Director of Public Prosecutions v Tewksbury (a pseudonym)
[2012] VCC 2223
•29 November 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RALPH TEWKSBURY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 16 November 2012 | |
DATE OF SENTENCE: | 29 November 2012 | |
CASE MAY BE CITED AS: | DPP v Tewksbury (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2223 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Bourke | Office of Public Prosecutions |
| For the Accused | Mr T Lavery |
HIS HONOUR:
1 Ralph Tewksbury[1], you have pleaded guilty to six charges laid on the filed-over plea presentment C11087362.2. You have no prior convictions.
[1] A pseudonym
2 The indictment, as I have said, contains six charges, and all but one of them are representative charges. Charge 4 is the only stand-alone charge. Charge 1 carries a maximum of five years’ imprisonment. The balance of the charges carry a maximum term of ten years’ imprisonment.
3 This matter was opened to me on 16 November by Mr Bourke, who appeared on behalf of the Director. The matter had been listed for a trial the previous week, and in fact settled on what was effectively day two of the hearing. However, the matter had been stood down to permit this course. It follows that a special hearing was due to be commenced on the Wednesday of that week, and clearly enough the young witnesses would have had the worry and expectation of coming to court.
4 Mr Bourke opened this matter to me, and I do not see the need to descend in any detail at all to describe the factual basis. It is an agreed factual basis, as set out in the summary of prosecution opening marked as Exhibit A on the plea. It is sufficient for me to refer to and incorporate that agreed summary, a reading of which will paint the extreme seriousness of your conduct, involving as it does serious sexual offences committed against both your own daughter back in the seventies, and her daughter in 2008. All up, of course, your offending embraces your own daughter and two of your grandchildren. Again, the summary will disclose the serious nature of a number of the indecent act offences and the seriousness of the indecent assault committed upon your daughter.
5 Crimes such as these embrace a large range of activity, and yours was extremely serious, involving as it did the introduction of your penis into the region of your daughter’s genitals and your granddaughters’, though of course there was no penetration. You have no prior convictions or subsequent appearances.
Victim impact statement
6 Six victim impact statements were placed before the court without objection, including of course statements from each of your granddaughters and from your own daughter. Further, there were impact statements from the other parents of the children and from your ex-wife. Again, I see no great utility in slavishly now restating those documents. They make for sad reading indeed, especially the impact statement of your daughter. Your crimes have had a lasting impact upon her, involving as they did a significant breach of your duty to her. It is a tragedy that you have gone on further then to inflict the same style of conduct upon one of her own children, your granddaughter, and your other granddaughter. Your culpability is extremely high; your breach of trust significant.
7 As I say, I see no useful purpose in incorporating the sentiments of your victims into these my reasons for sentence. I take into account the very significant impact of your crimes on people you had a duty to protect. You abdicated entirely your responsibilities to your own daughter and to your extended family.
Background
8 Mr Lavery placed before me, by way of oral submission, details as to your background. You are 72 years of age. You were gainfully employed for most of your life, though suffered a back injury many years ago. That brought to a premature end your working life. You had worked as a motor mechanic and a panel beater, and ran a number of businesses. Again I do not see any utility in slavishly restating your personal background as placed before me. I have no reason to doubt it, and the transcript will reflect the materials, which I do accept.
9 Your counsel conceded the inevitability of a significant term of imprisonment to actually serve, and of course that submission was correct.
10 The prosecutor on behalf to the Director of Public Prosecutions placed before me a range of sentences, spanning a head sentence of 4–6 years with a non-parole period of 2–3 years, citing the significant age difference between you and your victims and the significant breach of trust involved in these serious acts.
Matters in mitigation
11 Your counsel placed before me a number of submissions by way of mitigation. Firstly, he submitted you had pleaded guilty, albeit at a late stage. He submitted also that there was some level of delay in this case, and it would be open to find the presence of remorse. He submitted that your age was a significant factor in this case, together with the suggestion of an increased custodial burden by virtue of your back injury.
12 Mr Lavery also submitted that consistent with this claim of remorse were the admissions that you made in the course of the confrontation that took place back in 2010. The trouble with that submission is that following that confrontation, where you made some limited admissions, you have then been formally interviewed, where you have denied the entirety of the allegations and then run a contested committal, where your own daughter was subjected to cross-examination.
13 I turn then to consider these matters.
Plea of guilty
14 You have pleaded guilty to these charges. It is not as simple as suggesting that this is a late plea, as there were some complexities in this case, including a serious doubt as to whether there actually was penetration in relation to one of these girls on the face of the statements that she had made, which was clarified in your favour. You obviously disputed aspects of their allegations, though not ultimately the allegation of the impropriety to which you have pleaded, and the prosecution have removed the second aspect of penetration alleged in relation to your second victim.
