Director of Public Prosecutions v Rose

[2016] VCC 355

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

AT GEELONG
CRIMINAL JURISDICTION

CR 15-00440

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFFREY PETER ROSE

---

JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	3 February 2016
CASE MAY BE CITED AS:	DPP v Rose
MEDIUM NEUTRAL CITATION:	[2016] VCC 355

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty
For the Offender	Mr M. Goldberg

HIS HONOUR: 

1Geoffrey Peter Rose, you have been found guilty by a jury on two charges.  First, you engaged in persistent sexual abuse of a child under the age of 16, between 1 June of 2013, and 31 January 2014; and, secondly, between 1 December 2013, and 31 January 2014, you committed an indecent act in the presence of a child under the age of 16 years.

2You have no prior convictions.  The offence of engaging in a persistent sexual abuse of a child under 16, carries a maximum term of imprisonment of 25 years'; and committing an indecent act with or in the presence of a child under the age of 16, carries a maximum term of imprisonment of ten years'.

3The case against you involved evidence to the effect that you met your primary victim, and I do not propose to name either of the victims in the course of the sentencing remarks; whilst engaging in an online game.

4That was a game to which your primary victim, that is the victim on Charge 1, had been introduced to by a man by the name of Eric Anderson, with whom she had been and perhaps still was, at the commencement, engaged in a sexual relationship.

5During the course of the gaming, you began conversing online with the victim on Charge 1, and she told you she was 18 years of age.  You began taking an interest in visiting Victoria to see her and, indeed, you did come to visit her in Victoria on three occasions.

6By about July 2013, the sexual relationship between you and the victim on Charge 1, commenced.  By that time I am satisfied beyond reasonable doubt, that you well knew that she was under the age of 16 years.  Indeed, you well knew that she was 14 years of age.

7That is clear not just from the evidence of the victim herself, but from exhibits tendered in the case, including a photograph of her in her school uniform.  That sexual relationship involved a number of sexual acts which are particularised in the charge and I am not going to go into them in these sentencing remarks.

8Suffice to say that the relationship was maintained at least through into December 2013.  It was a continuing ongoing relationship from July to December 2013.

9The relationship apparently came to an end towards the end of
December 2013, or into early January 2014.  You left the State and returned to Queensland in late January 2014.

10During the course of your relationship with the victim on Charge 1, there was an occasion during which you were engaged in sexual intercourse with your primary victim, Charge 1; in the presence of the victim, the subject of Charge 2, who you knew to be sitting in a chair watching what was going on.  Indeed, I am satisfied that there was during the course of that event, a stage at which you invited her participation, although that did not take place.

11The offending was persistent and you knew that it was wrong.  It is the kind of conduct which is calculated to do significant emotional harm to your victims.

12The prosecution tendered, and relied upon, victim impact statements from the victim named in Charge 1, and her mother.  Those victim impact statements are a significant indication of the kind of emotional harm that accrues not just to the primary victim, but to close relatives of the victim, particularly a mother who has set out to protect her daughter from exactly that kind of conduct.

13I am bound to take into account and, do, the impact that your offending conduct had upon your victims.

14Before I turn to matters personal to you, I should say this.  In respect of Charge 2 on the indictment, I will be sentencing you as a serious sex offender.  It is common ground that I am required to sentence you to a term of imprisonment on Charge 1, and I propose to do so, and, therefore, I am required to sentence you as a serious sex offender on Charge 2.

15That can involve a sentence that is disproportionate to enable adequate protection of the community, however, the prosecution has not sought a disproportionate sentence in this case.  To the extent that I am inclined to order cumulation of sentences, as between the sentences on Charge 1 and Charge 2, I do so with regard to the totality principle, and do not propose to impose a sentence that is totally cumulative, as between the two sentences.

16You will also be required to comply with the reporting requirements of the Sex Offenders Registration Act, as a result of your conviction of these offences, for the rest of your life, and you will be given a document which sets out your obligations under that Act.

17The prosecution has also sought an order for you to provide a forensic sample by taking a scraping from the inside of your mouth, or alternatively a blood sample.  You will be approached during the course of your sentence, to provide a scraping from the inside of your mouth; if you do that, that is the end of the matter.  If, however, you, when requested to do so by an authorised officer, you fail or refuse to provide a sample in that way, the officer will be authorised to take a sample of blood and may use reasonable force to achieve that.  I am sure that you will not put the officer to that trouble.

18Turning now to matters personal to you.  Your counsel, Mr Goldberg, has provided me with a helpful outline of plea submissions and supplemented them orally, and he also provided me with a psychological report from
Dr Cunningham, dated 20 January of this year.

19The sentencing of you has to be considered in light of the sentence imposed upon Eric Anderson.  He appeared for sentence before Her Honour Judge Cohen, on 23 December 2014, and was sentenced to a total effective sentence of three years' and six months' with a non-parole period of 21 months'.

20He had pleaded guilty to an offence which involved persistent sexual abuse of the same victim as your victim on Charge 1 on the indictment against you.  That persistent sexual abuse occurred prior to the commencement of the abuse involved in Charge 1 against you.

