Director of Public Prosecutions v Spall

[2018] VCC 425

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-01230

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEPHEN SPALL

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 March 2018
CASE MAY BE CITED AS:	DPP v Spall
MEDIUM NEUTRAL CITATION:	[2018] VCC 425

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. Lew
For the Offender	Mr T. Danos

Pages 1 - 10

 

 

1HIS HONOUR: 

2Stephen Spall, you pleaded guilty to two counts of committing an indecent act with a child under the age of 16.

3These charges relate to two separate complainants, whom I shall refer to as L and M for reasons of privacy and anonymity.

4At the time of the offending, both L and M were approximately 12 years of age and you were approximately 28 years of age.  You are now aged 52.

5The circumstances of your offending are contained in the summary of the prosecution opening for the plea which was exhibited and will be retained on the court's file.

6In 1992 you resided in Wodonga with your wife and two sons.  L lived nearby in the same street with her mother and younger siblings. 

7Your wife and L's mother were friends and both families commonly spent time together. 

8L's family briefly moved away from Wodonga for a short period before moving back in 1994.  By this time you and your family had moved to another address in Wodonga and when they returned, L's family moved into your previous residence.

9In the second half of 1995, L stayed overnight at your house.  On this occasion you had been drinking with a friend.  L was lying down on a couch in your living room when you approached and knelt down next to her.  You undid her jeans, put your hand inside her underwear.  At the time L had her period and was wearing a sanitary pad beneath her underwear.  You placed your hand between the pad and the outside of her vagina with your fingers. 

10L pretended to be asleep and after a short time you removed your hand and left the room.

11This is Charge 1- indecent act with a child under 16.

12Several days later you visited L's home and attempted to apologise for your actions.  L said something to you along the lines of "Fuck you" before leaving.

13Sometime later you told your wife that L had stayed overnight at your house when she had been away and on that occasion you had touched L's breast.

14A year previously, in the second half of 1994, M had moved to Wodonga with her mother, stepfather and two brothers.  Her stepfather introduced you to M's mother and you all became close friends, regularly attending each other's homes. 

15You were a mechanic and would often work on M's mother's car. 

16M herself had an interest in cars and was often home when you would visit. 

17You showed an interest in her as you were affectionate to her, regularly hugging and cuddling her. 

18To M, you reminded her of her father.

19Sometime in 1995, after M's family had moved to Barnawartha, you were working on a car in the back shed of their family home.  M was in the shed with you and you told her to get under the car so that she could see how you were fixing it. 

20After she did so, you slid your hand inside the opening of the side of her overalls and moved your hand around beneath her underwear on the outside of her vagina, touching her.

21In her own words, she freaked out and pushed your hand away.  You asked her what was wrong and she replied that she needed to excuse herself and go to the bathroom and as she ran to the house, you told her that what you had done to her is normal and was okay.

22This was Charge 2- indecent act with a child under 16.

23Both L and M later became friends when they began attending the same high school in 1995 and around this time they told each other, in general terms, that you had offended against them both.  L also told another friend that you had put your hand inside her pants and touched her.

24On 21 August 2014 and again on 10 February 2015, you attended the Swan Hill Police Station where you were interviewed in relation to the allegations that were made by them against you.

25In relation to L's allegation you told police that there was an occasion when people had come over for drinks whilst your wife was away in Melbourne. 

26You agreed that L had slept on your couch in the living room but denied that you had touched her as she alleged.  In support of your denial, you claimed that L was on her period at the time and you knew this because you had taken her home to pick up sanitary pads, at her request.

27In relation to M's allegation you told police that there was an occasion when you were sitting on the back porch of the Barnawartha address with others who were helping you pour concrete into the shed and M, who was seated beside you, took hold of your hand and pulled it into her shorts and down the front of her legs so that you were touching skin, basically her vagina, you said.  You otherwise denied any allegation against you relating to L.

28You also claimed that your wife later told you about an incident where you had been intoxicated and had touched L inappropriately on her breast.  You did not remember this but L's mother reminded you about it the next day and you claimed that if it did happen, you would have only been mucking around.

29The offences to which you pleaded guilty, despite their age, carry a maximum sentence of ten years' imprisonment.  I take this into account as it is an indication of the gravity of the offending that the legislators have assigned such a penalty to it by way of a maximum.

30Indecent act of course covers a variety of acts and while these acts cannot be said to be negligible, it is, in a true sense, also clear that they do not contain some of the worse aspects of such a category of offending. 

