Director of Public Prosecutions v Rowe

[2015] VCC 1441

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01189

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE ROWE (a pseudonym)

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 October 2015 (plea and sentence)
DATE OF SENTENCE:	9 October 2015
CASE MAY BE CITED AS:	DPP v Rowe
MEDIUM NEUTRAL CITATION:	[2015] VCC 1441

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Indecent assault of a girl under 16 – Historical offence

Legislation Cited:     Sex Offenders Registration Act 2004

Sentence:Two years’ imprisonment wholly suspended for two years – s.6AAA Sentencing Act 1991

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms L. Dipietrantonio	Solicitor for Public Prosecutions
For the Offender	Mr G. Douglas	George Douglas Co Pty Ltd

HER HONOUR: 

1Luke Rowe (a pseudonym), you have pleaded guilty to one charge of indecent assault of a girl under the age of 16 which has a maximum penalty of five years' imprisonment.

2The agreed summary of prosecution opening is the factual basis upon which I sentence you and I adopt its contents as part of my sentencing remarks.

3Suffice to say, that during the summer months of 1975 to 1976, you were staying with the victim’s family in the Sunbury area.  You were 32 and the victim was 14 years old, and you were a trusted family friend who had known the family for about ten years.

4You were a musician and you were staying with the victim’s family as you had a performance on television the following day.  You had all been to a barbeque at a neighbour’s during the day and that night, you slept in the victim’s brother’s bedroom.  While all of the family members were asleep, you stole into the victim’s bedroom.  She awoke to you touching her on the vagina.  She said in her police statement that she froze.  You then inserted a finger into her vagina.  She said this continued for about 15 minutes.  You said nothing and after this you left the room.

5The victim told a school friend about what had happened a few days later.  However, she did not feel able to disclose this to anyone else until she went to the police in June 2014.

6When the police interviewed you about the alleged offence you lied to them, saying that you did not recall any incident of sexual assault although you did recall an occasion when you slept in the victim’s brother’s room.  You knew very well what the police were talking about, Mr Rowe.

7Your offending is aggravated by the fact that you were a trusted family friend and although you were not in a supervisory role towards the victim, you grossly breached the trust that the family had placed in you.  Further, you offended against the victim in the sanctity of her own home in her own room where she was entitled to feel safe.  I also factor in the age difference between you and the victim, which was in the order of 18 years.

8I regard this as a serious example of the offence.  Had it been committed more recently, you would have been charged with a more serious offence with a higher maximum penalty.  In any event, your offending is deserving of a punishment which is just in all of the circumstances and your criminal conduct must be denounced.  Strong weight must be given to general deterrence in a bid to deter others from behaving as you have.

9As the victim said in her most eloquent victim impact statement, which was read aloud in Court, you took away her innocence and your offending has impacted profoundly upon her life.  She has struggled with her mental health and her hopes and dreams for the future have been ruined.  While you have gone on to lead a life in a fairly carefree manner, like most victims of sexual assault, the victim has battled with the devastation that you have caused.  In such circumstances, it is not appropriate for you to call delay in aid of your situation other than to show that in the intervening period you have not committed any further offences, which is a positive indicator in respect of your prospects of rehabilitation.

10You have only one prior conviction which is extremely dated and irrelevant to the offence before me.

11On the basis of your lack of criminal history and the character references, I find that you are of otherwise good character.

12I have also taken into account that you are now 72 years old and that you have a number of serious health issues which would make time in gaol harder for you than for someone without these issues.  Further, you have lived in Queensland for many years now and this is where your family and friends reside, with no family or friends in Victoria.  Therefore, time in gaol would be harder for you than for someone with such supports around them.

13I take into account the psychological report of Mr Handrick dated 9 September this year, which was tendered on your behalf.  It was not submitted that there ought be any reduction in your moral culpability or the weight that ought attach to other sentencing principles because of any impairment of mental function suffered by you.  Therefore, although I take the report into account in a general way in respect of your mental health, I make no allowance in these respects.  Mr Douglas, on your behalf, most properly took me to a passage in the report which contained a rather concerning aspect of your outlook in respect of the offending.  You told the psychologist that you were not aware that the child was underage.  Mr Douglas was swift to counter this assertion by you, in circumstances where you had known the family for about ten years.  It defies belief that you had no knowledge about this, in any event.  

