Director of Public Prosecutions v Ryley (a pseudonym)

[2017] VCC 165

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR -16-01893

DIRECTOR OF PUBLIC PROSECUTIONS

v

GORDON RYLEY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	2 March 2017
CASE MAY BE CITED AS:	DPP v RYLEY (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 165

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	Mr A. Moore
For the Accused	Ms S. Parsons

HIS HONOUR:

1Gordon Ryley[1], you were convicted by a jury on the 24th of this month, after a seven day trial, of ten charges of sexual penetration of child under the age of 16 years, being under 12; and seven charges of indecent act with a child under the age of 16.  Those crimes carry maximum penalties of 25 years and ten years respectively. 

[1] A pseudonym.

2The offending occurred over an extended period of time, between roughly 2012 and 2015.  The incidents were certainly not in isolation. There are uncharged acts and you certainly would not be sentenced for those and these are not representative charges.  There was something in the order of 20 to 30 other incidents for which there was no charge. 

3You are now 62 years of age.  You fought the trial, have shown no remorse and obviously do not get any of the benefit that usually is attributed to these matters for facilitating the course of justice. 

4The child was put through a trial and accordingly, the normal matters of mitigation in such a situation simply do not exist for you. 

5Firstly, by reason of the offending, you will be placed on the sex offender's register and I advise you that the reporting period will be for life. 

6Secondly, by reason of the sentences I am to impose, from Charge 3 onwards you are to be sentenced as a serious sexual offender.  I am aware that community protection becomes the principle sentencing purpose.  I am aware that the sentences are to be cumulative, unless otherwise ordered. For reasons of totality, in this situation, I will clearly be ordering a very significant degree of concurrency.  The Crown do not seek a disproportionate sentence and I would not have given one in any event. 

7You have no prior convictions and that goes very much in your favour.  However, in this particular situation, as I understand it, you maintain your denials and in my view there is a total lack of insight into the evilness of what you have done. 

8I also take into account that there was a reasonably significant delay between the complaint being made and charges being laid.

9A summary of the offending is as follows and the Crown opening will be on file and I have had the benefit obviously of hearing your young victim give evidence and be cross-examined. 

10She was born on 28 October 2014 and was aged between seven and ten at the time of the offending.  You, to put it in short compass, were her
step-grandfather.

11On an occasion between January 2012 and June 2013, you and her were in your garage with the door closed.  You pulled down her pants and had her sit on a chair and licked her vagina.  That is Charge 1.

12While she was sitting on the chair, you directed her to spread her legs and you took a close-up photo of her vagina.  That is Charge 2.

13On a separate occasion, she was at her father's house with her siblings and you, in a bedroom sitting on a beanbag.  You pulled her pants down, told her to spread her legs, rubbed your finger in her vagina for about three to five minutes.  That is Charge 3.

14On another occasion during that period, you and her were outside in the backyard.  You told her to sit on the glass table and pulled her pants down.  You said to her, "I'm going to spurt on you."  You then pulled out your penis in front of her and discharged an unknown substance, which was obviously ejaculate on her.  She did not like that, said she did not even look.  She said she needed to be cleaned up.  You then cleaned up the discharge from inside her vagina and her leg with tissues.  Indecent act with a child under 16, Charge 4.

15On another occasion between January and November 2013, you sat on a chair in the front yard of your house with her on your lap.  You licked your finger and again put it down her pants, rubbing the inside of her vagina.  That is Charge 5.

16On another occasion at your house, in the bedroom, you yelled out, "Don't come in here, I'm just doing something really important" to the others who were in the house.  You then spread her legs, knelt down and licked her vagina.  Charge 6.

17About two days after that, she was making her bed.  She laid on it, you laid on top of her and put your penis into her vagina.  That is Charge 7 of sexual penetration.

18You then turned her over and put your penis between her buttocks.  That is Charge 8, indecent act with a child under 16.

19Again between January 2012 and May 2015, you inserted your penis - these are uncharged acts, obviously, into her vagina on approximately three occasions.  

20On an occasion between January 2012 and May 2015, her grandmother asked you to wash her hair.  That is, the complainant's hair, in the shower.  You grabbed her hand and tried to put it on your penis.  That is Charge 9, indecent act. 

21On another occasion, which is in the bath, you asked her to stand up and push out her bottom and then her vagina, as you looked.  Charge 10.

22On another occasion, she was lying on the bed on her stomach with you.  You knelt with one knee on either side of her and pushed your penis between her buttocks.  You pushed it back and forth for a minute or two again. Charge 11 of indecent act.

