Director of Public Prosecutions v Smith (a pseudonym)

[2021] VCC 1233

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARSHALL SMITH (A PSEUDONYM)

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JUDGE:	O’CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2021
DATE OF SENTENCE:	27 August 2021
CASE MAY BE CITED AS:	DPP v Smith (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1233

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW      

Catchwords:          Indecent assault; Buggery; offending occurred between 50 and 42 years previous; Offender a child or young offender at time of commission of offences; Impact of offending on victim significant; Substantial weight attached to plea of guilty; Subsequent rehabilitation; Suspension of imprisonment warranted.

Legislation Cited:         Sentencing Act 1991

Cases Cited:R v Boland (2007) 17 VR 300; Sherritt v The Queen [2015] VSCA 1; Miller v The Queen [2011] VSCA 143

Sentence:  Total effective sentence of 3 years suspended for 2 years

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Devlin	Office of Public Prosecutions
For the Accused	Mr G. Dunstan	Swan Hill Legal & Conveyancing

HIS HONOUR:

Introduction

1Marshall Smith,[1] you have pleaded guilty to one charge that at Swan Hill between 11 January 1971 and 29 February 1972 you unlawfully and indecently assaulted a person, whom I will refer to as Leo Olson[2] for the purposes of these sentencing remarks, a male under the age of 16. That charge comprised four separate indecent assaults which, by agreement with the prosecution, were rolled up in this one charge.

[1] A pseudonym.

[2] A pseudonym.

2You also pleaded guilty to a second offence that at Swan Hill between 11 January 1978 and 10 January 1979 you committed the crime of buggery with Leo Olson, a person under the age of 14. That charge comprised two separate instances of buggery which by agreement with the prosecution were rolled up into this one charge.

3It is my task now to sentence you for those offences.

Summary of offending

4The victim of this offence was born in January 1966. You were his uncle. At the time of the offending you lived with your parents in Swan Hill. Your nephew, together with his parents, would visit that residence about every second weekend for family gatherings.

Charge one - indecent assault

5When Leo was five years of age his parents separated. At that time you were about 14 or 15 years old.

Incident one:

6Your hobby at the time was building model aeroplanes and your nephew enjoyed watching and helping you. On one occasion, just before Leo’s parents separated, the victim was in your bedroom and you walked over and stood next to him. You then undid your belt and pants and removed your penis. You then used your right hand to take hold of the victim’s left wrist and moved his hand onto your penis so as to make him stroke your penis until you ejaculated.

Incident two:

7A few weeks after the first incident, you invited your nephew to come and see what you were doing in the shed. Inside there was a number of model planes in various stages of construction. Whilst in the shed you again undid your belt and pants and removed your penis. You then tightly cupped your hand over the victim’s hand and made him stroke your penis until ejaculation.

Incidents three and four:

8About a week after the second incident the victim again went into the back shed where you were working on some model planes. He recalled that he was wearing a new green Bugs Bunny T-shirt. You put your right hand down the front of his shorts and underwear and fondled his penis whilst holding the victim with your left hand. You touched the victim in this way for about a minute or so during which time you twice looked towards the doorway to see if anyone was coming.

9Shortly afterwards you again grabbed the victim and undid your belt and pants and removed your penis. Using your left hand you placed his right hand on your penis and made him masturbate you until ejaculation. Some ejaculate went on to the victim’s T-shirt and he expressed concern that it would get him into trouble. You helped him clean his T-shirt.

Charge 2 – Buggery

Incident one:

10Your nephew had a specific memory of standing in a bedroom with you when he was approximately 12 years of age and you were about 21 years old. He recalled that it was hot and sunny and that he was sweating. He remembered that you placed your hands on his shoulders and hips and that he felt your penis inside his anus.

Incident two:

11The victim also recalled a second specific incident which occurred when he was about 12 years of age. He remembered being in a dark room with you at what he thought was night time. He recalled that he was lying on his side and that you put your penis into his anus. He remembered having to be quiet as the house was “dead silent” and that he was scared of being caught.

12Leo first disclosed what had happened to him to his sister on his 40^th birthday in 2006.

13He made a complaint to police in respect of this offending initially in August 2019. A second statement was made in November 2020.

