Director of Public Prosecutions v Stott
[2019] VCC 2159
•16 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-00774
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DOUGLAS STOTT |
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JUDGE: | HER HONOUR JUDGE M. SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26, 28 February; 13 November 2019 | |
DATE OF SENTENCE: | 16 December 2019 | |
CASE MAY BE CITED AS: | DPP v STOTT | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2156 | |
REASONS FOR SENTENCE
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Subject: Criminal Law – Sexual Offences
Catchwords: Indecent Assault of male under 16 - Buggery
Legislation Cited:
Cases Cited:R v Clarkson (2011) 32 VR 361 – Adamson v R [2015] VSCA 194 – DPP v Toomey [2006] VSCA 90 – Gill v The Queen [2019] VSCA 92 – Hughes v The Queen [2017] HCA 20 – The Queen v Bauer [2018] HCA 40 – McPhillamy v The Queen [2018] HCA 52 – Bromley v The Queen [2018] VSCA 329 – Burgess v The Queen [2017] VSCA 59 – HMcL v R (2000) 174 ALR 1 – Gordon v The Queen [2013] VSCA 343 – DPP v Toomey [2006] VSCA 90
Sentence: TES: 5 years imprisonment with a minimum of 3 years to be served
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Borg | OPP |
| For the Accused | Mr D. Sala | James Dowsley & Associates |
HER HONOUR:
1 At the outset, I remind those listening that publication of anything likely to identify a complainant in a sexual offences case is prohibited by an Act of Parliament[1]. In my published remarks, a pseudonym will be used for the name of the complainant.
[1] Section 4 Judicial Proceedings Reports Act
2 Douglas Stott, you have pleaded guilty to two charges of committing an indecent assault on a male under 16, an offence with a maximum sentence of 5 years’ imprisonment, and to one charge of buggery with a person under 14, an offence with a maximum sentence of 20 years’ imprisonment.
3 I sentence you on the basis of the prosecution opening[2] which was read out in court. I will briefly outline your offending.
[2] Exhibit A
4 Between 1972 and 1975, you were working as a Child Care Officer at Baltara, which was a State-run institution for boys who were placed under the care of what was then known as the Department of Social Welfare.
5 The complainant, Laurence Henry[3] was made a Ward of the State in 1972 when he was aged 9, and he spent a short time at Turana Reception Centre and then Baltara before being returned to his family. His parents separated and he lived with his mother until he was returned to Baltara at the age of 11 in April 1975.
[3] A psuedonym
6 I will refer to the complainant by his first name in describing your offending against him when he was a boy; as he is a mature man now aged 56 years, I will accord him the respect of referring to him as an adult thereafter in these remarks.
7 On one occasion in 1975, when you were aged about 27 years, and Laurence was about 11, you took him on his own on an outing to a trampoline centre. After he had played there, you bought him lunch, which looking back he thinks consisted of a pie, soft drink and lollies. He thought you were ‘really nice’ for doing so. After lunch, you took him to an oval where together you flew a remote- or radio-controlled model airplane owned by you. When he needed to go to the toilet, you took him to a toilet block, stood behind him while he urinated, and then bent over and fondled his genitals. You told him that it was “ok” and that everyone did it. That is the subject of charge 1 of indecent assault of a person under 16.
8 When he left the cubicle, you picked him up and told him he was a good boy and that the two of you could go and play some more with the model airplane, which you did. Laurence was mesmerised by the plane and ran around after it, or stood with you, occasionally hanging onto your leg. At the age of 11 and with absolutely no knowledge about sexual matters, despite feeling uncomfortable about what you had done to him in the toilet, he felt he had a ‘good day out’ and that he was being ‘spoilt’.
9 Given Laurence’s unsettled family life and the fact that at the age of 11 he was living in an institution away from his parents and siblings, including much older siblings who had looked after him in the family home, it is no surprise that when you took him on a day out on his own, bought him the sort of food that for a child is a real treat, allowed him to play on a trampoline and watch you fly the model plane, that he felt he was being spoilt. Given that experience, as well as his age and sexual innocence, it is also no surprise that he went out alone with you on another occasion to play with the plane, despite what you had done to him on the first occasion. Research has shown that it is not uncommon for children to willingly maintain a positive relationship with the perpetrator following sexual abuse[4].
