Director of Public Prosecutions v Richards (No 2 )
[2013] VCC 1196
•18 June 2013
| IN THE COUNTY COURT OF VICTORIA AT LATROBE VALLEY APPELLATE JURISDICTION | Revised Not Restricted Suitable for Publication |
AP-12-2905
| KENNETH RICHARDS | Appellant |
| v | |
| POLICE | Respondent |
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JUDGE: | HIS HONOUR JUDGE HOWARD | |
WHERE HELD: | Morwell, Latrobe Valley | |
DATE OF HEARING: | 18 June 2013 | |
DATE OF SENTENCE: | 18 June 2013 | |
CASE MAY BE CITED AS: | DPP v Richards (No 2 ) | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1196 | |
REASONS FOR SENTENCE
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Catchwords: Appeal from Magistrates Court – contested charges of stalking and indecent assault – charges of indecent assault proven - stalking charge dismissed - sexual assault of female co-worker at Australia Post delivery centre over a lengthy period – serious offending involving serious breach of trust – enduring and profound victim impact – importance of general deterrence – lack of remorse - TES 3 months imprisonment (aggregate sentence).
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A. Hands | Robert Davis |
| For the Respondent | Mr D. Gray | Office of Public Prosecutions |
HIS HONOUR:
1 Kenneth Richards, you have been found guilty of four charges of indecent assault (charges 3, 4, 5 and 6) after a lengthy appeal hearing, which followed a lengthy hearing at the Magistrates' Court.
2 I will say more about the offending shortly but, as I made clear at the time of my findings, you have sexually assaulted the complainant who was a co-worker when you were both postal delivery officers at the Moe Delivery Centre working for Australia Post.
Background and personal circumstances
3 Turning to your personal circumstances, it is clear from the plea that has been made on your behalf that you have faced a number of challenges and much sadness in your life. You lost your mother and father as a young boy of eight and that led to a dislocated life thereafter, staying with family and/or foster parents. I am sure that was a very destabilising influence for you. Then the situation was compounded, in a family sense, when you lost your older brother in a motorbike accident when you were in your early twenties.
4 You have established three significant relationships, being married on three occasions. The first seems to have been a short relationship. You have a daughter but have had only intermittent contact with her. The second is your substantial marriage, from which there are three children with whom you have an obvious, close relationship. Your son and daughter are present in court and have been supporting you throughout this very difficult legal experience. The other daughter would be here, I infer, but she is interstate at the moment. Another sadness in that relationship was that your wife committed suicide after a lengthy bout of mental illness.
5 You then established a new relationship. You married your third wife but sadly she suffered from breast cancer over a lengthy period and, ultimately, she died. I think, it was said, after eight years of suffering. So it seems to me that the sadness you experienced as a young man carried through to your adulthood, but in different ways. I do not doubt that you have been a good father and supporter to your family and to your partners.
6 You are now in a good and supportive current relationship with Ms Kippen who is also present in court with you. I think that has been going for about three years and I gather it is a strong relationship that you have.
7 In addition, I take into account in your favour the good community work that you have engaged in over many years. I have the evidence of six witnesses during the course of the hearing which indicated that you were a hard worker, and that you were well regarded as a man of honesty and integrity both in social circles and also in your work as a postie.
8 One of them gave evidence of her knowledge, or his knowledge, I cannot remember which it was now, of your work as an umpire in community football. In fact, I am told that you have umpired adult and children's games; something like 338 games so that is a very impressive record over many years.
9 In addition, you have done a lot of good work with the Salvation Army and you are supported in court by one of their officers today. That has been longstanding and you have played in their band. You have also been a member of the CFA for 15 years.
10 As to your employment with Australia Post, you commenced in 1989 and that went through until December 2012, so it is something like 23 years, which is a very impressive work record. You obtained what has been described as "the 20 year certificate" and during that time you were the acting line manager. Particularly, during the relevant period of offending, you had a position of responsibility.
