Director of Public Prosecutions v Reid (a pseudonym)

[2017] VCC 1072

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR 17-00788

DIRECTOR OF PUBLIC PROSECUTIONS

v

HARVEY REID (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	4 August 2017
CASE MAY BE CITED AS:	DPP v Reid (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1072

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Hutton
For the Accused	Mr B. Lindner

HIS HONOUR:

1Harvey Reid,[1] you had pleaded guilty to two representative charges of indecent act with a child under the age of 16.  They are both representative charges, not rolled-up charges.  Those crimes carry a maximum penalty of ten years' imprisonment.  As will become clear, the charges for which you are to be actually sentenced occurred in the same incident, and accordingly in the normal course of events, by reason of authority, be totally concurrent.  In this situation, it is conceded that a gaol term is inevitable, and I will be giving an aggregate sentence together with a community corrections order.

[1] A pseudonym.

2Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide a saliva sample for those purposes, police may use reasonable force to take it from you. 

3You are now 30 years of age.  You pleaded guilty at the earliest reasonable opportunity, and made considerable admissions, again at the earliest reasonable opportunity.  Those admissions have in fact elevated the seriousness of the offending, and I take that into account.  You have displayed remorse since these matters were detected, and you must of course get the utilitarian benefit of that plea of guilty.  You have no prior convictions, and as I understand it, nothing pending.

4As I said during the course of the plea, in circumstances such as this, of which a sentencing judge sees many, many examples, the degree of remorse which you have expressed and the support that you have from a number of family members is rare, and I take that very much into account in your circumstances.  It is frequently the situation in matters such as this that there is a great deal of self-pity by the accused, and an endeavour to either blame or transfer guilt.  You have done none of those things, and I as say, I take the view that, certainly in my experience, that the level of your remorse is rare.

5The summary of the offending is as admitted and can be done very quickly.  You have a daughter who was seven or eight years of age at the time of the offending.  You had been in a relationship for some years with her mother, and indeed had recently become married.  On the occasion on which these charges are laid - and I am fully aware they are representative, Charge 1 involved on a number of occasion the child masturbating you.  On the day of the charges, there is also an act of you simulating sex in an all-fours position with the child, and that had occurred, again, on a significant number of occasions.  There are other uncharged acts involved in all this, and I simply sentence on the basis that it cannot be said that the offences for which you are to be sentenced stand alone.  They were part of a series, and I take it no further than that.

6The offending has to be regarded as serious, as indeed was conceded by your counsel, a gaol term is inevitable.  It went on over a relatively significant period of time, and upon detection by the child telling a grandmother, as I recollect, you, as I said, owned up, effectively.

7There is before me a victim impact statement from the mother of the child, who eloquently describes the dreadful consequences of such offending, and why in a normal course of events, perpetrators of offending such as this will receive active custodial sentences.  She describes in that victim impact statement the concerns of the child as to what will happen to you.  That is always a very, very difficult set of circumstances.  She has to cope with the aftermath of all this.  She says in victim impact statement, which she read:

"I'm trying to show the world I am strong, but this has broken me, broken my spirit.  I feel I have a scar visible across my forehead telling the world what has happened, but it is not visible, only I can see this.  Every day I feel I must prove myself to the world that I can be strong, but feel the world is judging me, watching my every move, waiting for me to fail.  I wish there was a switch to turn the love that I have for him off, but over ten years he is still all I have known.  Most days I feel I'm going crazy.  Friends and family telling me to just cut him off.  It cuts deep hearing [Harvey] use the words 'holiday' and 'having a break' when implying the possibility of gaol.  It is broken and cannot work the business anymore.  I'm glad someone may have the chance of a holiday to get away from this nightmare.  I just want to wake up, wake up from this nightmare, I just want it to be over.  I would not wish this upon anyone, no child, parent or guardian should have to go through this, ever."

8As I have said, that eloquently describes the consequences to others of such offending.

9When you were interviewed by police in relation to it, you admitted it, and I do not need to take it any further.  During the course of that interview, you acknowledged some insight into the consequences of it, and expressed very, I accept, sincere remorse.

10It calls for the application of general, as well as in your case, specific, deterrence, denunciation and appropriate punishment.  You have been assessed by a psychologist as being at below-average risk of reoffending.  I think Corrections have regarded you as medium.  I would have thought that the offending was very much situational, and the risk of it reoccurring would be low indeed, and obviously I take those matters into account.

