Director of Public Prosecutions v Swingler
[2018] VCC 220
•14 March 2018
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-17-0244
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALAN EDWARD SWINGLER |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 21 February 2018 | |
DATE OF SENTENCE: | 7 & 14 March 2018 | |
CASE MAY BE CITED AS: | DPP v Swingler | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 220 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentencing – historical sex offending involving a child under the age of 16 years – wholly suspended sentenced imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Maguire | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Ms R. Avis | Nelson Law |
HER HONOUR:
1 Alan Swingler, you have pleaded guilty before me on indictment to three charges of indecent assault on a male person under the age of 16.
2 The offending is objectively serious, and that is reflected in the maximum penalty prescribed by Parliament, and that is five years’ imprisonment, pursuant to s.68(3A) of the Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967.
3 You do not have a prior criminal record. You do, however, have a subsequent conviction for nine charges of indecent assault on a male person, one charge of buggery and four charges of gross indecency.
4 The offending, the subject of the subsequent convictions, occurred between February 1968 and December 1979 and concerned victims who were all students at St Joseph’s College, Geelong.
5 On 9 March 1995 you were sentenced at the County Court, Geelong, to a term of seven years’ imprisonment with a five year non-parole period fixed.
6 On 30 August 1995, having appealed your matter to the Supreme Court of Victoria, Court of Appeal, your sentence was varied to a term of imprisonment of five years and 11 months, with a non-parole period of three years and 11 months.
7 Because of the convictions recorded against you, you are to be sentenced as a serious sexual offender in respect to the charges on the present indictment.
8 You are also subject to the provisions of the Sex Offenders Registration Act. Given that the complainant was a child at the time of the offending, registration is mandatory. The charge of indecent assault on a male under the age of 16 is a Class 2 offence and the reporting period for an adult offender who has been found guilty of three or more Class 2 offences is life.[1] So that at the end of the sentence you will be provided with notification of the requirements under the Sex Offenders Registration Act.
[1]Section 34(1)(c)(iii) Sex Offenders Registration Act
9 The offending, the subject of the indictment, concerns one complainant, who was a student that you taught at St Joseph's College, Geelong. You were his teacher and then his football coach in the under 15s football team.
10 The impact of your offending upon the victim has been significant, and that is reflected in the contents of his victim impact statement that was declared on 31 December 2017, the contents of which were read in full to the Court by the prosecutor at the plea hearing.
11 I shall proceed to sentence you on the basis of the opening. In briefest of terms, your offending occurred between 1 June 1970 and 30 June 1972. Charge 1 is a representative charge. The offending concerns you placing your hand on the victim’s penis on the outside of his clothing.
12 At the time he was aged between 12 and 14 years of age, and you were aged between 29 and 31 years of age.
13 The offending commenced in 1970, when the victim was in Year 7, and ceased in the early part of Year 9 in 1972.
14 The offending, the subject of Charge 1, occurred in the context of you taking the victim into a laboratory preparation room at the school. You then locked the door. You questioned him about some sexual matters and then you touched his penis on the outside of his clothing. The victim felt confused and panicked. You then unlocked the door and told him that you would speak about this further and there were four further identical uncharged occasions when you touched the victim’s penis over his clothing.
15 On the second occasion, in addition to touching his penis over his clothing, you pulled down your own pants and placed the victim’s hand on your penis, and that is the subject of Charge 2, a separate charge. You grabbed the victim’s penis over his clothing. You ejaculated and the victim stated that he felt petrified, not knowing what was going on. You told the victim he would be in trouble if he told anyone.
16 The other occasions of touching are detailed in the opening.
17 Charge 3, indecent assault, concerns an occasion when you summonsed the victim into your room. That was located on the first floor of the building, overlooking the oval. You told the victim to shut the door. You then called him over to the side of your desk and put your hands down his shorts and underwear and played with his penis, on this occasion touching his skin for a few minutes.
18 The victim did not tell anyone about the offending until approximately 15 years ago, when he first spoke about it to his wife. He ultimately reported the matter to the police in March 2017.
19 On 26 April 2017 you participated in a record of interview, during which you were cooperative and confirmed all the background information. You told police it was difficult to remember a lot of the details, having regard to the passage of time, but you made full admissions to the offending.
20 When questioned why you sexually assaulted the victim, you talked about your own past as an orphan, but said you were not making any excuses and said “it was in your nature, like it was, I don’t know, it was something I did”. You told police you were ashamed of your past, and also that the victim was a well-mannered boy, polite and no trouble in class.
21
This matter resolved at the earliest opportunity at committal mention on
1 December 2017.
22 On your behalf Ms Avis put a number of matters in mitigation that I accept. You entered your plea of guilty at the earliest opportunity. You are entitled to a sentencing discount. There is real utility in your plea. In particular, you have spared the victim the trauma of having to come to Court to give evidence either at committal hearing or trial. You have facilitated justice. I am also satisfied that the pleas of guilty reflect remorse on your behalf.