15 It is true that you denied any of this offending when interviewed by the police, and this matter was listed before me for trial. Of course you are not to be penalised for running a committal hearing. This was your right. But that related to cross-examination of your daughter, and you do not challenge any of her allegations, ultimately with this plea proceeding by way of a plea to a representative count involving the two matters referred to in her statement.
16 Witnesses had been called at the Magistrates’ Court other than the complainant, though of course it is a most happy consequence of the resolution of this matter that the two child complainants have never been cross-examined. That is a matter of real significance in the discount that I afford in this case. By your plea, those two young witnesses, your granddaughters, have been spared the experience of coming to court to give evidence. That is a very very significant matter in mitigation, in my judgment. Further, your own daughter has been spared the experience at least of giving evidence at trial, as have other witnesses. The time, effort and cost associated with a criminal trial has also been saved. You must be very significantly rewarded with a tangible discount of sentence, more so given the nature of this matter and the nature of the saving to witnesses as a result of the resolution.
17 I make clear that I take into account the fact of your guilty plea, and do not in the circumstances treat it as a late plea by way of chronology in the complicated setting in this case. I pass a much lesser sentence than would be passed had you been found guilty following a trial.
18 There must be a question mark as to the presence of remorse, at least if one views this chronology and your preparedness to put your daughter to the sword at the committal. Again, though, I am prepared to take from your plea the signs that you are now remorseful and contrite for the conduct you have committed upon your daughter and your two granddaughters. So I take into account in your favour the existence of remorse, though I do not judge it to be complete, and certainly I distinguish between remorse and contrition for the commission of the offence and your sense of sorrow for the losses occasioned to you as a result of your offending; for instance, the loss of contact with your children and grandchildren and even your extended family. That sense in your mind of that loss is not remorse at all. Still, I find you to be remorseful.
19 It is still relevant in another way. You are 72 years of age, turning 73 next February. You have no prior convictions or subsequent convictions, and your life has altered very drastically. Since being charged with these offences – indeed, even well prior to that – you had lost your family. This of course was produced by your own conduct, but nonetheless when you ultimately are released from prison you will return to the community starting afresh as a person in advanced age, on the pension, and with no family support. Even your extended family, that is your siblings, no longer seek out contact with you as a result of your conduct. These matters caused you to move to Queensland, which you plan to return to at the end of any sentence imposed by this court.
20 I must and I do pay significant regard to your age. There is no suggestion in the materials that you have any lessened life expectancy, but at the age of 72 your age is clearly a very relevant sentencing consideration and must bear upon the severity of the effective incarceration. As the Court of Appeal stated in the case of R v Bazley (1993) 65 A Crim R 154:
“The age of an offender is no doubt a relevant sentencing consideration. It may in some cases be of considerable significance. But it cannot be allowed to be a justification for the imposition of an unacceptably inappropriate sentence.”
21 Of course your age is a matter of real significance to me in my task, and that decision has been referred to with approval in a number of other cases including WCB v R [2010] VSCA 230 and R v RLP [2009] VSCA 271.
22 Irrespective of your reasonably good health, a person of your age commences a term such as that imposed by this court with a risk that by virtue of your advancing age you may not see life beyond a prison setting. That of course is an important consideration. I do not and cannot lose sight of the fact that each year of the sentence which I am shortly to pronounce may well represent a substantial portion of the period of life left to you. I take your age into account in so far as I am able to, in accordance with these authorities I have referred to and also the case of R v Iles [2009] VSCA 197. It is appropriate in the setting that some mercy be extended and that general deterrence surrender some limited ground to the exercise of mercy brought about by your advancing age.
23 Your counsel was referred to the aspect of delay. He took me to page 142 of the depositions as the starting point. This was an unhappy starting point, as it involved one of your victims evidencing the very significant impact of your crime, with her then having, at least at that stage, in July of 2010, an inability to actually disclose. There was a later disclosure in that year in September. On 20 September there was a confrontation. You made limited admissions then, but then of course retreated from those in the interview, and chose to run a contested committal, as was your right in each instance.
24 Mr Lavery submits that irrespective of those reasons, there has been uncertainty over the last two years of your life, and I accept that delay can be taken into account in that way. This matter has been over your head, really, leaving you with an inability to get on with your life. It has represented a significant impediment to any fresh approach to life until this matter has been finalised. Of course you have no prior matters and no subsequent matters, and I take that into account as well. I take into account therefore in the limited way suggested by your counsel the aspect of delay.