14You were arrested and interviewed by police on 25 June 2020. Whilst you said that you had difficulty remembering specific events you nevertheless made a number of significant admissions to sexually offending against the victim. As you told police, “I’m not denying what he’s saying… I’ve felt remorseful ever since”.

15The relevant maximum penalties for these offences is five years imprisonment in respect of indecent assault and twenty years imprisonment in respect of the offence of buggery.

16You pleaded guilty to these offences in what is accepted to have been a very early stage in proceedings in the Magistrates Court.

Victim Impact

17An important aspect of the sentencing process is to gain an appreciation of the impact this offending has had on the victim. He made a victim impact statement on 16 August 2021 and at the plea hearing on 26 August 2021 he personally read that statement to the court.

18Leo has carried the effects of what you did to him throughout his entire life. The impact has been profound. He said that the feelings of shame he experienced at the time of the offending are still with him even to this day. Throughout his life, his ability to trust, to be a stable father figure and partner, to hold down a secure job and to feel valued has been diminished by these experiences. For 40 or more years he carried the secret of what had happened to him until he reached a point where he could do so no longer. Leo’s courage in coming forward in 2019 and confronting what you did to him should be acknowledged.

19In his statement, Leo also said that he took issue with the description of this offending as an ‘historical crime’. He explained that there is nothing historical about the repercussions which he, his children, his family and his friends are still living with to this day.

20In my view, that is a point well made.

21You Mr Smith should understand that the impact your offending has had on Leo is a very important consideration to be taken into account in formulating the sentence that must now be imposed.

Personal circumstances

22You are a 65-year-old Indigenous man of the Wurundjeri clan. You were born in Swan Hill in June 1956 and have lived your entire life in the Swan Hill district. You have no previous or subsequent convictions.

23According to your solicitor, Mr Dunstan, who appeared on your behalf on the plea, you were raised in a loving and caring home, being the second youngest of seven children. You attended the local primary school and then Swan Hill Tech until year 10. You went on to complete an apprenticeship as a compositor at the local newspaper, where you worked for the next 15 years.

24In 1988, you commenced work with what was then the Commonwealth Employment Service (which later became Centrelink) until 1999. You spent the next ten years working for a community mental health service in Swan Hill as a community support worker. Thereafter, you moved to an employment agency as a support worker and Indigenous community links coordinator. That program was terminated in 2018 and you have not undertaken paid work since that time.

25In setting out your work history, Mr Dunstan submitted that you have provided valuable support and assistance to vulnerable members of the Indigenous community throughout virtually your entire working life. You have also taken on volunteer work, assisting in programs such as Meals on Wheels, mentoring young people in a learn-to-drive program, serving as a committee member of a primary care partnership network and as an Elder of the local Aboriginal Network.

26You have been married to your wife for 40 years. She suffers from some mental health issues and you provide support to her. There are four adult children of the marriage, two of whom serve in the RAAF. Your second-youngest son continues to live at home and also has mental health issues. Your eldest son, who is 29 years of age, has had some difficulties with substance abuse, which has been a significant source of concern for you over the years, and remains so.

27You yourself have had some health issues associated with type II diabetes, hypertension and arthritis. In addition, a medical report was tendered from Dr Tim Dewhurst of 23 August 2021 from Mallee District Aboriginal Services.

28Dr Dewhurst states in that report that you:

“…initially presented to MDAS on 19 Feburary 2021 for a Mental Health Care Plan through Dr Antiqul Islam and has since been commenced on Antidepressant medication and referred to a local Psychologist in Swan Hill. His mood has remained significantly depressed over this time together with an anxiety disorder associated with some negative and suicidal thoughts…family relationships continue to be damaged and I remain concerned for his welfare.”

29Dr Dewhurst expressed further concerns as to your ongoing anxiety and depression and how these might be exacerbated should you be placed in custody.

Defence submissions

30Mr Dunstan submitted that you could not explain the offending. You instructed him that you have never identified as homosexual or bisexual and that you have enjoyed a normal, healthy relationship with your wife over the last 40 years.

