Director of Public Prosecutions v Tetley
[2018] VCC 1543
•19 September 2018, 4 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 18-01005
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL TETLEY |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September | |
DATE OF SENTENCE: | 19 September 2018, 4 October 2018 | |
CASE MAY BE CITED AS: | DPP v Tetley | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1543 | |
REASONS FOR SENTENCE
PSEUDONYMS USED TO PROTECT THE IDENTITY OF THE COMPLAINANTS
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Catchwords: Subject: Criminal law - sentence
Catchwords: Pleas of guilty to 3 charges of sexual activity in the presence of a child under 16, and one charge of sexual assault of a child under 16 – children were neighbours aged 4 and 7 – reported to mother immediately – admissions to police – early plea – aged 54 – suffering schizophrenia – Verdins applies – serious effect on complainants and mother – protection of community best provided by treatment - CCO
Legislation Cited: SORA
Cases Cited: Boulton v R [2014] VSCA 342
Sentence: 2 year CCO
On 4 October 2018 SOR amended from 8 years to 15 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms E Margaronis | OPP |
| For the Accused | Ms C Salter | Vale Criminal Law |
HER HONOUR:
1 Michael John Tetley, you have pleaded guilty to three charges of sexual activity in the presence of a child under the age of 16 and one charge of sexual assault of a child under 16. All the offending occurred on the same day, 19 November 2017, and in the same episode.
2 At the time you were a neighbour of Alicia Jackson[1] and her two children: Candice,[2] then aged four, and Felix,[3] then aged seven. They lived in the unit next door to you and you had moved in there about a year earlier. The units shared a common driveway area where the children often played. They sometimes came into your unit and their mother would come and take them out. They would often return from your unit with treats or money and tell their mother you had given them these things.
[1] Alicia Jackson is a pseudonym.
[2] Candice is a pseudonym.
[3] Felix is a pseudonym.
3 Ms Jackson kept the children under close control as she had become concerned about some aspects of your behaviour with the children. She had observed several instances when she considered your physical contact with them was inappropriate.
4 On 19 November, the children were playing in the driveway while their mother sat nearby with a neighbour watching. Felix went into your unit with his guitar and came out with you carrying your guitar and a keyboard. You and the children played with these things and the children rode their scooters and you played on your skateboard.
5 Ms Jackson went inside for about five minutes, having asked her neighbour to keep an eye on the children. Felix followed her inside and got a packet of biscuits which he then took outside into the carport and sat on a couch next to you. Candice then joined you and sat next to you on the other side. She then asked you to pull your pants down. You did so and exposed your penis. You then masturbated it so your penis would get bigger. This is the basis of Charges 1 and 2.
6 Candice then placed her hand on your penis and masturbated it. That is Charge 3. Felix was watching this and he moved to sit on a nearby ledge from where he continued to watch Candice touching it and he saw your penis. That is Charge 4.
7 Ms Jackson returned and saw you and the children in the carport. She asked what was going on and Felix replied that you had shown them your willy. Ms Jackson told the three of you to get out of the carport and she again asked Felix what had happened. Felix explained that they had been "talking about willies. Michael pulled his pants down and Candice touched his willy".
8 Ms Jackson confronted you and you agreed you had shown Candice your penis and she had touched it. She asked you why you did that and you told her "my father did it to me". She then immediately drove the children to the police station to report it.
9 You were arrested that day and interviewed. You made admissions to the police, telling them that you had pulled your pants down to show the children something on your leg and Candice asked to see your willy. You then showed her your penis. She asked to see it again and you showed her again. You said Candice had shown you her genitals a couple of times so you thought it would be appropriate to do the same.
10 You said that you had tried to make your penis bigger by shaking it around a bit and then Candice had shaken it with her hand, which you described to the police as masturbating it. You said you then heard the screen door bang and Ms Jackson came out, so you pulled your pants up. You told the police that you had hoped she would not catch you doing this because you thought it probably was not appropriate for Candice to be doing it. You said that you thought it would be exposure to someone younger than 16 and you had heard of these laws on the radio.
