Director of Public Prosecutions v Speers (a pseudonym)

[2025] VCC 113

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

V

Christopher Speers (a pseudonym)

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JUDGE:	His Honour Judge ROZEN
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2025
DATE OF SENTENCE:	14 February 2025
CASE MAY BE CITED AS:	DPP v Speers (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2025] VCC 113

REASONS FOR SENTENCE
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Subject:CRIMINAL

Catchwords:   Verdict-guilty - Sexual penetration of child under 16 - Historical offending – breach of trust – objective gravity -considerable – Current sentencing practices compared to past sentencing practices – significant delay - No prior convictions – No post offending convictions - Family support – Maintains denial of offending.  

Legislation Cited:  Crimes Act 1958 (Vic); Sentencing Act 1991(Vic); Sex Offenders Registration Act 2004 (Vic).

Cases Cited:Cheung v The Queen (2001) 209 CLR 1; Stalio v The Queen [2012] VSCA 120; The Queen v AMP [2010] VSCA 48; Romley v The Queen [2018] VSCA 329; Crouch v R (2019) 58 VR 264; DPP v Dalgleish (a pseudonym) [2017] HCA 41.

Reports Cited:  Attorney-General’s Department, Sentencing Statistics Higher Criminal Courts 1992; Attorney-General’s Department, Sentencing Statistics Higher Criminal Courts 1993.  

Sentence:  Total effective sentence-4 years’ 6 months’ – Non-parole period-3 years’ 6 months’ – pre-sentence detention-113 days – Sex Offenders Registration-for life.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P. STEFANOVIC	Office of Public Prosecutions
For the Accused	Ms A. BURNNARD	Nelson Brown Legal

HIS HONOUR:

1Christopher Speers,[1] in October of 2024 in a trial before me, you faced 5 charges of sexual offending against Susan McDonald[2], who was born in 1981.

[1] A pseudonym.

[2] A pseudonym.

2On 24 October 2024, after an eight day trial, you were found guilty of two of the charges by a jury.

3The two charges of which you were found guilty were:

(a)   Between 28 April 1992 and 2 May 1993, in your bedroom you sexually penetrated Susan McDonald who was a child under the age of 16 years when you placed your penis in her vagina (Charge 2); and

(b)   Between 28 April 1992 and 2 May 1993, in the horse stables you sexually penetrated Susan McDonald who was a child under the age of 16 years when you placed your penis in her vagina (Charge 3).

4The evidence of Ms McDonald at trial was that the second occasion upon which you offended was ‘maybe a couple of days, a week or two’ after the first.[3]

[3] Transcript of Proceedings (18 October 2024) T23.28-30 (Susan McDonald).

5The jury found you not guilty of the remaining three charges.[4]

[4] The indictment also alleged a sexual assault and two other sexual penetrations, all related to the same complainant, Ms McDonald.

6It is now my role to sentence you for your offending following the trial. The task of a sentencing judge following a jury verdict is clear: I am obliged to determine the factual basis upon which you are to be sentenced; the facts I find must not be inconsistent with the jury's verdict; and any adverse findings must be made to the criminal standard.[5]

[5] Cheung v The Queen (2001) 209 CLR 1 at 19 [38].

Factual Circumstances

7The offences of which you were convicted occurred between April 1992 and May 1993. Ms McDonald did not come forward to police to disclose these incidents until July 2020, which was about 27 years after the offending occurred.

8Before the time of the offending, Ms McDonald’s older brother, David,[6] was displaying behavioural issues, and was sent to live with you and your wife Eva Speers[7] at your home.

[6] A pseudonym.

[7] A pseudonym.

9Ms McDonald and her family would often visit David and your family. She would often be left at the home in your care, when your wife and Ms McDonald’s mother went to play bingo. This occurred continually over a few years.

10The first incident occurred when Ms McDonald was around 10 years old. You were aged between 27 and 28.

11She describes the two of you ‘mucking around’ in your and Eva’s bedroom, you were playing and tickling her. At this time, you got on top of Ms McDonald with her lying underneath you. You soon started to rub her thigh and put your hands down her pants.