Health
25 Further, you have had a significant issue with your back that led to surgical intervention many years ago and a continued regime of painkillers. Mr Lavery submits that I should judge that your back injury and the pain sustained as a result on a daily basis will increase your custodial burden. The Crown does not take issue with that, and I accept that you will suffer an increased custodial burden. When you are not in custody you can, as best you can, manage that condition at your own pace, using such medications as you choose, and with your ability to choose bedding and comfort aids. Of course, that style of regime will not be open to you necessarily in a custodial setting.
26 I do accept, therefore, by way of mitigation, that you will suffer an increased custodial burden which should be taken into account by way of mitigation.
27 Nonetheless, your offending is extremely serious. I do not accept the explanation provided for your offending as deriving from some lack of satisfaction in your relationship with your wife or cessation of work. There must be more to it than that. The offending against your own daughter occurred back in 1978 when you were gainfully employed, whatever the state of the relationship with your wife, and I do not accept that a deteriorating relationship would lead to your selection of your own daughter as a victim. It is significant that you have indecently assaulted your own granddaughters as they have reached a similar age and whilst they were under your care. So loneliness, lack of work, and isolation, may have produced a hardship in your life, but cannot explain these offences.
28 Your counsel suggests that you have reached a view in your life where you judge yourself to be sexually inactive in the years to come, and certainly, in terms of my assessment of the risk of reoffence, the absence of family, including daughters of the age that you seem to have selected in the past, leads me to the view that you have a reasonably low risk of reoffence, and probably reasonably good prospects of rehabilitation. To an extent, that reduces the emphasis that I would otherwise place on specific deterrence. It is still a relevant consideration, but your offending has been confined to particular relationships, and, stated starkly, you have lost the entire relationship with your family.
29 Time and time again the highest court of this State has spoken of the seriousness of offending against children; that is, offending of a sexual kind. This sort of conduct involves a significant breach of trust, and also produces a significant impact upon others whom you had a duty to protect. I take into current sentencing practices, and of course I have looked at the cases to which I was referred, including the case of Dibbs and others. That case, I do not believe, has any real similarities or comparisons. The victim in that case was not a relative. There was some remorse with a guilty plea, and the offender had done a sex offender’s program for offending that had occurred thirty years previously. Well, you have your offending in 1978, but much more current offending, and there is clearly a stronger need for you to be specifically deterred.
30 One has to be cautious as to looking at so-called comparable cases or, for that matter, the statistical material. This material, either by way of comparable cases or statistical data, has inherent limitations. The snapshot will not provide any real or true detail as to the nature and circumstance of the particular offending. For instance, it provides no information as to the relationship between offender and victim. It says nothing of the level of breach of trust, or nothing as to the nature of the actual conduct engaged in, or whether the matter proceeded by way of an early plea or late plea or trial. It is no part of my obligation to sentence in accordance with median sentences disclosed in the statistical material.
31 A focus on the median outcomes can distract the court from its true task. See DPP v Maynard [2009] VSCA 129. One could search endlessly through the large bulk of material in these areas to try to find comparable cases. Such a search is fruitless, as no case will ever stand on all fours with another. Nor is any mathematical equivalence demanded in the exercise of the sentencing discretion. I have to pass what I judge to be a just and appropriate penalty for your crimes. I do take into account current sentencing practices, and I have looked at this material, including cases at the Judicial College of Victoria.
32 You had an obligation to care for, and to protect, your daughter. You failed totally, and committed a serious sexual offence against her. That offence was representative in nature. Winding the clock forward thirty years, you involved yourself in similar breaches against your granddaughters in circumstances where they were in your home, subject to your care and guidance; again a significant breach of trust, with very serious offending.
33 As I have indicated, this style of offending can be committed by the barest of touchings, hand to breast. That was not the character of a number of your acts. So you must be specifically deterred, and the court must manifest strong denunciation of your conduct and impose a just and appropriate penalty in all of the circumstances.
34 I must pay regard to the notion of general deterrence. This court must send a loud message to others in the community that conduct such as this will not be tolerated when it comes before the courts.
35 By charge 3 on this indictment you will stand to be sentenced as a serious sexual offender. From that point onwards the protection of the community will be elevated as the principal purpose for sentence, though I take into account, in considering that objective, the assessments that I have made and pronounced in terms of your relatively low risk. I have available, in relation to any sentences imposed upon you as a serious offender, the ability to impose a disproportionate sentence, but no one has suggested that that is called into play in this case, and of course I do not and will not contemplate it. I will pass only proportionate terms.
