Director of Public Prosecutions v Theo Carson (a pseudonym)

[2023] VCC 1483

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

DIRECTOR OF PUBLIC PROSECUTIONS

v

THEO CARSON (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE DOYLE
WHERE HELD:	Melbourne
DATE OF PLEA:	10 August 2023
DATE OF SENTENCE:	24 August 2023
CASE MAY BE CITED AS:	DPP v Theo Carson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VCC

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence

Catchwords:              Plea of guilty - sexual penetration with a child under - indecent act with a child under the age of 16

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Doran [2005] VSCA 271; R v Verdins [2007] VSCA 102

Sentence:                  Total effective sentence of five and a half years imprisonment,

non parole period of three years and six months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms J. Piggott (Plea) Ms M. Reznecki (Sentence)	Office of Public Prosecutions
For the Accused	Ms J. Willard	Nelson Brown Legal

HIS HONOUR:

1Theo Carson[1], you have pleaded guilty to one charge of sexual penetration of a child under the age of 16 for which the maximum penalty is 25 years' imprisonment because the victim was under the age of 12.  You have also pleaded guilty to 3 charges of indecent act with a child under the age of 16 which has a maximum penalty of 10 years' imprisonment.

[1] A pseudonym

2The offending occurred at Donvale between 19 June 2016 and 30 June 2017. You are the first cousin of the complainant's mother. During the period in which the offending occurred the complainant lived with her mother and stepfather at their home in Donvale. You visited the complainant's home frequently, sometimes three times a week. The complainant was aged between 8 and 9 years old. You and the complainant often sat next to each other on the living room couch and watched television together while her mother and stepfather were at home.

3In late December 2020, the complainant was driving with her mother and your son, when they noticed a police vehicle with its lights on. One of the adults joked 'the police are coming to get you'. The complainant responded saying something like: 'the police should be looking for Uncle Theo and putting him in gaol'.

4Your son spoke to the complainant about this comment when they returned home. The complainant told her mother and your son that you had sexually touched her. She said you had touched her genitals and she had touched your genitals.

5The complainant did not say anything earlier because you were family, and she was scared about what other people in the family would do to her. She spoke up when she did because the family were relocating to Queensland, and she felt able to say something.

6Your son and the complainant's stepfather confronted you about the offending.  Her stepfather phoned you on the day of the disclosure. Within a few days he went to your house with your son. Initially you denied the offending and then later you spoke of your shame.

7In January 2021, the complainant moved to Queensland with her mother and stepfather. The family decided not to report the matter to police until they felt the complainant was ready.

8On 21 August 2021 the complainant told her mother the detail of the offending. The police were later notified. On 28 August 2021, the complainant made a VARE to police which is the basis of the charges other than Charge 2 which you admitted but she did not describe in the VARE.

9In the VARE she says that when she was sitting with you on the living room couch, your routine was to touch her legs and arms while watching television. You would then progress to massaging her shoulders, back and arms, and ask her to put her leg on your lap. If the complainant moved away, you would make her feel guilty by saying, 'Oh don't leave me alone here, come over and sit next to me'.  You progressed to sexually assaulting the complainant in various ways by touching her private areas.

10When the offending occurred her mother and stepfather were either in the garage or upstairs. You would stop when you heard the garage or living room doors open, saying to the complainant 'if your mother found out she would kill me'.

Charge 1. Sexual Penetration of Child Under 16 Years

11Between 19 June 2016 and 30 June 2017, the complainant was at her home with you, sitting together on the living room couch, watching television. This was after school between 4 pm and 6 pm. You put your hand down the complainant's shorts and partially inserted your finger into her vagina for a short time. The complainant said in her VARE, 'It hurt when he did that. I tried to move away, and he didn't say anything. He acted like it was all good. He would act normal, like nothing was happening. He didn't say anything'.

12The complainant says that she was about eight or nine years old, and this did not happen more than twice. She said, 'he put his finger in where I didn't want it go' and 'it would hurt when he put his finger in and also when his finger was on my labia and then he would put his hands on my butt'.

Charge 2. Indecent Act with or in the presence of a child under 16 years

13On another occasion the complainant was again at home with you on the living room couch watching television. You licked the complainant's vagina for a short time while she was on the couch. You admitted this in your record of interview. She did not describe this in her VARE.