11 Having made admissions to the police from the start you indicated a guilty plea at the second committal listing which is at an early stage and the case proceeded without the need for any witnesses to be called. You are entitled to a discount on your sentence for that plea because you have avoided the expense and the inconvenience of a trial and, importantly, that has spared the witnesses, including the children and their mother from having to give evidence.
12 Your background is that you are a single man, aged 54, living alone in your unit in rather isolated circumstances. As a young adult you were diagnosed with schizophrenia and being unable to work, you have been on a disability pension for many years. As a child, you had been quiet and intensely anxious, and your social development was impeded as a result.
13 You completed secondary school and attempted university courses but did not complete them as you found the demands were overwhelming and you had some very limited employment after that. These and other issues, which have affected your life, were explored by the psychologist, Dr Matthew Barth, in a report he provided after having assessed you on two occasions in August. You described to Dr Barth your good relationship with your mother, who separated from your father in response to his harsh treatment of you at the time of the diagnosis of your mental illness.
14 You remained living with your mother until a few years ago when she developed Alzheimer's disease and resided in a nursing home until her death not long afterwards. The family home was then sold and you bought the unit where you now live, and where these events took place.
15 Since beginning to live independently, you have had little contact with your father and brother and you live a very isolated life. But you did get to know some of the neighbours, including the complainants and their mother.
16 Doctor Barth described the type of schizophrenia from which you suffer as being characterised by such negative symptoms as restrictive affect, apathy, poor social functioning, and cognitive deficits, including slowness and very simplistic social reasoning skills. This makes it difficult for you to understand and develop relationships with people, in particular, intimate relationships.
17 Doctor Barth concluded that because of the longstanding and chronic nature of your symptoms you were likely affected by them at the time of the offending and they would have affected your ability to exercise appropriate judgement, even though you were capable of understanding that what you were doing was wrong. He explained - and I quote here: "It is well accepted that the negative symptoms of schizophrenia have a detrimental impact upon the sufferer's capacity for clear reasoning and decision making[4]".
[4] Dr Barth’s report para 33
18 Therefore, the principles in the decision in Verdins [5]apply to reduce your moral culpability and also to, potentially, make the experience of imprisonment more burdensome for you than for others who do not suffer in the same way from a mental illness.
[5] Verdins v R [2007] VSCA 102
19 So those are matters that I take into account in determining the appropriate sentence, together with other considerations, including the gravity of the offending and the mitigating circumstances. The offences are serious, as indicated by the maximum penalties of ten years imprisonment. The children were very young and the offending had a very substantial impact on their mother, who had to move the family away from the area, and therefore away from friends and family and further away from school.
20 In a carefully written and very clear victim impact statement, Ms Jackson described the change she noticed in her daughter's behaviour and the regression she experienced, and the increased anxiety that her son displayed. I can infer from the statement that she made, that the children are fortunate, indeed, that their mother is resourceful and highly observant and sensitive to their needs, although at a cost to her own health and financially as well.
21 The gravity of the offending must be considered in the context of this impact. Charge 3 is the most serious because it involved touching. But the other three offences can be placed at the lower end of the range of seriousness. The offending, generally, is deserving of severe punishment and calls for protection of the community as well. The principle of general deterrence should also be reflected by the sentence to try to deter others from such crimes. Balanced against these sentencing requirements is the obligation to consider the best way to punish and deter an offender with your background, while at the same time providing adequate protection to the community.
22 You have already taken steps to address your offending by engaging in counselling through a mental health plan. It seems you took some initiative in arranging this by taking the advice of a neighbour, and you have had six sessions with a clinical psychologist who has indicated that you are doing well, and I note that in passing she also confirmed the medication you were taking.
23 A letter from Ms Rowatt, a mental health nurse at your local medical centre who prepared the mental health plan for you , also confirms your understanding that what you did was wrong and was out of character, and importantly, that you are remorseful and concerned for the welfare of the children concerned. She confirmed that you are taking appropriate antipsychotic medication and Dr Barth is of the opinion that your medication should be closely monitored in the future.
24 That you have been a person of good character in the past is confirmed by your aunts and your brother in the references that they have written for you. You have no prior convictions and are generally considered to be a quiet and well‑mannered person and a good uncle to your nephew. And indeed, your aunt and cousin came to court to support you.