[4] Kellogg N. and Huston R. (1995) Unwanted Sexual Experiences in Adolescents: Patterns of disclosure, Clinical Paediatrics 34, 306-312, cited in Challenging Misconceptions about Sexual Offending: Creating an evidence-based resource for police and legal practitioners, joint publication of Australian Institute of Family Studies and Victoria Police, 2017.
10 On this second occasion, you took him to a different oval and while you flew the plane, Laurence followed you around, and held onto your pants pocket during this time, a sign of how he felt valued and safe with you. When he needed to go to the toilet, you again accompanied him and again abused the trust he had in you. This time, after he had finished, you pulled down your pants and sat on the toilet, told him to pull his pants down again, and then sat him on your lap. Your penis was erect. You fondled his genitals, which is the subject of charge 2 of indecent assault of a person under 16.
11 You then lifted Laurence up, put your penis into his anus and moved him back and forward. This hurt him, but you told him he was a good boy, that everything was ok, and that everybody did it. You also asked him if he would like to come out again to fly the plane. That penetration of his anus is the subject of charge 3 of buggery of a child under 14.
12 After 3-4 minutes, you took him off your lap and you both pulled your pants up. You told him again he was a good boy and that next time you would also go out and fly the plane. You and he continued to fly it for a time and then returned to Baltara.
13 I have no information as to whether you did take him out again before you tendered your resignation from Baltara on 28 August 1975 and ceased your employment the following day. I will return to the circumstances of your resignation later.
14 Laurence was moved to another institution in September of that year and returned to his mother’s care the following month. He was discharged from State care in 1979.
15 Mr Henry, as I will now refer to him, did not tell anyone at Baltara what you did to him. Nor did he tell anyone else, until, as an adult, he told an intimate partner in general terms that he had been abused while in State care. Mr Henry first told of the detail of your abuse of him more than 40 years after the events when he contacted the Royal Commission into Institutional Responses to Child Sexual Abuse, and his police statement made through the SANO Task Force[5] is dated June 2017.
[5] The SANO Task Force was established to investigate historic and new allegations that have emanated from the Victorian Parliamentary Inquiry into child sex abuse involving Religious and Non-Government organisations; it also coordinates investigations emerging from the Royal Commission into Institutional Responses to Child Sexual Abuse.
16 The experience of the Royal Commission into Institutional Responses to Child Sexual Abuse was that the average time for a person to report sexual offences committed against them as a child is over 20 years[6]. The burden of disclosure and the power dynamics with authority figures are factors the Commission referred to as reasons for this passage of time, and these certainly apply to you and your position of personal and institutional authority over an 11 year old boy in State care.
[6] Final Report – Volume 4, Identifying and disclosing child sexual abuse - Royal Commission into Institutional Responses to Child Sexual Abuse, December 2017.
17 The law in Victoria specifically recognises the difficulties people have in reporting their abuse as children, and in trials, juries are directly informed by the trial judge that it is common for there to be a passage of time before any report is made to police[7]. Some children grow up and never tell.
[7] Section 52 Jury Directions Act 2017.
18 The impact on Mr Henry was fully described in his victim impact statement[8], despite him “find[ing] it extremely difficult to put into words and context everything that [he] would like to say”. He courageously stood in the witness box and read out his statement of emotional and physical hurt that he has suffered, and continues to suffer. His innocence was stolen and his trust broken, with his lack of trust in others becoming a lifelong result of your offending, and contributed to the destruction of intimate relationships and those with his children. He lives the life of a recluse, he is chronically anxious and depressed, and has been diagnosed with Post Traumatic Stress Disorder. He feels he has been unable to reach his full potential in life.
[8] Exhibit C.
