Director of Public Prosecutions v Swift
[2013] VCC 1825
•19 November 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01840
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KEVIN ROBERT SWIFT |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 & 19 November 2013 | |
DATE OF SENTENCE: | 19 November 2013 | |
CASE MAY BE CITED AS: | DPP v Swift | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1825 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - indecent assault - possession of child pornography
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. O’Halloran | Office of Public Prosecutions |
| For the Accused | Dr M. Fitzgerald | Marich Legal Pty Ltd |
HIS HONOUR:
1 Kevin Swift, you have pleaded guilty to one charge of indecent assault and one charge of possession of child pornography.
2 Indecent assault carries a maximum penalty of ten years' imprisonment and possession of child pornography carries a maximum penalty of five years' imprisonment.
3 You are presently 47 years of age, having been born on 22 September 1966. You were 46 when this offending occurred on 16 May 2013.
4 You have a criminal record to which I will refer in greater detail later.
5 The victim in this matter was born on 1 August 2008 and is now aged 5 years. She was aged 4 years at the time of the offending. She was not known to you.
6 Prior to the offending the victim had been diagnosed with Global Developmental Disorder and exhibited behaviours consistent with high-functioning Autism Spectrum Disorder or mild autism.
7 The circumstances of the offending are as follows.
8 In the afternoon of Thursday 16 May 2013 the victim and her mother and grandmother were shopping in the Kmart store located within the Eastland Shopping Centre in Ringwood.
9 You entered the store at approximately 1.40 pm, and were so captured on in‑store closed‑circuit television.
10 At approximately 2 pm, whilst a short distance from the change room area, the victim told her mother she was going into the change room area to watch television, and did so.
11 This change room is situated to the rear of the store and is partitioned from the main shopping floor with clear glass divided by a strip of frosted glass which prevents customers from the main shopping area being able to see into the room.
12 The area is designed as a baby change and feeding area and incorporates a toy area, closed off by a small clear‑glass fence with an outward opening latch, which includes a wall‑mounted television.
13 Whilst the victim was in the room you entered, approached her, pulled her leggings and pants down and touched her vagina with your fingers. This conduct represents Charge 1.
14 A store employee, Ms Kennedy, heard the victim scream from inside the room. The victim, whilst holding her crutch area and pulling up the side of her pants, ran out of the room towards her mother, yelling that she had been touched. You were observed following the victim out of the room.
15 The store attendant asked you if the victim was your child, to which you replied "No". She then asked you why you were in the change room, to which you did not respond.
16 You were then confronted by Ms Kennedy and the victim's mother and her grandmother. You attempted to leave the store but were prevented from doing so by staff and store security.
17 Police were called and subsequently attended, whereupon you were arrested and cautioned. You denied touching the victim in any way.
18 Whilst in the store, the victim disclosed the offending to her mother and police.
19 The victim attended the Monash Medical Centre that evening where, following a forensic examination, she was found to have no evidence of physical injury to her body.
20 You were subsequently interviewed at the Ringwood Police Station where you stated that "nothing happened" whilst you had been at the Kmart store that day.
21 The victim completed a video‑and‑recorded‑evidence statement detailing the offending to police on 17 May 2013.
22 Later that day police attended your home address where you were arrested. You were interviewed again, and within that interview you provided no audible reply to the allegations pertaining to the current indictment or implicitly denied the allegations or had no recollection of attending the Kmart.
23 On 18 May 2013 police attended your address where they seized a computer hard drive, two laptop computers and an assortment of USB storage devices.
24 Child exploitation material was located on
(1) the hard drive, and
(2) two storage devices.
This conduct represents Charge 2 on the indictment, the possession of child pornographic material.
25 That material was assessed and classified according to the documentary evidence set out in exhibits C and D on your plea.
26 I now turn to your personal circumstances.
27 As noted earlier, you are presently 47 years of age and you were 46 when this offending occurred last May.
28 You are single and in receipt of a disability support pension. Both your parents are still alive but suffer from age‑related disabling illnesses. You have no siblings and no apparent family or friendship or emotional support other than through your aged mother.
29 You suffered from bullying, teasing and separation through the middle years of your secondary schooling and by Year 9 became "confused, angry and depressed". You left school after completing Year 11, then struggled to find work. You eventually obtained employment and have had many jobs over the years; however, you have suffered from retrenchments and dismissals. Your last employment was in 2005 when you were dismissed as a result of the effects of your alcoholism.
30 You have only experienced two seriously intimate relationships and some few other close relationships which have all ended because of your consumption of alcohol or illicit drugs.