12You pulled the doona cover over yourselves, wet your fingers and inserted your penis into her vagina. You asked her to ‘be quiet, so that no one knows’. During this incident she described feeling pain. You ejaculated on her stomach. When it was over, she got dressed and went out into the loungeroom and waited for her mother to come home.

13She described that she continued to feel pain afterwards, particularly feeling the pain in her stomach. She went to the bathroom afterwards, at which point she wiped herself and noticed blood.  Ms McDonald did not disclose the incident to her mother at the time.

14Ms McDonald went on to describe the second incident in respect of which you were found guilty. It occurred a couple of days, to a week or two after the first incident. Ms McDonald described that there were stables on your property, where a horse called Stormy was kept.

15Ms McDonald went down to the stables one day with you and you both looked at the horse together. You put her hands on the stable wall and stood behind her, you pulled her pants down and spat on your fingers. You rubbed your wet fingers inside her vagina. You held your hands on her hips and inserted your penis into her vagina.

16You were interrupted during the act by Ms McDonald’s brother, David. The sex stopped after the interruption, at which point Ms McDonald and you returned to the house.

17Ms McDonald did not disclose the incident to her mother at the time.

Victim Impact

18The court received a Victim Impact Statement prepared by Susan McDonald.[8] The Statement was read to the court by the prosecutor at Ms McDonald’s request.

[8] Victim Impact Statement of Susan McDonald dated 23 January 25 (‘Exhibit P2’).

19In her statement, Ms McDonald, who is now 43 years of age, states that your offending took her childhood away from her. She states that you took her virginity away which she describes as the most important thing. Ms McDonald explains that the suffering never ends and she finds it hard to be in a relationship. She concludes her statement as follows:

I hate people looking at me it just makes me feel uncomfortable especially men I don’t even let my partner look at me and that makes it hard for him. I don’t trust [any] males anymore.

20In sentencing you, I have taken into account the profound effects of your offending on Ms McDonald.

Objective gravity and moral culpability

21Sexual offending, against a child, especially offending involving penetration, is heinous criminal conduct. In your case, you were in a trusted position of authority over Susan. The McDonald’s were family friends and you and your wife had agreed to look after Susan’s brother. As a result the McDonald family frequently visited your family home. Susan’s parents were happy to leave her alone with you.

22You fractured the trust reposed in you by Susan’s parents and Susan herself in a most grievous manner.

23The objective gravity of your offending is considerable.

24Mr Cummins, a forensic psychologist who examined you at the request of your lawyers, notes your claim that you are not sexually attracted to pre-pubescent females. Mr Cummins describes your offending as ‘being situationally motivated and opportunistic’.[9] Your counsel referred to this opinion in her submissions on your behalf.[10] I understand that this is said to be mitigatory in some way or at least that it makes your offending less egregious than it otherwise might be.

[9] Psychological Report of Christopher Speers written by Jeffrey Cummins dated 17 January 2025, 5 [38] (‘Exhibit D1’).

[10] Nelson Brown Legal, ‘Outline of Defence Submissions’, 31 January 2025, 2 [12] (’Defence Submissions’).

25I do not entirely understand what is meant by ‘opportunistic’ in this context. If what is meant is that an opportunity presented itself in which you could have penetrative sex with a child in your care and you took advantage of that opportunity not once but twice, then it is difficult to see how that could be mitigatory in any way.

26Despite the ‘opportunistic’ nature of your offending, in my view, your moral culpability is considerable.

Personal Circumstances

27You are currently 59 years old. You were born in Box Hill and were the fifth child of seven.

28Your parents separated when you were three years old, and you have had no contact with your father since you were four. This was due to your father’s new partner not permitting him to speak with any of his children.

29Your mother had various partners who were sometimes aggressive and violent when consuming alcohol, however they were not physical. She was married for a period of time. Your mother now lives in Warrnambool, you have limited contact with her and your siblings.

30From the age of four, you grew up in north-west of Hamilton. You attended Primary School and High School until Year 8. You left home at 14 to work on a dairy farm.

