Director of Public Prosecutions v Rigby
[2017] VCC 1637
•9 November 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-00632
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD LLOYD RIGBY |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 November 2017 | |
CASE MAY BE CITED AS: | DPP v Rigby | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1637 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms R. Marques | |
| For the Accused | Mr R. Wilcox |
HER HONOUR:
1Richard Lloyd Rigby, you have pleaded guilty to four charges of indecent act with a child under 16 (Charges 1 to 4) and one charge of sexual penetration of a child under 16 (Charge 5). The maximum penalty for indecent act with a child under 16 is ten years’ imprisonment. The maximum penalty for sexual penetration of a child under 16, where that child is under 12, as in this case, is 25 years’ imprisonment.
2The prosecutor made application for the taking of a forensic sample from you. The making of that order was not opposed.
3The circumstances of your offending are set out in detail in the Summary of Prosecution Plea Opening, which was tendered as Exhibit A. In brief, the circumstances were as follows. In 2010, you were in a relationship with the victim’s grandmother and living with her. The victim, at this stage, was about five years old and she would often stay with her grandmother. On one occasion, the victim was on her bed with you. You rubbed her breast over her pyjamas (Charge 1 - indecent act with a child under 16). You then touched and rubbed her vagina underneath her pyjamas (Charge 2 - indecent act with a child under 16). The victim started crying and you told her to stop crying like a two year old.
4In 2014, when the victim was around eight years old, you were babysitting her in her home while her mother attended night school. You and the victim were watching television. On this occasion you touched the victim on the breast area (Charge 3 - indecent act with a child under 16), and then began to rub her vagina (Charge 4 - indecent act with a child under 16). You then penetrated her vagina using one finger (Charge 5 - sexual penetration of a child under 16). This penetration caused the victim’s vagina to bleed. The victim’s mother took her to a doctor, but the bleeding was thought, at the time, to be menstrual bleeding.
5The offending came to light in February 2016 when the victim rang the Kids Helpline and disclosed that she had been sexually abused by you. At that time, the victim was ten years old.
6Victim Impact Statements were tendered from the victim, Exhibit B, and her mother, Exhibit C. Both Victim Impact Statements were read in court.
7The victim says that when the events were happening, she thought it was the right thing to do at the time, but that she was scared and frightened and confused. In a copy of her note from 2016, she says that she is scared in case you are going to be mad at her for telling. She says she has nightmares and problems eating. She also describes her difficulties as a result of changing schools and having to talk to the police. It is clear from a diary entry of 2016, that she is still suffering considerable distress as a result of your offending. The victim is clearly both brave and resourceful. It is to be hoped, that with support and time, her distress will reduce.
8In her Victim Impact Statement, the victim’s mother describes the impact on her after finding out about this offending. She says that she has had several breakdowns and is now medicated for anxiety and depression. In common with many mothers, she struggles with the feeling that she was not able to protect her child from harm. She says she is unable to stop thinking about the matter and it causes her difficulties in sleeping and socialising. She says that she has great difficulty in trusting any other person. She says that her daughter is not the same person and spends much of her time in her room with the blinds closed. The victim’s mother describes the impact on her and her family of the financial and emotional costs of trying to deal with the bad memories caused by your offending.
9You indicated your plea of guilty to the charges on the indictment on the day of a scheduled contested committal hearing before any evidence was called. The prosecutor confirmed that this was after there had been ongoing negotiations.
10
In sentencing you, I have taken into account your personal circumstances. You are now 55 years old. You are a single man with no children. You were born in the United Kingdom. Your father moved from job to job and you had
a transient life in your early years. You are the second eldest of four sons. Your father left home when you were about seven years old. You say your family was very emotionally distant. When you were three years old, you tragically discovered your paternal grandfather deceased after he had died from natural causes. Your mother, you and your brothers migrated to Australia when you were nine years old. Shortly before that, you had been sexually offended against by a young man at a party. Your father’s brother accompanied your mother to Australia as her partner for the purposes of migrating to Australia. Your mother and your uncle had two daughters but are now separated. Your mother then had a relationship with another man with whom she had
a daughter.