Charge 3 Indecent Act with or in the presence of a child under 16 years 

14On a further occasion the complaint was again at home in Donvale with you watching television. You unbuckled your belt and exposed your penis to the complainant. You commenced to touch your penis. The complainant said this, 'he would pull back the top part of it and show me what it looked like and touch it'.  While doing this you instructed and encouraged the complainant to touch your penis saying, 'It's ok, it doesn't bite'.

Charge 4. Indecent Act with or in the presence of a child under 16 years

15On various occasions while sitting together on the couch you put your hand underneath the complainant's top and touched her chest area, and her nipples. She said, 'he would pinch or squeeze them when he was touching them, it hurt'. The complainant says that this happened two out of three times when you came over.  

16During the offending period you gave the complainant gifts of jewellery, which she believed were to bribe her. When you were confronted by the complainant's stepfather and your son, you said 'it only happened two, three times, and I don't remember how it happened'.  You offered financial support for counselling.

Arrest

17You were arrested on 3 November 2021 at your home in Brunswick.  You were interviewed by police.

18Initially you denied touching the complainant sexually. You then admitted touching the complainant sexually four or five times. You said to the police 'I know my mistake, never had those feeling or desires in my life. Never wanted to touch a child, especially my niece, any kid, for that I feel bad, I can't sleep'.  You also said that you felt embarrassed and that you knew what you had done was wrong.  

19When asked about the fact that the complainant's mother and stepfather were home during the offending, you said to the police that you did not know what had happened, and that you were supposed to be scared but that you did not have any feelings.

20You told the complainant not to tell anyone about the offending, saying, 'They're going to kill us'.

21You said it was possible or probable that you touched her nipples on different occasions.

22You admitted touching her between the legs and underneath her underpants. You said you touched her for about five minutes.

23You admitted kissing the complainant between the legs, in between the lips for a few minutes.  You also said you had licked her vagina on the outside for a few minutes.

24You said variously that you did not remember, or you denied putting your finger inside the complainant's vagina.

25You told the police the complainant had touched your penis. You said she asked to touch it. You said she played with your penis.

Personal circumstances

26You were born in Greece in March 1952. You are 71 years old.  You completed high school in Greece. You migrated to Australia in 1979 when you were 27 years old. Your parents followed you some years later.  You had one brother who died in 2022. 

27Back in around 1980 you were married for five years.  You have had no other romantic relationships.  You had with her a son, who was born in 1985; he is now 38 years old.  In Australia you have always lived in Melbourne.

28Before your heart condition you had been in consistent employment.  You ran your own clothes shop for approximately three years. Later, you worked for a painting company until you suffered a significant workplace injury when you fell from scaffolding.  You were on Workcover after that. You had a heart attack in 2012.  You have not worked since then and have relied on a pension. 

29Since these offences came to light your son will not talk to you.  You have been living a lonely solitary life; you have no contact or support from any family.  You live alone in public housing. You will lose your house because of being sent to prison.

Victim Impact Statements

30The complainant made two Victim Impact Statements and I was provided with a psychological report about the impact of your offending on her. She has suffered severe and consistent anxiety, insomnia, flashbacks, suicidal ideation, clinical depression and Post-Traumatic Stress Disorder.  She states the offending has 'affected relationships with all of my friends and family'. She now has 'very little enjoyment in life', has become very 'quiet and distant' and avoids most social events.

31The impact of your offending on her has been severe and multifaceted.

32The complainant's mother also made two victim impact statements. She now suffers from Post-Traumatic Stress Disorder, anxiety and depression and feels unable to work until her symptoms reduce and therefore, she has financial difficulties. She says that 'seeing her daughter suffering and hurting and not being able to live her life as a normal teenager has had a huge impact on her own wellbeing'. She says her daughter has regularly not attended school and has suffered a significant educational disadvantage and has not been able to fit into mainstream schooling.

33The Victim Impact Statements eloquently describe the ongoing impact of your offending on the victim and her mother.   

34The very significant impact of your offending is an important matter amongst the many factors I must have regard to in deciding the appropriate sentences. 

Offence seriousness

35The offending in this case was very serious. Charge 1 has a maximum penalty of 25 years, and the other offences also carry a lengthy maximum penalty of 10 years reflecting the inherent seriousness of the offences. Plainly Charge 1 is the most serious offence.

