Director of Public Prosecutions v Thompson

[2016] VCC 2015

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-01731

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER RAYMOND THOMPSON

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	20 December 2016
CASE MAY BE CITED AS:	DPP v Thompson
MEDIUM NEUTRAL CITATION:	[2016] VCC 2015

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Gibson
For the Accused	Mr A. Madden

HIS HONOUR:

1Peter Raymond Thompson, you have pleaded guilty to two charges of indecent assault of a child under the age of 16, and one charge of carnal knowledge.  That charge is a representative one, and represents somewhere in the order of 12 to 18 separate occasions.

2The penalties for those crimes are five years and ten years respectively.

3You are now 69 years of age, and you were approximately 22 years of age at the time of the offending.  I accept that your plea of guilty has been made at an early opportunity, and I accept that, in the long run, there is appropriate remorse.  You must also of course get the utilitarian benefit of that plea of guilty.

4Significantly in your situation, you have no prior convictions, and as I understand it, no subsequent matters have been raised.  You have a very good work record over a long period of time.

5Significantly in my view, there has been a delay from when you were interviewed to when you were charged of some three years.  As it has been said in Court of Appeal decisions on many occasions, "justice delayed can be justice denied", and I certainly take that into account.  It can in no way be attributable to you, and I accept that this would have been a weight hanging over your head for an extended period of time.

6Firstly, because of the conviction, certainly on Charge 3, you are to be placed on the Sex Offenders Register, and I advise you that the reporting conditions will be for life.  I will now have those given to you.  In your particular situation, I accept that the imposition of a custodial sentence will have a significant effect upon your wife and your business, and I take those matters into account, not as exceptional circumstances, but as a factor that will weigh upon you during the time of your imprisonment.

7I also take into account your ill health, which I will refer to again in a moment, and obviously your age.  I accept that because of those factors, gaol will be more onerous for you than it would be for other prisoners, and indeed your mental state may well deteriorate.  Again, those matters are referred to in a report by Mr Cummins, and I take them into account.

8I also take into account that the offending occurred when you were a relatively young person, and obviously occurred many years ago.

9The Crown opening will remain on file, and if need be can be annexed to these sentencing remarks.  The summary I give will, of necessity, be a brief one.

10The situation here is that the complainant was, and I apologise to you, I know she is listening, I will not be using her name, so it can be anonymised, was born on 2 September 1954.  Her father was a vicar with the Anglican Church.  In 1962, the family moved to another town, where again her father was a vicar at the Church, and the family remained there for a period of time.  The complainant was obviously a clever child and had received a number of scholarships. 

11You, Mr Thompson, were born on 23 November 1947, and had joined the police force in 1965.  You had been stationed at various police stations before becoming a constable at a Police Station between June 1968 and July 1969.  I accept that earlier in 1969, you had in fact tendered your resignation as a police officer because of difficulties you were having maintaining, at that point in time, a family with a wife, or partner certainly, and two children.

12You were performing general uniform duties which required you to wear your police uniform, and you had, or drove, a police car, and did patrols on foot.  You became familiar with the victim during her time when she spent playing at the police station, the vicarage not being far from it.  I accept that you initiated social and telephone contact with her, and from around about 1 May 1969, you commenced and maintained a sexual relationship with her.  I sentence on the basis that you were, at all relevant times, aware of her age, and it seems clear to me that that must have been so.  I say that because there seems to be reference in the report of Mr Cummins that it is an acceptance that she was under 16 rather than knowledge, I do not sentence on that basis.

13The charges are one of indecent assault on 15 May 1969, one of indecent assault on 26 May 1969, and then the carnal knowledge in a representative way as I have described.  In this particular situation, the victim had maintained a diary, which would have been of great assistance, I assume, in the making of her statement and the eventual prosecution of these matters.

14The simple fact of the matter is that you were, at the commencement of that sexual relationship, and certainly for a number of acts of intercourse, a serving police officer.  Offending took place within a police vehicle, and in the overall circumstances of, in my view, a total imbalance of power.  She was clearly an impressionable young girl, and this is the situation in which she ultimately found herself.

15I am not going to go through the various locations where the offending occurred, and they are all contained within an extensive Crown opening, which is available to anyone with a genuine interest.

16Prior to the first offence, it is clear that there had been some sexual contact between you.  Not in a penetrative sense, but certainly in respect of, as described in her diary, tongue-kissing and the like.  She says that she felt apprehensive when this was occurring, but she felt safe because she was with a policeman.  She was effectively impressed by you.

17The diary also indicates another occasion where kissing at least took place in the police car.  I then go to Charge 1 of indecent assault.  Her diary describes that, and effectively what happened was that she met you at an oval during daylight hours.  You drove to an address in a town, which was apparently your brother's flat.  In the bedroom, lying on the bed, she was lying down, you started touching her breasts inside her clothing.  You unzipped her pants, she was wearing underpants.  You were touching on the outside of the vagina.  She said that that was a completely new experience for her, and it would appear that you were trying to have sex with her, though I am very careful not to sentence you for attempted sexual penetration.  You were rubbing your penis against her vagina through her underpants.  She asked you to stop and you did.  You then drove her back to the oval and she walked from there.