11Shortly after arriving in Australia, you and your brothers were sent to what you describe as a home for delinquent boys in Bacchus Marsh. After six months, you were returned to your mother. You felt confused and abandoned about this and it appears that there has been no explanation provided, other than that it was a mistake. The circumstances of your family were always financially constrained. Your mother began drinking heavily when you were in your early teens. Your uncle, Philip, had been cold and distant and your mother’s partner after that was very strict.
12You struggled academically in school and left school after Year 10. You commenced drinking alcohol in your early-teens and used cannabis soon after. You had some experience with illegal drugs but you ceased drinking at 35 and no longer use illegal drugs.
13
When you were 15, you had a part-time job stacking supermarket shelves. You were told to leave home, as you were an adult and to make your own way in life. You were allowed back into the family home at 17. You took a job at
a sawmill for 12 years. There were issues in the family with your mother’s then partner and you and your mother moved to country Victoria, where you drove
a taxi for 12 years. You did that work until you were arrested. Since your arrest, you have been on Newstart Allowance and have done some work for the dole as a gardener.
14You have admitted one prior court appearance in 1983 for an unrelated and irrelevant matter.
15A report, dated 8 June 2017, from Mr Warren Simmons, psychologist, was tendered on your behalf (Exhibit 2). Mr Simmons assessed you as at low risk of re-offending. In his report, Mr Simmons outlines your background. He says that you appear to have ongoing problems with anxiety but do not appear to have any other significant disorder. He says that you may have a learning difficulty but some of your difficulties may be due to a personality disorder, with avoidance and schizoid traits. There was no evidence to support a diagnosis of a psychotic disorder. He says that your feelings of abandonment and trauma from your childhood left you “feeling isolated, alone and unloved”.
16Mr Simmons also says:
“Mr Rigby appears to have been engaging in physical contact with the victim, but for whatever reason, he struggled with drawing a boundary between showing affection through physical contact and moving to sexual intimacy. Mr Rigby does not minimise his actions and takes full responsibility, saying that his ‘stop button’ went missing.”
17According to your counsel, you met the victim’s grandmother and began to board with her. A relationship developed. You made advances to the victim’s mother but they were rejected and animosity commenced from the victim’s mother. Your counsel said that you acknowledge the breach of trust involved in your offending and the impact on the victims. You have told your counsel that you cannot put words on paper but would like to apologise. Your counsel says that you are genuinely remorseful.
18Your counsel particularly relied in mitigation on your plea of guilty, prior to the committal commencing, submitting that that had both utilitarian benefit and was an expression of genuine remorse and a willingness to facilitate the course of justice. He says it also indicated acceptance of responsibility for the offending and impact on the victim. He also submitted that your disruptive upbringing should be taken into account.
19Your counsel submitted that the appropriate penalty would be a community correction order.
20The prosecutor, in sentencing submissions, referred to the relationship between you and your victim and the breach of trust involved in your offending. He also pointed to the significant impact that the offending had had on the victim, her mother and the family generally.
21Richard Rigby, any sexual offending against a child is a serious matter, especially where that offending involves sexual penetration. In this case, you offended on two occasions against a very young child who was a member of your partner’s family. You were an adult whom she ought to have been able to trust. Your abuse of trust has caused an enormous amount of distress. In this case, as in so many cases where the victim of the offending is in a family relationship with the perpetrator, the disclosure of the offending results in rupture of the family, distress to family members and distress and confusion in the victim.
22
You offended on two occasions, some years apart. You should have been alert to the problem you had in restraining your behaviour after the first occasion. You were entirely dismissive of the victim’s distress. The second occasion was significantly more serious, as it involved penetration. Your behaviour was abhorrent and disgusting. It must be strongly denounced and severely punished. I accept that your behaviour was opportunistic, rather than
pre-planned, although as I have said, you clearly ought to have been warned by what happened on the first occasion.
23On the basis of the psychological report, my conclusion is that you do have some paedophilic interest, although I accept Mr Simmons’ description that that is secondary to an adult heterosexual interest. The fact that you committed these offences and appear to have at least some sexual interest in children, is extremely disturbing and suggests that there is some risk of you re-offending. A sentence of imprisonment must be imposed which is severe enough to deter you from further offending and to deter others from offending in a similar way. Adults must resist impulses towards bad behaviour and control their own behaviour in order to protect children from the immediate and ongoing harm which results from sexual abuse.
