Director of Public Prosecutions v Tandy (a pseudonym)
[2016] VCC 1951
•22 April 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LIONEL TANDY[1] |
[1] A pseudonym.
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JUDGE: | Sexton | |
WHERE HELD: | Geelong and Melbourne | |
DATE OF HEARING: | 15-22 June 2015, 17 November 2015, 22 April 2016 | |
DATE OF SENTENCE: | 22 April 2016 | |
CASE MAY BE CITED AS: | DPP v Tandy (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1951 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Found guilty of one charge of sexual penetration of a child under 16 where child was under offender’s care, supervision or authority – found not guilty of one charge of sexual penetration – sexual penetration of which offender found guilty not an isolated sexual incident, as Her Honour Judge Sexton found that other sexual activity alleged to have occurred, did occur – surrounding circumstances mean offending extremely serious – risk of sexual re-offending is low – ill-health of offender but also necessity to deter and denounce offending taken into account.
Sentence: 4 years’ imprisonment, with 12 months non-parole period.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos for trial Mr S. Ballek for plea | OPP |
| For the Accused | Mr J. Kelly for trial Mr D. Dann SC for plea | Michael Brugman |
HER HONOUR:
1 Lionel Tandy, on 22 June 2015, a jury found you guilty of one charge of sexual penetration of a child under the age of 16, where the child was under your care, supervision or authority. That is an offence which at the time of your offending had a maximum sentence of 15 years’ imprisonment. The jury found you not guilty of charge 1, also a charge of sexual penetration.
2 By their verdict of guilty on charge 2, the jury have accepted that on an occasion in 2007 or 2008, Eliza Curtis[2], aged 10, was in bed at her home, and was left in your care by her mother when Mrs Curtis left the house to collect her husband, whereupon you pulled down Eliza’s pants and penetrated her vagina with your finger. You had been assisting her family by building a cupboard in Eliza’s room that evening. Your families were close friends.
[2] A pseudonym.
3 Eliza gave evidence that you had touched her sexually from when she was aged 7-8 up to the event in charge 2 and that this happened mostly in her bedroom on occasions when you and your wife came to her family’s house for drinks. This was led for the purpose of providing context to the alleged offending, but is different from the allegation in charge 1 on which you were acquitted, which was a penetrative offence alleged to have occurred at your home.
4 This other sexual activity alleged was that you touched Eliza in areas she did not feel comfortable with, putting your hand up her shirt and feeling around her chest, but mostly down near her vaginal area. She said she had no idea how many times this happened, but then said "around five or something". All of this was disputed at trial.
5 On your behalf, it was submitted by your counsel on the plea that I should not have regard to these allegations, and that you are to be sentenced as a person who at the age of 60 committed a single sexual offence on a one-off basis with no previous history of sexual or any other offending.
6 It is necessary therefore for me to make a finding as to the basis on which you will be sentenced. I must of course have regard to the fact that the jury found you not guilty on charge 1 and that you are entitled to the full benefit of that acquittal.
7 As other sexual activity led for the purpose of context cannot be treated as aggravating the single charge of sexual penetration, I am of the view that I do not have to be satisfied about it beyond reasonable doubt. I have re-read the evidence of Eliza, and I am satisfied that this other sexual activity did happen. This finding is not inconsistent with your acquittal on charge 1, which as I have said, was alleged to have occurred at a different location and 2-3 years earlier. This finding that the other sexual activity of touching occurred means that the sexual penetration of which you were found guilty was not an isolated sexual incident.
8 To rephrase your counsel's submission you are to be sentenced as a person who at the age of 60 committed a single penetrative offence with no previous history of sexual or any other offending.
9 The offence of which you have been convicted is an extremely serious offence. It is made more serious by the following factors:
10 Your crime is made more serious by the following factors:
11 First, Eliza was aged 10.
12 Next, it constituted a gross breach of trust of Eliza, and of her family, with whom you and your wife had been close friends for many years;
13 Next, it was committed when Eliza was left in your care.
14 Next, this breach of trust, and the offending itself, has had a huge impact on Eliza and her family;
15 Next, there is a 50 year age difference between you and Eliza; and
16 Lastly, Eliza was in a vulnerable position due to her age, and your relationship as a family friend, both of which you exploited by telling her that there was no point in saying anything as she would not be believed.
17 For all of these reasons, I class your offence as one which is a serious example of such a crime. There is no explanation put forward because you still deny the crime. You have shown no remorse. It was not an isolated incident. Therefore your level of moral culpability is high.
18 I received statements from Eliza, her mother and her father telling me about the impact of your crime[3]. As I mentioned a moment ago, your offending has had a huge impact on them. You heard these read in court last November, and so you know what that impact is. I will not add to their distress by repeating what each said, but I take those statements very much into account in deciding the appropriate sentence.