31 From the age of 18 you began drinking every day. You were also smoking marijuana regularly. You have said that you would carefully budget your money, allocating funds for alcohol, marijuana and petrol.
32 As you descended further into alcohol abuse it became increasingly difficult to maintain secure accommodation. You were evicted from several premises, couch‑surfed for a time, and for approximately nine months you lived in a tent pitched in your parents' backyard.
33 Alcohol took its toll and by October 2006 you were unable to walk any distance due to nerve damage. You no longer have complete control over your legs. You are unable to run and have difficulty raising your legs. By 2005 it was your habit to purchase five bottles of cheap port wine to get yourself through the day. On the occasion of your previous offence of drink‑driving, you had a blood alcohol reading of 0.215 per cent.
34 You began smoking marijuana at age 17 and your use quickly escalated to daily use. You stopped this use in 1999 because you were unable to afford both alcohol and cannabis. You chose alcohol, but had to drink twice as much to gain the same effect.
35
In November 2007 you were admitted to the Dandenong Hospital for detoxification. You eventually spent nine days there as an inpatient.
36 In December of that same year you were admitted to the Maroondah Addictions Recovery program. For the next year you lived in one of their share houses and undertook programs from 9 am to 4.30 pm each day.
37 According to your self‑report to Mr McMullen, psychologist, and supported by your general practitioner, Dr Kavanagh, you have been in remission and alcohol‑free for the past four years.
38 Unfortunately you reverted to cannabis use, specifically a synthetic form known as Kronic Gold. You developed a habit of daily use. You found the effects made you feel less inhibited and as a result you took more risks generally.
39 I note that you have admitted that you had ingested this form of marijuana whilst in the car park at the shopping centre before entering the store.
40 You have also admitted a developing obsession with pornography from about three years ago when you commenced viewing images of women. The frequency and intensity of your viewing increased to the point where you would spend at times up to 12‑14 hours. You experienced high levels of arousal and over time your viewing came to represent younger and younger subjects, at times including children you thought were between the ages of 10 and 15.
41 The review of subjects accessed in the course of the police investigation supports your admissions as to the development to child images from primary interest in adult images. The percentage of child pornographic imagery of the total images recovered is about 2.4 per cent, and of the child pornographic images only about 4 per cent involved sexual activity. This is consistent with your further description to Mr McMullen that your interest became an obsessive interest in female genitalia and that your motivation for your offending on Charge 1 was the opportunity to "have a look".
42 Mr McMullen has concluded that you meet the psychological criteria for Alcohol Mild Cognitive Disorder, Persistent Depressive Disorder, Generalised Anxiety Disorder, Alcohol and Cannabis Use Disorder in Sustained Remission and Other Substance Use Disorder in a Controlled Environment.
43 Importantly, your Non‑Verbal Intelligence Matrices subtest reveals a below- average score, indicating the same age‑level intelligence of an average child of eight years and six months.
44 Further material was obtained on the issue of the cerebral effects following the years of chronic alcohol and drug use. You have a mild degree of cerebellar atrophy typically seen with alcoholism. You have an impairment in peripheral loss of feeling, unsteadiness, fatigability of your legs and muscles as well as diplopia which causes double vision. Your general practitioner reports significant impairment in the use of your legs representing difficulty in climbing stairs, walking, running, impaired gait and balance and muscle weakness.
45 As to your criminal record, it commences in 1992 at the age of 25 when you were convicted of two drug charges of possess and use cannabis and fined $50 on each charge. Some 2½ years later you were again convicted of the same two charges and fined $200. In 1996 you were convicted in the Dandenong Magistrates' Court for using indecent language in a public place and failing to wear a bike helmet, for which you were again fined $200, and for being drunk in a public place, for which you were convicted and discharged.
46 Most recently, and more seriously, in 2008 you were sentenced to a three‑month imprisonment term for drink‑driving at the Dandenong Magistrates' Court. This sentence was wholly suspended for a period of 12 months and you were disqualified from driving for four years.
47 I accept that your prior record has limited significance to the circumstances of the current offending. It does, however, provide supportive evidence of your serious addiction to alcohol and illicit drug use.
48 It is also clear that you were not aware of the cognitive disability of the child at the time of the offence.
49 The victim impact statement prepared by your victim's mother and tendered at your plea provides eloquent affirmation of the very great psychological impact this offending behaviour can have on both the direct victim and also their family. This child victim requires constant reassurance, will not go to sleep alone, will not go to the toilet alone and constantly recalls her frightening experience. Her mother has become hyper-vigilant, wary of others and suffers insomnia.