14By your plea of guilty, you have indicated that you did have such an awareness.  However, as recently as July this year, when you were speaking to Mr Handrick, you said that it never crossed your mind that the complainant was under the age of consent, which gives me some cause for concern as to your level of insight and willingness to take full responsibility for your actions.  You went on to say that you were stunned by the consequences of your behaviour, 40 years hence.  Again, this gives me some cause for concern as it tends to indicate that you have little insight into the serious nature of what you have done.

15However, I also factor in the assessment of risk that Mr Handrick conducted which puts you at low risk of further offending.

16I take into account your plea of guilty which was entered at an early stage.  This entitles you to a significant discount in the sentence you would otherwise receive as you have saved the witnesses, in particular the victim, the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings.  I accept that you are somewhat remorseful for your actions although this must be qualified by your problems with fully developed insight into the seriousness of your offending.

17I take into account your background insofar as this was related to me by
Mr Douglas.  You were born in New Zealand and came to Australia in 1964.  You tried to make a living in the entertainment industry as a musician but this was sometimes difficult and lack of employment from time to time had to be supplemented by various other jobs.  You have been married twice.  There are two children from your second marriage, both of whom are now adults.  I note that your daughter is only a little younger than the victim in this matter.  You separated from your second wife in 1983.  You are retired and live on your own in a rural area in Queensland.

18I was told that you had not consumed alcohol for 20 years.

19In all of the circumstances, I find that your prospects of rehabilitation are very good and I need place only minimal weight on specific deterrence and protection of the community.

20It was submitted by your Counsel that in view of your early plea of guilty, your age and state of poor health, your near spotless criminal history and the fact that this offence occurred about 40 years ago, a wholly suspended sentence was appropriate.  The learned prosecutor submitted that such a disposition was within the range.

21I was helpfully provided with some material in respect of sentencing practice, although, as was acknowledged, the material was of limited assistance in this particular case.

22Mr Rowe, make no mistake, if you had committed this offence in more recent times, I would have had no hesitation in sending you to gaol today as this is what your despicable conduct warrants.  However, in view of the fact that this was one instance of offending about 40 years ago, that you have pleaded guilty at an early stage, and that you have behaved yourself ever since, I am persuaded that a wholly suspended sentence is appropriate.

23Would you please stand up?

24You are convicted of the charge on the indictment and I sentence you to two years' imprisonment which will be wholly suspended for two years.  If you commit an offence in the next two years which is punishable by a period of imprisonment, then unless you can show exceptional circumstances as to why you should not serve the two years' gaol I have suspended, then you will be required to serve this term immediately.   Do you understand that?

25OFFENDER:  Yes, Your Honour.

26HER HONOUR:  If not for your plea of guilty I would have sentenced you to three years' imprisonment with a non-parole period of two years’ imprisonment.  That is, that term would have to be served immediately.

27I make the following ancillary orders:

28You are to undergo a forensic sample which is to be taken by way of a buccal swab from the mouth.  I make the order because of the seriousness of the offence you have committed, because the order is not opposed by you and because it is in the public interest to make the order.  I warn you that if you do not co-operate in the taking of this sample, then an authorised officer may use reasonable force to secure the sample.

29Under the Sex Offenders Registration Act 2004, by reason of your conviction of this offence, you are to be recorded as a registrable offender for 15 years. You must report your personal details to the Chief Commissioner of Police annually for the next 15 years. You must first do so, that is, report, within seven days from today. Details in writing of these reporting conditions will be served shortly upon you by my associate. I will ask your counsel to attend to an acknowledgement of that notice and have you sign it.

30Take a seat, please, sir.

31Is there anything else, counsel?

32MS DIPIETRANTONIO:  No, Your Honour.

33HER HONOUR:  All right.

34MS DIPIETRANTONIO:  I have the orders - - -

35HER HONOUR:  Yes.

36MS DIPIENTRANTONIO:  - - - for Your Honour's signature.  Three copies.  Four actually. 

37(Orders signed and acknowledged.)

38HER HONOUR:  Are they the matters then, counsel?

39MS DIPIETRANTONIO:  Yes, Your Honour.

40HER HONOUR:  Thank you for your assistance, counsel.

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