31While it is reasonable to endeavour to categorise the offences by looking at the details and distinguishing them from more serious conduct, nevertheless it must be made clear that such offending against children is utterly repugnant and abhorrent behaviour which carries community consternation and causes deep, ongoing distress to victims.

32There is no gainsaying that such reprehensible and vile conduct for sexual gratification perpetuated on children causes profound and longstanding trauma, often lifelong and invasive of all aspects of life so that the criminal gets on with life and even puts the events behind him while the victims are left to deal with the repercussions of such conduct for years. 

33This offending was particularly vile as it took place in the context of family friendship, constituted severe breaches of trust of those families. 

34The impact on the victim is seen on incident victims every day in this court and it is not sufficient to diminish the gravity of the offence by describing what it is not and could have been, or to enumerate the positive and ameliorating or moderating aspect of an accused's curriculum vitae and extrapolate from that an outcome.  If proper weight is not given to the plight of victims, they are not merely given an opportunity to be heard in court and then put aside, but to enable them to take an appropriate place in the process and to render the outcome of a disposition by the criminal justice system which is adequately retributive of the hurt and damage done and reflective of the role of social rehabilitation for them which the system should endeavour to achieve in order to deal with punishment, denunciation, general deterrence and proper opportunity for community protection if required and the rehabilitation of the offender, if that is not yet complete.

35This landscape makes these sentences always complex and difficult and this is one of them.

36Victim impact statements were received by the court and read out by each of the victims.  They impressed by their forthright and powerful words, each describing their impact, the impact of your actions.  Clearly both had been traumatised by invasive memories, triggers and consequences and these have remained and affected deeply in their family life and your conduct has affected relationships marred by fear, hyper vigilance and self‑loathing.  Their sense of security, lack of trust and fear of intimacy have led to depression, loss of self-worth and, in one case, to post traumatic stress disorder and a suicide attempt. 

37It should not be forgotten that even at most basic level like this, such actions are fundamentally intrusive of bodily integrity of children.

38So even for offences down in the scale of objective gravity at commission from a merely factual basis, these are the consequences which the court sees every day and are not unusual.

39The impact flows to vocational and financial aspects of having to resort to counselling, psychologists, loss of work capacity and the ability to properly manage the impact on their own children.  All of these are relevant here and I take their statements into account.

40You entered a plea of guilty to this indictment at the earliest opportunity.  The original indictment having contained other counts previously, I accept that this plea is a full acceptance of your responsibility and, to facilitate the course of justice, it has a significant utilitarian benefit of having avoided a trial and the added burden of the victims' evidence has been avoided as well.

41I will assign to the plea an appropriate discount as envisaged by law.

42As to remorse, this is more difficult to assess. 

43The overall impression I have is that you have attempted to minimise your conduct and have told lies about your memory of the events and in the interview you raised the odious excuse of one of the victims being the initiator of inappropriate contact. 

44This is shameful and vile conduct of the most reprehensible kind, made more repugnant by seeking to put forward self‑serving explanations and rationalisations such as only mucking around.

45You have no prior convictions and have no subsequent matters.  You would appear to be a man of otherwise good character,      although this appearance in a case of sexual offending against children must be taken with caution, to adequately diminish its impact overall. 

46The offending was set to be opportunistic although the fact that there are two victims in the same period tends to aggravate the offending and indicate this opportunity taking was not as spontaneous as may be suggested. 

47I accept you were in your late 20s.  But the age differential with the victims puts the argument of those advanced being connected to your youth beyond argument or it being connected to alcohol‑fuelled misjudgement beyond acceptance.

48These events apparently took place at a time when alcohol played role in your life.  You were employed by the Department of Defence and every day would end, I was told, in heavy drinking.  This ultimately led to a break down and separation in your marriage which took place a week after these events, at a time when your wife was away from the home.  It is noteworthy that the occasion with M, you were working on a car and not drinking heavily or in company.

49I take your background into account.

50You were born in England and came to Australia aged about 11, with your parents and younger brothers.  You completed Year 10.  At age 16 years of age, the family returned to England. 

51In 1984, when 18 years of age, you married.  You had three children and that marriage lasted five years. 

52You have no contact at all with this family.

53You returned to Australia in 1989 and you were, I was told, unable to find work whilst you waited for permanent residency.  You met your current wife soon thereafter and she remains supportive.  You found work eventually with the defence department.  This was the period of the offences.

