Director of Public Prosecutions v Ryan (a pseudonym)

[2023] VCC 2288

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LESLIE RYAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2023, 6 December 2023
DATE OF SENTENCE:	6 December 2023
CASE MAY BE CITED AS:	DPP v Ryan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC 2288

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plead of guilty - Indecent assault upon a female – Carnal knowledge of a 16 to 18 year old female – Victim was the paternal niece of the offender – Historic offending – Breach of trust – Involved psychological presentation – Degree of insight and genuine remorse – Excellent prospects of rehabilitation – General deterrence – Delay.

Legislation Cited:      Crimes Act 1958 s 55(1); Crimes (Amendment) Act 1967; Sex Offenders Registration Act 2004; Sentencing Act 1991 s 6B.

Cases Cited:DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148; Clarkson v The Queen (2011) 32 VR 361; Director of Public Prosecutions v Buhagiar & Heathcote [1998] 4 VR 540.

Sentence:                  Imprisonment for a period of 3 years, wholly suspended for a period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A Malik	Office of Public Prosecutions
For the Accused	Mr G Steward	Amad Lawyers

HIS HONOUR:

Introduction

1Leslie Ryan[1], you have pleaded guilty to:

(a) three charges of indecent assault upon a female contrary to s 55(1) of the Crimes Act 1958 as amended by the Crimes (Amendment) Act 1967, which carries a maximum penalty of 5 years imprisonment (Charges 1, 2 and 3). Charges 1 and 2 being rolled up charges; and

(b) one charge of carnal knowledge of a 16 to 18 year old female contrary to s 50(1) of the Crimes Act 1958, as in operation between 1 April 1959 and 28 February 1981, which carries a maximum penalty of 1 year imprisonment (Charge 4).

[1] A pseudonym.

2You have no criminal record.

Circumstances of the offending

3A summary of the prosecution opening was tendered on the plea and may be summarised as follows:

4You were born in 1949 and were approximately between 24 and 25 years of age at the time of the offending. You were living with your then wife in Altona.

5The victim in this matter is Donna O’Connell[2]. She was born in 1957 and at the time of this offending, she was aged between 16 and 17 years of age. She lived regional Victoria with her parents and older sister, on a dairy farm. You are the victim’s paternal uncle.

[2] A pseudonym.

6The victim recalls you staying at the dairy farm on two occasions when she was nine or 10 years old, and had little interaction with you at the time. She recalls that you were important to her parents.

7The victim’s father’s parents (also your parents) were known to the victim as Nanna and Pa Ryan, and they lived in Flemington near the Melbourne Showgrounds.

8The victim recalls the offending period occurred after she started work at Williams the Shoe Man in about late 1973, when she was 16 years old. The offending is alleged to have occurred prior to her meeting Robert Price[3] in late 1974.

[3] A pseudonym.

9Between 1 November 1973 and 31 December 1974, the victim took a trip to Melbourne by train to visit Nanna Ryan, who, due to being ill, was residing at that time with her daughter, the victim’s Aunt Polly[4], in Yarraville.

[4] A pseudonym.

10Aunty Polly was unable to accommodate the victim at her house, so an arrangement was made whereby the victim would be picked up to stay at your address.

Incident 1

11The victim arrived by train at either Yarraville or Footscray station and you met her there with a plan to drive her to Aunty Polly’s house for a visit. Your vehicle was described as a yellow Mini.

12Prior to arriving at Aunty Polly’s address, and at a location nearby, you pulled your vehicle over and turned the engine off. You slid your seat back and unzipped the fly of your trousers, exposing your penis. You then grabbed the victim’s right hand and put it on your penis. You held her hand there and told her it felt nice.

13You placed your right hand on the victim’s right hand and used your left hand to grab her head to force her down onto your penis. You then put your penis into the victim’s mouth. You used your hand to push her head up and down on your penis until you ejaculated in her mouth. (Charge 1 – rolled-up count)

14The victim did not consent to this conduct. She recalled a horrible taste and did not know what to do. She was unable to get her head up and was forced to swallow what was in her mouth.

15You then pulled the victim’s head back up and told her it would be your ‘special secret’, and not to tell anyone.

16Following this, the two of you attended Aunty Polly’s house for a short visit, before heading to your house, where the victim would be staying.

Incident 2

17The victim stayed at your address with your wife in a small bedroom.

18The following morning, your wife left for work and the victim woke up and sat in the lounge room. You entered the lounge room and approached her. You exposed your penis and forced it into her mouth. You pushed the victim’s head backwards and forwards, whilst thrusting your penis into her mouth. The victim struggled to breathe and was gagging due to the depth you were penetrating her mouth with your penis. The victim did not consent to this conduct (Charge 1 – rolled-up count).

19You ejaculated into the victim’s mouth, holding her head there until she swallowed. You told the victim not to say anything and that it was your secret.  

