Director of Public Prosecutions v Rickby (a pseudonym)

[2018] VCC 1419

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

NOEL RICKBY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 September 2018
CASE MAY BE CITED AS:	DPP v Rickby (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1419

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	Ms M. Revell	Office of Public Prosecutions
For the Accused	Mr T. Lynch

1HIS HONOUR:  Noel Lionel Rickby,[1] on 28 May 2018 you were convicted by a jury of two charges of attempted rape, two charges of rape, and one charge of sexual assault.  Those crimes carry maximum penalties of 20 years, 25 years, and 10 years respectively.  You are now 80 years of age, and were 78 years of age at the time of the offending.  You conducted a trial and have maintained your innocence, and accordingly, there is not a shred of remorse in terms of what you did.  That does not aggravate the situation, but it takes away what would have been a very important factor in mitigation, had you acknowledged your guilt.

[1] Noel Lionel Rickby is a pseudonym.

2You have no prior convictions, and I will turn to that again shortly. Firstly, pursuant to s.464Z 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 such a sample, police may use reasonable force to take it from you.  That order is made and handed down.

3Next, because of the nature of the offending and the discretionary order that I have made pursuant to s.11 of the Sex Offenders Registration Act, you are to be placed on the sex offenders register, and I advise you that the reporting conditions will be for life.  If you could take that down - if you could accompany my associate, please, Mr Lynch.

4MR LYNCH:  Yes.

5HIS HONOUR: Also pursuant to s.6 of the Crimes Act on Charges 3, 5, and 6, you will be sentenced as a serious sex offender.  I am aware that community protection becomes the major sentencing proposition, that orders are to be cumulative unless otherwise ordered, and the Crown does not here seek a disproportionate sentence.  There will be orders for concurrency, obviously, because of the totality of the situation.

6The circumstances were that the trial was relatively short in compass and was conducted on the basis that the victim was a liar.  You conducted a record of interview where you essentially said just that and said that she had it in for you.  And she was cross-examined on that basis.  I will be proceeding to the just straight summary of the Crown opening in this matter and then short references to the VARE.

7I start from the outset, in terms of that summary, by saying that I found the complainant a compelling witness and, I thought, a very truthful one.  The jury obviously took a similar view in regard to the majority of the charges, though there is one where there was discrepancies in the cross-examination which may have ultimately caused a doubt to the majority, upon which you were acquitted.

8The circumstances of it are that when the complainant, Josephine,[2] was around 19 years of age and you were 77 years of age, she came to live with you.  She referred to you as Mum and Dad.  You were certainly, at least, de facto carers of her and had been for some period of time.  In February 2016, there was an argument between your wife and Josephine, and your wife said she wanted to be taken to the shopping centre, which she did.  It was in the middle of the day.

[2] Josephine is a pseudonym.

9You then returned home.  Josephine was upstairs doing a jigsaw puzzle.  You went to her room and asked her what she was doing.  At that stage, she was wearing a T-shirt, bra, shorts, and underwear.  You asked her if she would like to play.  She asked what you meant, thinking you wanted to play a game like cards or Monopoly.  She said okay.  You asked if you could kiss her on the lips.  She said no, and said you could kiss her on the cheek.  You told her to stand up and said you would remove her clothes and underwear.  She said no.

10You told her to sit on the bed.  She asked why.  You said you wanted to show her how to have proper sex.  She said, "No, thank you," and you told her it would not hurt.  You then removed her underwear and tried to have sexual intercourse with her.  She said that your penis looked small.  You told her, she said, that she would not get pregnant because you had had a vasectomy.  You tried to insert your penis into her vagina and were unsuccessful.  You said it was not working and was too small.  She told you to stop, and ultimately you did.  It is the charge of attempted rape.

11You then told her that you would finger her until she got wet.  You then inserted two fingers into her vagina.  She told you to stop, and you did not.  She then did not want to tell you to stop because she thought you would get angry at her.  You continued that for several minutes until you did stop.  After that, there was lunch, and she went back to her bedroom to watch television.

12When she was watching the second movie - this is some time after the original incident - she was on her bed.  You came up and asked her what she was doing, and she told you she was watching a movie.  You told her to turn off the television, which she did.  You asked her if she wanted to "do sex" again.  She said no, and she was tired.  You said she could lie down, if she needed to.