36 The presumption in favour of concurrency that normally applies is replaced by a prima facie rule as to cumulation for any sentences imposed upon you once you are a serious sexual offender, which you will be by the time of the third sentence imposed. Unless otherwise directed, any such sentences would be served cumulatively upon each other and upon the earlier sentences, which would lead to a crushing sentence, given your age and personal circumstances, but nonetheless I am still required to give real weight to the statutory injunction. See DPP v HPW [2011] VSCA 88.
37 The presumption of cumulation for a serious offender has an evident object, and one that is not to be defeated by my simply exercising a discretion to “direct otherwise”. Such a stance would compromise and undermine a clear legislative policy. I still, though, must pay due regard to the principle of totality, and give consideration to the overall effect of the sentences imposed by me. I have done that, and also engaged in a last look at the overall effect in an endeavour to avoid a sentence that might be described as crushing or not meeting the overall needs of your criminal conduct.
38 Further, I must take into account the representative nature of these charges, and sentence in accordance with the authorities in this area, including R v SBL [1999] 1 VR 706 and DPP v Ellis (2005) 11 VR 287.
39 Would you stand up, please.
40 On Charge 3 you are convicted and sentenced to two and a half years’ imprisonment.
41 On Charge 1 you are convicted and sentenced to two years’ imprisonment.
42 On Charge 2 you are convicted and sentenced to two years’ imprisonment.
43 On Charge 4, a stand-alone offence, you are convicted and sentenced to two years’ imprisonment.
44 On Charge 5, relating to the touching of the breasts as set out in paragraph 30, you are convicted and sentenced to fifteen months’ imprisonment.
45 On Charge 6, again a representative charge, you are convicted and sentenced to two and a half years’ imprisonment.
Cumulation
46 I direct that twelve months of the sentence imposed on Charge 1 be served cumulatively with the sentence imposed on Charge 3.
47 By the time of the sentence passed on Charge 2 you stand to be sentenced as a serious sexual offender, and it is appropriate that I express orders as to concurrency as opposed to cumulation in accordance with the statutory scheme.
48 I direct that 20 months of the sentence imposed on Charge 2, 20 months of the sentence imposed on Charge 4, twelve months of the sentence imposed on Charge 5, and 18 months of the sentence imposed on Charge 6, be served concurrently with each other and with the sentences imposed on Charge 3 and 1.
49 This produces a total effective sentence of five years’ five months imprisonment.
50 I direct that you will not be eligible for release on parole for the period of two and a half years.
Section 18
51 You have been in custody for period of 21 days. I order pursuant to s18(1) of the Sentencing Act that this period of 21 days be reckoned as already served by way of pre-sentence detention and that this period be noted in the records of the court.
Section 464ZFB
52 I have been requested to make a forensic sample retention order, pursuant to the provisions of s464ZFB of the Crimes Act, and this is not objected to by your counsel. In the circumstances, given your lack of opposition and the nature of this offending, it is in the public interest to make this order. I have signed the draft orders, and now order pursuant to section 464ZFB(1) Crimes Act 1958 that the forensic sample previously obtained be retained for placement on the database.
Sex Offenders Registration Act 2004
53 Each of the matters for which you have been found guilty are class 2 offences pursuant to the Sex Offenders Registration Act 2004. It follows that you have been sentenced for registrable offences, and, pursuant to s34 of the provisions, you must comply and continue to comply with your reporting obligations imposed under that Act for the remainder of your life. This is conceded by your counsel.
54 I will shortly have handed to you a document that explains the terms of that Act and the conditions which will apply to you; including the reporting of your personal details to the Chief Commissioner of Police upon your release from custody, and thereafter for the balance of your life. You will also see from this document that this Act of Parliament imposes various other prohibitions upon you in the future, one of which is a prohibition upon your gaining any employment in any child-related activity, which is widely defined under the Act. To do so would constitute a serious criminal offence, as indeed would very many breaches of any of your obligations under this Act. You should make yourself familiar with the terms imposed by this order, and I will ask you shortly to sign an acknowledgement of the document that comes to you to explain this material.
Section 6AAA
55 I make clear that but for your plea of guilty I would have imposed a more significant term of sentence upon you. In such a setting I could have reached no conclusion as to the presence of remorse, and would likely have made less favourable conclusions as to your risk of reoffence and your prospects of rehabilitation.
56 In an altered setting, had you been found guilty having run a contested trial, I would have sentenced you to seven and a half years with a four and a half year non-parole period, and this statement, made pursuant to the provisions of s6AAA of the Sentencing Act, is to be noted in the records of the court.
57 Are there any other matters?
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6
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