31He emphasised your remorse, your cooperation with police, your insight into the harm that your offending caused, and your early plea of guilty. Whilst it was open to you to obtain references as to your otherwise good character, you chose not to do so because of the shame you feel in having committed these offences.

32It was submitted that such terms of imprisonment that might be imposed should be wholly suspended in all the circumstances.

Prosecution submissions

33Mr Devlin, in his submissions on behalf the Director, emphasised the inherently serious nature of this offending and the fact that, even though the offending occurred many years ago, it is nevertheless important that general deterrence be emphasised. It was submitted that the seriousness of the offending demanded a term of imprisonment, albeit that it was open to the court to consider the suspension of such sentences that might be imposed.

Consideration

34In considering these submissions, I have to bear firmly in mind the devastating impact this offending had on the victim. Simply reading his statement to the court was an extremely difficult exercise for him and was testament in itself to how debilitating the effects of sexual abuse on a young person can be. I should again acknowledge Leo’s courage in coming forward.

35That said, the sentence imposed today will not, and cannot hope to, repair the damage done. Sentencing is not an exercise in revenge. In sentencing you, Mr Smith, I must balance the various competing sentencing purposes set out in the Sentencing Act 1991 in light of the following principle, stated by Nettle JA, as he then was, in the Court of Appeal decision of Boland:[3]

“Decisions of this court in R v Nutter and R v Better recognise that where offences which are then committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictates that the assessment of the nature and gravity of the crime and of the offender's moral culpability take into account that what was done was done as a child or a person of immature years and not as an adult or person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.” [4]

[3] R v Boland (2007) 17 VR 300, 304 [16].

[4] See also Sherritt v The Queen [2015] VSCA 1, [42] per Maxwell P, [35] per Priest JA; Miller v The Queen [2011] VSCA 143, [67] per Ashley JA, with whom Lasry AJA and Harper JA agreed.

36At the time you committed the acts constituting Charge 1 you were between the ages of 14 and 15 – you were a child. At the time you committed the acts constituting Charge 2 you were about 21 or 22 – you were a young or youthful offender. Your moral culpability assessed in that light must be reduced. Similarly, general deterrence must play a lesser role than would otherwise be the case. It is also significant that you have not re-offended in any way in the last 42 years and have contributed significantly to your community.

37Beyond those considerations, your plea of guilty will substantially reduce the sentence that would otherwise be imposed. The plea was made to allegations that were as much as 50 years old and understandably lacked some precision. It was open to you to deny those allegations and contest them vigorously. Instead, you entered your plea at what appears to have been the earliest practicable opportunity. The utilitarian benefit to the community flowing from the plea is of a high order. This is so not only because it was made during the pandemic, but also because, in this case, I am prepared to infer from the victim’s presentation at the time of reading his victim impact statement that if he had had to endure cross-examination at committal and trial it would have likely caused significant further trauma.

38Your plea of guilty in those circumstances should be given significant weight. Likewise, your readiness to admit your guilt is very much consistent with remorse. Indeed, I accept that you are remorseful.

39As Mr Devlin submitted, these are inherently serious offences that have demonstrably caused significant harm. They demand that a term of imprisonment be imposed – no other alternative is appropriate. However, in the circumstances I am persuaded that the sentences imposed should be wholly suspended, in the manner that the law applicable at the time of the commission of these offences allowed.

Sentence

40Taking all relevant matters into account you will be sentenced as follows:

41On Charge 1, being indecent assault, comprising of 4 incidents, you will be convicted and sentenced to 12 months imprisonment.

42On Charge 2, being buggery, comprising 2 incidents, you will be convicted and sentenced to 2 years and 6 months imprisonment.

43I will order that 6 months of the sentence imposed on Charge 1 be served cumulatively upon the sentence imposed on Charge 2, rendering a total effective sentence of 3 years. I will further order that sentence be wholly suspended for a period of 2 years.

44I will, pursuant to 6AAA of the Sentencing Act 1991, declare that but for your plea of guilty you would have been sentenced to a term of imprisonment of 4 years with a non-parole period of 2 years, to be served immediately. I will cause that declaration to be noted in the records of the court.

45I will reserve the question of registration under the Sex Offenders Registration Act 2004 (Vic) pending further written submissions.