11 There is no suggestion that you have not worked efficiently and responsibly. The problem is your relationship with your fellow worker, [name of complainant deleted]. As a result of this complaint, you lost the chance of further promotion from early 2011 and have been suspended from Australia Post since the Magistrates' Court made findings in December 2012. You are now on the dole. I will proceed on the basis that you will now lose your job as a result of the findings that I have made on the appeal.
12 Significantly, it is in your favour that you are 55 years of age. You have never been charged or convicted of any other offences; there are no subsequent offences and nothing pending. In that sense, you have a good credit store in the community.
The offending
13 On the other hand, I have to look at the nature of the offending. The offending took place over nine months (from April 2010 to January 2011) and does constitute a course of conduct on your part. There were four separate indecent assaults: two of touching the complainant on her backside (charges 3 and 4); one of touching her on both of her breasts with both of your hands, (charge 5); and one of kissing her on the lips (charge 6). The conduct was perpetrated either from behind the complainant (charges 3 and 4) or when physical contact by you was least expected by her (charges 5 and 6). In each case, she was taken by surprise and hence, was unable to take steps to protect herself physically from you.
14 I am satisfied that you were motivated by a combination of sexual desire and the exercise of power and control over her. Yours was a serious breach of trust in that you were the complainant's direct supervisor, that is her line manager, for charges 4 and 5, and this is, in respect of those charges, an aggravating feature of your offending. I do not consider yours as the worst type of offending in that the interference was, in each case, for a brief period and the touching was for the most part over clothing, except for charge 6 which was skin on skin contact. Nevertheless, the nature of the offending, the length of time over which it has occurred, and the fact that it happened in the workplace, whether you were either the complainant's co-worker or supervisor, means that it is serious offending.
15 There is also evidence of other uncharged acts or context evidence, about which I am satisfied beyond a reasonable doubt. Particularly, as I have set out in the chart, an uncharged act which was an occasion of you touching the complainant on her bottom in a bike shed when she was bending over putting on wet weather pants. The circumstances surrounding the warning counselling report in June 2010 and the incident that occurred at the photocopier in December 2010 and finally the various occasions, I think it is two or three, when you were following the complainant to her car and engaging in unwanted conversation, they are all the context evidence which I am satisfied beyond a reasonable doubt occurred. Whilst you are not to be punished for any of this conduct, and only for the charges that I have before me, it is clear on the authorities that I cannot treat the charged acts, which I have found against you, as isolated events. Having said that, the uncharged conduct is not to be treated as a circumstance of aggravation.
Victim impact
16 The complainant said in her evidence, which I accepted, that your conduct had had significant effects upon her. She said that the inappropriate behaviour you engaged in made her feel insecure and unsafe at work, like she was being singled out from all others, all of which made it difficult for her to do her normal duties quickly and efficiently. I accept that your charged conduct had that effect upon her.
17 I have received a victim impact statement from the complainant which has been backed up by a psychological report, a psychiatric report, and a report from her GP. I accept, as is made clear from that material, that the complainant was a happy worker at Australia Post up to the time of your offending. Indeed she said in her evidence that she got on well with you for about three years whilst you were working together at Moe. Nevertheless, your offending has had a serious, adverse impact upon her relationship with her partner, her son, and generally her family stability. She describes the emotional scars that she has sustained as a result of your conduct. She pretended that the offending was not happening but was waiting at all times for you to touch her again in an inappropriate way. So she was, I consider, over the period of offending, traumatised throughout that whole period of time because of your conduct.
18 She sought and required professional support which was helpful to her. And, as well, medication which has had adverse side effects that has required quite a substantial degree of effort to get correct. She describes herself becoming a very hollow person emotionally and lacking normal social involvements. Sadly, she says she lost any real purpose in her life, including quarantining herself in her home rather than going out and meeting people and also dealing with her daily life, including dealing with her horses on her property.
19 She suffered sleep deprivation and significant stress as a result of your conduct and the consequential inquiry and court proceedings. She has suffered financial cost, had a reduction in her earnings and her earning capacity, which has an affect on her capacity to pay off her mortgage. Significantly, she has had no capacity for employment since the matter first came to light in July 2011. She complains about the lack of support and proper process on the part of Australia Post but I am not in a position to make any finding about that matter insofar as it relates to the institutional response to her concerns.