23On another occasion, you said to her, "I'm going to give you a tongue fuck."  You then spread her legs and licked her vagina.  That is Charge 12. 

24On another occasion, "I'm going to give you a finger fuck."  You then put your finger into her vagina.  Charge 13. 

25On another occasion at the theatre, you took her into a toilet and licked your finger, putting it in her pants, rubbing the inside of her vagina.  That is Charge 14, sexual penetration.

26She estimates that that type of conduct occurred on probably 10 to 15 occasions. 

27What had happened sometime between 2012 and during 2013, the complainant's mother had discovered an email from you to the complainant.  It was in fairly disturbing terms, but that was never before the jury.  She confronted you about your relationship with the complainant.  During that confrontation, you described the complainant as your "best friend" and the type of friend who you had, "lived your whole life waiting for." 

28You were clearly warned in 2013 and were clearly aware that your conduct was reprehensible and yet you persisted. 

29In June 2013, the note was taken to police and they discussed it with the complainant's mother.  There was then, as I understand it, a period where you were not to have any contact with her and unfortunately there was then around that time, a separation between the complainant's parents and you again came into contact with the complainant.  You continued to offend against her.

30On an occasion between 1 November 2013 and 31 May 2014, you, again at her father's house, told her to lie down, inserted your finger into her vagina. 
Charge 16 of sexual penetration. 

31Another occasion occurred lying in a tent out the back with her younger brother, when you again placed your penis between her buttocks.  That give rise to Charge 17 of indecent act with a child under the age of 16. 

32She ultimately complained to the older sister of a friend, in response to her being queried about being gay.  She said that how could she be gay when she had had sex and then nominated you. 

33When the matter had been reported to police back in 2013, she had not made any disclosures and pointed out in her later VARE, that she did not do that because you told her not to. 

34The defence that you put forward was that she was basically making all this up.  I will simply read what she had to say in her VARE statement.  "Yeah, I was lying down and he pushed my legs apart.  He had put pretty much put his arms there so that I couldn't move them back in and then he would start to - yeah, he's moving and started to lick my vagina."  "And whereabouts was he licking?"  "Inside and he also said, 'If you' - well, he said, "If you pee, it will be even better'.  Then after he'd said that, I pretty much told him to get off and then I ran to the bathroom."  No nine-year-old made that up. 

35Insofar as the spurting charge was concerned, "Do you remember anything else?"  "Once we were outside the backyard, he had his table and he told me to sit on there and pull my pants down and he did that.  And he did it and then he'd pull his pants down and he spurted on me and at first I didn't know what 'spurted' mean, but then he said, it means he's peeing on me and then after he did it I said, 'Don't do it', but he did it and then I quickly ran inside.  What I said, 'I need something to wipe it up with' and 'cause I didn't really like the feeling at all.  And then I think he got his - it was rather a piece of toilet paper that he went to get, a tissue or something like that, or he got his hanky, can't really remember what it was."  Later she said, "And then he sorta, I think, 'cause I was sitting on the table, he got his thing and spurted on me, which means pee on me and yep."  No young child made that up.

36I have before me victim impact statements from the complainant, her parents and her sister.  They eloquently describe the pain and the grief that your offending has caused.  The father feels massive guilt, the sister feels guilt, her mother feels guilt, and the victim is somewhat bewildered.  She has had difficulty dealing with all this and at the end of her victim impact statement said, "I am only 12 and I wish this had never happened to me."

37The victim impact statement of her mother, indicates clearly the dreadful consequences and the massive guilt, undeservedly usually, that parents feel when this has occurred to one of their children.  I will simply quote one paragraph.  I say before I do this that the victim is still a young girl and what the mother expressed here are fears, that have certainly been in my experience, often the consequences of this sort of offending.

38It is to be hoped and in Victim's situation, that is not what occurs and I cannot sentence you for something that has not as yet occurred, but I do take into account that the risk and the danger that she is put into.  Her mother said,
"I have spent 660 sleepless nights staring endlessly at the roof, contemplating why I didn't do more to protect her, what I did wrong and what I could do now to help her get through this traumatising time, how could I talk to her, comfort her and make her feel safe.  I've spent endless nights awake when I should be sleeping, recouping to work and care for all my four children as well.  Instead my head is filled with horrible visions, nightmares and the constant thoughts of how I can get through this.  The night sweats, the tears, the shakes and fear of sleep has had me thinking of the fact that my daughter has had her innocence stripped from her.  My head filled with thoughts like, will she be able to make friendships, build relationships and someday get a partner that will understand?  Will she ever trust anyone?  Will she seek solitude or will she rebel?  Will she suffer with post-traumatic stress syndrome?  Will she form a habit, or will she have mental health issue, like anxiety, self-harm or depression in her teenage years and how will I help her get past this?  I physically can't stop thinking about what the future holds for my baby girl.  My brain is constantly in overdrive, as I feel that I have failed as a mother to protect her.  I feel I've failed in general and I fear the unknown.  I some days fear my own thoughts."  Those fears are obviously very real.

