Director of Public Prosecutions v Smalley
[2016] VCC 319
•21 March 2016
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-15-01879
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT EDWARD SMALLEY |
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| JUDGE: | HIS HONOUR JUDGE SMALLWOOD |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 21 March 2016 |
| CASE MAY BE CITED AS: | DPP v Smalley |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 319 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | MR G. HUGHAN | |
| For the Accused | MR J. ANDERSON |
HIS HONOUR:
1Robert Edward Smalley, you have pleaded guilty to 16 charges of indecent act with a child under the age of 16 and one charge of sexual penetration of a child under the age of 16. Those crimes each carry a maximum penalty of ten years' imprisonment.
2You are to be sentenced, because of the nature of the sentences I will be imposing, as a serious sexual sex offender from charges 3-17.
3
I will be making orders for concurrency and not giving total accumulation.
I am aware that the principle sentencing purpose is that of community protection but I do not think that is necessary in your situation and I will not be giving a disproportionate sentence. The Crown do not seek it and I would not have in any event.
4I take into account also that charge 12 is a representative account and I am aware of the principles relating to that and the offending takes place over a period of roughly a decade, that being 2005 to around 2015.
5Also, pursuant to the legislation you will be placed on the Sex Offenders Register and the period of reporting will be for life.
6Pursuant to s.464 of the Crimes Act I make an order that you provide a saliva sample for DNA purposes, that order having been made I must advise you that should you refuse to provide such a sample when requested police may use reasonable force to take it from you. That order is made and handed down.
7You pleaded guilty at the earliest reasonable opportunity and you are now 83 years of age. You have no prior convictions and in your situation that is important. You must get the utilitarian benefit of that plea of guilty. It saved your victims from the ordeal of having to give evidence in a trial and being subjected to cross-examination.
8
Insofar as remorse is concerned, I accept that there is remorse qualified in the way that your counsel conceded. Insofar as that aspect of it is to be looked at, I look at the report that was tendered on your behalf from psychiatrist,
Mr Ong, who said that you essentially said to him, and I quote from, "Whilst he stated he would plead guilty to the charges contained in the prosecution summary, he claimed to not recall certain allegations or deny them altogether. In particular he denied offending whatsoever against N and denied any contact offending against J. He could recall only four occasions when he offended against T while he was teaching him how to drive. He claimed that T was always playing with himself and it seemed this was like forbidden chocolate. He claimed it was just instinct to touch T inappropriately. In regards to J he denied physically touching him though once claimed that J had been playing with himself prior to him exposing himself to him."
9In those circumstance, as I indicated to your counsel the other day, it is not uncommon to see that sort of material where people are in denial or feel unable to agree to the extent of their offending however that sort of approach shows a lack of insight, though I do not think that is particularly important in your matter. But it does qualify remorse. However, in the end I give you the benefit of the doubt insofar as remorse is concerned.
10The offending occurred over a period of around about ten years. You lived next door to the family in a Gippsland town. You developed a good friendship with them and you were considered as an extra set of grandparents to their children. There was a close friendship after the family moved in 2013, though as I understand it they stayed in that town.
11There were three complainants in this matter, the three children: N, T and J. N is currently 15 years of age was between 5 and 8 when the offending occurred. T is currently 14 years of age and was between 8 and 12. J is currently 11 years of age and was between 5 and 9 at the time of the offending.
12You ran a small lawn mowing business in the area, mowing lawns and doing yard maintenance for local residents and holiday home owners. You generally disposed of the lawn clippings and cuttings on a burn pile on the farm, that is in direct line of sight from the family home approximately 150-200 metres away.
13The children, and predominantly T, would often accompany you to those lawn mowing appointments, helping you with your work and also help you dispose of the lawn cuttings on the property.
14When N was aged between 5 and 7 years, you were living next door to her family. On one occasion you went to the home and asked if she wanted to go with you to dump some leaves and burn bushes at the burn pile. She went with you as her brother, who I assume to be T, was not around. She went with you in the ute and assisted you dumping the leaves and grass. You then asked her if you could play with her 'fanny'. You told her to remove her clothing and she lowered her pants and underwear around her legs. You were standing near your vehicle with the car door open. You then used your finger to touch her vagina, that gives rise to Charge 1. That only continued for a short time as she did not like it. She recalls you telling her not to tell anyone about what had happened.