20 Significantly, the psychologist who has seen her, according to the report, a total of 27 times, indicates that there were a number of physical complaints, cognitive problems, emotional impacts, and behavioural impacts on her life, which is supportive of what she has said in her own statement. She was tested and found to have an extremely severe range of stress and anxiety and depression symptoms and a very high level of distress, as far as post-traumatic stress syndrome is concerned. She is described as having a major depressive episode and post-traumatic stress disorder as a result of your conduct. The psychologist concludes that the complainant -
“…has consistently evidenced a high level of psychological distress over the sixteen month period of treatment to date, following repeated sexual harassment and intimidation by her co-worker, and the ensuing complications of workplace actions, rehabilitation attempts, legal processes and medication trials. Her symptoms of anxiety, depression and post-traumatic stress have been at severe or extreme levels, and she has experienced a range of severe and distressing physical conditions that are likely to be stress-related. Her impairment has meant she has been unable to work and has often been unable to perform her normal duties and self-care at home.”
21 Similar statements are made by her psychiatrist who indicates that she had no previous mental health difficulties prior to this work harassment at your hands. The psychiatrist says that the result of your conduct has led to a moderate to severe episode of major depression for the victim.
22 Finally, the complainant’s GP, who has seen and treated her over a lengthy period of time, made similar comments. But, significantly, I note that she says since diagnosis, the complainant has had ongoing severe symptoms evidenced by her inability to function in a workplace and of the effects it has had on her social functioning. She had no other factors contributing to her condition, other than the sexual harassment. The doctor says at the end of her report: "Due to the length of time her condition has been present, her prognosis is guarded."
23 I am satisfied that your conduct has led to enduring and profound victim impact in this case.
24 I should note that the complainant should not feel any sense of shame or blame for what has happened. What happened is completely your fault. It is distressing to read that psychologically she is struggling with feelings that in someway or other she is responsible for what happened. She is not. Everything that happened was your responsibility, not hers.
25 The court should recognise the importance of victim impact in cases of this kind and acknowledge that sometimes the rehabilitation of the victim is harder to achieve than that of the offender.
Other important sentencing considerations
26 Today, you have had the opportunity to read her statement and you have expressed regret that she has suffered in that way. However, the reality of the case is that you have pleaded not guilty; you are entitled to do that and are not to be punished for pleading not guilty and contesting the matter. But that means you have no remorse and you are not entitled to any sentencing discount for any plea of guilty or any attempt to avoid the trauma for a complainant having to give evidence. In fact, you are in a state of total denial about your offending, notwithstanding that you have expressed regret that she should have experienced the impact that I have set out.
27 Clearly, you knew what you were doing. You engaged in determined and voluntary conduct. There was no encouragement or provocation by the complainant in any way which might have made you think that you could act in the way that you did and I am satisfied you showed no regard for her continuing distress over the nine month relevant period.
28 It is clear that you paid no regard to the sexual harassment training that I have been told that you received, although I have not received any details about your conduct in that regard. I consider that yours is a serious case of persistent abuse of a co-worker by her supervisor or her co-worker and that the principle of general deterrence is an important one in this case. The court needs to send a clear message to other workers that what you did is totally unacceptable conduct in the workplace and that it has very serious long lasting adverse affect on victims. On behalf of the community I denounce your conduct.
29 You were acquitted of charges 1 and 2 and charge 7 and accordingly, I take the view that the sentence I impose should be less than that that was imposed by the magistrate. Your counsel has argued that I should consider releasing you on a community corrections order, alternatively on a wholly suspended sentence. I do not accept that submission. I do not consider that yours is an appropriate case for you to be put on a community corrections order in the sense that community work would stand as a sufficient punishment for you. You do not accept that you have a got a problem. You do not accept that you have done what myself, and for that matter the magistrate, have found you have done. I have considered whether or not I should wholly suspend a term of imprisonment, which term is, I think, appropriate, but in the result I think your offending is too serious to do that. Accordingly, I propose to impose a term of imprisonment which is to be served immediately. That means you will go to gaol today.