36All adults have a responsibility towards children to protect their innocence; and to sexually assault any child is a grave breach of this basic obligation. The community rightly regards such conduct as abhorrent.

37Where an offender is in position of trust in relation to a child, as you were, the breach of trust is an aggravating feature of the offending. You offended against your cousin's child when she had allowed you into her home and permitted you to be alone with her daughter. The offending was brazen taking place when her mother and stepfather were in the house.

38The law presumes enduring psychological consequences to the victims of such abuse. Based on the victim impact statements this has already been the reality for the complainant.  The repercussions for her (and her mother) of your offending are likely to be ongoing.  

39The complainant was just 8-9 years old years old when the offending took place. The offending spans a one-year period.  You also took some steps to try and ensure the complainant did not tell her mother. You gave her gifts and performed other acts in the lead up to the sexual offending as described in the prosecution opening.  Having regard to these factors and circumstances I consider your moral culpability to be substantial.

40Your counsel, Ms Willard, sensibly conceded that your offending was serious, particularly given the 'gross breach of trust' involved and the age of the complainant. 

41She submitted that the offending in Charges 1-3 was limited to singular occasions of a short duration, although Charge 4 involved a course of conduct. 

42In relation to Charge 2, Ms Willard submitted that I should apply the principles in the case of The Queen vDoran[2].  I accept the submission that you should receive a significant reduction of sentence because you provided the evidence for that offence in your record of interview.  It could not otherwise have been established.  I accept the other points made by Ms Willard about the offending made in the context of her acknowledgement of the seriousness of the offences.

[2] R v Doran [2005] VSCA 271

43You pleaded guilty after a sentence indication hearing, where I indicated I would not exceed a prison sentence of five and a half years overall.  I accept your plea of guilty is indicative of some remorse and shame for the offences.  I accept it indicates a willingness to facilitate the course of justice.  You have spared the witnesses, particularly the victim and her mother the experience of reliving these events in a trial.   You have saved the court and the prosecution the cost and resources involved in conducting a trial.  This Court still faces a backlog of trials because of the disruption to its operations during the pandemic, and the principles in the case of Worboyes still apply.[3] You must receive a significant discount for your guilty plea.

[3] Worboyes v The Queen [2021] VSCA 169

44On the issue of remorse, although I accept you made substantial admissions in your record of interview, and have pleaded guilty, this must be balanced against the denials of the penetrative offending and the ongoing denials you made to the psychologist who provided the recent report, Dr Sarah Fratti. I accept you are ashamed of what you did but you do not seem to have achieved full insight or an ability to be fully candid about it.

45You have no relevant prior convictions. I therefore consider you have otherwise been a man of good character.  This is of some importance, although for offending such as this it is not unusual for an offender to come before the court without prior convictions, and the weight to be given to good character is less than it might otherwise be.

46Your age is a matter in mitigation in this case.  You are now 71 years old.  You have multiple health issues which are relevant to sentencing in various ways.  A document from your general practitioner summarizing your health issues was tendered.  I have also been provided with your medical record from the Croxton Medical Centre, an occupational therapy report from 2014 relating to your workplace injury, and a report relating to your heart operation. A neuropsychological report from 2014 was tendered and a further neuropsychological report from Dr Sarah Fratti was also relied on. Your counsel summarised your health issues. They are substantial.

47I do not propose to repeat them all in these remarks but in 2012 you suffered a major stroke and not long after that heart failure which required a bypass and the insertion of 3 stents. You have also suffered from kidney failure.  Your cognitive functioning is said to be reduced.

48Ms Willard submitted that because of your health you are less likely to re-offend.  She submitted that any period of imprisonment will represent a more significant percentage of your remaining life than someone without your health problems.  She submitted imprisonment will be more burdensome on you than a younger, healthier person.

49She also submitted that the delay of seven years since the offending has increased the medical problems from which you suffer, compared to if the matter had been dealt with more quickly. Some of the delay can be attributed to you though. This matter was listed for a guilty plea at an earlier stage, and then you changed your plea and your legal representation.  The case stagnated, while your new lawyers familiarised themselves with the brief and conducted the resolution negotiations that led to the sentence indication. 

50Further, the delay in this case is not unusual at all for sexual offences.  It often takes victims many years to report sexual offending.  The victim was a child at the time you offended against her, so it is not surprising at all that the VARE was not made until 2021. For those reasons, delay is less significant in a case of this nature.