24I have taken your background into account in sentencing you but none of that background, in my view, provides any explanation for this offending. At the time of the offence, you were in a relationship with the victim’s grandmother and had stable employment. You were apparently accepted into that family and whatever your feelings about your childhood were, I do not accept that those feelings had any causal role in this offending.
25You are entitled to a significant discount for your plea of guilty. That plea of guilty was not made the earliest opportunity but I accept that it was an early plea after negotiations between prosecution and defence. I accept that your plea of guilty is an expression of genuine remorse. That plea of guilty has also saved the trauma and expense of a trial.
26
You are entitled to have it taken into account that you have no prior criminal history in relation to this matter of any significance. There has been some delay in this matter coming to court and you have not re-offended in that time.
I consider that your prospects of rehabilitation are reasonable and may well be improved by participation in an appropriate program.
27
I consider that a sentence of imprisonment is the only type of sentence that could appropriately reflect the seriousness of your offending and the need for denunciation, just punishment, general deterrence and specific deterrence.
A community correction order would not satisfy those requirements, even in combination with a sentence of imprisonment, given the seriousness of your offending.
28I have taken into account that because of the nature of your offence, imprisonment is likely to be more difficult for you. No submissions were made that you would be put into protection in custody but I have taken into account that any custody circumstances will be more difficult for you because of the nature of your offending.
29In determining the degrees of concurrency and cumulation, I have taken into account the principles of totality and proportionality. I have provided some cumulation, on the basis that each act of abuse was an added insult to the victim and that there were two separate incidents.
30You will be convicted and sentenced to a term of imprisonment on each of Charges 1 and 2, which means that you fall to be sentenced in respect of the remaining charges as a serious sexual offender. The prosecution did not seek a disproportionate sentence and I do not intend to impose a disproportionate sentence for the purposes of community protection.
31You will be required to report under the Sex Offenders Registration Act 2004 for the remainder of your life. You will shortly be given documentation which explains your obligations in that regard.
32Please stand.
33On Charge 1, indecent act with a child under 16, you are convicted and sentenced to six months’ imprisonment.
34On Charge 2, indecent act with a child under 16, you are convicted and sentenced to 15 months’ imprisonment.
35On Charge 3, indecent act with a child under 16, you are convicted and sentenced to eight months’ imprisonment.
36On Charge 4, indecent act with a child under 16, you are convicted and sentenced to 18 months’ imprisonment.
37On Charge 5, sexual penetration of a child under 16, you are convicted and sentenced to four years’ and six months imprisonment.
38The sentence on Charge 5 is the base sentence. One month of the sentence on Charge 1; five months of the sentence on Charge 2; one month of the sentence on Charge 3; and two months of the sentence on Charge 4, are to be served cumulatively on each other and on the sentence on Charge 5.
39The total effective sentence is five years' and three months' imprisonment.
40I declare that you are required to serve three years and six months before you are eligible for release on parole.
41But for your plea of guilty, I would have sentenced you to a term of imprisonment of six years and nine months, with a non-parole period of four years and nine months.
42I declare that you have served 50 days of this sentence by way of pre-sentence detention, which will be deducted administratively.
43In respect of Charges 3, 4 and 5, you are sentenced as a serious sexual offender.
44I have made the order for the taking of a forensic sample from you. I make that order because of the seriousness of the circumstances of the offending, the order not being opposed and that the granting of the order is in the public interest.
45Mr Rigby, I am required to tell you that you must co-operate with the authorities when they come to take the sample. The authorities will come to take a sample, by way of a saliva swab, a buccal swab, from your mouth. I am sure that you will co-operate, but if you do not co-operate, they are authorised to use reasonable force and to take a blood sample from you.
46Thank you, could you please be seated.
47Mr Willcox, would you be able to go with Mr Bastianon and provide Mr Rigby with the Sexual Offence Registration Act documentation.
48MR WILLCOX: Yes, Your Honour.
49HER HONOUR: Mr Rigby, you will be asked to sign a document acknowledging your receipt of that documentation. Thank you. Thank you, Mr Bastianon.
50Thank you very much. All right, now, does either counsel need anything repeated or is there anything with the additions and so forth that you can see that is not working?
51MS MARQUES: No, Your Honour.
52HER HONOUR: All right. All right, if anything arises, please let me know as soon as you can. Thank you. Thank you, Mr Rigby can be taken down now please. Thank you, Mr Rigby.
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