Incident 3

20The following morning you came into the victim’s bedroom and sat down on the bed. You put your hand underneath the sheets and further placed your hand on her vagina. You proceeded to play with her vagina for a while before inserting your fingers into the victim’s vagina. She did not consent to this conduct (Charge 2 – rolled-up count).

21You removed your fingers and pulled the victim’s head over to your exposed penis. You further penetrated the victim’s vagina with your fingers (Charge 2 – rolled-up count), whilst simultaneously forcing her head down forcing your penis into the victim’s mouth (Charge 1 – rolled-up count). You continued to push the victim’s head up and down on his penis at the same time going in and out of her vagina with your fingers. The victim did not consent to this conduct.

22You ejaculated into the mouth of the victim and held her head there until she swallowed. You then removed the victim’s head from your penis and removed your fingers from her vagina.

23You told the victim that it was going to be okay, that it was your secret, and you told the victim that it was nice.

Incident 4

24Later that afternoon the victim was sitting in the lounge room. You approached her and exposed your penis and put the victim’s mouth over it again without her permission. In an aggressive manner, you thrusted your penis into the mouth of the victim, at the same time forcing her head into your penis. You quickly ejaculated and then held the victim’s head tightly until she swallowed (Charge 1 – rolled-up count).

Incident 5

25The following morning the victim was due to go home. You came into her bedroom holding something. At the time the victim was not sure what it was, however she is now aware that the object was a dildo.

26You got into the bed with the victim under the sheets. Using the dildo, you rubbed the outside of the complainant’s vagina. With your other hand you put the victim’s hand onto your penis. You then inserted the dildo into the victim’s mouth. After a short time, you inserted the dildo into the complainant’s vagina (Charge 3).

27All this time you had the victim touching your penis with her hand, making her rub your penis until you ejaculated. You then removed the dildo from the victim’s vagina and inserted in into her mouth.

28The victim did not consent to the above conduct.

29You then climbed on top of the victim and penetrated her vagina with your penis (Charge 4).

30You said that the two of you shouldn’t do it anymore as your wife might come home. You climbed off the victim and left the room.

Complaint evidence

31When the victim was about 17 or 18 years of age, her uncle and your brother Douglas Ryan[5] recalls her saying that you had ‘tampered’ with her, and recalls her calling you a ‘bastard’ and that she did not trust you.

[5] A pseudonym.

32Mary Fink[6] is your older sister. She states that the victim told her that you had ‘interfered’ with her, before she was married. She recalls the victim disclosing this information on an unknown date when the victim’s children were quite young.

[6] A pseudonym.

33Just before November 2013, the victim disclosed to your wife that she had been sexually assaulted by you.

Investigation

34On 28 November 2019, the victim attended the Warnambool Police Station to report the historical sexual assault by you.

Pretext call

35On 29 November 2019, the victim made a pretext phone call to you.

36At the start of the conversation the victim stated she was wanting your address to get the family together for an engagement party, to which you replied by saying you thought you were on the ‘outer’.

37The victim responded by saying that, among other things, she had received ‘a lot of counselling over the years’ and wanted to ‘put closure to it’ and ‘would love to…meet you and your grandchildren and have a catch up with [your current wife]’. You commented in an affirmative manner throughout.   

38The complainant then said ‘I realise that, you know, you were only young when – what you did to me. You know, and well, you know, it’s sort of – I’d love a-a-an apology or, you know something that ---You would---’ to which you were affirmative throughout, and then responded by saying that ‘it shouldn’t have happened, [Donna], but it did and, you know, it wasn’t meant to be how it was but – you know.’

39You and the victim then had an exchange as set out in paragraph 40 of the prosecution opening, in which you said that you had told your current wife ‘everything’ and which concluded with you admitting that ‘it happened’.

40You and the victim had a further discussion confirming the initial incident, including her age, where you were living at the time of the offending, the yellow Mini and that you had picked up the victim from the train station.

41The victim then stated she didn’t know what a vagina or penis was, and that you had introduced her to all of it really. She stated that you had taken her virginity to which you stated, ‘Mm, not good,’ and apologized to the victim.

42On 19 October 2020, Police arrested you and took you to Bellarine Police station for an interview.

Record of interview

43At 1:11pm on 19 October 2020, Detective Senior Constable McHutchison and Detective Senior Constable Lougheed conducted a record of interview with you.

44You admitted to certain sexual conduct but denied the specific allegations, rather admitting to having penile and vaginal sex in the yellow Mini, and the victim performing oral sex upon you on one occasion in the house.

45You maintained that the incidents occurred in 1979, when the victim was an adult, and the sexual encounters were entirely consensual. You also made a series of statements as set out in paragraph 47 of the prosecution opening, which I will not duplicate here.