13She lay down.  You then removed her shorts and underwear.  She told you to put them back on.  You said no, and you tried to have sex again.  You then attempted to have penile sexual intercourse with her by lying on top of her and trying to insert your penis into her vagina.  That gives rise to Charge 3, of attempted rape.  That was unsuccessful.  She told you to stop.  You continued for a few minutes, and said it was not working, and then stopped.

14You told her not to tell anyone and said it was your secret.  You asked her if she enjoyed it.  She said no.  You then left the room.  She said she felt physically sick about what happened.  She was wondering whether she should tell anyone, but decided not to, because she was worried about your wife finding out.

15On another occasion, about a week later, you drove your wife to the entertainment centre in Sale, and returned home at about 6 o'clock.  Not long after you arrived back, Josephine was in the lounge room watching television.  You came into the room, sat on the couch, and watched the movie with her.  You then beckoned her to sit next to you.  You asked her if she wanted to play.  She asked what you meant.  You said, "Like, kiss."  She said that when she goes to bed, she usually kissed both you and your wife on the cheek.

16She agreed that you would only kiss her on the cheek.  You kissed her on the lips.  She tried to push you away.  You encouraged her, and asked her to try and enjoy it.  You put your tongue in her mouth and kissed her on the lips a number of minutes, and then stopped.  That, of course, was an uncharged act in this situation.  While you were kissing her, you told her she was making your penis grow.  She felt upset.  A little while later, you were still watching television.  You asked her again if she wanted to kiss.  She said, "No, thank you."  She wanted you to stop.

17You asked if she wanted to play again.  She asked you what you wanted to play.  You said you would finger her.  She replied, "No, thank you."  You urged her to let you do it.  You said you would not hurt her, and told her you loved her.  You put your hands down her underwear and pyjama shorts, and inserted two fingers into her vagina.  That is Charge 5, of rape.  It caused her pain.  You continued to move your fingers in and out of her vagina for a number of minutes.  She told you to stop.  You said no, and you would wait until she got wet.

18She told you it hurt and asked you again to stop.  You said you would stop soon.  She wanted to tell you again to stop, but did not, because she thought you would get angry at her.  Eventually, you stopped.  During that period of time, you were touching her breasts underneath her singlet top.  That gives rise to the charge of sexual assault.  Not long after that, she moved out, and ultimately I do not need to go through the detail of that.

19Police became aware of the matter, and a VARE tape was conducted with her.  That tape, of course, was played during the course of the trial and was the basis of the Crown opening that I have just outlined.  She was, of course, cross-examined during the course of the trial and it was put to her none of this had happened.  I do not need to quote from that.  I just think, so far as this matter is concerned, that just a couple of portions from the VARE tape should be referred to.

20I have already dealt with the detail of it, but they are just matters which, in my view, indicate the genuineness and the naivety, if you like, of what she was saying.  She said:

21"And he told me that he can't get me pregnant because he had a vasectomy, I think."  [Question:]  "A what?"  "Vasectomy."  "Ah, right, yeah."  "And I said, 'Okay.'  And then - then I told him to stop.  He stopped, and he fingered me, m'mm, with two fingers, and they felt like sandpaper.  And I - then I told him to stop, and he kept on going.  And then he kept on going; I did not want to tell him to stop because I felt like he was going to crack it at me."

22Later on, she was describing in detail another incident in which she said, and I will do this in a little bit more detail:

"And then he had a shower, and he fed the dogs 'cause we have two dogs and two cats and a couple of cows.  And then he came back in and watched the movie with me, but I was on a separate chair to him.  M'mm, and then on the couch, 'cause I was on the chair.  And then he says, ‘Josie, come and sit next to me.'  And he was tapping on his left - close to his left leg.  And then I was - said, 'Okay, might as well, 'cause that' ‑ ‑ ‑ [and then she belched there, and said] Pardon me." 

The police officer said, "That's okay."

