Director of Public Prosecutions v Saunders
[2018] VCC 1141
•26 July 2018
| IN THE COUNTY COURT OF VICTORIA AT SHEPPARTON CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-18-00213
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEON SAUNDERS |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | 30 April 2018 | |
DATE OF SENTENCE: | 26 July 2018 | |
CASE MAY BE CITED AS: | DPP v Saunders | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1141 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: PLEA – Rape – Plea of guilty
Legislation Cited: Sentencing Act 1991
Cases cited: R v Verdins [2007] 16 VR 269
Sentence: 7 years’ imprisonment with a non-parole period of 5 years’ imprisonment; 87 days pre-sentence detention; Forensic sample order; Section 6AAA declaration: 9 years’ imprisonment with a non-parole period of 7 years’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms T. Schultz | Office of Public Prosecutions |
| For the Accused | Ms N. Smith | Victoria Aboriginal Legal Service |
HIS HONOUR:
1 Leon Saunders, on 30 April 2018 you pleaded guilty to one charge of rape. The maximum penalty for this offence is 25 years’ imprisonment.
2 Tendered as Exhibit A on the plea, and read aloud in court, was the Summary of Prosecution Opening. At the time of the instant offence, you were 60 years of age and were employed as a community support officer at the Mooroopna offices of the Rumbalara Aboriginal Co-operative (“Rumbalara”) where you worked with your victim.
3 Your victim was aged 24 years at the time of the offending and you had known her since she was a teenager, she having worked at Rumbalara for some seven and a half years prior to being offended against. You were well-known to her parents, and the victim viewed you as a well-respected elder in the Shepparton/Mooroopna community.
4 On 11 May 2017, you were at work with your victim. You asked the victim via a note for her personal and work numbers that she supplied to you and later you borrowed $50 from her. At about 3.28 pm, you sent your victim a message that read “Hi … what have you got on tonight just keep this between you and me would you like a one Hour Full body Relaxation" - "Message" it reads, and I take that to mean massage - "tonight just let me know”.
5 The victim responded by asking what should she bring to wear, to which you replied “Just your body will do, I will look after you I am a Professional Massage Therapist”.
6 After your victim arrived at your home she asked you what clothing she needed to wear for the massage. You said that she should keep her bra and underwear on and you left the room to allow her to remove her clothing. You returned to the room and, after the victim lay on her stomach on the massage table, you placed some towels on her and turned on some relaxation music. You began to massage the victim and undid her bra to better access her back. You did not refasten her bra once you had finished massaging her back. After completing the massage of the victim’s back, you assisted the victim to roll over and, as the victim attempted to rearrange her bra, you removed it from her and covered her breasts and stomach area with a towel. You placed a small towel over her eyes.
7 Thereafter, during the course of the massage, you removed the towel covering your victim’s breasts and, using both hands, massaged between her breasts before massaging her breasts. (Uncharged act)
8 Unsurprisingly, your victim froze, not knowing what to do. You leaned over and placed your mouth on her left nipple and sucked and licked it, then you put your mouth on her right nipple which you sucked and licked too. You then stopped and covered her breasts with a towel. (Uncharged act)
9 You began to massage your victim’s arms and you placed her hand on your exposed penis. The victim tried to remove her hand, however, you placed it back on your penis. (Uncharged act)
10 You removed the victim’s underwear, despite her attempts to stop you from doing so, and you placed your hands on the victim’s legs and pushed them apart. You bent over and put your mouth on her vagina. You licked the victim’s clitoris. Again, unsurprisingly, the victim lay there frozen and shaking. You continued licking the complainant for a minute or two. (Charge 1, rape)
11 The victim left your home and, as she was driving away, she received a text from you that read “ … I hope you accept my Apology for my Behaviour it was unprofessional as a Massage Therapist but I still hope you enjoyed your Massage Stay Deadly Love Unc Leon”.
12 On arriving at her home, the victim had a shower, which her mother noted was unusual. The victim told her mother about the massage.
13 On 12 May 2017, the complainant broke down at work and confided in her manager as to what had happened. The following Monday, being 15 May, the complainant confided in another work colleague. On Tuesday, 16 May, the complainant reported the matter to the Shepparton police.
14 On 16 May, a pretext conversation took place between the complainant and you. Having read the transcript and listened to the recording of that conversation repeatedly, in my view, you attempted to manipulate the complainant not to complain about your conduct so that the matter would not come to the attention of the police and you would not lose your business. In particular, you said to her:
“Yeah – be – be – be good as just to yeah if we can keep – keep it out of the court, darling. Coz I – I – I’ll lose a lot as a respected elder of my community … and my tour business that’s what Rumbalara’s after me to get my tour business … so if you can drop – drop the allegations darling, I’ll – I’ll be much appreciated. And – and I’ll never – I’ll never put you in that – in that position ever again my darling.”
15 To my mind, you were only interested in yourself to ensure that the matter would not come to the attention of the police and you would not suffer any financial detriment as a result of the complaint continuing.