19 When it comes to children, it is presumed that they suffer harm from a sexual offence being committed against them. The harm can be long term and serious, and both physical and psychological[9], and include future harm[10]. The courts have long recognised the dreadful impact on child victims of sexual offending. I quote from just one decision of the Victorian Court of Appeal which eloquently sets this out:
“It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve that that of the perpetrator. Frequently, the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired.”[11]
[9]R v Clarkson (2011) 32 VR 361, 368 [26], 371 [33]
[10]Adamson v R [2015] VSCA 194, [56]
[11]DPP v Toomey [2006] VSCA 90, [22]
20 All of these factors apply to Mr Henry. I take the impact on him into account in deciding the appropriate sentence.
21 I now want to address Mr Henry directly. In all the circumstances, you have demonstrated more resilience than perhaps you realise. I note that you are trying to restore a relationship with your youngest son, and I wish you well in that endeavour.
22 MR HENRY: Thank you very much, Your Honour.
23 HER HONOUR: I also acknowledge your ongoing trauma and distress, and express the hope that with this sentence closing this chapter, that you can use the underlying strength that you displayed in reading out your statement, and I hope that there is time for healing. You have described the good supports you have surrounding you, and some of them are with you here in court today. I do wish you well for the future.
24 MR HENRY: Thank you.
25 HER HONOUR: Returning to the offending, the commission of sexual offences against a child is always serious, but there are a number of factors that make your offending particularly serious, Mr Stott. These are:
26 First, the gross breach of trust and power in abusing a child, a child whose care was entrusted to you under the authority of the State;
27 Next, he was extremely vulnerable because of his age and circumstances;
28 Next, there is a 16 year age difference with you aged 27 and Laurence aged 11 at the time of the offending;
29 Next, I am satisfied that the offences were committed for the purpose of you receiving sexual gratification;
30 Next, you exploited Laurence’s vulnerability and created the opportunities to further that sexual purpose; and
31 Lastly, there is, and remains, a severe impact on Mr Henry.
32 Your counsel conceded these matters made your offences more serious, but submitted that I should not find that your actions in providing him with outings, food, and the chance to observe a model plane flying were not to be considered grooming; and that I should not find that your comments about it ‘being ok’ and everyone doing what he was doing to you, were designed to normalise your sexual behaviour.
33 The prosecutor submitted that rather than considering your actions and words as grooming, which is now a separate offence under the current law, I should consider them as manipulation of a vulnerable child, and designed to promote secrecy.
34 I am satisfied that the inducements that you used including treating him to food and outings on his own, and the mesmerising effect of the remote controlled airplane were intended to make him not just compliant, but in adulation of you, and was clearly grooming behaviour[12]. Indeed, your behaviour could be classed as predatory[13]. I am also satisfied that the persistence of your abuse on the second occasion, facilitated by your remarks made on both occasions, were designed to normalise the deviant sexual behaviour you were engaging in[14]. I am further satisfied that your grooming and normalisation of the acts made it easier for you to offend against a vulnerable 11 year old boy, and also contributed to your crimes against him remaining hidden for over 40 years. These findings are further factors that I consider make your offending more serious.
[12]Gill [2019] VSCA 92
[13] ibid
[14] ibid
35 On an assessment of all the relevant factors, I find your offending was very serious and your moral culpability was high.
36 As was pointed out by counsel, there are some matters that I must take into account in deciding the appropriate sentence, which mitigate the serious nature of your offending.
37 The first of these is that you pleaded guilty. You are entitled to have that fact taken into account in your favour and I do so. Because of your plea of guilty, the community was saved the time and cost of a trial, and Mr Henry was saved the trauma of giving evidence at a trial. However, as the plea of guilty was indicated after the committal in circumstances to which I will refer in a moment, you did not save Mr Henry from ever giving evidence, as he was cross-examined on your behalf at the committal. However, you are still entitled to a recognition of the practical benefits that your plea of guilty did produce and I take that into account.
38 Your counsel submitted[15] that while your plea was not early, “it must also be acknowledged that the case [you] ultimately faced…is very different to that for which [you] first came before the Court.” To understand this submission, it is necessary for me to refer to the circumstances of your trial.