50 This offending represented by Charge 1 is obviously very serious and has resulted in enduring psychological harm. This little child was alone and vulnerable and you simply took advantage of that exposure for your sordid and perverted gratification. Notwithstanding the mitigating circumstances, principles of denunciation, specific and general deterrence and the protection of the public remain very important considerations.
51 The offending represented by Charge 2, the child pornography possession charge, is also very serious. Children anywhere in the world are entitled to be protected and the process of actively accessing and possessing child pornography supports the maintenance of child exploitation.
52 In mitigation, I take into account the matters urged upon me by your counsel, including:
- You have no convictions for other relevant offending and are a person of otherwise good character. The prior offending does not indicate any proclivity for sexual abuse generally or against children in particular.
- Your remorse for your offending, which I accept is genuine, indicated not only by your willingness to plead guilty at an early stage but by your responses to Mr McMullen in your interview with him and your written letter of apology to the victim and her family.
- Your very long period of alcoholism with associated illicit drug use which has caused dismissal from employment, accommodation evictions, the breakdown of relationships and a generally dysfunctional, degraded and relatively isolated life.
- The unplanned and spontaneous nature of your offending.
- The fact that the pornographic material was overwhelmingly of an adult nature and when it was specific to children it was overwhelmingly of a lower degree of sexual explicity.
- Your mental and physical state which I accept has been seriously affected by your long history of drug and alcohol abuse. I accept that the degree of impact of your long history of alcoholism has, either alone or in combination with a very early condition in your mental state, resulted in serious depression and anxiety and the other conditions diagnosed by Mr McMullen. I accept that those co-morbid conditions mean that you are vulnerable in the sense that a given sentence will weigh more heavily upon you than it would on a person in normal health and that the application of the principle of general deterrence should be sensibly moderated to some small degree.
- I take into account your time spent in remand custody which is more restrictive than mainstream prison service.
53 I do not accept, nor was it submitted that I should, that your ingestion of cannabis before the commission of this offence has any mitigatory effect.
54 I also accept that the prospect of your rehabilitation remains, indicated by your lack of previous offending of a similar nature, the spontaneous nature of this offending, your attempts to wrestle with the notion of how you ever came to commit this act of sexual abuse, the development of your ability to publicly acknowledge your offending, the shame and embarrassment you have disclosed and the remorse you have expressed to the victims.
55 Clearly, I also accept your pleas of guilty to these charges.
56 This is a very sad case of a little girl and her family having been significantly emotionally traumatised by the actions of an offender who is himself a significantly emotionally and physically damaged individual.
57 The basic purposes for which a court may impose a sentence are punishment; deterrence (both specific and general), rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
58 Mr Swift, would you please now stand.
59 On Charge 1 of indecent assault, you are convicted and sentenced to 18 months' imprisonment.
60 On Charge 2 of possession of child pornography, you are convicted and sentenced to six months' imprisonment.
61 Charge 1 is the base sentence.
62 I direct that three months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
63 The total effective sentence is 21 months' imprisonment.
64 I further direct that you serve a minimum term of 12 months' imprisonment before being eligible for parole.
65 Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 186 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
66 Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty the total effective sentence over both charges that would have been imposed is 2½ years' imprisonment with a minimum period of 21 months to be served before eligibility for parole.
67 There is a further matter to which I need attend. You may take a seat for the moment.
68 The offences of which you have been found guilty are registrable offences pursuant to the provisions of the Victorian Sex Offenders Registration Act 2004 and by reason of your being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
69 As required by sub‑s.5(2BC) of the Victorian Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of a sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
70 I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of the reporting period, which in your case is for 15 years.
71 My associate will shortly hand to you the Notification Of Reporting Obligations, which I have already signed. Your representative in court today, Dr Fitzgerald, will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notification form and to return the Acknowledgment to my associate.
72 At the plea hearing the Crown sought an order for the retention of a forensic sample. I have made that order today for the reasons noted on the order, namely the seriousness of the offending warrants the making of the order, the order was made by consent and the making of the order is in the public interest.
73 At the plea hearing the Crown also sought a disposal order as to the pornography material to which you consented, and I have also made that order today.
74 At this stage it is appropriate that the forms for the sex offender registration be passed to you. I wonder if those matters could now be passed to Mr Fitzgerald to take to you.
(Acknowledgement of Notification Of Reporting Obligations signed.)
75 That material has now been signed, I understand. Thank you for that. Is there anything else from either counsel?
76 COUNSEL: No, Your Honour.
77 HIS HONOUR: I just ask that both counsel stay for copies of documents after I leave the bench. Thank you.
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