Director of Public Prosecutions v Thom (a pseudonym)

[2017] VCC 829

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZANE THOM (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	21 June 2017
CASE MAY BE CITED AS:	DPP v Thom (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 829

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms Mildenhall
For the Accused	Mr A. Mallis

HIS HONOUR: 

1Zane Lewis Thom[1], you have pleaded guilty to three counts of committing an indecent act with a child under the age of 16 years.  The maximum penalty for this offending is ten years' imprisonment for each count.

[1] Zane Lewis Thom is a pseudonym name.

2You have no prior convictions and no matters outstanding.

3The Crown tendered a summary prosecution opening on plea as Exhibit A.

4A brief summary of your offending is as follows:

5In June 2003, the complainant’s family moved to a house in Whittlesea.  You lived next door.  The complainant’s parents became friends with you and your wife.

6The complainant was born in August 2003.  She was seven or eight years of age at the time of your first offending, and nine or ten years of age at the time of your last offending.

7Two counts of the offending occurred in 2011, and the last in 2013.

8In 2011, you were retired.  The complainant was about seven years of age, as I have said, and would often visit you.  You had made timber toys for the complainant and her sister and she considered you as a friend.  On one occasion she made you a reconciliation card and gave it to you as a sign of trust.

9You had a garden shed in your backyard.  In 2011 after gardening, you suggested to the complainant that she come into your shed and you asked her to sit on your lap.  You pulled down her pants and underwear and you rubbed your penis around her anus for a few moments.  The complainant could feel your penis on her skin.  You told her not to tell anyone.  This was the basis of
Charge 1.

10On another occasion in 2011, you invited the complainant into your house while your wife was not at home.  You invited the complainant to lie down on your bed.  As she lay face down on the bed, you pulled down her pants and your own and you rubbed your penis around her anus.  That was the basis for
Charge 2.

11In 2013 you again invited the complainant into your shed.  You covered her eyes and said that you are going to play a game by guessing what you were putting in her mouth.  On the first occasion you placed a lolly in the complainant’s mouth.  You then placed a chocolate in her mouth and you then next placed you penis near the complainant's mouth and asked her to lick it. When you asked the complainant what you had put near her mouth, she did not respond.  You told her it was your thumb.  That was the basis for Charge 3.

12Throughout 2014 and 15, the complainant experienced a number of emotional difficulties.  Your neighbours cut off contact with you.  Eventually, the complainant complained to her mother and to the school counsellor.  On
26 June 2016, she made a video recorded statement to the police.

13On 1 July 2016, you made a record of interview with the police.  As your counsel submitted, whilst you made a number of admissions, you also made a number of statements which suggest that you do not yet take full responsibility for your actions.  You told the police that the complainant was very attracted to you and that she had a bit of a crush on you.  You also told the police that you touched her inappropriately and you tickled her because she enjoyed it.

14The complainant’s mother made a victim impact statement, dated 20 May 2017. It is clear that the effects of your conduct have been long-lasting on their family life.  It is to the complainant’s credit that she has done her best to put these matters behind her.  It is apparent, however, that your conduct has had
a ruinous effect on her mother’s ability to trust.  The blame for this lies entirely at your feet.

15I turn now to your personal circumstances.

16You are 71 years of age and you were born in February 1946.  You were born, raised and educated in country Victoria as one of four children.  There is nothing in your family background to indicate a history of dysfunction or abuse.

17After you completed your secondary education at Edmund Rice College in Melbourne in 1964, you commenced work at the State Bank of Victoria in January 1965.  You remained with the bank until 1994, reaching the position of manager of four banks around Broadmeadows.  You retired from the bank after suffering stress.  You worked for another ten years as a cleaner, in clerical work in a financial planning office, and then as a storeman for Genovese Coffee.  You have been retired since about 2004.

18You married your wife when you were 23 years of age in 1969.  You have four adult children and 12 grandchildren.  Your wife has stuck by and supported you in court in the plea hearing.  It was evident from her distress as the opening was read in court that that she finds the details of your offending harrowing.  I was told that one of your children and his family have cut off contact with you altogether since you revealed your offending to them. 