Sentence
30 The formal orders are that the orders of the Magistrates' Court of 11 December 2012 are set aside and in their stead the following orders will be made. I have already struck out charge 7. On charges 1 and 2, the appellant has been found not guilty and those charges will be dismissed. I think I have already made those orders.
31 On charge 3; you are convicted and sentenced to 3 months' imprisonment. On charge 4; you are convicted and sentenced to 3 months' imprisonment. Each of these sentences are part of an aggregate sentence of 3 months imprisonment. On charge 5; you are convicted and sentenced to 3 months' aggregate sentence and on charge 6; you are convicted and sentenced to 3 months' aggregate sentence. That means the total effective sentence is 3 months' imprisonment which is an aggregate sentence.
Other orders
32 I do not propose to make any order as to the Sex Offenders Registration Act 2004. The prosecution does not submit that I should do so. If it wishes to make such an application at a later time, it can do so within a month. It would appear that no such application is going to be made so I do not consider, given it is a discretionary order, that I should make such an order. Also, I do not consider that I should declare you as a serious sexual offender given that I have imposed an aggregate sentence, in relation to the four charges, of three months imprisonment.
33 What remains now I think gentlemen is the compensation orders? Do you have compensation orders to sign?
34 MR GRAY: Could I please have a moment, Your Honour?
35 HIS HONOUR: I am happy to make the orders and sign them at a later stage if that is what you want?
36 MR GRAY: Yes thank you, Your Honour. Sorry, Your Honour, just excuse us for a moment.
37 HIS HONOUR: You told me the other day the total was $3679?
38 MR GRAY: 3679. Yes, Your Honour, that's right.
39 HIS HONOUR: But the orders to be made are in respect of three organisations or people, is that right?
40 MR GRAY: Doctors, Your Honour.
41 HIS HONOUR: Three doctors?
42 MR GRAY: Yes.
43 HIS HONOUR: Do you have any orders to sign?
44 MR GRAY: No, if they are not opposed, Your Honour, if Your Honour would be obliged to make them then I will have those orders prepared?
45 HIS HONOUR: But I need to know who are the people – who are the orders to be made out to?
46 MR GRAY: Yes, Your Honour. The orders are to be made - I will just read; to Dr Sonya Moncrief, the sum of $470.08.
47 HIS HONOUR: Yes.
48 MR GRAY: To Dr Debbie Birkett, the sum of $2054.14.
49 HIS HONOUR: Yes.
50 MR GRAY: And to Dr Brendan Spence, the sum of $1155.
51 HIS HONOUR: Yes. Well, they are agreed to Mr Hands, are they?
52 MR HANDS: Yes, Your Honour.
53 HIS HONOUR: I will make compensation orders as follows: to Dr Sonya Moncrief in the sum of $470.08; to Dr D Birkett in the sum of $2054.14; and to Dr B Spence in the sum of $1155. I will sign orders when they are provided by the prosecution.
54 MR GRAY: Thank you, Your Honour.
55 MR HANDS: Thank you, Your Honour.
56 HIS HONOUR: Are there any other orders that are sought?
57 MR GRAY: No, Your Honour.
58 MR HANDS: No, Your Honour.
59 HIS HONOUR: Mr Gray, are there any other matters that need to be dealt with?
60 MR GRAY: No other orders are sought, Your Honour.
61 MR HANDS: Just custody orders in relation to my client's medication. If I can hand up a document. He is prescribed Sertraline and an anti-inflammatory drug, Your Honour. If I can just provide this to the court.
62 HIS HONOUR: The Sertraline is an antidepressant?
63 MR HANDS: An antidepressant, that is right.
64 HIS HONOUR: Yes, all right. Well, I will have the papers endorsed to the effect that the appellant suffers from depression and is taking medication Sertraline, 50 milligrams, and from a knee injury, he is requiring anti-inflammatories, for which he is taking Naprosyn SR 750, 750 milligrams.
65 MR HANDS: Thank you, Your Honour.
66 HIS HONOUR: Mr Richards, you need to go with the police officers now thank you.
67 [Offender removed].
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