[3] Exhibit A.
19 However, I do want to say some things to the Curtis family. First, Mr and Mrs Curtis have taken on feelings of guilt for not protecting their daughter from a close family friend. I want to say to them that they are not to feel guilt. The only person who is guilty is the one found guilty by a jury of committing a criminal act. I express the hope that eventually things will improve for your family, and particularly after today consider this a closed chapter, and look forward rather than back, dwelling on what might have been.
20 Eliza, can I tell you that you were very strong and brave in giving evidence. It has been a very long, difficult time for you since the events happened. But I am pleased to hear in your statement that you see a future that is a lot happier and brighter, and that you think you will be able to start doing things that you felt unable to do. It is also pleasing to hear that you no longer feel the pain of holding back from everything. I hope that you hold onto those positive thoughts and do well in your future.
21 Returning to you, Mr Tandy, there are some matters that I must take into account in your favour. The first matter is that you have never been convicted of a criminal offence before, and so I sentence you as a person of good character before you began sexually touching Eliza.
22 Next, I take into account your personal circumstances and your history, as outlined by your counsel[4], and contained in the psychological report[5] provided to the court. In summary, you are the 6th of eight children. Your two older brothers and your parents are deceased. You were born and grew up in Tasmania, where four of your brothers still live, and one sister is living in Corio. You had limited education with effectively no secondary schooling, as your parents separated when you were aged 10 or 11; you stayed with your father, as did two younger brothers. Your father became ill, and you left school to help look after the younger children. From that age, you worked hard in a variety of jobs, including a number of years of truck driving, and were consistently in employment up until retirement. You are now aged 68 years and receive the Age Pension.
[4] Exhibit 1.
[5] Exhibit 2.
23 You married at a young age for the first time and had three children with your first wife. After 13 years you separated. You married your second wife 33 years ago, and together you have a son. Your wife had a son from a previous relationship, who now has children of his own. Your wife and family are still very supportive of you. I also received references[6], from your wife and two others, by whom you are still held in high regard, despite the criminal offence for which you have been found guilty. All of this support is important for your prospects of rehabilitation.
[6] Exhibit 4.
24 The psychological report[7] states that there is no evidence that you have a psychosexual disorder. However, the psychologist did not take into account the possibility that the offence was not a one-off incident. I find that for you to act in such a way with a child for no apparent reason other than opportunity means there is a possible risk that you might reoffend against another child, unless it can be said that your act came from an attraction to Eliza alone. I am not qualified to make that assessment.
[7] Exhibit 2.
25 There is no risk to Eliza now because there is no contact between you and the Curtis family, and Eliza is now an adult. Ultimately, because of your lack of offending history before this, your good work history, your age, and the important support of your wife, I am satisfied that your prospects of rehabilitation are reasonable. Combining that with your health problems, to which I will refer in a moment, I find that your risk of sexual reoffending against another child is low.
26 I take into account that it is nearly 9 years since the offence was committed and that you have not offended in any way in that time. The delay is due firstly to the offence not coming to light earlier because of Eliza’s young age, the fact that she did not at the time recognise how wrong it was, and consequently her inability to tell anyone until she was older. The law recognises this is a common occurrence for victims of sexual offending, especially children. However that delay cannot significantly mitigate against your crime, because you contributed to her inability to complain about it by telling her that no-one would believe her. I do however take into account that you are being sentenced at the age of 68, rather than a man 9 years younger.
27 Secondly, there has been a delay from trial to sentence. After the jury verdict I ordered that an assessment for a Community Correction Order be obtained. The assessment was sent to the parties on 5 August 2015. There followed some problems obtaining VLA funding for the plea and a psychological report, but the court was informed by your solicitor that this was sorted out, and you were to see the psychologist on 13 October. Your first plea hearing date was not set down then, to enable trial counsel to appear on one of the few dates I had left in 2015 to hear your plea. As it happens that counsel was unavailable on 17 November and senior counsel was briefed in his stead for that hearing. Sentence was to be handed down the following week, 24 November.
28 At the first plea hearing it was put by your counsel that although you had health issues in the past, you were then quite well. Your previous health issues included bowel cancer in 2011[8]. However, two days after the plea hearing you were admitted to hospital in Geelong. While the court was informed of this, as your hospitalisation meant that the proposed sentence date of 24 November could not go ahead, no medical material was forthcoming for a number of months, despite many requests being made. It was, however, accepted that you were under medical care, including hospitalisation, and so the matter was not set down for sentence until your health situation became clearer, or at least was made known to the court.
[8] Exhibit 3 – Report dated 13 July 2015 from The Grovedale Medical Centre.