31You have consistently worked doing various labouring jobs such as abattoirs, factory work and truck driving.

32You were in a relationship with Eva Speers from 1984 to 1997, whom you had four children with. You were then in a relationship with Vickie[11] from 1997 to 2019, with whom you had a further four children. You are currently separated from Vickie, but are not divorced.

[11] A pseudonym.

33You have a total of 14 grandchildren from both relationships, and have maintained a good relationship with Vickie and Eva, your children and grandchildren. Your family also remain supportive of you and a number of your family members were in court to support you at the sentencing hearing.

34In 2016 you were seriously injured in a truck accident, where you had to be cut out of the vehicle and had to learn how to walk again. You were then diagnosed with Stage 1 bladder cancer, now in remission but ongoing checks are still required. You also suffer from gout, high blood pressure and type II diabetes. I accept that these physical health conditions will make your time in custody more onerous than would otherwise be the case.

Current Sentencing Practices

35Section 5(2)(b) of the Sentencing Act 1991(Vic) requires that I take into account, as one of many factors, ‘current sentencing practices’, this refers to practices current at the date of sentencing and not the date of offending.[12]

[12] Stalio v The Queen [2012] VSCA 120, 18 [39] (‘Stalio’).

36However, in the case of Stalio v The Queen,[13]the Court of Appeal stated that, when sentencing an individual after a significant delay since the time of the offending, the principle of equal justice requires that regard also be had to sentencing practices at the time that the offence was committed. As the Court there recognised, ‘… [i]t would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time’.[14]

[13] Ibid, 22-3 [52]-[53].

[14] Ibid, 23 [54].

37The Court of Appeal has recognised that generally speaking, in cases where there is little by way of evidence of historical sentencing practice, ‘the best that a sentencing judge [can] do in such circumstances [will] be to have regard to the fact that the range of sentences imposed for this offence were generally lower than the present range of sentences for the same or similar offences’.[15]

[15] The Queen v AMP [2010] VSCA 48, 14 [34] (‘AMP’).

38However, in the present case, the parties provided the court with material to inform its understanding of both current and historical sentencing practices for the crime of sexual penetration of a child under 12.

39Counsel for the defence provided the court with data about Victorian higher court sentencing practices in 1992 and 1993[16] concerning the offence of sexual penetration of a child under the age of 16.[17]

[16] Attorney-General’s Department, Sentencing Statistics Higher Criminal Courts 1992, Section 3.5a2 Sexual Penetration of a Person 10-16; Attorney-General’s Department, Sentencing Statistics Higher Criminal Courts 1993, Section 3.5a2 Sexual Penetration of a Person 10-16.

[17] Crimes Act 1958 (Vic) s 45.

40In 1992, of the 183 counts that were the subject of sentencing, 93 resulted in terms of imprisonment to be served immediately. Of the remaining 90 cases, 24 received suspended sentences and 42 were sentenced to adjourned undertakings.[18] The average term of imprisonment imposed was 2 years and 6 months; the median term of imprisonment was 3 years.

[18] A small number of other sentences were imposed.

41In 1993, of the 159 counts that were the subject of sentencing, 120 resulted in terms of imprisonment to be served immediately. Of the remaining 39 cases, 13 received suspended sentences and 20 were sentenced to adjourned undertakings.[19] The average term of imprisonment imposed was 2 years and 3 months; the median term of imprisonment was 2 years and 6 months.

[19] A small number of other sentences were imposed.

42Having considered the materials provided to the court, I accept that sentencing practices for the type of offence under consideration were materially different at the time of the offending (1992-3) when compared to the present time.

43A further feature of sentencing practice in this area of the law concerns the present day appreciation of the impact of such offending on young people. In Bromley v The Queen,[20] which also involved historical sexual offending, the Court of Appeal observed that:

It is possible to discern from current sentencing practices for child sex offences that there is now a much greater understanding of the impact that offending of this kind has on child victims. In approaching the sentencing task, the court may bring to bear its present understanding of the devastating impact that offending of this kind has even though such an understanding may not have been a feature of sentences imposed at the time the relevant offending occurred.[21]

[20] [2018] VSCA 329, 13 [13].

