Director of Public Prosecutions v Thomas
[2012] VCC 857
•27 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LA TROBE VALLEY
CRIMINAL DIVISION
CR-11-01764
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL MICHAEL THOMAS |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | La Trobe Valley | |
DATE OF HEARING: | 21 June 2012 | |
DATE OF SENTENCE: | 27 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Thomas | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 857 | |
REASONS FOR SENTENCE
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Catchwords: Trial – sentencing - sexual penetration with child under 16
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Lynch | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Victoria Legal Aid |
HIS HONOUR:
1 Paul Michael Thomas, you have been found guilty by jury verdict that between 13 August 2003 and 30 September 2003, you took part in an act of sexual penetration with a child under the age of 16, contrary to s.45(1) of the Crimes Act 1958.
2 The offence is aggravated in that at the time of the offence the victim was under the age of 10 (she was in fact aged 7). Accordingly, the maximum penalty for this offence is 25 years' imprisonment.
3 The circumstances of your offending are as follows.
4 At the relevant time you were the victim's mother's boyfriend and you lived in Fish Creek, Gippsland. The victim and her family lived at a separate address.
5 The victim was staying over at your home and had been playing with one of your sons on a computer in one of the boys' bedrooms. She was wearing jeans and a top, and had left the bedroom briefly to go to the toilet. When she came back into the bedroom you were alone in the room, sitting on a chair near the computer. You asked her to sit on your lap and she did. You then undid her jeans and inserted your finger into her vagina and moved it from side to side. You kept your finger in that position for some time - the victim thought it might have been approximately half an hour. You did not say anything and the victim said she was too shy to say anything and you stopped when it was time to go. You then drove her home.
6
The victim did not immediately tell her mother about the incident because she thought she would not be believed, but she believed she had told her sister. The sister could not recall being told and the victim explained that on the basis that they were both in bed when she told her sister and she believed her sister might have been asleep or having a dream.
7 By January 2004 the victim's father was concerned about changes he had observed in the victim's behaviour and, after discussing with her issues about her home life, asked her if you had ever touched her in any way. The victim then told her father about your act which became the subject of the current charge.
8 The complaint was reported to police, and on 15 January 2004 an audio-visual recorded statement was made by the victim. You were subsequently interviewed by the police on 21 January 2004 and exercised your right not to answer any questions. You were released without being charged and were in fact not charged with this offence until 15 February 2011.
9 The special hearing, being the recorded cross-examination of the victim, was recorded on 26 March 2012 and your trial took place over 5, 6 and 7 June 2012. The evidence at the trial was short and consisted of the recorded of interview of complaint by the victim together with her recorded cross-examination, the only other witnesses being her father as to her complaint to him, Dr Maurice Odell as to his examination and opinion of the victim's physical condition and the victim's sister as to her recollections of the day her sister visited you, her recollections of any alleged complaint and the victim's behaviour on her return home.
10 The victim did not complain of any pain or discomfort as a result of her experience, and Dr Odell's examination revealed normal anatomy with no evidence of injury or scarring.
11 I now turn to your personal circumstances.
12 You are now aged 49, having been born 22 September 1962.
13 You apparently progressed normally through your schooling, being educated at secondary school at St Leonard's in Brighton and completing your education to Year 11.
14 Thereafter you have been employed, mostly in the automotive trade, and although you are not a qualified mechanic you have been mostly employed in that capacity.
15 Your parents had separated when you were nine years old. Your mother re-partnered and you have a good relationship with your step-father and your brother.
16 In 1992 you married and you have two boys by that union. Unfortunately that relationship ended in 1995 and a bitter matrimonial dispute followed. In 1996 your ex-wife was jailed because of her involvement with amphetamine use. You obtained custody of your sons and moved to Fish Creek, becoming a full-time parent in the care of your children. Your step-father and your mother were also living in the Fish Creek community.
17 You raised your two boys in that community and at the same time assisted the local community as a swimming instructor and sports assistant at your local football club. You were involved for over ten years, both at training and on match days, attending up to four teams.
18 In 2010 you had a spinal fusion because of neck injury and, as a result, were placed on a disability support pension.
19 You have also suffered from long-standing depression, first noted at least ten years ago. You have been prescribed many anti-depressant medications with minimal success and you have also attended a mental health nurse for advice regarding this condition. You continue to live in a state of chronic pain which exacerbates your depression and you currently require medication, including opiate analgesia as well as Diazepam to help with muscle spasm.