Nature and gravity of the offending

46Sexual offending against young people is inherently serious. It is well settled that the absolute prohibition on sexual activity with a young person is founded on a presumption of harm which cannot be overstated.[7]

[7] DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148, [47], referring to Clarkson v The Queen (2011) 32 VR 361, [3].

47In this instance, although the offending took place over the course of a single weekend, it remains serious offending. All the charges involve a form of penetration of the victim. Charges 1, 2 and 3, the indecent assault charges, encompass seven instances of penetration, with Charge 1 involving penile/oral penetration, Charge 2 involving digital/vaginal penetration, and Charge 3 involving vaginal penetration with an object. Charge 4, the carnal knowledge charge, involved penile/vaginal penetration.

48In addition, regard must be had to the fact that victim was your niece and was living in your home and under your care at the time of the offending. This, combined with her youth and inexperience, rendered her particularly vulnerable, which you exploited purely for your own sexual gratification. While you did not make any direct threats to the victim, it is clear that you recognised the wrongness of your conduct when you told the victim on three separate occasions after offending against her that what was happening was a ‘secret’.

Victim impact statement

49Tendered on the plea was the victim impact statement of Donna O’Connell. Ms O’Connell read her statement at the plea eloquently describing the profound impact of your offending against her. Having lived in silence for 50 years, she finally found the courage to report your crimes to the police with the hope of regaining her dignity, which your actions took from her, leaving her struggling with confusion and feeling as if she was to blame.

50Ms O’Connell highlights your betrayal of her trust and the fact that you, as her uncle, took advantage of her vulnerability when you should have taken care of her instead. Your conduct caused lasting rifts in her relationship with other family members and she grieves that her own parents ‘went to their graves’ not believing her story. These feelings of isolation and heartbreak caused Ms O’Connell to have suicidal thoughts and compelled her to engage in therapy.

51Ultimately, Ms O’Connell takes comfort in the support of her partner, children and grandchildren, as well as her friends who have supported her. It is clear from the victim impact statement that your crimes permanently altered the course of the victim’s life from a young age, and that she continues to live with the consequences to this day.

52I take the contents of the victim impact statement into account. 

Personal circumstances

53You are now 74 years old and retired. A psychological report by Marlese Bovenkerk, dated 14 November 2023, was tendered on the plea, and outlines your personal history in detail.

54You are the youngest of nine siblings and refer to three of your brothers as being ‘bullies’ who would threaten and even physically assault you during your childhood. Your father was ‘very strict’; your mother, by contrast, was a ‘very loving and caring person’ who attempted to protect you from your brothers’ actions. Your father passed away when you were 20 years old and you returned to the family home to care for your mother, who later became unwell and went to reside with your sister.

55You disclosed to Ms Bovenkerk that you were sexually abused by one of your brothers when you were 10 or 11 years old and that this abuse persisted over a 12 month period. Four of your brothers are now deceased. You maintain a close relationship with one of your brothers, Philip[8], and also keep in touch with your sister Mary.

[8] A pseudonym.

56You were an average student and ultimately left school around the age of 13 or 14 to obtain employment. You initially worked as a forklift driver and later became a store records clerk. You were promoted to store supervisor and remained with the company for 20 years. You later worked as a store foreman for 18 and a half years at a company exporting BHP steel coils. You were retrenched from the position and ultimately retired at age 60.

57You married your ex-wife in your early 20s and had two sons with her. You state that the marriage was characterised by mutual infidelity and the two of you separated in 1987. You initially saw your sons every fortnight and there were periods when your younger son lived with you, but the relationship later became strained and you perceived it was due to your ex-wife ‘brainwashing’ the children against you.

58You also allege that, around 2010, one of your brothers began spreading rumours within the family that you were a ‘paedophile’, and you have not had any contact with your sons since this time. You also do not have a relationship with any of your grandchildren.

59You remarried your current wife in about 1995 and she remains supportive of you. She has a number of physical ailments, and you are her primary carer. Your wife has two children of her own, your stepchildren, who are aware of your offending. Your wife and stepdaughter each provided character references, tendered on the plea, which speak of you in glowing terms. A further six character references, authored by various friends and extended family members, were also tendered on the plea, and all attest to your hardworking, helpful nature and caring disposition, especially towards your wife.

60You report a longstanding problematic relationship with alcohol which dates back to your mid-teens, when you first started drinking. You reported to Ms Bovenkerk that at present, you consume four brandies per night in addition to coffee liqueur, recognising that this was ‘too much’ but stating your daily alcohol consumption was to ‘relax’ yourself.

61You disclosed to Ms Bovenkerk ongoing trauma symptoms linked to your childhood experience of sexual abuse including dreams, nightmares and flashbacks of the alleged assaults. More recent mental health concerns arise from your being charged in respect of this offending, and the ensuing legal proceedings. Mr Steward, who appeared on your behalf, notes you have attempted suicide on three separate occasions since being charged. Despite this, you do not have a history of ongoing psychological treatment and said to Ms Bovenkerk that you prefer to keep things to yourself.

