Director of Public Prosecutions v Thompson
[2014] VCC 1433
•19 August 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00910
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JEFFREY THOMPSON (A pseudonym) |
---
JUDGE: | Sexton | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 August 2014 | |
DATE OF SENTENCE: | 19 August 2014 | |
CASE MAY BE CITED AS: | DPP v Thompson | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 1433 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. O’Halloran | OPP |
| For the Accused | Mr R. Martini | Rainer Martini & Assoc |
HER HONOUR:
1 Jeffrey Thompson[1], you have pleaded guilty to two charges of committing an indecent act with a child, an offence which has a maximum sentence of 10 years’ imprisonment, and to one representative charge of incest, which has a maximum sentence of 25 years’ imprisonment.
[1] A pseudonym
The offences
2 I proceed to sentence you on the basis of the summary read out by the prosecutor.[2] I will briefly summarise the offences.
[2] Exhibit A
3 The victim of your offending is your granddaughter. The offending occurred when she was aged 6-7 years, and you were aged 64. Between May and December 2013, you touched her on the vagina underneath her underpants while she was sitting on your lap having a story read to her (Charge 1). On another occasion in that period, you picked her up, and put your hands inside her underpants and touched her bottom (Charge 3).
4 In the most serious of your offences, about two weeks after the first incident, when she was again sitting on your lap, you rubbed her vagina under her underpants, between the vaginal lips, which the law defines as an act of sexual penetration. Because she is a lineal descendant, that act is an offence of incest (Charge 2). This charge is representative of three other occasions on which you sexually penetrated her in the same way.
5 Your offending is made more serious because of the gross breach of trust by you as her grandfather in committing these acts against her, the difference in your ages, the very young age of your granddaughter, and because of the representative nature of charge 3, showing that this criminal act occurred on more than one occasion.
6 Your offending came to light in early 2014, when your granddaughter was overheard by her mother saying something to her brother about what you had done. Her mother (your daughter) then asked her what had happened. Your daughter told your wife, and you were then confronted by your wife, and admitted two occasions of touching. Although shocked and distressed, your family took the steps of obtaining medical and psychological support and treatment for you before you, your wife and daughter went to the police station together to report the offences four days later.
7 In an interview with police on that occasion, you said there were only two instances of offending. You were interviewed again the next day after your granddaughter had made a recorded statement to police, and on this occasion, you gave the information which forms the basis of the charges.
Matters in mitigation
8 There are a number of matters that I take into account in mitigation of the seriousness of your offending. The first of these matters is that you have pleaded guilty. I take that into account in your favour. Not only have you saved the community the time and cost of a trial, but most importantly, you have saved your granddaughter from the ordeal of giving evidence and your family from the ordeal of a trial. As a result, the sentence I will impose will be far less than would have been imposed had you been found guilty after a trial.
9 I also take into account in your favour that you indicated early your intention to plead guilty to the charges. I accept that your plea of guilty indicates true remorse for your actions.
10 You began seeing psychologist David Stickles shortly after the offending came to light, and as at 30 July 2014[3], you had seen him on ten occasions. You were unable to give him any real explanation for your offending. He diagnosed you as having “Paedophilic Disorder limited to Incest”, which he considered to be a behavioural disorder more amenable to treatment, on the basis that only one child was involved. He assessed you as being a low risk of re-offending and not now posing a significant risk to the public.
[3] Exhibit 2 – Report of David Stickles dated 30 July 2014
11 I also take into account that you expressed remorse and shame to Mr Stickles, and note that you also told him that you expected a term of imprisonment to be imposed on you as a result of the offending.
Personal circumstances
12 I have been told something of your personal history and your circumstances. You are now aged 65 years, and remain living with your wife, to whom you have been married for 41 years, despite the shock of her discovery of your offending. Your counsel told me that she attended court to provide support for you, and should you receive a prison sentence today, she has indicated that on your release you can return to live with her, at least initially. She has done this in recognition of the importance of such support to your rehabilitation, but does not for a second condone your appalling behaviour.
13 Together you have a son and a daughter, with children of their own. As a result of your offending against your only granddaughter, you no longer see any of the grandchildren and this has caused great sadness to all of them. Your son and daughter also support your rehabilitation in the same way as your wife does. Your daughter stated that had she not had to care for her youngest child, she would have been at court with your wife.
14 By way of background, you had a difficult childhood, with your father dying in a car accident when you were aged 8, one of five children. You left school early and began working, and have been steadily employed all of your adult life. You were working as a truck driver in recent years, but retired when you reached 65, due to this impending court case. You and your wife sold the family home and moved into a retirement village to make life a little easier for your wife, practically and financially, should you receive a prison sentence today.
15 Your wife provided a letter[4] which indicated that she will suffer financially if a prison sentence is imposed on you. It is a sad fact that the impact of offending is often felt by many, not just the direct victim. The law says that I cannot take this potential hardship into account unless it is exceptional. It was not pressed on me that this was an exceptional case, and that is, unfortunately, a correct assessment. However, I can take into account the impact on you, worrying about your wife’s situation, if you receive a prison sentence today.
[4] Exhibit 5
16 You had cardiac bypass surgery six years ago. You have made an excellent recovery, but your situation needs to be monitored[5]. When your offending was discovered, you were placed on antidepressant medication by your doctor. Mr Stickles, the psychologist, also diagnosed you with an adjustment disorder with anxiety and depression arising out of the situation you find yourself in.