39The offending is, in my view, extremely serious.  It went over an extended period of time.  It was a massive breach of trust.  It continued, even though you were confronted by certainly at least the mother and were aware of the concerns that were held.  In short, having read that victim impact statement, having read all the material and having listened to the evidence during the trial, the fact of that matter is, Mr Ryley, that you, over an extended period of time, debauched your step-granddaughter.  A very significant gaol sentence indeed is inevitable.

40I then looked at matters pertinent to you.  As I have said, you are 62 and you have no prior convictions. A reference from your wife was tendered and
I take that into account. 

41I am very aware of the principles of totality and it is desirable, wherever possible, that there not be a crushing sentence. 

42From the material but before me, there is nothing about your physical health that warrants any particular concern. 

43You clearly, during your life, have been a useful member of society.  You have been a member of clubs, you have performed social duties and you have got
a very good work record.  As I understand it, you have very little contact with your own children and you have effectively destroyed any relationships you had in this situation, as well as, in one sense I suppose, destroying an adopted family. 

44I take into account that you have an elderly mother who lives in a town and that in her old age, you will not be able to care for her and you will undergo this sentence being aware of that. 

45In circumstances where you maintain your denial, your prospects of rehabilitation are very much up to you.  The risk of you re-offending, I would accept in your particular circumstances and partially because of your age and how long you will have to do in gaol, would be somewhat low.  It would be good to be able to say that the offending was situational, but I do not think that is the case.  You were well aware of what you were doing and you kept doing it and the consequences have been dreadful.

46As I say, I take into account all the other matters raised and pointed out to me in that reference and in the very succinct, if I may say so, submissions by your counsel.  However, the sentence I impose must reflect the criminality of what you did.  It calls very much for the application of general deterrence, appropriate punishment and denunciation.  Specific deterrence in your particular situation, probably do not play a large part.

47You can stand up now please.  Stand up please. 

48Accordingly, as I have indicated, there will be a very significant concurrency. 
I will do it in terms of concurrency, rather than accumulation, because it is easier to work out.  Everybody knows what I am saying then. 

·Charge 1, five years; 

·Charge 2, six months;

·Charge 3, five years;

·Charge 4, 12 months;

·Charge 5, five years;

·Charge 6, five years;

·Charge 7, five years;

·Charge 8, 12 months;

·Charge 9, six months;

·Charge 10, six months;

·Charge 11, 12 months;

·Charge 12, five years;

·Charge 13, five years;

·Charge 14, five years;

·Charge 15, five years;

·Charge 16, five years;

·Charge 17, 12 months.

49I direct that one month of the sentence imposed on Charge 2; seven months of the sentence imposed on Charge 3; four months of the sentence imposed on Charge 4; seven months of the sentence impose on Charge 5; seven months of the sentence imposed on Charge 6; seven months of the sentence imposed on Charge 7; four months of the sentence imposed on Charge 8; two months of the sentence imposed on Charge 9; two months of the sentence imposed on Charge 10; four months of the sentence imposed on Charge 11; seven months of the sentence imposed on Charge 12; seven months of the sentence imposed on Charge 13; seven months of the sentence imposed on Charge 14; seven months of the sentence imposed on Charge 15; seven months of the sentence imposed on Charge 16; and four months of the sentence imposed on
Charge 17, be served cumulatively upon each other and upon the sentence imposed on Charge 1. 

50That gives a total effective sentence of 12 years.

51I direct that you serve a minimum term of nine years before becoming eligible for parole. 

52I direct that six days be reckoned as having been served under this sentence. 

53If counsel can just check that arithmetic for me.

54MR MOORE:  Yes, thank you, Your Honour.  Yes.

55HIS HONOUR:  Right?

56MS PARSONS:  Thank you, Your Honour.

57HIS HONOUR:  All right.  Yes, remove the prisoner please.

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