21Clearly the victim was somewhat younger.  Mr Anderson was older, I think in the order of 42, 43 years of age, at the time of the offending.  He, on the facts presented to Her Honour Judge Cohen, insinuated himself into the lives of the victim's family, and took advantage of the trust that was reposed in him in a highly culpable way.

22It seems to me that Mr Anderson's offending is of a more serious nature than that in which you engaged.  That is not to play down the seriousness of your offending conduct, but, rather to try and identify a sense of proportion between the two sets of offending conduct.

23Mr Anderson received a sentence that was significantly discounted on two principle bases; one, that he pleaded guilty; and, two, that he had undertaken to give evidence against you in criminal proceedings.

24The discounts, of course, do not apply to you, but it is necessary, I think, for me to look to the kind of sentence that might have been imposed upon
Mr Anderson, had it not been for those discounts, in order to achieve a degree of parity between the sentences that I intend to impose upon you and those that were imposed upon Mr Anderson.

25I received some helpful submissions on that issue from your counsel during the course of the plea, and it seemed to me that a reasonable analysis might lead to the conclusion that a notional head sentence for Mr Anderson might have been in the order of seven years' imprisonment, had it not been for the discounts on those bases.

26Looking at the matters relevant to your background and relevant to sentencing you; you have led a somewhat itinerant and disrupted life up to now.  The history is set out in Dr Cunningham's report and I do not propose to go through it in any detail.

27He has diagnosed you as a person with Asperger's Syndrome, that is an autism spectrum disorder, and has suggested that the fact that you suffered from autistic spectrum disorder, contributed to your unstable life, and to the pattern of your drifting between groups of friends and romantic relationships.

28It seemed to me, looking at Dr Cunningham's report, and hearing the evidence given at the trial that by the time you committed this offence, you were something of a lonely figure, spending a considerable part of your time on the internet playing games.

29Dr Cunningham expressed the opinion that your social and emotional maturity is not commensurate with your age, and that you presented as naïve with respect to the influence of others, and you have struggled to maintain stable accommodation.

30He opines that your general instability, lack of direction and social and emotional immaturity set a context for your offending behaviour.

31He goes on to say that you would be vulnerable to manipulation by other prisoners in the prison system, and that your moral and social impairments place you at risk of contamination in the prison environment.

32It's difficult to calibrate with any degree of precision, how those factors should impact upon sentencing in this case.  It seems to me that, to some extent, there is an impact on your moral culpability, and to a greater extent, an impact on your capacity to deal with your term of incarceration.

33I readily accept that completing your sentence will be harder for you, more than it would be for a person without the disability from which you suffer.  It seems to me that those are factors that mitigate sentence somewhat.

34You have no prior convictions.  It seems that your risk of further offending is no worse than moderate.  You will have challenges ahead of you at the completion of your sentence and it is recommended that you receive some psychological assistance in dealing with your disability.

35You have, as I understand it, been in an isolated position in gaol.  You are, of course, separated from your family.  You have some contact with your mother, but have little or no prospect of receiving any visits from family or friends during the course of your sentence.  That, too, will make serving your sentence significantly harder.

36Your intention, as I understand it, is to return to live with your mother and sister at the completion of your sentence. 

37There is no evidence of sexual deviation which should alert the court to the need for, or a special need for the protection of the public.

38I am satisfied that although your moral culpability is still significant, and your offending conduct is serious, that it is less serious than that perpetrated by Mr Anderson, for the reasons that I have already outlined.

39Doing the best I can to balance the sentencing considerations that I must; the need to punish you adequately, the need to denounce your conduct, the need to deter you from further offending and, particularly, the need to deter others from engaging in this kind of conduct, against the need to promote your rehabilitation to the extent I reasonably can, I am now ready to pass sentence upon you.  Would you please stand.

40On Charge 1, of persistent sexual abuse, with a child under the age of 16, I sentence you to imprisonment for a period of four years' and nine months' and convict you.

41On Charge 2, of committing an indecent act with or in the presence of a child under the age of 16, I convict you and sentence you to imprisonment for a period of nine months'. 

42I order that three months' of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1, which makes a total effective sentence of five years' imprisonment and I order that you serve a period of three years' before you become eligible for parole.

43Can you please tell me the up to date pre-sentence detention?

44MR GOLDBERG:  Eighty-five days.

45HIS HONOUR:  I declare 85 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed and be deducted administratively from the period you will actually have to serve.

46On Charge 2, I sentence you as a serious sex offender and I declare that you will be the subject of the reporting requirements of the Sex Offenders Registration Act for life. 

47I also make the order for the provision of a forensic sample to which I have already referred.  Are there any other orders, gentlemen?

48MR O'DOHERTY:  No, Your Honour.

49MR GOLDBERG:  Take a seat.

50HIS HONOUR:  I have signed those forensic sample orders they will come back to you.

51MR O'DOHERTY:  Thank you, Your Honour.

52HIS HONOUR:  Mr Goldberg, if you want to accompany my associate just to ensure that your client's comfortable with signing the document relating to the obligations under the Sex Offenders Registration Act.

53All right, yes, thank you.

‑ ‑ ‑