[21] Ibid [51]; see also Crouch v R (2019) 58 VR 264, 13 [45].

44Finally, it is important to recognise that current sentencing practices are but one factor to be considered and are not the controlling factor of the sentence that I must impose upon you.[22] Still less, are past sentencing patterns the controlling factor of my sentence.

[22] DPP v Dalgleish (a pseudonym) [2017] HCA 41, 21 [68].

45I have adopted the approach explained by the Court of Appeal in the case of AMP and taken these differences into account.[23]

[23] See (n 15).

Matters of mitigation

46You have no prior convictions and have not offended since the charges. I have taken this into account in the exercise of the sentencing discretion. In particular, I conclude that there is a reduced need for specific deterrence and community protection. These matters are also relevant to your prospects of rehabilitation which I discuss later in these reasons.

Delay

47There has been a delay of nearly thirty years between the dates of the offending and the date of sentence. This delay is relevant to the exercise of the sentencing discretion particularly because you have not reoffended during the period. This will be relevant to the court’s assessment of the sentencing considerations of specific deterrence, risk of reoffending and prospects of rehabilitation. However, as the Court of Appeal explained in Crouch v R,[24] a court is not required to make positive assessments of these matters where there is a lengthy delay. The court’s assessment must be informed by the circumstances of the case before it.[25]

[24] (2019) 58 VR 264.

[25] Ibid, 12-3 [44].

48Here those circumstances include your failure to demonstrate any remorse for your offending or empathy towards Ms McDonald. According to the report of Mr Cummins, you maintain your innocence despite the jury’s verdict which ‘shocked’ and ‘puzzled’ you.[26]

[26] Exhibit D1 (n 9) 3 [21]-[23].

Rehabilitation Prospects

49Mr Cummins assesses your risk of committing a further sexual offence as low. However, he emphasises ‘that caution needs to be applied in relation to conducting a sexual risk assessment under circumstances where the person maintains their innocence’.[27]

[27] Ibid 3 [24] and 4 [33].

50I accept this assessment. I also take into account your work history, stable home life and family support.

51I assess your rehabilitation prospects as good in the circumstances.

Consideration

52General deterrence, denunciation and just punishment are the principal sentencing considerations. As noted earlier, your offending has had a profound effect on Ms McDonald which is likely to be enduring. You robbed her of the right to determine the age at which and the circumstances in which she became sexually active. This is a terrible thing to do to another human being. It is especially terrible that you did this while Ms McDonald was in your care at your house where she was fully entitled to feel safe.

53Although you are not to be punished for contesting the charges, you do not receive the sentencing discounts that would have flowed from guilty pleas.

54The sentences the court imposes must reflect that you twice offended against Ms McDonald. However, I accept your counsel’s submission that it is appropriate to make the individual sentences largely concurrent because there is one victim and the second offending occurred within a brief period of the first.[28]

[28] Defence Submissions (n 10) 4 [34].

55Taking into account the maximum penalties and the other matters discussed earlier, I make the following orders:

(a)   On Charge 2, sexual penetration of a child under 16 years of age, you are convicted and sentenced to 4 years and 6 months’ imprisonment.

(b)   On Charge 3, sexual penetration of a child under 16 years of age, you are convicted and sentenced to 4 years and 6 months’ imprisonment.

(c)   I order that 6 months of the sentence on charge 3 be served cumulatively on the sentence imposed on charge 2.

(d)   The total effective sentence is therefore 5 years’ imprisonment.

(e)   You are to serve 3 years and 5 months before you are eligible for parole.

(f) Pursuant to s 18 of the Sentencing Act 1991 (Vic), I declare that the 113 days you have served on remand not including today is time served in relation to the sentences I impose today and the records of the court are to record this fact.

(g)   As both of the charges are in respect of class 1 offences, you are registered for life under the Sex Offenders Registration Act 2004 (Vic). There is some paperwork for you to complete.