19In August 2016, one of your daughters-in-law died.  Since that time, you and your wife have been very involved in the care of two of your grandchildren.  Both of those children apparently suffer from considerable health issues.

20You have suffered your own bouts of considerable ill-health.  You have a rotator cuff injury which requires surgery.  You have diabetes which requires management.  More recently, in March 2017, you had heart bypass surgery and a pacemaker was installed.  Doctors have told you that you face a six to
12 month recovery period.

21A psychological report, dated 8 June 2017, prepared by Patrick Newton, was tendered on your plea.  In the section “Background to Offending”, Mr Newton reported that you told him you found contact with the complainant increasingly irritating.  You said that you wished she would go home and stop bothering you. You also said that after touching her skin on one occasion, you had become fascinated by the idea of pursuing further opportunities to touch her and that you subsequently touched her on the vagina, as well as placing your penis near her face.  Mr Newton reported that you expressed remorse in the form of
a heartfelt apology to the complainant.  I note, however, that the apology was only made to Mr Newton and it was not read in court as a separate statement of contrition; nor has it been conveyed, perhaps understandably, given the restriction on contact, to the complainant or her family.

22Mr Newton raised two key areas of concern in your assessment.  First, you acknowledge that you found the sexualised touching of the complainant to be pleasurable and had repeatedly sought opportunities to repeat the behaviour. Secondly, Mr Newton considers that you readily confuse affectionate contact with erotic touch and you operated on the premise that the complainant gave “implicit consent”.  Nevertheless, Mr Newton concluded that you pose
a low risk of recidivism to sexual offending and that your risk is considerably lower than that of a typical sex offender in the community.  Mr Newton concludes that you require appropriate offence-specific intervention in order to reduce your risk even further.

23On your behalf, Mr Johns submitted the following matters should mitigate your sentence:

(1)  Your “relatively early” plea of guilty;

(2)  Remorse, albeit hindered by a relatively limited insight;

(3)Acceptance of punishment.  You have accepted that you must serve a period of imprisonment;

(4)  He submitted you have good prospects for rehabilitation; and

(5)Your mitigating personal circumstances, including ill-health, age and previous good character must be taken into account.

24In the circumstances, Mr Johns submitted that the appropriate sentence in this case was a combined sentence of imprisonment, together with a community corrections order.

25On behalf of the Crown, Mr Plummer submitted that the offending in this case was serious.  The complainant was only seven or eight years of age when the offending commenced and this represented a serious breach of trust by
a neighbour.  He submitted that you created repeated opportunities for sexual contact.  As such, your offending must be met by the principles of general deterrence, just punishment and denunciation.

26I was referred to Court of Appeal decision in McPherson.  The Court in that case restated the foundational principle for sentencing in these types of offences:  Those who exploit and abuse the young must expect the response of society to be severe.

27Your sexual fascination with this young girl is depraved.  Your conduct amounts to a gross breach of the trust that she placed in you and her parents placed in you.  It was nothing short of predatory, in that you repeatedly sought opportunities to sexualise your contact with her.  Your failure to observe the boundaries and norms of our society and to use the cover of respectability as
a retired bank manager and grandfather yourself, is disgraceful.  In particular, the cunning and planning to lure your victim by way of a game in respect to Charge 3 is deplorable.

28Your conduct deserves the denunciation of our society.  Society condemns such conduct.  No punishment other than a period of imprisonment in the first instance can be imposed. 

29Nevertheless, the Crown agrees that a combination sentence is appropriate in this case.

30You have been assessed as suitable to undertake a community corrections order.

31I propose placing you on a community corrections order for period of 15 months, at the conclusion of the term of imprisonment that I intend to impose.  The terms of the community corrections order are as follows:

32First, you must not commit, whether in or outside Victoria during the period of the order, an offence punishable by imprisonment. 

33Second, you must comply with any obligations or requirements prescribed by the regulations.