29 In mid-March 2016 the court finally received a number of medical reports or letters, dated 23 November 2015, 14 December 2015, and 24 February 2016. Yesterday the court received a report dated 5 April 2016[9]. Today I have received all of those as an exhibit.
[9] Exhibit 5 – Bundle of medical material.
30 In summary, it appears that you were hospitalised on 19 November 2015 with a bowel obstruction. This was reported to be secondary to adhesions for which there is said to be no cure, and so it was considered highly likely as at 14 December 2015 that you would require hospitalisation for further episodes of bowel obstruction. That turned out to be the case. On 16 February 2016, you had a surgical procedure to manage a severe incisional abdominal hernia which was causing your bowel obstruction. On 4 March you were re-admitted to hospital with a post-operative complication, being a collection of fluid in the surgical wound. The wound was surgically drained on 12 March and a vacuum flask drainage was placed in the wound. You were discharged home on 15 March. A community nurse visits daily to change the dressing, and every four days the vacuum flask is changed, and you are reviewed weekly in the Outpatient Clinic. As at 5 April the wound appeared to be healing well. As of today’s date there is no certainty as to how long this situation will continue.
31 As well as those matters personal to you that I take into account, I must also take into account the need for the court by its sentence to denounce your serious offending, and to try to deter other men from sexually assaulting children. There is also still a need for the sentence to deter you from reoffending, to the extent that I have found that you represent an ongoing although low risk to the community.
32 On the first plea hearing date the prosecutor submitted that you should receive a term of imprisonment to be immediately served, because of the young age of your victim, the gross breach of trust of her and her family, and the impact of your crime on her and on her family. Today that submission was confirmed.
33 Your counsel submitted on the first plea date that while the seriousness of the offence and the impact on Eliza and her family was conceded, as you have no history of sexual offending, and with the other matters to be taken into account in mitigation, an appropriate sentence was a Community Correction Order. If I did not agree the secondary submission was for a combination of a Community Correction Order and imprisonment, and if the only appropriate sentence was found to be one of imprisonment, it was submitted that I should set the period of imprisonment having regard to the factors in your favour. Today the primary submission was confirmed, but it was submitted that I must have regard to your current and recent health and that would make imprisonment more burdensome for you.
34 I accept that beginning a sentence of imprisonment for the first time at your age would be difficult for you, and that this would be made even more difficult by your current health situation. I have decided that I have no alternative to a sentence of imprisonment, because of the objective seriousness of the offence, and the significant need for the principles of general deterrence, just punishment and denunciation to be met by the sentence.
35 Because of the time at which the offence was committed I have the power to wholly suspend a sentence of imprisonment of three years or less, if I am satisfied that there are exceptional circumstances.
36 Your counsel submitted that I should so find because of the combination of the matters in your favour, to which he had previously referred, and your current and recent health situation. The prosecutor submitted that the circumstances were not exceptional and that the matter still required a term of immediate imprisonment. There has been no suggestion, but no evidence put before me, that your health care cannot be managed in a custodial setting, but clearly I accept that imprisonment will be more burdensome for you.
37 Ultimately I am not satisfied that the circumstances are exceptional. Even if they were I am not satisfied that 3 years is a sufficient sentence of imprisonment as a maximum term to meet all of the sentencing objectives. However, because of your circumstances, even though they are not exceptional, the sentence of imprisonment will be less than otherwise would have been imposed. For the same reason I have substantially reduced the non-parole period.
38 Would you stand up, please, Mr Tandy.
39 On the charge of sexual penetration of a child under 16 who was under your care, supervision or authority, you are convicted and sentenced to 4 years’ imprisonment. I direct that you serve 12 months before being eligible for parole.
40 Yes, you can just take a seat again, Mr Tandy.
41 There are two final matters. First, application has been made for an intimate forensic sample to be taken from you and you have consented to this. I am satisfied that it is in the interest of justice, having regard to the seriousness of the offending, but in all the circumstances I order than 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. Although you have consented if you change your mind I must inform you that the law is that the sample that will then be taken will be a blood sample and the police may use reasonable force to enable that procedure to take place.
42 Finally, as a result of the sentence today, you become a registrable sex offender under the Sex Offenders Registration Act 2004. Charge 2 is a class 1 offence. 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 2004 and be otherwise subject to the Act for a period of 15 years.
43 I will now have my Associate hand to you a form which notifies you of your reporting obligations. Mr Dann, would you accompany my associate to assist Mr Tandy. Would you please sign where indicated to acknowledge that you have received this form. Thank you.
44 For completeness I just simply add that there have been no days of pre-sentence detention. I thank counsel for their assistance in this difficult matter.
45 Mr Tandy may be removed, thank you.
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