018 report opined “he is better described as a ‘regressed child molester’.”  Ms Lechner assessed you on two occasions in respect to your risk of sexual reoffending, and unsurprisingly you were assessed as a low risk of sexual reoffending.  In my opinion, so much is obvious from your age, ill health, and the age that you will be when you are ultimately released from prison.  In addition, the circumstances surrounding your offending are unlikely to reoccur upon your release.

23      Mr Moodie in his well-presented plea placed emphasis on your early plea of guilty, which he submitted entitled you to a substantial discount on the sentence that you might otherwise receive because of its utilitarian benefit, which includes not calling the victim to give evidence at committal or at all, and that it is evidence of your remorse.  In respect to the issue of remorse, Mr Moodie relied upon the contents of the telephone call in which you apologised to your victim some many years ago.

24      Further, Mr Moodie emphasised:

·     imprisonment may affect your health due to the risk of an outbreak of COVID‑19,

·     the risk of contracting COVID‑19 is a source of anxiety to you, which makes prison more burdensome for you,

·     you no longer present a risk to the community, and

·     general deterrence should be moderated, given that you are in the final years of your life and may possibly die in jail.

25      The first point, it is a matter of speculation.  So much was conceded by
Mr Moodie on the plea.  I accept, given your age and state of health, that the prospect of the COVID‑19 virus entering the prison system, and Langi Kal Kal Prison in particular, would and does cause you anxiety.  I accept that you present a very low risk to the community on release, as well as accepting that general deterrence should be moderated because of your age and state of health.

26      It was accepted by Mr Moodie on your behalf that your offending was serious.  Your victim was six years of age, and you were 31 years of age.  You were an adult relative to your victim, and you offended against her both at your and her home.  There was plainly an egregious breach of trust occasioned by your conduct.  Likewise, your offending was brazen bearing in mind the circumstances that surround it.  In addition, in respect to Charges 1 and 3, Parliament has set the maximum penalty for your offending as 20 years’ imprisonment.  This maximum penalty must inform the seriousness with which Parliament viewed this kind of offending.

27      There is no evidence to demonstrate how any sentence of imprisonment may adversely affect your health.  Indeed, the letter from Mr Stevenson would tend to the view that you have had no difficulties by way of health problems whilst in prison.  Further, old age cannot be allowed to justify the imposition of an unacceptably inappropriate sentence, which principle was set out in R v Bazley[3] at [32]. There is no evidentiary material of any kind as to your life expectancy, and so I am unable to find that you are in the immediate final years of your life. Nor am I able to find that age may make imprisonment more onerous for you.

[3](1993) 65 A Crim R 154

28      However, dealing with these issues as a matter of practicality, you are 76 years of age and you are in ill health.  On any view of it you are in the twilight years of your life, and any term of imprisonment will reduce the time that you will have at liberty until you die.

29 As you will be sentenced to a term of imprisonment in respect of each of the three charges on the indictment, you fall to be sentenced as a serious sexual offender in respect to Charges 2 and 3. Pursuant to s6D of the Sentencing Act 1991, in respect of Charges 2 and 3 I must regard the protection of the community from you as the principal purpose for which sentence is imposed, however, you present as little or no threat to the community. Of importance in arriving at an appropriate sentence in your case is the proper application of the principle of totality. The application of this principle is impacted in part by the moderation of general deterrence which must take place in the exercise of my sentencing discretion. In my opinion there is no need to specifically deter you. However, you need to be justly punished, and your conduct publicly denounced, and these factors must play a prominent role in the exercise of my sentencing discretion.

30      Ms Champion of counsel, who appeared on behalf of the Crown, submitted that whilst there must be some cumulation between counts on the indictment, there need not be an order for cumulation of the sentence which I am to impose upon you on the sentence imposed by his Honour Judge McInerney.  My initial response to this submission was one that it was contrary to principle.  However, upon reflection, in order to arrive at an appropriate sentence in your case in all the circumstances, a sentence which is wholly concurrent with the sentence which you are presently undergoing is open.

31      You are 76 years of age and in ill health. On release from prison you will  represent little or no threat to the community. Since 1981 you have committed no further offences and on the face of it you are rehabilitated. There has been delay of 43 years from your offending to bringing this prosecution. However, it is incumbent that my sentence reflect the community’s denunciation of sexual offences against children.

32      Doing the best I can, taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:

·     on Charge 1, three years’ imprisonment,

·     on Charge 2, one year’s imprisonment, and

·     on Charge 3, three years’ imprisonment.

33      I order that 12 months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 2 be served cumulatively upon each other and upon the sentence imposed on Charge 3.  This results in a total effective sentence of 4 years and 3 months' imprisonment, and I fix the period of 2 years and 6 months’ imprisonment as the period that you must serve before you will become eligible for parole.

34      I direct that it be entered in the records of the court that you were sentenced as a serious sexual offender in respect of Charges 2 and 3 on the indictment.

35      I direct that you be subject to the provisions of the Sex Offenders Registration Act 2004 for life.

36 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to 7 years’ imprisonment with a non-parole period of 3 years and 6 months’ imprisonment.

37      Is there anything arising out of this sentence?

38      MS CHAMPION:  Your Honour, the link broke up momentarily while Your Honour was stating the orders of cumulation.  Could Your Honour please repeat that?

39      HIS HONOUR:  Yes, I will repeat the sentence. 

·     on Charge 1, three years’ imprisonment,

·     on Charge 2, one year’s imprisonment, and

·     on Charge 3, three years’ imprisonment.

40      I order that 12 months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 2 be served cumulatively upon each other and upon the sentence imposed on Charge 3.  This results in a total effective sentence of 4 years and 3 months' imprisonment, and I fix the period of 2 years and 6 months’ imprisonment as the period that you must serve before you will become eligible for parole.

41      MS CHAMPION:  As Your Honour pleases.

42      HIS HONOUR:  Is there anything that arises out of the sentence?

43      MS CHAMPION:  No, Your Honour.

44      HIS HONOUR:  Mr Moodie, do you want an opportunity to speak to Mr Reeves?

45      MR MOODIE :  Yes, Your Honour, I have booked an appointment with him at 3 o'clock this afternoon so I will be talking to him then.

46      HIS HONOUR:  I want to thank counsel for their assistance and we will stand down now until 10.30.

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