[15] Exhibit 1, paragraph 18.
39 The first trial date was 25 February 2019. At the Directions Hearings in this court, the prosecutor then appearing advised the court, constituted by a different judge, that there would be no tendency or other misconduct notice filed. The matter was allocated to me as trial judge on 26 February and in discussion with the prosecutor now briefed, the possibility of tendency evidence was raised, based on material which was in the depositions, and the prosecutor indicated that she wanted to investigate that possibility further. The court did not sit on 27 February, and on 28 February, after further discussion with both counsel, the trial was adjourned to 28 August 2019 with directions for any new prosecution opening and any tendency and other notices to be filed by 3 May, and a response to all matters to be filed on your behalf by 31 May.
40 Email correspondence with the court shows that you made an offer to plead guilty in May 2019 after the prosecution filed the new documents outlining its intention to rely on tendency evidence. That evidence related to allegations made against you by other boys: two boys at Baltara in 1974 which were reported by them at Baltara in 1975, but did not become the subject of a police investigation at the time[16]; two boys associated with the YMCA in 1984-86 resulting in charges to which you pleaded guilty in 1987; and one boy in 2000, resulting in charges to which you pleaded guilty in 2001.
[16] These two complainants are deceased and were the subject of a Hearsay Notice.
41 I note that there is no suggestion that the prosecution were not entitled to review their position, having regard to three High Court decisions[17], two of which were delivered after the prosecution’s initial election not to rely on tendency evidence. I further note the savings that arose because of the timing of your plea of guilty, in that there was no further need for hearing dates for submissions on the tendency and other notices, or for rulings to be written and delivered.
[17]Hughes [2017] HCA 20; Bauer [2018] HCA 40; McPhillamy [2018] HCA 52
42 On 12 July 2019, you were arraigned and pleaded guilty before me to the original indictment that had been filed in February on the first trial date. While the charges remained the same, and the material in the proposed tendency evidence was always known because it was contained in the depositions, I acknowledge that the way that the prosecution ultimately decided to present the case against you, involving potential tendency evidence relating to five other boys, was, as your counsel submitted, “very different to that for which [you] first came before the Court” because that potential tendency evidence was not originally to be relied on.
43 In those circumstances, I accept your counsel’s submission that “to a degree” your plea of guilty “is indicative of remorse”.
44 As at the dates of the offending for which I am sentencing you, you were a man with no criminal record. The alleged offences at Baltara said to have occurred in 1974 have never been the subject of charges or dealt with by a court and cannot play any part in my sentencing task. The law therefore requires me to sentence you on the basis that you were a man of good character at the time you offended against Mr Henry, and I do so.
45 I also take into account that the offending occurred 44 years ago, when you were aged 27 and you are now aged 71. However, on the material before me, you seem to have moved on with your life after you offended against Mr Henry, and were not burdened with guilt associated with that offending, nor did you seem to have the prospect of it leading to a prosecution hanging over your head over those years. Your position is to be contrasted with that of your victim, whose life has been blighted from the age of 11 by your callous and uncaring abuse of him.
46 Further, I cannot ignore what has happened in the 44 years since you committed the crimes against Mr Henry. The other crimes you have committed against boys since then is relevant to an assessment of your rehabilitation in the years since the offending for which I am sentencing you. Because you committed sexual offences against boys in 1984 - 86 and again in 2000, I find that you had not rehabilitated yourself in that 25 year period. I make this finding while recognising that the subsequent offending was overall less serious than the offending for which I am sentencing you, as there was no penetration alleged, and perhaps represented a de-escalation of your sexual offending against boys. On the other hand, the 1984 - 86 offending involved 55 charges against the two boys. You received a 12 month community based order for that offending. In 2001, for three charges of indecent assault of a single boy, you received a sentence of 9 months’ imprisonment of which 6 months was suspended.
47 There have been no other charges since 2000 and so it is open to me to find that you have rehabilitated yourself to the extent that you have not re-offended in the 19 years since then. However, your rehabilitation is qualified, or incomplete, in that you have now twice re-offended after a long passage of time and there is no evidence, including from your criminal record, that you have received any treatment for sexual offending against children.