25 Doctor Barth addressed the question of the risk you might pose to the community by reoffending and concluded that you are in the moderate risk category. On the negative side are your poor insight and limited coping skills, in combination with your mental illness and difficulty in establishing healthy relationships. On the other hand, you do not present with overt sexual deviance. There are no psychopathic or antisocial personality traits and no physical violence associated with the offending. You do not have any substance abuse problems.
26 Specialist sex offender treatment is needed, and according to Dr Barth, this should be attended to as soon as practicable. Doctor Barth has set out in considerable detail the type of treatment needed. He also observed that should you be imprisoned you would be a particularly vulnerable prisoner.
27 The fact that you are amenable to treatment and have engaged in treatment already, that you are remorseful, that the offending is out of character, that you have family support, and that you have taken responsibility for your actions are all indications that your prospects for rehabilitation are good.
28 The mitigating matters, in this case, mean that a Community Correction Order is an adequate sentence, meeting all necessary sentencing requirements without the need for an additional prison term. The prosecution's submission was that such a combination would be appropriate, but that a Community Correction Order alone would also be within range, depending on the weight which I concluded should be accorded the mitigating material.
29 The defence submission was that a Community Correction Order alone was warranted. The Court of Appeal in Boulton v R[6] determined that this would be suitable, even in some serious cases, and I was also referred to other cases involving much more serious offending than in this case, where a Community Correction Order was imposed.
[6] (2004) 46VR 308 [131]
30 Because this case is of a type usually heard in the Magistrates' Court, there are no comparable cases which might provide guidance directly. But guidance can be obtained for consideration of the type of more serious cases usually heard in this court. In deciding that imprisonment is not warranted, I have also taken into account the provisions of the Sentencing Act, which state that a court must not impose a sentence that is more severe than necessary to achieve the purposes for which the sentence is imposed, and that the court must not confine a person unless the purposes of the sentence cannot be achieved by any other means.
31 Because your mental illness was closely connected to the offending that you committed, the purposes of the sentence in punishing you and protecting the community are best achieved by your treatment in the community. While a Community Correction Order does not require confinement, it imposes obligations on you to attend appointments and courses of treatment and serves as a deterrent for you as well. That is because if you offend again in any way while the order is operative the breach would bring you back to court to be resentenced.
32 A Community Correction Order is accepted as appropriate punishment even for some serious offending because of the obligations I have mentioned. Very often community work is also included. But your illness excludes you from employment and the focus should be on your treatment.
33 Would you stand now please, Mr Tetley, and I will explain this order.
34 It will begin and it will last for two years. Convictions will be recorded and the order will apply to all four charges. You will be under supervision and you must submit to assessment for mental health treatment and for programs to reduce offending. In your case, that will probably mean that your engagement with psychological counselling will need to be ongoing and will be monitored. You will also be assessed to take part in a sex offender program and possibly other programs as well. You must go to the Corrections Office in Lilydale by 4 pm this Friday, 21 September, and the address there is 1/18 Clarke Street.
35 You must understand that if you were to breach the Community Correction Order by further offending or by failing to comply with your obligations, you would have to come back to court to be resentenced.
36 The prosecution seeks an order for a forensic sample of saliva to be obtained and that is not opposed and I make that order. I must advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary. Finally, under the provisions of the Sex Offender Registration Act, you will be required to provide your details to the police every year for fifteen years[7].
[7] On 4 October 2018 the SOR was amended from 8 years to 15 years.
HER HONOUR: Just be seated now, for the moment, please, Mr Tetley, and the order will be available for you to sign in a moment. Ms Salter, would you like to have a look at that and go with my associate to the dock?
MS SALTER: Yes, Your Honour.
HER HONOUR: Just while we're waiting for that. Ms Margaronis, I understand you have the s.464ZF there; is that right?
MS MARGARONIS: I do. I've got the draft orders, Your Honour.
HER HONOUR: All right. Perhaps I could have that now. Is there anything further?
MS MARGARONIS: Nothing further, Your Honour.
HER HONOUR: Ms Salter.
MS SALTER: Those are the matters, Your Honour.
HER HONOUR: Thank you.
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