23 You have had a very difficult background. You are now 76 years of age. You were born to a young mother in 1941. You were one of twin boys. Your mother was unmarried and as a consequence had to relinquish her babies and you were placed in the Bethany Babies’ Home, a Catholic orphanage in Melbourne. When aged five you were moved to the St Joseph’s Boys’ Home, Surrey Hills, and then to St Vincent’s Orphanage, South Melbourne, where you were cared for until you were ten. Whilst at the orphanage run by Christian Brothers you were the victim of sexual abuse.
24 At around age 12 you were moved to St Patrick’s College, Sale, which was run by the Marist Brothers. You remained there for three years, together with your twin brother. He left after two years to go and live with your mother and her partner, your stepfather. Your mother had married and had children with her husband. When you were a child you would see your mother on occasion during the holidays, but the relationship was not particularly close.
25 In 1955 you and your twin brother were legally adopted by your mother and her husband but he and your mother never really played any significant role in your life.
26 When you were 15 you attended Champagnat College, Wangaratta, and then commenced to train as a Marist Brother.
27 You trained as a Marist Brother until aged 24 and then spent a year at a teachers’ college and a further 18 months teaching primary school students agriculture.
28 Ultimately, you moved back to Melbourne where you continued to work as a primary teacher at a Marist Brothers schools and in 1965, you left the Marist Brothers.
29 In 1966 you commenced teaching at St Joseph’s College, Geelong, where you taught until 1985.
30 In December 1970 you married and there are three children of the marriage and your wife and children all remain supportive of you.
31 In 1986 you taught at St Mary’s Technical College, Geelong, for 18 months and then left teaching and worked in a private capacity in Torquay. You ran a hardware store for about six years.
32 You underwent your sentence and you were released from custody in 1998 and thereafter you have supplemented your government benefits through odd jobs, utilising handyman skills that you learnt in prison.
33 Whilst in prison you successfully completed the Greenfields Program, which was addressing your underlying offending behaviour. I have a certificate of completion and in the general comments it is noted by Sandy Robertson, the welfare officer at HM Prison, Ararat, that you completed the course to the highest standards, that you showed insight into the offending and you were showing appropriate victim empathy and that you had developed a good relapse prevention plan.
34 You were released on parole and successfully completed your parole without further incident.
35 Currently you are in good health and report no psychological issues.
36 There are no other matters pending.
37 I accept that you are now deeply remorseful for your actions. You have demonstrated that through your cooperation and the fulsome admissions that you made to police, together with the early plea of guilty.
38
I have had regard to the evidence of good character put before me from
Mr Ian Gude and Mr Brian Edwards. Both those gentlemen are familiar with you, having known you now for some years. They attest to your good character. They are aware of your past and attest to the level of remorse that you have shown in respect to your offending. They both know you through their involvement with a local tennis club. They state that you now conduct yourself in an exemplary way and make a real contribution to the club and say that you lead a responsible and law-abiding life.
39 There has been a long and significant delay in the reporting and prosecution of these charges. That is not unusual in historical sex offences of this nature. You are now an elderly man. The offending was committed over 46 years ago. The offences occurred during the same period of time as the matters for which you have already served a custodial sentence. Had the matters been dealt with earlier there would have been a significant degree of concurrency ordered.
40 Having regard to your age and your current circumstances, and in particular, having regard to the fact that you have completed an appropriate sex offender treatment program during your time in custody and that there are no other matters outstanding, I consider that this is a case where the need to emphasise specific deterrence is significantly moderated. There is still, however, a need for the Court to emphasise general deterrence and denunciation.
41 In formulating a just sentence I have had regard to the principles of totality, and have had regard to the circumstances of the offending for which you have undergone a sentence earlier in time.
42 Given the significant delay in reporting and prosecution of the matter and the applicability of the principles of totality, I consider that you can be adequately punished by the imposition of a gaol term that is to be wholly suspended. Such a sentence will encourage your further rehabilitation and will in turn provide the best protection for the community.
43 Both your counsel, Ms Avis, and Mr Maguire, the learned Prosecutor, submitted that such a disposition was within the range of sentencing dispositions available to the Court and in the particular circumstances of your case I consider that that is just punishment.
44 Could you please stand now, Mr Swingler.
45 In respect to Charges 1, 2 and 3 the formal Court Order will be that you are convicted and sentenced to an aggregate term of three years’ imprisonment to be wholly suspended for a period of three years. What that means is that during the next three years you cannot commit any offences that are punishable by imprisonment. If you were to do so you would be brought back before me and dealt with in respect to these offences and absent exceptional circumstances you would be required to serve that term. So do you consent to that order?
46 ACCUSED: Yes, Your Honour.
47 HER HONOUR: Yes, thank you. All right, and I make the order in respect to the Sex Offenders Registration Act and note that the period of reporting is for life. Am I required to do a s.6AAA in the circumstances?