48 Your counsel submitted that your prospects for rehabilitation should be viewed as positive. For the reasons I have just given, I do not agree.
49
However, despite a possible question over your rehabilitation being complete because of your pattern of re-offending after long periods, I nevertheless do accept that the risk you pose to the community, and particularly to boys, is now low. That is because of the fact that you will be in prison so that you will have no access to boys, and because of your physical ill-health, to which I will come to in a moment. Your age is also a factor, as statistically the risk of sexual
re-offending reduces with age, however, because any re-offending would be likely to involve touching boys’ genitals, your age may not be as great a protective factor.
50 I turn then to your personal circumstances. You were an only child and had a good and stable upbringing although your father died when you were only 17. You left school at age 16 after your second attempt to pass Year 10, and went on to successfully complete a motor mechanic apprenticeship by the age of 21. You continued to work for the same business for 5 years after that.
51 Following that, at age 26, you began working at Baltara, and worked there for about 4 years until your resignation on 28 August 1975. That resignation was in the context of you being interviewed the previous day by officials from the Department, not police, in respect of complaints of sexual offending made against you by two boys at Baltara. Their complaints were never reported to police, a recurring theme by institutions charged with the care of children, as found by the Royal Commission[18].
[18] Final Report – Volume 4, Identifying and disclosing child sexual abuse - Royal Commission into Institutional Responses to Child Sexual Abuse, December 2017. Recommendations included national legislative provisions for mandatory reporting.
52 After that, you returned to work as a motor mechanic, and later worked for the RACV for more than a decade.
53 In 2001, you were diagnosed with chronic lymphocytic leukaemia, and you continue to receive treatment for this illness, including chemotherapy and maintenance therapy medication. Medical records[19] also show that at least since 2016 you have had diabetes, described as unstable, and that you had a stroke, possibly in 2011.
[19] Exhibit 2
54 Your counsel conceded that a sentence of imprisonment must be imposed. The prosecution conceded, and I accept, that your physical ill-health will make serving a prison sentence more onerous than for someone without those conditions. I also accept that your long standing leukaemia, while managed over the last 19 years, does pose a potential for rapid decline in your health, and may ultimately be the cause of your death. I have taken each of these factors into account in deciding the appropriate sentence. However, I also note that “where an elderly offender comes to be sentenced for serious offences, it is inevitable that the sentence may have the effect that the offender may not have a realistic prospect of any meaningful life after he has completed serving a term of imprisonment commensurate with his offending”[20].
[20]Gill [2019] VSCA 92
55 I have had regard to all relevant matters, including current sentencing practice. I was assisted in that task by looking at the cases referred to by the prosecutor as well as others[21], bearing in mind that each exercise of sentencing discretion is different and to be undertaken according to the circumstances of the case before the court. I am aware that the court should also take into account as one of the factors in the sentencing synthesis sentencing practices at the time the offences were committed. However, no material has been put before me concerning sentencing practices in 1975 for indecent assault of a male under 16, or buggery of a person under 14, and so my only guidance as to sentencing practice at the time of the offending is the maximum penalty for each offence[22].
[21] For example, Gill ibid; Bromley [2018] VSCA 329; Burgess [2017] VSCA 59
[22]Burgess ibid
56 Before I turn to the sentence, there are three further matters I must deal with. The first is that application has been made for an intimate forensic sample to be taken from you and through your counsel you have not objected to this. I am satisfied that it is in the interests of justice, that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. I must inform you that if you change your mind, the police may use reasonable force to enable such a procedure to take place, and the sample that will be taken will then be a blood sample.
57 The second matter is that as a result of my sentence today, you become a registrable sex offender. You have previously been convicted of one class 1 and two class 2 offences. You will be required within 7 days of your release from custody to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the rest of your life. My Associate will now ask you to sign a document to acknowledge that you have received notice of these reporting obligations.