15On another occasion she accompanied you to the cattle yard on the family farm. On that occasion you told her to touch your penis and rub it. You were standing facing her and you exposed your penis. You told her to touch your penis and feel how hard it was and then asked her to continue and see how big she could get it. She took hold of it and moved her hand up and down in a masturbation motion for approximately under a minute, that gives rise to Charge 2. You smiled at her and said "Does it feel good?"
16Insofar as T is concerned, when he was approximately 8 years old he was playing golf with his brother and sister on the property. All three children went to a ditch nearby where they would often go and urinate in when playing outside. You approached the children and began talking about the birds and bees and looking at T penis. You touched his penis and began stroking it momentarily before he said "What are you doing?" You said "Nothing" and walked away, that gives rise to Charge 3.
17When T was approximately 8 years old you taught him how to drive the ute. He recalls the first occasion he was learning to drive, you sat in the middle of the bench seat closest to him. You told him to pull his pants down and made him stop driving and pull his pants around his thighs. He started driving again and you then touched his penis in a masturbating motion while he was driving, that gives rise to Charge 4.
18When T was approximately 9 he started helping you mowing the lawns around the town. On one occasion he was assisting you near M's residence. You told him to go around the back to have a look at the long grass. He accompanied you to the backyard and you pulled his pants down saying "Let me have a look at it" and told him to masturbate, that gives rise to Charge 5.
19He did not understand what that meant. You leant down in front of him and started stroking his penis for an unknown period of time, that gives rise to Charge 6.
20When T was 9 or 10 years of age he was helping you unload some grass clippings at the property. You got out and approached the burn pile. You pulled his pants down and made him bend over the front seat of the ute with his feet on the ground outside the vehicle. You pulled your own pants down and rubbed your un-erect penis against his anus, that gives rise to Charge 7. He strained and wriggled and said "No I don't want to do this". You ignored him and kept going for about 30 seconds.
21
When T was approximately 10 years of age he was helping you again at the M house. You had a key to the residence and unlocked the back door. You went into the house and he came in to assist you. As you were walking into the kitchen area you stopped him and asked to see his penis stating that you had not seen it for a while. He said "No I don't want to". You then pulled his shorts down a little way around his knees, pulled his underwear down all the way and began stroking and touching his penis in a masturbating motion, that gives rise to Charge 8. You then said to him
"I wonder if mine can get that big?" and pulled down your own pants and exposed your own penis asking him to touch it. He said "No I don't want to". He then pulled his pants up and went back outside as did you.
22The last occasion which T remembers of any sexual contact was the weekend before the summer school holidays between 13 and 14 December 2014 when he was 12. You attended at the house to dispose of grass and asked if T would help and he accompanied you in the ute. You were in the driver's seat and T was in the passenger seat.
23You got out of the car to open a gate handing him a picture magazine which included pictures of naked women. You told him that you had got him a new book to look at with girls in it and telling him to look at the book while he fed out the grass to the cows. You told T to try to get it 'up hard' referring to his penis but said "Don't start till I get back so I can have a look." He closed the magazine and left it on the seat.
24He then drove the ute while you fed out the grass. When you finished feeding out the grass you got back into the passenger seat. You gave him the magazine again and said "Have a go. See how hard you can get. See if you can get bigger than me." T, pulled his pants down around his legs as he sat in the seat and masturbated his penis, that gives rise to Charge 9.
25You slid your own pants down exposing your penis and told him to pull his pants down further. You then rubbed his penis for a couple of minutes and then told T to do it. T said "I don't want to do it because it hurts". You said to him "Try to get me hard" and he complied with the request, that gives rise to Charge 10.
26He was scared of you. A short time later you started pulling up your pants and leant across the seat and put your tongue on his penis and then grabbed his penis and inserted it into your mouth at one point biting down on it. He said "That hurts". You said something similar to "I'm just having fun with you" to which the complainant replied "Well I don’t find it fun".
27You began sucking on his penis for approximately 30 seconds. He said "Don’t, it hurts. I don't like it" and began pulling his pants up. With that you said "Why did you do that?" and T replied "Because I don't like it".
28You then got in the driver's seat and started driving back to the house. On the way home you said to him "I remember when I was that young and I could get it that big". That is, in my view, the most serious of the offences by quite some distance as the sentencing will indicate. In any event those three offences give rise to Charge 11 of sexual penetration.