54There was a period of separation largely due to your alcohol consumption.  You had married in 1993 but separated briefly in '96.

55You have two sons which are not your own, but rather, your second wife's.

56After the defence work, you found a job as a cleaner and then worked in house removals and maintenance engineering for a couple of years. 

57In the 2000s, until 2010, you lived in Swan Hill. 

58Since then you have not worked and since 2013 you receive a disability pension. 

59That intervening period was required to receive a proper diagnosis of your condition of fibromyalgia.  You have undergone five operations and are on painkillers and have been, such as Endone, Prednisolone, Tramadol and Endep.

60I have heard evidence from Mr Fraser, a farmer friend, who told me you were a helpful and knowledgeable mechanic, reliable and genuine.

61You drink but only on social occasions and not to excess.  I received two written references, one from a Swan Hill Medical Group, attesting to your medical conditions.  It describes them and the medication required although it may be that while chronic pain prevents heavy and repetitive work, a sedentary situation may be able to be adequately met.

62The second letter was from Darren Lloyd, dated 19 February 2018, a character reference in which he speaks of you in good terms. 

63Your wife is employed in his business at Lloyd's vineyard in the Yarra Valley.  He says you appear friendly, decent and honest and I take these letters into account.

64It was argued that a prison sentence would be quite a significant imposition because of the medical matters.  I disagree.  Fibromyalgia can be dealt with by painkillers and adequate care which the correctional authorities can provide. 

65A sentence of reclusion is not an imposition, rather the appropriate punishment required by the offences. 

66It was submitted in a rhetorical question answered in the negative, would the community consider imprisonment appropriate in this case.  I disagree with the proposition that is contained in the question and the answer.  There is an assumption in this question and answer based on evidence and material which neither has been provided nor which, in my view, is based on more than speculation and the ability to infer from unascertained empirical research what the community would consider appropriate.

67It is a matter for me to determine an appropriate sentence which would, in my view, not offend community standards as I understand them, but it is not a fact of my sentencing task to interrogate the view of the community if that term can even be properly defined.

68It was said a Community Correction Order or a suspended sentence was appropriate.  The prosecution contended a combination sentence may be appropriate. 

69I have given this matter much thought and in my view a Community Correction Order, which admittedly does have some punitive aspects, is superfluous to a gaol sentence in this case. 

70The punitive aspect should be dealt with by imprisonment.  The rehabilitative aspect can be given weight in its length.  There will be partial cumulation of sentences in recognition of their discrete nature and occurrence.

71Would you please stand.

72On Charge 1, indecent act with a child under 16, you are convicted and sentenced to nine months' imprisonment. 

73On Charge 2, an indecent act with a child under 16, you are convicted and sentenced to nine months' imprisonment.

74I order three months of Count 2 to be cumulative on Count 1, making a total effective sentence of 12 months' imprisonment.

75I don't have any other ancillary orders, Mr Prosecutor.  Are there any? 

76MR LEW:  Your Honour, there was an application for a 464ZF order.  There is also the matter of the Sexual Offenders Registration Act order.

77HIS HONOUR:  Is that a discretionary matter? 

78MR LEW:  No, Your Honour.  It's two Class 2 offences and, Your Honour, the length of the order is 15 years. 

79HIS HONOUR:  This is the type of case in which the application of that legislation seems completely beyond the scope of these particular matters.  In any event, I should announce that but for your plea of guilty I would have sentenced you to 18 months' imprisonment.

80I will order that a biological sample be collected from you for placing on the DNA database.  I'll sign that order when it's available.

81Because I've sentenced you in this way, the provision of the Sex Offenders Registration Act comes into play and that means that you will be registered as a sex offender for the next 15 years. That registration provides for a significant number of obligations which you have to abide by when you are released. There'll be a document outlining those obligations. They can be quite numerous and onerous and it's important that you understand what they are otherwise you will be breached of those conditions and be brought back before the court.

82The duration of those obligations is a mandatory 15 years. 

83When the order in relation to the biological sample is appropriate, Mr Prosecutor, you can hand it to my associate and I'll sign it.  I don't seem to have a draft order in relation to this matter, so just make it available electronically to my associate and I will sign it.

84MR LEW:  Yes, Your Honour.

85HIS HONOUR:  Thank you.  Mr Danos, is there family in court? 

86MR DANOS:  Yes, Your Honour.  His son is present. 

87HIS HONOUR:  Give him a moment to say something to him if he wishes.  I'll remain on the Bench.  Yes, thank you both. 

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