51Nonetheless, you are being sentenced now as a 71-year-old in ill health, and I accept largely the points made by Ms Willard as to the relevance of age and ill health to sentencing.   I accept that because of those factors the burden of imprisonment is increased and the period of imprisonment I impose will represent a not insignificant portion of the rest of your life.

52It is difficult to know, however, whether imprisonment will have an adverse effect on your health.  As the prosecutor, Ms Piggott, submitted, there are many people in prison for offences such as yours of an advanced age and the prisons routinely deal with their health issues. 

53Further, I do not ignore that you were an elderly person when you offended.

54Ms Willard relied on the report of Dr Fratti to argue that principles 5 and 6 from the case of Verdins apply.[4]  In the relevant passages Dr Fratti says that you might find the challenges of being removed from your natural environment more burdensome than for other prisoners and that disruptions to your routine due to ill health may be detrimental to your mental health. In my opinion that is too speculative to enliven Verdins principles 5 and 6 as a separate matter to the impact of your failing health on the burden of imprisonment.

[4] R v Verdins [2007] VSCA 102

Prospects of Rehabilitation

55Having regard to your age, ill health, your estrangement from your family and isolated circumstances, it strikes me that it is unlikely you will find yourself alone with children again and the chances you will re-offend are comparatively low although there is uncertainty about this given, I do not have a risk assessment and by this offending you demonstrated a sexual attraction to children.  Dr Fratti in her report recommended review by a forensic psychiatrist to assess risk and to assess your overall mental health.

56I do not have such a report, but I expect you will be required to undergo a sex offenders’ program in prison in order to qualify for parole.

Totality

57I apply the totality principle in sentencing you.  The overall sentence I impose must be just and proportionate to the total criminality of your offending. Substantial concurrency between the individual sentences is necessary to comply with that principle.

Serious Sexual Offender

58For the Charges 3 and 4 you will be sentenced as a serious sexual offender. This means for those charges I am required to treat protection of the community as the most important sentencing purpose.  Further the totality principle is modified but not excluded because there is a presumption of cumulation in respect of those charges. I will though in this case moderate any orders for cumulation to comply with totality but mindful of the serious offender provisions. A disproportionate sentence is not necessary and was not asked for by the prosecution.

59Your serious offender status on Charges 3 and 4 will be noted in the records of the Court.

60In sentencing you for this serious offending I must give emphasis to general deterrence, denunciation and just punishment.  Deterring you has a role to play but is less significant given your age and health. As far as is possible I will attempt to facilitate your rehabilitation by the imposition of a lengthy period of supervision on parole, if you are granted parole at the end of the minimum turn. The non-parole period though must be consistent with the objective gravity of the offending.

61The sentence I impose are as follows

62Charge 1, you are convicted and sentenced to 4 years' imprisonment.

63Charge 2, you are convicted and sentenced to 2 years' imprisonment.

64Charge 3, you are convicted and sentenced to 2 years' imprisonment.

65Charge 4, you are convicted and sentenced to 12 months' imprisonment.

66I make the following orders for cumulation on the base sentence, which is Charge 1, and on each other.  Four months of the sentence on Charge 2 is cumulative on the base.  Ten months of the sentence on Charge 3 and four months of the sentence on Charge 4.  That makes a total effective sentence of 5 ½ years with a minimum non parole of 3 years and 6 months.

67I allow 14 days of pre-sentence detention to be deducted from the sentence that I imposed, pursuant to s18 of the Sentencing Act.

68Pursuant to s6AAA of the Sentencing Act I indicate that but for your plea of guilty I would have imposed a sentence of 7 years and 10 months with a minimum of 5 years and six months. You will be placed on the Sex Offenders Register for life.

69So any clarification required?

70MS REZNECKI:  I don't believe so, Your Honour, no.

71HIS HONOUR:  No, all right.  Madam Interpreter, thank you very much, that was a very difficult process.  I apologise if I was a little bit cranky at the outset.  I am well aware it is not your fault; it is a very difficult process so thank you for persevering and getting - - -

72INTERPRETER:  I understand.  Thank you, sir, I appreciate you too, thank you.

73HIS HONOUR:  Okay, nothing more?

74MS REZNECKI:  Thank you, Your Honour.  I don't believe so, Your Honour, thank you.

75HIS HONOUR:  All right, we will adjourn.

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