"And I was sitting there, and then there was an ad.  And he says, 'Did you want to play?'  I said, 'What do you want to do?  Like, what do you mean by that?'  And he says, 'Like, kiss, like.'  And usually, when I go to bed I kiss them, but not - not on - only on the cheek, m'mm.  And I said, 'Yeah, only if it is on the cheek, okay.'  But he actually - it was on the lips.  And I have tried to push him away, and he says, 'Come on.  Try and enjoy it.'  And then the movie came back on.  And like, when we stopped kissing, it went for roughly about 15 minutes, and then the movie was on.  Then he waited for another break, and says, 'Oh, did you want to kiss again?'  I was like, 'No, thank you.  I feel a bit dizzy,' 'cause I wanted him to stop.  Like, that would be an excuse to tell him to stop, but he didn't.  And then he says, 'Did you want to play again?'  I was like, 'What would you like to play?'  And he says, 'No, me finger you.'  And I said, 'No, thank you.'  He is like, 'Come on, Josie, it's okay.  I won't hurt you.'  He said, 'I love you.'  So, he fingered me.  It went roughly about 20 minutes.  And then he had his hand and put it down my shorts and undies 'cause I had my PJs on after my shower, and then he fingered me.  And then I told him to stop.  And he said, 'No, I'll wait until you get wet.'  I said, 'Can you please stop?  It's hurting.'  He said, 'It's okay.  I'll stop in a minute.'  But he didn't until I got wet.  And then we watched a movie, and then he kept on kissing me."  "What happened, Josie?"  "Then after the movie had a break, it would've been close to 7.30 or something, I think, and Lucinda[3] came home.  And she - he says, 'Don't tell Lucinda.  It's gonna be our biggest - it's gonna be our secret.'  Later on, I was in my room doing my jigsaw puzzle, then he comes back, comes into my room saying, 'What are you doing?'  I was like, 'I'm doing my jigsaw puzzle.'  'Oh, okay.'  And then, 'Okay.  Did you want to play?'  I said - 'cause I thought he meant, like, Monopoly or something, m'mm, or a card game.  Then I said, 'Okay, then.'  And then he started - 'Oh, sit on your bed.'  I was like, 'Okay, why?'  'Oh, because I want to show you something; how you can have proper sex.  Have you had sex before?'  And I was like, 'No.' (Indistinct words), 'That's okay, this won't hurt, m'mm.'  And then he was thinking - I don't know what he was thinking, but he said I can't get pregnant by him 'cause he's had a vasectomy.  So, well, then he forced my shorts and undies down onto the ground and then took - because I had - not - not these normal shoes that I'm wearing now, but, like, shoes to support my feet, m'mm.  So, he took them off, as well.  And then he - and then we had sex.  Well, he tried to put it in, but he's put his penis inside my vagina.  He says, 'No, it's not working.  He's too small.'  He's talking about his penis, but he's saying it's too small.  Then he says, 'That's fine, Josie, I'll just finger you until you get wet.'  I told him no.  That's what I was thinking of tell him, saying no, but he did it anyway.  So, it was a bit annoying, so I just let him do it."

[3] Lucinda is a pseudonym.

23There is no way on earth that girl is making that up.  She is cognitively impaired.  You knew she was cognitively impaired; that is clear from the record of interview.  She was saying no, and you really did not care whether she was agreeing.

24OFFENDER:  That’s all lies, sir.

25HIS HONOUR:  Stay quiet.  In your record of interview, these matters were put to you, and you basically said that she had it in for you and she was making it up.  In these circumstances, you were in a position of trust, and the application of general and specific deterrence are equal in importance.  Normally, someone of your age, specific deterrence does not become a factor because it is usually offending of an historical nature.  But you offended at 78.

26I am taking into account that it is unlikely that you will offend again in this way, and it was in a situation where there was that care and that duty of care towards her.  There has to be denunciation of what you did and an appropriate punishment.  A very significant gaol term is the only available option in your particular circumstances.  I then turn to matters personal to you.

27Tendered on your behalf was a number of testimonials or references, and I have read them.  As I indicated to your counsel, it is a concern the bulk of those seem to be simply trying to assert your innocence, which you continue to maintain, and were therefore of very little use to me.  What it does indicate is that you are maintaining this position, and that you have little insight into the seriousness of what you have done.  You have now heard her victim impact statement, and in my view, it is a very clear indictment of the effect of what you did had on her.

28In that victim impact statement, she says that one of the things that really hurt was your wife not believing her.  That is the effect that it has had.  I do take those testimonials into account, you have no prior convictions, and, as I understand it, you have no matters pending.  You have got to the age 78, it would seem, without offending in this way, but you now have.