34Third, you must report to and receive visits from the Secretary during the period of the order. 

35Fourth, you must report to the Community Corrections centre specified in the order, and that will be to Melton Correctional Services Centre at 85 Unitt Street, Melton.  You must report to that centre within two clear working days after your release from prison. 

36Fifth, you must notify the Secretary of any change of address or employment within two clear working days after the change. 

37Sixth, you must not leave Victoria, except with the permission, either generally or in relation to a particular case, of the Secretary. 

38Finally, you must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the order. Directions given by the Secretary may be either oral or in writing. 

39So they are the terms that apply to every community corrections order.        

40In addition, I propose two conditions.

41First, you are to submit to any mental health assessment and treatment.  That may include psychological, neuropsychological, psychiatric or other treatment in a hospital or residential facility, as directed; and

42Second, you are to submit to and participate in the assessment and intervention within a specialised offender assessment and treatment service, as directed. This is the treatment formerly known as the sex offender's program.

43All right, so as you heard, Mr Thom, the term of the order I propose is for you to undertake a community corrections order for 15 months.  You must comply with the terms that I read.  They attach to every order and then there are two other conditions.  The first is to submit to mental health assessment and treatment, which may be inpatient or outpatient, but in the first instance, you would just be assessed in any event.  And secondly, you must submit to and participate in assessment in the specialised offender assessment and treatment service, as directed by Corrections.

44Do you agree to a community corrections order being made in those terms?

45OFFENDER:  Yes. 

46HIS HONOUR:  All right. 

47The sentence of the court is therefore as follows and I will ask you to stand for this, Mr Thom.

48On Charge 1, you are convicted and sentenced to a term of imprisonment of four months. 

49On Charge 2, you are convicted and sentenced to a period of imprisonment of four months.

50On Charge 3, you are convicted and sentenced to a period of imprisonment of five months.

51That is the base sentence. 

52I order that two months of the sentence on Charge 1 be served cumulatively on the sentence I have imposed on Charge 3. 

53I further order that two months of the sentence on Charge 2 is cumulated on Charge 3 and all other sentences. 

54You are therefore sentenced to a total effective period of imprisonment of nine months. 

55In addition, under s.44 of the Sentencing Act, you are to undertake a community corrections order for a period of 15 months. The order is to commence upon your release from prison on the sentence I have just imposed.

56I have now read the terms of the order to you.  I repeat the conditions.  They are that you to submit to any mental health assessment and treatment.  That may include psychological, neuropsychological, psychiatric or other treatment in a hospital or residential facility, as directed, and that you are to submit to and participate in the assessment for and intervention within the specialised offender assessment and treatment service, as directed.

57I will ask that you, Mr Mallis, show you a copy of the order and if you could show that to Mr Thom and if he agrees, have him sign it. 

58As a result of the sentence of imprisonment imposed upon you in respect to Charges 1 and 2, I declare that you are a serious sexual offender within the meaning of s.6B of the Sentencing Act. 

59Your offending does not call for a disproportionate sentence to be imposed in this case. 

60I further order that you are to be registered as a sex offender for life, pursuant to s.34(1)(c)(iii) of the Sex Offenders Registration Act.      

61

The details of your registration, which is mandatory by law for life, place

a considerable number of restrictions and obligations upon you.  There is a reporting period, which means that you must report to Victoria Police within seven days of your release from custody.  You will then be reviewed and your obligations will be explained to you, but they require you to give personal details, which will be supplied to your case manager when you report initially and then annually for your reporting period.  

62You will be required to supply supporting documentations.  You will be required to supply any changes in your personal details.  You will be required to apply for permission to travel interstate.  There are restrictions upon your ability to travel internationally and you will be required to provide any details of proposed travel. 

63You are also required to acknowledge, in writing, that you have received the notice of reporting obligations, so I require you to sign this document now.

64But for your plea of guilty, Mr Thom, I would have imposed a sentence of two years' imprisonment, with 18 months to serve. 

- - -