Director of Public Prosecutions v Thompson

[2015] VCC 353

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

V

SIMON THOMPSON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Warrnambool
DATE OF HEARING:	25 March 2015
DATE OF SENTENCE:	25 March 2015
CASE MAY BE CITED AS:	DPP v Thompson
MEDIUM NEUTRAL CITATION:	[2015] VCC 353

REASONS FOR SENTENCE
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Subject: Criminal Law - sentence        

Catchwords: Pleas of guilty to two charges of sexual penetration and two charges of committing an indecent act with a child under 16 – complainant aged between 13 and 15, accused aged 25 to 27 – relationship led to marriage and two children – report to police followed breakdown of marriage – delay – accused re-married and in stable life.

Sentence:      2 years’ imprisonment, wholly suspended for two years.      

Note:a pseudonym is used for the Offender to protect the identity of the complainant.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Piekusis	OPP
For the Accused	Mr Langlois	VLA

HER HONOUR:

1Simon Thompson[1], you have pleaded guilty to two charges of sexual penetration of a child under the age of 16 and two charges of committing an indecent act with a child under 16.  These offences occurred between November 1998 and May 1999.

[1] pseudonym

2I will be sentencing you to a wholly suspended term of imprisonment for reasons which I will explain later in these remarks.

3You had become friendly with a 13 year old girl at a time when you were aged 25, engaged to be married, and had two children with your fiancé.  The friendship became sexual and the two of you married in 2004 when she, meaning the complainant, was aged 19.  Two children were born of the marriage, which lasted for several years but ended in divorce.  The complainant reported these matters to the police in June 2012; a significant delay which I take into account as a mitigating factor.

4The two charges of committing an indecent act are representative charges, each covering two incidents.  Charge 1 relates to two instances of kissing and Charge 3 relates to two incidents of fondling the complainant's breasts.  Charge 2 relates to three instances of digital penetration of her vagina when she was 14.  By this time the complainant's mother was aware of the relationship, but was concerned that if the Department of Human Services found out her daughter would be taken out of her care.  Also by this time you had left your fiancé, and you and the complainant considered yourselves to be in a relationship.

5Charge 4 is a representative charge relating to two instances of penile vaginal penetration when the complainant was 15.  Thereafter the two of you were in a regular sexual relationship in an on and off manner until the complainant moved in with you when she was 18 and then became pregnant.  This was followed by your marriage, as I said, when she was 19.

6Upon your arrest you took part in a record of interview and made admissions, but denied you had done anything other than kissing and fondling the complainant before she turned 16.

7The complainant has provided a victim impact statement in which she explains that the abuse at such a young age has caused her to feel betrayed and distrustful, and hyper-vigilant about her children.  She says she will always feel the impact of it, and this has been exacerbated by your initial denials, and what she considers a lack of remorse.

8You pleaded guilty to the offending at the committal hearing conducted by way of a hand up brief, and you are entitled to a discount on your sentence for avoiding the need for a trial, and importantly, saving the complainant from having to give evidence and be cross-examined.  I accept that also as an indication of remorse, although that is difficult to assess given your stated difficulty in understanding why the complaints had been made in view of the five year marriage which ensued.

9Aspects of your background provide the kernel of an explanation for the development of the relationship with the complainant, who was many years younger than you.  Your parents were married for 41 years and there was an age gap of 16 years between them.  You told police that the difference in age between you and the complainant did not cross your mind.  You had had a happy childhood as one of five siblings and were particularly close to your father, who died several years ago.  You are now the carer for your mother, who suffers from osteoarthritis.

10The psychological assessment report provided by Mr David Ball helpfully sets out some of this background, and Mr Ball's conclusions are that you do not suffer from any mental illness or mood disorder.  Indeed there are no problems of that sort at all.  You do not drink alcohol or use drugs, and you lead a stable life with your current wife.

11As to employment; at the age of 42, as you are now, you have a solid work history, having left school at Year 9, and you have no formal qualifications.  You enjoy good health although there are indications of depression, but not such as to fulfil the criteria for a formal diagnosis.

12The need for general deterrence is paramount in cases of sexual activity with children, as the complainant was at the time.  Parliament has seen fit to provide for serious penalties for such offending in order to protect young people, who are regarded as too young to make decisions about their participation.  The days should be well and truly over when girls are regarded as eligible for sexual relationships and marriage at a very young age.  Unfortunately the complainant was vulnerable at the ages of 13, 14 and 15, and you, as an older man, should have been alert to that, particularly in view of the fact that no other adult was providing proper protection for her.  Therefore, general deterrence must be the focus of any sentence I impose, but in this case there is no need for specific deterrence to be a component of the sentence.

13Your offending is explained in terms of its context, and there is little risk of it being repeated.  Mr Ball noted that your understanding and appreciation of the criminal justice system, or the illegality of sexual offending, is in no way impaired, and there is no impairment to your capacity for moral reasoning or culpability.

14A letter from your mother confirming your role in caring for her, and as to your good qualities as a person, was tendered, as well as a letter from a friend, Mr Masterson, who similarly confirmed these qualities.  All these factors combined mean I do not need to impose a sentence that is punitive other than the recording of a conviction and the imposition of a wholly suspended term of imprisonment.  I note that the maximum penalty for all these offences is ten years' imprisonment.

15For Charge 1, I sentence you to eight months' imprisonment.

16For Charge 3, I sentence you to ten months' imprisonment.

17For Charge 2, I sentence you to 15 months' imprisonment.

18And for Charge 4, I sentence you to 18 months' imprisonment.

19That last sentence will be the base sentence for purposes of cumulation.  I order that two months of each of the other sentence be cumulated upon the base sentence, resulting in a total effective sentence of two years.  It will be wholly suspended for 2 years.

20If you had pleaded not guilty to these charges I would have sentenced you to a term of imprisonment of three years, wholly suspended for three years.

21Because you have been sentenced to prison for at least two charges the provisions of the Sentencing Act apply as to serious sex offending, but the prosecution has not sought a sentence that is disproportionate to the gravity of the offence.  It will be noted on the court record that you are sentenced as a serious sexual offender in relation to charges 3 and 4.

22The provisions of the Sex Offender Registration Act apply and I have no discretion in this regard.  It is mandatory that you be registered under the provisions of that act, and you must report your details to the police every year for the rest of your life.  You will be given a form to sign in that regard, and no doubt Mr Langlois will be able to give you any further explanation that may be required.

23The prosecution seeks an order for a forensic sample of saliva to be obtained.  I have not heard from your counsel as to whether that is consented or not opposed.  What is the situation, Mr Langlois?  Do you have those instructions?

24MR LANGLOIS:  Your Honour, excuse me, can I just take instructions from Mr Thompson?

25MR LANGLOIS:  Thank you, Your Honour.  It isn't opposed.

26HER HONOUR:  All right, thank you.  I make that order and I must advise you, Mr Thompson, that the police have the power to use reasonable force to obtain that sample if necessary, but I trust that will not be a problem.

27HER HONOUR:  I think that's all.  Mr Langlois, is there anything further you want to raise?

28MR LANGLOIS:  No.  Thank you, Your Honour.

29HER HONOUR:  Thank you.  I'll just sign the 464ZF application, Ms Piekusis.

30MS PIEKUSIS:  Thank you, Your Honour.

31HER HONOUR:  Adjourn the court please.

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