58 Yes. Thank you.
59 Just while my Associate is doing that, Mr Sala, you will be speaking to Mr Stott at some stage later today?
60 MR SALA: Tomorrow, Your Honour.
61 HER HONOUR: Tomorrow. Yes. Thank you.
62 MR SALA: I will be speaking to Mr Stott tomorrow.
63 HER HONOUR: Thank you. So Mr Stott, Mr Sala can answer any questions you have about those reporting obligations when he speaks to you tomorrow.
64 The third matter I need to address is that you are to be sentenced as a serious sexual offender on both charges because of your sentence of imprisonment in 2001 for three charges of indecent act with a child under 16. Being sentenced as a serious sexual offender means the protection of the community from you is the principal purpose for which sentence is imposed despite any finding I have made. In order to achieve this purpose, I have the power to impose a sentence greater than is proportionate to your offences. However, the prosecution do not seek that, and I do not intend to do that.
65 It is also necessary for the sentences I impose to be wholly cumulative unless I order otherwise, because of your status as a serious sexual offender. Because of the factors that operate to mitigate your sentence that I have outlined, and because these offences are the first in time to be committed by you, I have decided to order considerable concurrency. In saying that, I have also had regard to the limits the serious sexual offender regime places on the application of the principle of totality as stated by the High Court[23]. In my view, current sentencing practice for serious sex offenders does not recognise this restriction on totality sufficiently, or at all.
[23]HMcL v R (2000) 174 ALR 1, [76]; Gordon [2013] VSCA 343, [74]
66 In sentencing you, I take into account that deterrence, especially general deterrence, is of the utmost importance in cases involving sexual offending against children, particularly by people in institutions in whose care the child has been placed. That means that by my sentence of you the court must seek to deter other men, especially those in positions of authority over children, from committing sexual offences against children. Despite your unusual pattern of sexual re-offending so many years apart and the question over your rehabilitation, because I have found that there is very low risk of you re-offending due to your ill health and lack of access to potential victims, there is less need for my sentence to deter you from reoffending. However, specific deterrence does remain a factor.
67 The court must impose a sentence that is just in all the circumstances, and that reflects the community’s abhorrence of sexual violence, particularly committed against a child, with the damage that has caused, and in circumstances of a gross abuse of trust and power. These principles apply, no matter how long ago the offending occurred.[24] Further, because of the question remaining over your prospects for rehabilitation, I have not acceded to your counsel’s submission that a longer than usual parole period should be imposed.
[24]DPP v Toomey [2006] VSCA 90; Burgess v R [2017] VSCA 59
68 Stand up please.
69 You are convicted and sentenced as follows:
70 On charge 1 - indecent assault of a male under 16 - 6 months’ imprisonment;
71 On charge 2 - indecent assault of a male under 16 - 10 months’ imprisonment;
72 On charge 3 - buggery of a person under 14 - 4 years 6 months’ imprisonment.
73 The sentence on charge 3 is the base sentence. In the terms required by s6E Sentencing Act, I direct that two months of the sentence imposed on charge 1 and eight months of the sentence imposed on charge 2 be served concurrently with the sentence imposed on charge 3 and with each other. Put in the usual terms, four months of charge 1 and two months of charge 2 are to be served cumulatively on charge 3 and on each other. That makes a total effective sentence of 5 years’ imprisonment.
74 I direct that you serve 3 years before becoming eligible for parole.
75 I declare that you have served 33 days in pre-sentence detention not including today and that these are to be deducted administratively from your sentence.
76 I note that you have been sentenced on all charges as a serious sexual offender.
77 If you had not pleaded guilty but had been found guilty after a trial, the sentence of imprisonment that I would have imposed is 8 years with a minimum of 6 years.
78 Yes, are there any other orders, Ms Borg?
79 MS BORG: No, Your Honour. Thank you.
80 HER HONOUR: All right. Mr Sala, anything else outstanding?
81 MR SALA: If it please the court, Your Honour.
82 HER HONOUR: All right. So Mr Stott may be removed and Mr Sala will be speaking to you tomorrow.
83 Yes. Thank you. Adjourn the court until 9.30 on Wednesday.
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