18The second charge of indecent assault is a similar circumstances, where you went to the flat again, again began kissing her and fondling her breasts.  You again undid her bra, unzipped her pants, and were touching her vagina, this occasion inside her underpants, and again, I do not sentence on the basis of attempted sexual penetration, but her view was that you were endeavouring to have sex with her.

19That gives rise to the two charges of indecent assault.  In the normal course of events, I indicated clearly that these matters being of such age, and with your plea of guilty, I would not have imposed a custodial sentence in relation to them, and therefore see no reason why I should now.  I am going to impose a monetary penalty of a relatively moderate nature, which can then be converted.

20The charge of carnal knowledge. At the vicarage residence between 6 June and 18 July, you first had sexual intercourse with her.  It happened on a weekend, and she was 14 years and nine months old.  This is not a situation where the victim was on the cusp of turning 16, and as I have said, I sentence on the basis that you knew that.

21On this particular day, her brother was responsible for her, and her brother answered the door to a knock from you.  You were invited into the house.  The victim cannot recall whether in uniform or not.  There was some conversation, and she and you entered her bedroom.  You shut the bedroom door after you had gone inside, her brother remained outside.  There were only two bedrooms, one was hers, and one was shared between her brothers.  She says that she did not expect that you would have sexual intercourse with her in her own house with her brother present nearby.

22You lay next to her on the bed, she believed it was going to be just an innocent kiss and cuddle.  You started to touch her through her clothing, fondle her breasts and her body, pushed her top up and her bra, exposing her breasts.  She was wearing long pants, either jeans or cords, you unzipped them and moved them down past her hips.

23You pulled her underwear down, unzipped your pants, lay on top of her, and you then penetrated her, that is, your penis into her vagina.  She says that she was yelling out when she was actually penetrated, and I take it no further than that in this particular situation.  You are not being sentenced for rape.  On this occasion, you did not use a condom during the intercourse, and you ejaculated inside her.  Clearly unprotected sex in a situation such as that is an aggravating feature, and whilst on no other occasion is it alleged that you actually ejaculated inside her, if condoms were not worn, well then the risk of pregnancy still remains, as well as the risk of a sexually transmitted disease, though there is no evidence of that actually having occurred.

24The next time that sexual intercourse was in roughly the same timeframe, where you took her to a sandpits area, and again the same sort of conduct occurred.  The third occasion, as I understand it, was again at the sandpits, parked in a different car, but not a police car.  Again, the same sort of conduct occurred, where she was disrobed and then penetrated by you.  The Crown summary says that after that third occasion, there were at least ten to 15 times where you had sexual intercourse with her again.

25Clearly intercourse took place in circumstances where she had been in school uniform, where you were dropping her off at school, and we do not have to go into all the detail of that.  It is abundantly clear, as I have said, that you must have known how old she was, and that she was a schoolchild.  All this was occurring in the context of family disruption and her father being very ill indeed.

26The Crown submissions are that in a situation where you were at that point in time in a relationship with one child and a stepchild that this was sexual exploitation of an underage girl.  In my view, that is exactly what it was.  Whatever the psychological motivations for that have been, the consequences of such offending is dramatic, and those consequences are outlined very succinctly in a victim impact statement which has been filed.

27She says:

"I have suffered from inexplicable shyness, lack of confidence and social embarrassment for all of my adult life, resulting from the acute loss of self-esteem that I underwent as a result of the sexual abuse by the accused in my early teens.  This has at times been masked by the overuse of alcohol and/or drugs.  It has been a persistent and quite harrowing condition, severely hampering my social interactions.  An excruciating sensitivity to even the mildest of criticism developed in the aftermath of this abuse, which cuts at a deeply personal level, and I have been unable to shake the associate anguish of this debilitating condition right up until this day.  An example of this is that I just cannot bring myself, even now, to read the reports of my class and subject teachers in my 1969 school report, or I would be overwrought for days at the criticism which no doubt lies within those pages". 

28I interpolate that it is quite clear that emotional and psychological effects on this lady, who was then a child, have obviously caused a very significant disruption to her education, which has affected her throughout her life.

29I then return to the report:

" I have suffered from a profound sense of unworthiness and fearfulness for most of my adult life, neither feeling safe internally despite having a devoted husband and empathetic friends.  This has impacted on my marriage, and I have not been able to feel the intimacy that I should have had, and which I sincerely wish to have had for the nearly 30 years that I have been married, despite having a very sincere and loving husband.  Obviously this also had a negative effect on the life of my husband, whom I love dearly, but for whom I have not been able to properly express my innermost feelings.  Happiness, contentment and peace of mind have alluded me for nearly 50 years as a result of this abuse.  Instead, fear, sadness and internal self-loathing have been my constant companions for all of this time."

30That is the effect that offending of this nature has on children, and that is why the courts regard it with such seriousness.  It has been said in many cases that not protecting children in a community means there is really no community at all. 