29T was unable, when speaking to police, to particularise other acts sufficiently to give rise to individual accounts. However he has estimated that he was touched on approximately 24 additional occasions, between the ages of eight and 12 years. That gives rise to Charge 12, which is a representative charge of indecent act.
30In this particular situation, I do not propose to give a greater sentence for that, one, because it is too difficult a concept to try and deal with and, secondly, there is no suggestion that this offending was occurring in isolation. In any event, T did not tell anyone about what had happened because he was too ashamed to tell his parents and did not want to tell on you because you were a family friend. You said to him on a number of occasions, "Just keep it between us."
31When J was between five and eight, he went to the M residence where you and his older brother were mowing the lawns. At one point T went around the corner doing things. You then asked J to go with you to the back fence. You asked J to play with his penis in the corner of the fence and he did as you asked, Charge 13.
32You then touched his penis, rubbing and feeling it, moving your hand in a masturbating action of his penis for approximately one or two minutes before he stopped, Charge 14.
33J said that he did not accompany you for an extended period of time after that as he felt weird and embarrassed. He did not tell anyone about it because he was embarrassed.
34When J was approximately seven years of age, his parents were out for the evening and you babysat the children. At one point he went into his bedroom to get something while the older children were watching television. You followed him into the bedroom, closed the door behind him and asked him to sit on the end of the bed. You said something along the lines of, "Can you rub your doodle and see how big it gets." He lowered his pants and exposed his penis and began rubbing his penis in a masturbating action. That is Charge 15, indecent act.
35You then touched his penis, feeling and moving your hand over it in a masturbating motion for an undetermined period of time before you stopped, Charge 16.
36On 6 January 2015, when J was nine, you attended at the family property again for the purpose of dumping grass clippings. You drove your ute and trailer to the burn pile while J rode his little motor bike. You parked your ute at the burn pile, positioning the vehicle and the trailer between the house and the burn pile. You proceeded to unload the clippings and J apparently cut his finger on some box thorn. When you had finished unloading all this you told J to pull his pants down and play with his penis, saying something similar to, "And show me what happens when you do that," while making a masturbating gesture in the air with your own hand. That gives rise to Charge 17 of indecent act.
37He refused, saying that he could not do it because of the blood on the cut on his finger. J got back on the motor bike and went home.
38That was the day the offending stopped, Mr Smalley, but only because of what J did next, I deeply suspect. Later that day he asked to speak to his mother in private where he told her what had happened and that similar things had been happening for an extended period of time. J's parents enquired with the other two regarding their contact and they said what had happened to them.
39On 7 January the family attended a Police Station and investigators conducted VARE statements with them.
40On 6 January you were confronted by the children's father. You went for a walk and did not return home that night. You were reported missing. You told the police that you had gone for a walk the night before, when you were eventually found, and tore the magazines up into little shreds. It is clear that what you were talking about was the magazine that you had shown T.
41When interviewed you made largely "no comment", which of course you are perfectly entitled to do. However you tended to agree towards the end that things had happened. You were again arrested and interviewed on a later occasion. On that occasion you were more co-operative and made admissions as to T, showing T the magazine and also various other admissions. You maintained your denial in regard to Jo, as I understand it, and also in regard to N.
42There are victim impact statements before me which were referred to during the course of the plea. Obviously I take them very much into account.
43In one bizarre sense, Mr Smalley, you are fortunate that you have offended against such a caring family. It is clear from this material that the family are doing everything they can to not have the children suffer unnecessarily from all this. They explained their fears, their anxieties, the fact that they had not said anything and clearly it has had an effect on the family over an extended period of time. I am not going to quote from them at length, you are fully aware of the contents of them, as are the family. What they do indicate though, as is so often the case in these situations and one which I always find almost distressing to read is the guilt that parents feel when people like you molest their children.
44It is easy to understand how a parent whose children have been molested over an extended period of time feels a massive guilt for not having protected them, for not having looked after them and the like. Clearly that guilt is totally unjustified. This family trusted you. They treated you like an extra grandparent and you betrayed them in an extremely gross and ugly way. They are doing their best to get over these matters and, as I say, I thought that the victim impact statements were very sensibly written and in effect in one sense muted, which in some ways gives them even greater effect. Clearly I take all those matters into account.