11Insofar as matters personal to you are concerned, as I have said, you are 30 years of age, you have no prior convictions, you have nothing pending.  The quite remarkable references that have been provided on your behalf indicate that you have an extremely good work ethic, and have had since you were a boy.  It is also clear that you do have, in the general sense, a very good sense of social responsibility.  You intend to work again once this matter is over.  You and your wife had been running a business together prior to all of this occurring, which employed a number of people.  I accept that you have done your utmost to endeavour to provide for your partner and child in the event of your being incarcerated, and you are going to be.

12They are all matters which go towards the prospects of rehabilitation, which I think in your case are good, and I have already referred to the risk of reoffending.  As I said, the references on your behalf are impressive.  I also have taken into account the report of the psychologist, Ms Ashton, as to your insight and the attempts that have been made.  You will have, undoubtedly, accommodation, family support, work and a great sense of guilt upon your ultimate release. 

13As I indicated to counsel, what I do take into account in this situation are the comments that were made in a decision of our Court of Appeal of Cole (a Pseudonym) v The Queen.[2]  That was a circumstance where, after a trial, a man with good antecedents and good prospects of rehabilitation was convicted of three charges of indecent act with a stepdaughter.  Those indecent acts were not to the same level as this, but as I pointed out, they were after a trial, he received a sentence of 20 months with a 12-month non-parole period. 

[2] [2015] VSCA 44.

14The Court of Appeal in that decision set aside the judge's original sentence and imposed a community corrections order.  In doing so, they said this, and I say this because of the, if I might say so, succinct submissions put on your behalf by your counsel:

"Counsel had sought a CCO from the sentencing judge.  At the time of sentence however, the judge did not have available to him this Court's guideline judgment in Boulton, which makes plain that 'if the CCO is to serve the purpose for which Parliament quite clearly envisaged for it, sentencing courts {including this Court), need to rethink the conventional wisdom about whether prison is really the only option.  In Boulton, the Court was at pains to spell out the grave disadvantages of imprisonment, both for the offender and for the community and the unique advantages of a CCO in enabling real punishment to be imposed, at the same time as advancing the offender's rehabilitation in a way no prison term ever can'.  In our view, general deterrence, specific deterrence, denunciation and just punishment may all sufficiently be reflected in the imposition of a CCO.  More to the point, when imposing sentence the judge should have recognised that this is so by himself imposing a CCO, rather than a term of imprisonment.  At the risk of repetition, the sentence imposed was manifestly excessive, it must be set aside, and the Courts must re-sentence the appellant.  In doing so, we would, as we have said, impose a CCO".

15For the reasons I have outlined in terms of the seriousness of the offending, the duration of it, the repetition of it, and the fact that they are representative charges, I have taken the clear view, as is conceded, that an active custodial sentence is inevitable, but I feel that, having considered the matter, yours is one which fits within what is known as the combination regime, and having reconsidered the matter over the last hour or so, I think it fits well within it.

16You have now been in custody for 43 days, which I am sure has had a very salutary effect upon you.  You will undergo the sentence of imprisonment that I feel that I must impose in the knowledge that your wife and child will be effectively fending for themselves, and the shame and embarrassment that you have brought upon them, and indeed upon other members of your family.  Each of them that has provided a report, as well as an employer, have expressed shock at this offending, and I suspect as far as your wife is concerned, it almost beggars belief.  But in any event, because of general deterrence essentially, and denunciation, on Charges 1 and 2 you are sentenced to be imprisoned for an aggregate period of nine months.  I direct that if you agree, upon completion of that, you are to be placed on community corrections order.  It will be with conviction, which is a punishment in itself. 

17As part of that, you will be subject to supervision, and you will also have the condition of doing programs to reduce the risk of reoffending, which as I understand it in your situation, will be the sex offenders program, which the psychologist thinks you would benefit from, in any event.

18Also I say that because of the nature of the offending, you will be placed on the Sex Offenders Register, and the reporting period for that Sex Offenders Register will be for eight years. 

19I would now ask that if you agree to that community corrections order, you would sign that and acknowledge receipt of the registration documents.

20MR HUTTON:  While that is being done, Your Honour did not announce, I do not think, the duration?

21HIS HONOUR: Three years I think I said, three years. No, I have not done that yet, because he has not signed it. Once he signs it we will do those little things. All right, the CCO order is made, I direct that 43 days be reckoned as having been served under this sentence, and pursuant to s.6AAA of the Sentencing Act, I say that but for your pleas of guilty, you would have been sentenced to be imprisoned for a period of two years, with a minimum term of 16 months.

22MR HUTTON:  As Your Honour pleases.

23MR LINDNER:  As Your Honour pleases.

24HIS HONOUR:  All right, nothing else I need to do?

25COUNSEL:  No.

26HIS HONOUR:  No?  All right, you can go now, thank you. 

27(At this stage the court proceeded with another matter.)

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