Director of Public Prosecutions v Smith
[2016] VCC 19
•15 March 2016
| Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM ALBERT SMITH |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 15 March 2016 |
| DATE OF SENTENCE: | 15 March 2016 |
| CASE MAY BE CITED AS: | DPP v Smith |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 19 |
REASONS FOR SENTENCE
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Subject: Criminal Law - sentence
Catchwords: Pleas of guilty to three charges of gross indecency – three complainants all aged under 16 – offences committed between 1988 and 1991 – accused now aged 78 – serving six year sentence with four year minimum period for more serious sexual offences against children during same period – no convictions prior to this time, no further offending- frail health – former police officer.
Sentence: 6 months concurrent
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NOTE pseudonyms used to protect the identity of the complainants.
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Bourke | OPP |
| For the Offender | Mr B. Johnston | Cameron Marshall & Associates |
HER HONOUR:
1William Albert Smith, you have pleaded guilty to three charges of gross indecency which you committed against three children aged under 16 years between 1988 and 1991.
2The maximum sentence for this offence is two years’ imprisonment. In July 2014, you were sentenced by His Honour Judge Montgomery of this court following a trial to six years’ imprisonment with a non parole period of four years. You were convicted of 12 charges of indecent assault and four charges of gross indecency against two girls under the age of 16. Those offences occurred between 1982 and 1987 approximately. The girls were the nieces of the woman who was your partner and was still your partner at the time of your incarceration. The charges included very serious instances of sexual penetration on numerous occasions.
3In relation to the present case, the charges were severed from the trial. The three children against whom you offended lived in your neighbourhood. The first complainant, Patricia Dillon[1], then aged ten, was a friend of your niece and went with you and your niece to the Lake Goldsmith Engine Show in 1988. You stayed the night there in the basic shed accommodation provided for visitors and while the girls were having a bath, you masturbated in front of them looking directly at them as you did so. That is Charge 1.
[1] Pseudonym
4The other two complainants were a sister and brother, Elizabeth and Robert Hannan who lived close by and who would often play in the park in front of your house. They became friendly with you and several times went with you to Lake Goldsmith for the Engine Show and to stay in the shed accommodation. On one occasion whilst staying there, you screened a pornographic movie in the presence of the children who were then aged 14 and 13. Elizabeth Hannan[2] watched some of it before going outside. This is Charge 2.
[2] Pseudonym
5In her statement, Elizabeth Hannan described an occasion when walking to school and she saw you standing inside your house cleaning a large window wearing a dressing gown that was open and exposing your penis. She alerted you to this but you told her you could do as you liked on your own property. This is not the subject of any charge.
6Charge 3 concerns another occasion when you played a pornographic movie for the children at your house when Robert watched it but his sister did not. A victim impact statement was provided by Robert Hannan[3] who said the offending had an impact upon him which he did not understand at the time and he finds it hard to put into words but he now knows it opened up a world for which he was too young. He believes it led to depression which has in turn had a negative impact on his life.
[3] Pseudonym
7Turning now to your circumstances, you were born and raised in Ballarat and left school at the age of 15 to work as a labourer. In your mid twenties you joined the Victorian Police Force and attained the rank of sergeant before retiring some 15 years later in the context of what appears to have been a psychological breakdown. Your marriage ended at that time and you began a relationship with your partner who still provides support for you.
8You have three children from your marriage who also support you and you are a grandfather and a great grandfather. You began committing these offences when you were 45, about five years after you left the Police Force and ceased when you were about 54 with no offending before or after that period of about nine years.
9Any charges of sexual offending against children are serious and general deterrence is of significant importance. Such offending must be and is firmly denounced by the court, just as the community expects. In relation to Charge 1, you exposed two ten year old girls to obscene and disgusting behaviour, although this charge only relates to one of those girls.
10The other two children were young teenagers when you exposed them to the pornographic movie. Having said that, your counsel has submitted that the first charge is in the mid range of seriousness with the other two charges at the lower end of the scale of seriousness for offending of this kind. I agree with that approach.
11Most of the offending for which you are already serving a sentence was at the higher end of the range but the sentence is moderated by a number of mitigating factors as explained by the learned sentencing judge and as will also apply in this case.
12You are now aged 78 and when eligible for release on parole in July 2018, you will be 80 years old and seven months. By the time your parole expires in July 2020, you will be 82 years and seven months. You are in frail physical health, suffering from incontinence, from a syndrome or disease called Barrett’s Esophagus as well as atrial fibrillation and very high blood pressure, with variation in your Hannane rate which requires close monitoring. You also have some memory problems.
13These conditions make it likely that prison will be more onerous for you than for some younger and healthier prisoners combined with the fact of your former employment as a police officer and the nature of your offending. Once released, the risks of re-offending will likely be reduced by your age and frailty.
14There has been a long delay in the prosecution of this case, as so often applies because of the nature of the offending and I take that into account. If you had been dealt with much closer to the time of the offending, you could have been sentenced to a wholly suspended term of imprisonment, a disposition which is still available in this case. The alternative is to impose a short prison sentence that would be served concurrently with the sentence you are now serving and I take the view that that is the more appropriate disposition.
15Although these are of course additional charges to those for which you were serving that sentence and they were perpetrated against three additional children, the principle of totality requires concurrency in this case. In other words, the length of your current sentence is adequate to provide just punishment.
16I take into account your plea of guilty to these charges which has avoided the need for a trial and importantly saved the complainants from having to give evidence.
17Accordingly I sentence you to six months imprisonment for Charge 1 and three months for each of Charges 2 and 3. As I said, these sentences will be served concurrently with each other and with your current sentence.
18If you had pleaded not guilty to these charges, I would have sentenced you to a total effective sentence of nine months to be served concurrently.
19HER HONOUR: Does a pre-sentence detention order relate to these matters? He is still serving a sentence for the other matter so it probably does not.
20MR BOURKE: No, Your Honour.
21HER HONOUR: No, it does not, thank you.
22MR BOURKE: No, Your Honour.
23HER HONOUR: Mr JOHNSTON?
24MR JOHNSTON: No, Your Honour.
25HER HONOUR: Thank you.
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