31I take that victim impact statement into account.  Clearly there is some suggestion about there having been abuse from others.  In this particular scenario, I am not going to go into any investigation of all of that.  What she has described in that statement, as I indicated a couple of times during the plea, is a textbook example of the consequences of what happens to children in this scenario.

32The situation is that obviously the offending was over a period of time insofar as Charge 3 is concerned, not in isolation.  There are a number of aggravating features which were discussed, and I do not think I need to go into in great detail.  The unprotected nature of the sex, the age, the fact that you were a serving police officer and sworn to uphold the law, and that you used it, certainly at least the police car and the power involved, in your abuse of this child.  The age disparity, this is not a situation of an 18-year-old with a 15-year-old girlfriend, and clearly as I have indicated, she was in a particularly vulnerable situation in regard to not only her family circumstances, but the circumstances of her father.

33In your situation, I have obviously read the report of Mr Cummins which has been tendered on your behalf, and I accept that you are a low risk of reoffending, in large part because of your age, and because there has been no charges, or no offending since this occurred.  Therefore specific deterrence is not of great importance.

34What this sentencing process is about, in many respects, is simply general deterrence and denunciation.  In my view, a custodial sentence is inevitable here, having regard to Boulton and all the other authorities that are applicable.  It is simply a situation where like-minded people must know that such conduct will result in them being punished severely.

35I take into account on your behalf the matters referred to in the report of
Mr Cummins, and I will go through that in a moment.  I take into account the matters raised in the submissions put before me by your counsel, and I will point out in simple terms what you are dealing with.

36You were young at the time, and I accept that.  Insofar as Verdins is concerned, it would be harder for you gaol, and I accept that your condition indeed may get worse.  I take into account the fact that you are now 69.  I take into account that you have a very good and long work record, and have had a successful business now for some years.  You clearly, when working for an employer in another town, had a position of responsibility, and there can be no criticism of you for that.

37It is also clear from material before me that over the years you have had active community involvement, and as I have I have indicated, there is clearly a good work record.

38Insofar as your personal circumstances are concerned, I take it into account that you do suffer and have poor health.  The report of Mr Cummins goes through a number of matters:  you have osteoporosis of the back, for which you have to take drugs; you have emphysema and angina, for you which you use a spray; you have very high blood pressure, elevated cholesterol levels, and you take medications for both of those; you have diagnosed for a double hernia, which you are due to undergo surgery for in early March, but which at this stage has not occurred; you have had heart attacks, and I accept that you are generally not in good health.  There is no evidence before me that any of these conditions could not be adequately treated in a custodial environment, but I do take it into account on your behalf in the way that I have indicated.

39I also take into account that Mr Cummins has described you as being on the depression anxiety stress scale as "extremely severely depressed, extremely severely anxious and severely stressed".  He assessed you as being on the Beck Depression Inventory severely depressed.  I take into account that that is your current psychological state, and it has probably not been good for some time.  I accept that a custodial environment may well exacerbate that condition, but in this situation the need for general deterrence and denunciation outweighs that concept.

40I am not going to go into the other aspects of the report.  Mr Cummins points out that at the time you were probably suffering from an adjustment disorder with mixed anxiety and depressed mood, and at the time you were dependent upon alcohol.  However, as I have said, you voluntarily and knowingly entered into this activity with a child. 

41He points out, as I have indicated, that the risk of you reoffending he has assessed as low.  You appear to be very concerned about your current medical and psychological health.  I accept that a period of imprisonment will cause a financial burden to yourself and your family, but in my view, whilst that can be seen by some as to be an additional punishment, you certainly would not justify not imposing some active component of a custodial sentence.

42The prospects of your rehabilitation should be good, bearing in mind the low risk of reoffending, and the matter of your rehabilitation is up to you.  You are not to be sentenced as a serious sexual offender, so community protection is not the principle sentencing purpose, and as I have indicated, I do not really see you as a vehicle for specific deterrence. 

43Having very helpful submissions from counsel, it is clear that a suspended or partially-suspended sentence is open in this circumstances, and it is a partially-suspended sentence that I intend to impose.  Whilst there has been a lot of Parliamentary changes over the last few years in regard to suspended sentences, I still accept that they are of general and specific deterrence, and accordingly will be sentencing on that basis.

44In this scenario, my view is that I have no option but impose a sentence on Charges 1 and 2, $1,000 aggregate fine with conviction.

45On Charge 3 of carnal knowledge in this situation, you are sentenced to be imprisoned for a period of 18 months, with 12 months suspended for two years. 

46Pursuant to s.6AAA, just so that you understand fully the benefit that you receive from this plea of guilty, but for your plea of guilty, I would have sentenced you to be imprisoned for a period of 30 months with a minimum term of 18.  There is no PSD?

47MR MADDEN:  No, Your Honour.

48HIS HONOUR:  No other orders I have to make?

49MR MADDEN:  No.

50HIS HONOUR:  No.

51MR MADDEN:  If Your Honour pleases.

52HIS HONOUR:  Yes, take him, thank you.

53MR MADDEN:  May I approach?

54HIS HONOUR:  No, you can see him downstairs.

55MR MADDEN:  Certainly.

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