62Ms Bovenkerk concludes that you exhibit symptoms consistent with diagnoses of Post-Traumatic Stress Disorder (PTSD), Alcohol Use Disorder and Major Depressive Disorder, with the latter condition arising in response to being charged with these offences and the associated stressors and stigma attached to sexual offending. Ms Bovenkerk notes that you ‘lack self-awareness regarding [your] own mental processes and motivations for [your] sexual behaviour, mental health difficulties, and poor coping skills’, but also highlights your lack of prior criminal convictions and your demonstrated capacity to remain offence-free within the community for an extended period of time. She ultimately opines that you would benefit from ongoing psychological treatment, to not only assist you with managing your depression and anxiety symptoms, but also to address your past traumatic history and to improve your insight into your sexual offending.

Sentencing considerations

63Mr Steward highlighted a number of matters in mitigation. First and foremost is your plea of guilty. You conducted a contested committal which included cross examination of the complainant, however the matter resolved in this court following a sentence indication hearing before me. Your plea has saved court time and expense thereby facilitating the course of justice and importantly, has saved the complainant from further involvement in the criminal process.

64Mr Steward submitted that your remorse, however imperfectly expressed, is genuine. In your assessment with psychologist Marlese Bovenkerk, you reported that you considered the sexual activity between yourself and the victim to be ‘consensual’, particularly as she did not ‘protest’. Ms Bovenkerk notes that you continuously emphasised the offending ‘just happened’ and referred to the offending as ‘one little incident’. Ms Bovenkerk further observes that although you accepted your actions would have damaged the victim’s life, you nevertheless struggled to identify the specific impacts of the offending upon the victim. However, you ultimately recognised that your conduct was wrong and ‘should not have happened’, and you also expressed some limited remorse in stating that your conduct had implications for the victim, as well as yourself and your family. In the circumstances I accept that you have developed a degree of insight and have expressed a degree of genuine remorse.

65Mr Steward submitted that delay is a relevant consideration. The offences occurred some 50 years ago. The victim was 16 or 17 and you were 24 or 25. The victim first informed her psychologist of the offending in 1979 and then her aunty in 1993. The victim made her statement in November 2019. Thus delay is put in a number of ways. However, in my view the relevant delay for the purpose of the application of the principle, is the very long delay of four years since the victim made her statement. It was conceded by the prosecution that this delay is not attributable to you and I have taken it into account.

66Turning to your prospects of rehabilitation, I note you have no prior or subsequent convictions, and it is clear that but for this serious offending committed 50 years ago, you have since lived a productive life. You enjoy the ongoing support of your wife and other members of your family. Your prospects of rehabilitation therefore remain excellent.

67General deterrence is undoubtedly the most prominent sentencing consideration in matters of this nature. The victim was vulnerable and young and was entitled to feel safe. Instead, you abused a position of trust for your own sexual gratification. A message must continue to be conveyed that sexual offending of this nature against young people will be met with stern consequences by the courts.

68Mr Steward submitted that while a term of imprisonment is required, the relevant sentencing considerations, including general deterrence, are able to be met by the imposition of a wholly suspended sentence. I accept that submission noting what the Court of Appeal said in relation to the utility of suspended sentences in Director of Public Prosecutions v Buhagiar & Heathcote:[9]

Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society. A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending. In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of mercy … or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed.

[9] [1998] 4 VR 540, 547 per Batt and Buchanan JJA (citations omitted).

Sentence

69Mr Ryan, would you please stand.

70Leslie Ryan, on Charge 1, indecent assault upon a female, you are convicted and sentenced to 2 years and 3 months imprisonment. On Charges 2 and 3, indecent assault upon a female, you are convicted and sentence to 2 years imprisonment on each charge. On Charge 4, carnal knowledge of a 16 to 18 year old female, you are convicted and sentenced to 9 months imprisonment.

71I direct that 3 months of the sentence imposed on Charges 2, 3 and 4 be served cumulatively on each other and on Charge 1, making for a total effective sentence of 3 years imprisonment which will be wholly suspended for a period of 3 years.

72I am required to warn you that if you commit any offence punishable by imprisonment, whether in or outside of Victoria during the period of suspension, you will be brought back to this court to be dealt with.  In that circumstance, unless you are able to provide exceptional circumstances, the sentence will be restored and served.

73Pursuant to the Sex Offenders Registration Act 2004, as Charge 4 is a Class 1 offence, you will be required to comply with reporting obligations for a period of 15 years. 

74I also note that on Charge 3, pursuant to s 6B of the Sentencing Act 1991, you are a serious sexual offender which will be entered into the records of the court.