45This offending is very serious. In the normal course of events it requires the application of general and specific deterrence, although in your situation I think it is unlikely you will offend again, as well as denunciation and appropriate punishment. There are multiple victims over a decade and they are all from the one family. As I said, it is a gross breach of trust and it is unlikely it would have been discontinued in the short term unless J had worked up the courage to tell his parents. In my view the only appropriate disposition is one of active custody.
46In this particular situation, as I have indicated to counsel, I have made it in concurrency where the offending occurred in the same incident, other than with the sexual penetration. It is very difficult to try and analyse and give a mathematical figure for sentences such as this and I have tried to put them into groups rather than work out the individual sentence for each particular offence. It is really a question of totality for a course of conduct against three victims over a ten year period.
47In determining the length and circumstances of that period in custody that you are to serve, I have taken into account matters personal to you. I have read the reports of Dr Ong; Dr Siam, the GP; Mr Jackson, the neuropsychologist and I have read the personal references and certificates.
48Firstly, insofar as the motivation for all this is concerned, your counsel put that it is to do with an abnormality that you have in respect of penis and having looked at those reports and having taken into account what you said to the various victims at various times, I think there is a very strong likelihood that this offending has been brought about by that sort of effect or whatever effect that had upon you.
49You have no prior convictions and would appear to, on the face of it at least, up until your early 70s lived a blameless life.
50Many references were put before me and I do not propose to go through those, including awards. You clearly have been a very community-minded person over a long period of time. You have an excellent work record after having left school at 14.
51You have now been married for 60 years. The revelation of this offending has had a catastrophic effect upon your wife, who has become very distressed and will undoubtedly remain so because of it. I take that into account, not because it is exceptional circumstances, but because you will undergo a prison sentence being aware that you have caused that to your wife and, if you have any sense of shame, it will have a very heavy effect upon you. I think that that should have a fairly devastating effect upon you and clearly will make gaol harder for you and I take it into account.
52
There was some discussion in the medical reports about mild dementia and the like. Having read them all on the balance I prefer the opinions of
Mr Jackson, the neuropsychologist, that clearly you have waning cognitive powers, as is the process of everybody as they age in this world. There is certainly nothing in that or any of those report which would attract the principles of Verdins insofar as moral culpability is concerned.
53General deterrence clearly will have to be, in this situation, moderated to a level or an extent because of the matters that I will refer to.
54You are not in good health and are now 83 years of age. There is a long list of difficulties that you have. There is the respect of mild dementia which is vascular in nature, which of course will obviously have to get worse. There is osteoarthritis. You have diabetes, high blood pressure, gastro oesophageal reflux, heart disease and you had a bypass some 20 years ago, high cholesterol, a stroke from which you have recovered, as I understand it, in 2014 and diverticula disease. You also have other matters in terms of your health. There is nothing in that that I am aware of that cannot be treated in gaol, however I do accept that that will make gaol harder for you having those conditions and I also accept that there is a reasonable possibility that being incarcerated for an extended period of time may well have an adverse effect upon your health in regard to some of those conditions.
55You also, in this scenario, have to get some moderation because of your age.
56I had lengthy discussion with your counsel. The fact of the matter here is that you were already in your 70s when you commenced this offending and you were in your 80s when it was involuntarily concluded. I do not see this as a situation where in those circumstances something such as offending that is 40 or 50 years old has finally caught up with you when you are an old man. You were doing this offending while you were an old man. However, that being said, I do take into account, in the way that your counsel has ultimately sought, that you will undergo the sentence with the prospect of you not surviving it. You will undergo the sentence in those circumstances and I think that clearly I have to take that into account in terms of the sentence I impose. I am fully aware of course that age and ill-health are not determinative of sentence and it is not a situation where I would be prepared to impose an inappropriate sentence because of those factors. However, I can say to you that they have reduced the sentence that I would otherwise have imposed.
57I have read all the reports and all the references and take them into account. From your personal situation, I am aware now of the family dislocation which your offending has caused and I take that into account that you must be aware of that. I also take into account the fact that because of this offending, even though there has been a family discussion about it, you have no longer had contact with your grandchildren and I daresay never will. I take those factors into account in terms of you undergoing a sentence with that knowledge. You are not to be punished for what you did to your own family but certainly if, as I said, you have shame, you must feel guilt about all that.
58I am sentencing on the assumption that the sentence will be served in protection and I am sentencing on the assumption that the sentence will be then served at Ararat. Gaols, unfortunately, it is a dreadful thing to have to say, but these days are accustomed to dealing with men of your age and I am sure that that can occur. However, if that is the situation, and I am 90 per cent certain it would be that you are in protection and in Ararat, it is going to make it very difficult for you to be visited by your wife and difficult to be visited by your family. Again, I take that into account in this situation.