16 The following day, on 17 May, you sent a further text to your victim:
“Good Morning …. I hope you’re Feeling Better and you haven’t told anyone what happened to keep it between me and you because I know that – know the Rumbalara Clowns would want you to talk to the police and have me charged and taken through Court that’s what the Rumbalara Clowns want and I Lose everything my Respect has (sic) an Elder my Tour Business and working with the schools and I don’t want you and our Families going through a Court Case because the Rumbalara Clowns want to Sack me and then they don’t have to pay me my Redundancy payout so please keep it between me and you my friend so can you let me know your Decision please and can you delete all of our Text Messages Thanks and this will be the last text message to you and take care of yourself my friend.”
17 Tendered as Exhibit B was the victim impact statement of the complainant. The consequences of your conduct on your victim have been profound. As she perceives it, her complaint has caused a rift in the Aboriginal community with people taking sides. She no longer feels happy or safe at work. She finds it difficult to sleep. She drove a custom pink motor car which was well-known in the Shepparton area, and she transferred that car to her mother and got a new car so that she could no longer be readily identified whilst driving in the Shepparton and Mooroopna areas. She has had to consult a psychologist. She suffers from what she describes as “negative visions”. In these visions she watches herself drown, not caring, and going with it. She suffers from symptoms of anxiety which she described as including an increased heart rate, dry mouth, nausea and sweating. She has even contemplated suicide. She is medicated for depression and anxiety. She doubts that by reporting the crime that she did the right thing.
18 That a young woman who had known you since she was a teenager, and who respected you, and whose family regarded you as a friend, should have to suffer so profoundly as a result of your selfish conduct is a tragedy.
19 You were interviewed under caution on 26 May 2017 and denied any misconduct in respect of the complainant.
20 Upon arraignment, you admitted your criminal record. However, the offences are old and I regard them as irrelevant for sentencing purposes.
21 Tendered as Exhibit 1 was the outline of submissions in mitigation of plea, together with a chronology and your employment history. Exhibit 2 was a report of consultant psychologist, Ms Cidoni, dated 18 March 2018, whilst a bundle of character references and testimonials setting out your contribution to the Aboriginal community made up Exhibit 3 on the plea.
22 Finally, as Exhibit 4, was a police report concerning an allegation made by you in 2014 concerning sexual offending against you that you said occurred between 1967 and 1968. Your alleged assailant died on 15 August 1971.
23 Ms Smith of counsel, who appeared on your behalf, informed me that you gave evidence before the Royal Commission into institutional responses to child sexual abuse. One of your character referees, Ms Jeannie McIntyre, is your support worker from the Royal Commission Support Services in respect of your abuse as a child.
24 Your plea was adjourned from 30 April to 13 July owing to instructions that you gave Ms Cidoni in respect to a diagnosis of bipolar disorder when you were aged 28 years. As at the date of your plea, there was no material available to counsel to support the diagnosis nor to explain your three admissions to psychiatric hospitals: one when you were 28; another when you were 35; and the last some three to four years ago.
25 You are 61 years of age and an elder of the Yorta and the Dja Dja Wurrung community. You were born to very young parents who were first cousins. Your mother, Yvonne Saunders, was 16 years of age, whilst your natural father, Hurtel Atkinson, was just 14 years. You were raised by your maternal grandmother, who you believed was your mother until you were approximately ten years of age. Until that time, you believed your mother was your sister. When you were aged ten, your biological mother partnered your stepfather, Wally Cashan, and you were the subject of physical violence at his hands between the ages of 10 and 15 years.
26 At age 11, you travelled to Melbourne and were the victim of sexual assaults, as set out in Exhibit 4, in that you spent approximately a week with your assailant who compelled you to perform fellatio on him every morning before breakfast. I was informed that you suffer flashbacks and nightmares in respect of this abuse.
27 You married in 1984 but separated from your wife, Esmeralda, in 1997. There are two children of this union: your son, Gary, who is aged 35; and Leigh, who is aged 34. You are stepfather to three of Esmeralda’s daughters and you are the grandfather to 21 grandchildren.
28 Between 1999 and 2016, you formed a relationship with Cilla Atkinson and still remain close despite that relationship breaking down. Ms Atkinson provided a character reference for you that formed part of Exhibit 3.
29 You have always worked, commencing employment when you were 16 as an apprentice bricklayer. At 19 you worked as a labourer at the Shepparton Meatworks. Thereafter, until you were 22 years of age, you worked as a sales assistant at a menswear store.
30 From 1979, when you were aged 23, until you were dismissed from the Rumbalara Aboriginal Cooperative, you have worked in indigenous employment and your work history is set out as an annexure to your counsel’s outline of submissions (Exhibit 1).