29There was concern at the commencement of the trial from your then-counsel that there may have been some sort of fitness to stand trial argument.  I was not interested in that, and, accordingly, the trial proceeded.  Subsequently, there has been a neuropsychological report done upon you since you have been in custody, and I will simply read the summary of opinion from that.  I also point out that a Dr Monaro, a geriatrician, says that your memory problems seem to have started, or become noticeable, around May of 2016, which I note with some interest is around about the time you were first interviewed for these matters.  But in any event, that reports says:

"Mr Rickby is an 80-year-old man, who is currently remanded in custody at Hopkins Correctional Centre after being found guilty of serious sexual offences."

30It then says he has been referred by the solicitor.

"On the basis of the available background information, it appears that Mr Rickby began to demonstrate some cognitive and behavioural difficulties around the time of arrest in mid-2016.  There are some reports of worsening of these difficulties over the next 12 months.  During that 12-month period, he had a number of hospital admissions and surgeries requiring general anaesthetic.  Mr Rickby was aware he demonstrated some behaviour changes during that period.  He thinks his behaviour has now improved.  His behaviour during this assessment was appropriate."

31I should point out that this assessment has taken place subsequent to conviction, obviously.

"On formal neuropsychological assessment, the majority of Mr Rickby’s performance was within normal limits for his age.  There was, however, evidence of attentional problems which impact on the efficiency of his learning and result in some word retrieval difficulties.  There is no evidence of rapid forgetting, as would be expected in early dementia of the Alzheimer's type.  Language and visuospatial functioning were intact.  There was no evidence of executive dysfunction at the behavioural or cognitive level.  Mr Rickby’s history and neuropsychological profile does not currently support a diagnosis of dementia.  At this stage, it is not clear how to best account for his mild cognitive difficulties.  Contributing factors may include vascular-related cognitive impairment, lowered mood, and daily pain medication.  Referral to a psychiatrist is recommended to manage his mood.  Mr Rickby’s attentional difficulties may impact on his day-to-day functioning.  He is likely to become overloaded if presented with too much information.  He may lose trach during conversations and tasks.  His memory may be unreliable, but will be assisted by prompts and cues.  Worsening in his mood may make these difficulties more apparent.  Hearing issues will also make his problems more evident in noisy environments."

32In other words, there is nothing really wrong with you, Mr Rickby.  You do have a serious number of medical conditions.  Mr Lynch pointed all those out to me, and they are contained within reports.  I do not think I need to go there.  I accept, for these purposes, that in so far as your confinement is concerned, you will find it harder than would a person of younger years without your physical infirmities.  However, it is clear that there is nothing within the problems that you have that cannot be adequately treated within a custodial environment, and, accordingly, that takes it no further than that.

33I take into account that you will be leaving a wife and you will be leaving a community apparently still prepared to believe you, and that that will weigh upon you.  However, when you were denying that the offending has even occurred, and even during the course of sentencing decided to tell me it is lies, there is nobody to blame but yourself for all this.

34Again, the principles of Verdins do not apply in terms of moral culpability.  I have taken into account very much, or as best as I can, the submissions that were urged upon me by very experienced counsel, that you are in the twilight of your years - there is no life expectancy that has been given to me - and that I should, he argued, moderate the sentence because of the fact that you may not survive a gaol sentence.

35I do that as well as I am able to do, but the fact remains in this situation that whilst I take that into account in terms of the difficulties that you will have in this sentencing circumstance, there is no room here for mercy which might have been available, had you pleaded.  And accordingly, a significant sentence is inevitable.

36Accordingly, taking all those matters into account, and bearing in mind that the prospects of your rehabilitation are somewhat problematic, the risk of you reoffending in these circumstances, even though you offended at the age of 78, because of the sentence you are going to get are probably low.  I take that into account as best I can.

37But in the ultimate, on Charge 1, four years.  On Charge 2, five years.  On Charge 3, four years.  On Charge 5, five years.  And on Charge 6, six months.  That six months is to be served concurrently with the other sentences.  I direct that six months of the sentence imposed on Charge 1, one year of the sentence imposed on Charge 3, two years of the sentence imposed on Charge 5 are served cumulatively upon each other and upon the sentence imposed on Charge 2.  That gives an effective head sentence of eight years and six months.

38I direct that you serve a minimum term of six years before becoming eligible for parole, and I direct that 100 days be reckoned as having being served under this sentence.  You can remove the prisoner, please.

39MR LYNCH:  If Your Honour please.

40MS REVELL:  If Your Honour pleases.

41HIS HONOUR:  Yes, stand down for the trial.

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