59Rehabilitation is problematic. As I said, I find you a low risk of re-offending in any event, so it may well be. I do not know if that concerns me. I am assuming also that in the imposition of this sentence that the authorities will compel you to undergo a sexual offenders program.
60They are the overall circumstances of all this and it remains for there to be a just and appropriate punishment in all the circumstances, which in situations like this is almost always virtually impossible. As I have indicated to counsel because of the mitigating aspects of it, age, health and the like, I have reduced the sentence that I may have imposed on each charge. I also have indicated clearly that there are charges which I may not have imposed a sentence of imprisonment had they been in isolation. That is not the reality of these circumstances and I am sentencing with totality very largely in mind rather than some arithmetic calculation based upon subjective matters. Accordingly, you are sentenced as follows:
61On Charge 1, four months.
62On Charge 2, four months.
63On Charge 3, three months.
64On Charge 4, four months.
65On Charge 5, four months.
66On Charge 6, four months.
67On Charge 7, 15 months, that being putting your penis against the anus of T against the car.
68On Charge 8, four months.
69On Charge 9, six months.
70On Charge 10, six months.
71On Charge 11, 24 months, that being the oral sex being performed on the boy.
72On the representative Charge 12, six months.
73On Charge 13, four months.
74On Charge 14, four months.
75On Charge 15, four months.
76On Charge 16, four months.
77On Charge 17, four months.
78I direct that one month of the sentence imposed upon Charge 1, one month of the sentence imposed on Charge 2, one month of the sentence imposed on Charge 3, one month of the sentence imposed on Charge 4, two months of the sentence imposed on Charge 6, eight months of the sentence imposed on Charge 7, two months of the sentence imposed on Charge 8, three months of the sentence imposed on Charge 12, two months of the sentence imposed upon Charge 14, two months of the sentence imposed upon Charge 16, and one month of the sentence imposed upon Charge 17 be served cumulatively upon each other and upon the sentence imposed on Charge 11.
79I direct that the four months imposed on Charge 5, the six months imposed on Charge 9, the six months imposed on Charge 10, the four months imposed on Charge 13, and the four months imposed on Charge 15 be served concurrently with all other sentences in this matter.
80On my calculation, that gives an effective head sentence of 48 months and I direct that you serve a minimum term of 27 months before becoming eligible for parole.
81There is no PSD.
82I say to you, but for your plea of guilty to these charges, you would have been sentenced to be imprisoned for a period of six years with a minimum term of four.
83MR HUGHAN: Your Honour, can I just check two of the individual ones?
84HIS HONOUR: Yes. That is why I am asking, yes.
85MR HUGHAN: Charge 2, one month cumulative.
86HIS HONOUR: One month cumulative.
87MR HUGHAN: Yes. Charge 7, was that nine months cumulative?
88HIS HONOUR: Eight.
89MR HUGHAN: Eight. I have just written it down incorrectly, Your Honour. Can I sit down and do that.
90HIS HONOUR: You realise, as I say, it is not - my mathematical equations, but the two major ones are seven and 11.
91MR HUGHAN: Yes, Your Honour, understood. Let me just sit for a moment, if I may.
92HIS HONOUR: Yes. What I will do in the meantime is - you need to be given that form now, Mr Anderson, if you do not mind, or your instructor approaching with my associate please.
93All right. There are no other orders that have to be made?
94MR HUGHAN: No, Your Honour. That mathematics checks, Your Honour, 48 months. The only other thing, although this was not a significant - it is in Your Honour's announcing of the sentencing reasons said that Charge 17 had occurred on 6 January 2016, it is 6 January 2015. There was in fact a - I think Your Honour might have repeated the typographic error that I made -
95HIS HONOUR: I have.
96MR HUGHAN: In the opening, but it was obvious because you then spoke about 7 January.
97HIS HONOUR: Yes. No, I was working on that because it was 15 months ago. Anyhow I have just misread it. I have actually read it but had not changed it. Yes, apologies.
98MR HUGHAN: Yes.
99HIS HONOUR: All right?
100MR HUGHAN: It does not have an impact on anything, Your Honour.
101HIS HONOUR: All right, please take him down. I will just leave the Bench.
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