31 Your character referees speak of you as a respected elder within the Yorta Yorta Aboriginal community, and that your offending is out of character. In particular, Ms McIntyre speaks of your personal experience of sexual abuse and her support of you as a result of that abuse. She emphasises in her character reference your loss of employment, your loss of your cultural tour business, the revocation of your working with children certification, and generally your loss of good name and reputation within the Shepparton community.
32 Mr Land knows you in a social setting, being the Indigenous Golf Association of Victoria, and he writes of your courteousness, friendliness and good humour. Monsignor Peter Jeffrey, parish priest at St Mary’s Catholic Church in Mooroopna, describes you as a prominent Aboriginal elder and leader who is engaged in supporting Aboriginal advocacy and fostering community awareness of Aboriginal history. Monsignor Jeffrey writes that you have been a great supporter of St Mary’s Primary School and that you have always been willing to attend school functions and conduct “welcome to country”. I was informed by your counsel that you volunteer to perform the “welcome to country” ceremony and the smoking ceremony throughout northern Victoria.
33 Pastor Joe Day of the Njernda Aboriginal Corporation, a man who has known you as a friend for 35 years, describes you as remorseful and a man who has recognised his error of judgment and who has suffered greatly as a result of it. Your former partner, Ms Atkinson, describes you as a kind and gentle person who is very caring and giving, and loyal to those that he loves. She describes your offending as out of character.
34 Each of Mr Chris Hazelman, Geoff Dobson, Dennis Patterson and Rennee Ashmore write as to your contribution to the Shepparton area generally and particularly the multicultural tours that you have helped organise linking communities of different faiths and ethnic backgrounds. Each of the authors of these references speak of your commitment to your culture and that your family was part of the 1939 walk off from the Dungala Mission, and that your family was selected as one of ten families to be housed in what was described by your counsel as three room concrete shelters without any cooking or sanitary facilities. The shelter that was assigned to your family is part of the Rumbalara Museum and formed an integral part of the cultural walks that you conducted whilst employed by the cooperative.
35 It is plain that, by your conduct, there has been a profound fall from grace.
36 Ms Cidoni, in her report, wrote that as at the time of your consultations with her you were taking Epilim, a mood stabiliser, and Seroquel, an antipsychotic. Further, upon assessment, you were of low/average intellect and your depression was elevated. Further, upon assessment by Ms Cidoni, you were assessed as a moderate risk of re-offending.
37 On the return date of your part-heard plea, the enquiries made concerning your admission to psychiatric wards in the past confirmed Ms Cidoni’s opinion that you suffered from bipolar disorder. Further, tendered on your behalf were WorkCover documents which demonstrated that for a period prior to your offending you had stopped work due to “mental stress”.
38 Ms Smith, on your behalf, submitted that your bipolar disorder invoked the principles enunciated in R v Verdins. There is no evidence of any connection between your mental disorder and your offending and, in particular, there is no evidence that you would find a term of imprisonment to be more harsh on you than on another prisoner without your disorder. Accordingly, the principles of Verdins have no application to you.
39 Ms Smith relied upon:
(a) an early plea of guilty;
(b) your disadvantaged childhood;
(c) your previous good character;
(d) your low average intellect;
(e) your mental illness;
(f) your remorse and regret for your offending;
(g) your reasonable prospects for rehabilitation; and
(h) that your conduct fell at the lower end of the scale of offending for rape.
to support a submission that a sentence involving “a shorter than usual non-parole period” was appropriate in the circumstances.
40 I do not accept that your offending falls to the lower end of the scale of offending for the offence of rape. You abused your position of trust in respect to a young woman who had worked with you since she was a teenager. She respected you as an elder within her community. You were a friend of her parents. The consequences of your conduct on your victim have been profound. In my view, your conduct on the day of the offending is indicative of some level of premeditation, however I am not prepared to make a finding adverse to you in this respect.
41 Whilst I accept that you regret the offending, I am not so satisfied in respect to the issue of remorse. The content of the text and telephone call between you and your victim, your attempt to manipulate her so as not to complain to police and so secure your liberty and business is in no way indicative of remorse, nor are your denials in your record of interview.
42 However, your plea of guilty was an early one and you are entitled to the benefits of that plea, which are that it is some evidence of your remorse, and that it has utilitarian benefit which, in the present circumstances, is undoubted.
43 By this sentence I must punish you, publicly denounce your conduct, and deter you and others from committing this kind of crime. Taking into account the circumstances of your offence and its effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to seven years’ imprisonment. I direct that you must serve five years’ imprisonment before you will become eligible for parole.
44 I declare that you have spent 87 days by way of pre-sentence detention, not including today.
45 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to nine years’ imprisonment with a non-parole period of seven years’ imprisonment.
46 Mr Saunders, the Crown have made application for what is known as a forensic sample, that is a scraping of your mouth or buccal swab. I have granted that application because the seriousness of the circumstances of your offending warrant such an order and the granting of the order is in the public interest. I must inform you that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of the order.
47 Are there any other matters?
48 COUNSEL: No, Your Honour.
49 HIS HONOUR: Remove the prisoner.
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