20 You have no prior convictions and a number of persons have testified to your good character and selfless work in the community, including your association with the Fish Creek Football Club, assistance with the repair and maintenance of friends’ motor vehicles without charge, your honesty, generosity and your devotion to your two boys. Your friends have attested to this crime as being out of character.
21 The crime of sexual penetration of such a young child is obviously one which is taken very seriously by the courts. Its seriousness is reflected in the maximum penalty of 25 years' imprisonment imposed by Parliament. The circumstances involved a complete breach of trust and, although the victim's account of the event lasting for approximately half an hour must be treated with some caution, the victim also said that "it felt like a long time", and it could not be said that the act was simply a momentary event.
22 There was also a great age difference between you and the victim. The victim has experienced profound and sustained emotional pain, as expressed in her victim impact statement. Her father has also endured the distress and anxiety of observing his daughter's deteriorated condition.
23 In mitigation I accept:
· your previous good character;
· your sustained contribution and commitment over many years to your community;
· your anxieties and stressors sustained through the period of the breakdown of your marriage and the subsequent difficult years raising your two boys;
· the delay of 8 years between your arrest and you ultimately being charged with this offence, then ultimately tried - I accept that this delay was in no way attributable to you;
· your continuing chronic pain and physical disability and your long standing depression. I accept that your time spent in custody will be more onerous on you than on a person in normal health.
24 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation of the act and protection of the community. In sentencing, I must also have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and re-integrated into society.
25 The very unfortunate fact is that sexual offences against children are not uncommon in our community and are often committed by offenders who are otherwise law-abiding citizens of excellent character. The principle of general deterrence, which intends to make an example of the current offender in order to deter others, assumes importance in the sentencing balance. The principles of denunciation and specific deterrence also remain for appropriate application.
26 Because of the plea of not guilty and the consequent necessity for the victim to give evidence under cross-examination, no allowance can be given for any remorse.
27 In proceeding to sentence, I am first satisfied that the objective gravity of your offence is such that a sentence of imprisonment is the only appropriate sentence in terms expressed by s.5 of the Sentencing Act 1991. I have also had regard to the other various matters set out in Part 2 of that Act.
28 On Charge 1 of taking part in an act of sexual penetration with a child under 16, being a child under the age of ten years, you are convicted and sentenced to 24 months' imprisonment. I direct that you serve 15 months' imprisonment before being eligible for parole.
29 I declare that the period that you have been in custody, namely 20 days not including today, be reckoned as a period of imprisonment already served under this sentence which is to be deducted administratively.
30 At the plea hearing, the Crown sought an order for the taking of a forensic sample and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order was by consent and the making of the order is in the public interest.
31 I inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Thomas?
32 PRISONER: Yes.
33 HIS HONOUR: Is there anything else from either counsel?
34 MR BACKWELL: No, sir.
35 HIS HONOUR: Very well.
36 MR BACKWELL: Your Honour, I don't know whether the declaration was made last time but the Sex Offenders' Registration Act - - -
37 HIS HONOUR: Does that apply to this offence for a first offence?
38 MR BACKWELL: A single Class 1 offence.
39 HIS HONOUR: What is the period?
40 MR BACKWELL: My learned friend said at the plea that it was 15 years and I agree with that.
41 HIS HONOUR: Very well, there are some appropriate warnings to be made in respect of that, I will leave the Bench and get that material.
(At a later stage)
42 Thank you for that notification, Mr Backwell. Mr Thomas, by reason of your conviction you are a registrable offender obliged to comply with the reporting obligations imposed by the Sex Offenders' Registration Act 2004. Pursuant to s.50 of that Act, I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations.
43 I am also required to inform you of the length of the reporting period which, in your case, is 15 years. I add that, as required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored the consequences that may arise, and in this case do arise, under the Sex Offenders' Registration Act 2004 from the imposition of this sentence today. In other words, the reporting burden that you carry as a registered sex offender is not a matter that can objectively influence the imposition of a just sentence today.
44 Mr Thomas, my associate will shortly approach the dock with your counsel and he will hand you the Notification of Reporting Obligations form which I have already signed. You may speak to your counsel and read that form. Once you have had a look at that document, I will ask you to sign an Acknowledgment and then return that to my associate.
45 I will leave the Bench and it will not be necessary for me to return provided that document is appropriately signed, Mr Backwell.
46 MR BACKWELL: Yes sir.
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