48 MR HOARE: I had not considered that, Your Honour. Your Honour, it does vitiate the sentence if Your Honour does not. I cannot assist in this matter. I can look at it but - - -
49 HER HONOUR: All right, I will make a declaration in the circumstances. Pursuant to s.6AAA of the Sentencing Act but for your plea of guilty I would have imposed a term of imprisonment of five years, to serve three years.
50 MR HOARE: Thank you, Your Honour. Sorry, I had not - - -
51 HER HONOUR: I think that covers everything. Was there any ancillary orders?
52 MR HOARE: Your Honour, there was an application for a forensic sample under s.464Z - - -
53 HER HONOUR: It is not mandatory, is it?
54 MR HOARE: No, it is not mandatory.
55 HER HONOUR: No. Yes, in the circumstances, having regard to the age of the offender and also the fact that identity has never been in issue in any of the offending - - -
56 MR HOARE: No.
57 HER HONOUR: - - - I will decline to make such an order.
58 MR HOARE: Yes. As Your Honour pleases. Thank you.
59 HER HONOUR: All right. I have signed the notice required in respect to the reporting obligations pursuant to the Sex Offenders Registration Act. Can I just ask, Ms Avis, could you get your client just to acknowledge receipt of that?
60 MS AVIS: Yes.
ADDENDUM
61 MS DUCKETT: The court pleases, I appear for the Director in relation to this mention, Your Honour. I apologise for not being robed.
62 HER HONOUR: Yes, Ms Duckett. I understand the issue and I will deal with it.
63 MS DUCKETT: Thank you very much, I appreciate that, Your Honour.
64 HER HONOUR: In relation to the sentence that was proclaimed by me the other day. I have got the powers under s.104A of the Sentencing Act 1991 to amend the sentence.
65 MS DUCKETT: Indeed, Your Honour.
66 HER HONOUR: And pursuant to s.104A of the Sentencing Act 1991, I amend the sentence in respect to Alan Swingler that was imposed by this court on 7 March 2018, on the basis that it fails to deal with the matter that it would have undoubtedly dealt with in accordance with the amendment if the attention of the judge had been drawn to it.
67 On 7 March 2018, I made orders that Mr Swingler serve a three year sentence in respect to the three charges on the indictment and when the orders were made, it was noted it was an aggregate sentence. This is not permitted under s.9(1A) of the Sentencing Act 1991 because Mr Swingler fell to be sentenced as a serious sexual offender on all charges so that it is necessary for me to reformulate the sentence.
68 Given that Mr Swingler falls to be sentenced as a serious sexual offender in respect to the matters, it is the case where the court considers that a sentence of imprisonment is to be imposed, then protection of the community from the offender is the principal purpose which the sentence is imposed and if required, the court can, in order to achieve that purpose, impose a disproportionate sentence. I noted that the prosecution in this case did not seek a disproportionate sentence.
69 The provisions in relation to serious sexual offenders require that any sentence must, unless otherwise directed, be served cumulatively and in the circumstances of this case, I will be making orders directing otherwise.
70 So the formal sentence will be:
71 In respect to Charge 1, Mr Swingler will be convicted and sentenced to one years' imprisonment.
72 In respect to Charge 2, Mr Swingler will be convicted and sentenced to one years' imprisonment.
73 And in respect to Charge 3, Mr Swingler will be convicted and sentenced to two years' imprisonment.
74 Charge 3 is the base sentence and I order the following in respect to cumulation: six months of the sentences imposed in respect to both Charges 1 and 2 will be cumulative upon each other and upon the sentence imposed on Charge 3 making a total effective sentence of three years' imprisonment and I direct that that be wholly suspended with an operational period of three years.
75 I note pursuant to s.6F of the Sentencing Act 1991, the offender is sentenced as a serious sexual offender in respect to each of the charges on the indictment. I direct that that fact be noted on the records of the court and the only other order is in respect to the Sex Offenders Registration Act and I have already made a declaration that he be registered and the length of reporting period is life.
76 I confirm the s.6AAA declaration. But for the plea of guilty, I would have imposed a term of imprisonment of five years, to serve a non-parole period of three years' imprisonment.
77 I believe that covers everything?
78 MS DUCKETT: It covers all the matters of the sentence, Your Honour.
79 HER HONOUR: Yes, thank you. Thank you, sorry for the inconvenience to you, Ms Avis, and your client.
80 MS AVIS: Apologies, we should – we should have been aware of the issue.
81 HER HONOUR: Look, I think it is a product of trying to do far too many things.
82 MS AVIS: Apologies.
83 HER HONOUR: With a restriction on my – I should have known about it too but unfortunately – we have now remedied the situation and you are both excused.
84 MS DUCKETT: Thank you.
85 MS AVIS: Thank you, Your Honour.
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