[5] Exhibit 4
Criminal History
17 As part of your background, I note that you have a criminal history. You were convicted of carnal knowledge and released on probation in 1968, and fined for theft in 1971. I do not consider your criminal history to be relevant to the sentence I am passing today, because of the time that has passed since you committed those offences. Even the sexual offence is not relevant, because of the circumstances, which involved consensual activity between you as a 19 year old and your then girlfriend who was aged just under 16 years, which are completely different circumstances to your offending in 2013 against your granddaughter.
Consequences of conviction
18 If you are sentenced to a term of imprisonment on charges 1 and 2, then for charge 3, I am required to regard the protection of the community from you as the principal purpose for which sentence is imposed and if necessary, in order to achieve that purpose, I may impose a sentence greater than is proportionate. Further, if terms of imprisonment are imposed for all charges, the sentence on charge 3 must be served cumulatively, that is, on top of, the sentences imposed on the other two charges, unless I order otherwise.
19 Next, as a result of my sentencing you today, you become a registrable sex offender under the Sex Offenders Registration Act 2004. Charges 1 and 3 are class two offences, and charge 2 is a class one offence.
20 You will be required within 7 days of today, or, if sentenced to imprisonment, within 7 days of your release from custody, to report your personal details and begin a regime of annual reporting required by the Sex Offenders Registration Act and be otherwise subject to the Act for the remainder of your life under section 34(1)(c)(ii).
21 Next, application has been made for an intimate forensic sample to be taken from you and you have not objected to this. I am satisfied that it is in the interests of justice, having regard to the seriousness of the offending, that in all the circumstances, I do order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have consented, if you change your mind, I must inform you that the police may use reasonable force to enable that procedure to take place.
Victim Impact
22 I have received a Victim Impact Statement[6] from your granddaughter which is in the form of a picture and a note to you, which I am told was done during a session with a psychologist. It reads, “Dear Poppy, I know what you did was wrong. I didn’t like it but I miss you. From Lisa[7]”, and concludes with five kisses and hugs.
[6] Exhibit B
[7] A pseudonym
23 I have been told by the prosecutor that your daughter, Lisa’s mother, does not believe that you should be imprisoned, and it would seem to follow from that view, and the tone and content of Lisa’s note, that there has been no lasting impact on Lisa, apart from the sadness that she shares with your other grandchildren in not seeing you any more. If that is the only impact, it will be a good outcome. However, in my experience of these cases, 6-12 months after the offending may be too soon to tell. I do not have any report from the psychologist that Lisa is seeing. I hope that she does not suffer a longlasting impact, and the positive outlook that the family has towards supporting your rehabilitation, combined with the appropriate protection of all the children, including your granddaughter, may prevent a long term negative impact on her.
Rehabilitation
24 Because it is over 40 years since you last committed a crime, and because of the support of your family, your remorse, and your willingness to confront your offending and seek psychological treatment, on balance, I am satisfied that your chances of rehabilitation are reasonably good.
Submissions on sentence
25 Your counsel submitted that a suitable disposition in your case would be a lengthy Community Correction Order including a condition that you complete the Sex Offenders’ Program. If I was not so persuaded, then he submitted that order could be combined with a maximum of three months’ imprisonment. If I found that the only appropriate disposition was a term of imprisonment, then your counsel submitted that I should impose a considerable difference between the minimum and maximum terms.
26 It was submitted further that while the need for what is called general deterrence is conceded, that is, that my sentencing of you must seek to deter other men from sexually offending against children in their families, the need to specifically deter you from re-offending and protection of the community is less important because of the factors in your favour, and your prospects for rehabilitation.
27 The prosecutor submitted that your offending was at the lower end of the scale for incest, that you had shown insight and remorse, and the case was based on the admissions you made in your interview with police. Further, he confirmed that the view of your daughter was that you should not be imprisoned.
28 During the adjournment period between the plea and sentence, you were assessed for a Community Correction Order and found to be suitable. However, as I said to you on the day of the plea, I had not yet made up my mind as to the appropriate sentence in this case.
Findings
29 Apart from those matters I have already referred to, I make the following findings.
30 First, I find that the likelihood of your reoffending is relatively low, and the risk to the community is consequently also low.
31 Next, in cases involving incest, especially of such a young child, the need for general deterrence is of the greatest importance. I accept that there is less of a need for specific deterrence in your case, but it still remains as a purpose in sentencing you.
32 Next, the most important purpose in sentencing for sexual offences against children is the need to show the community’s abhorrence of such crimes, and the need to demonstrate the court’s denunciation of such behaviour, while imposing a just sentence.
33 In this case, that is a difficult task, given the view of the victim’s mother (your daughter) and the tone of Lisa’s note. While I have not ignored these views, the law is that the wishes of a victim do not determine the sentence to be imposed. The reason for that is the victim might not always be able to assess what is in her or his own best interest. Clearly that is the case with a seven year old child. Further, in assessing the need for general deterrence, which, as I have said, is high in this case, regard must be had to the impact of the crime more broadly than merely upon the immediate victim[8].
[8] DPP v Sa [2004] VSCA 182 at [38]-[39]
34 Your daughter’s and, indeed, your family’s attitude to supporting your rehabilitation is highly commendable, and in that context, the view that you should not be imprisoned is understandable. I recognise that if you are sentenced to a term of imprisonment, this will be difficult for the family to deal with, and particularly difficult to explain your absence to the children. However, rehabilitation is only one aspect to take into account in such serious offending.
35 In the end, weighing all these factors as best I can, in all the circumstances, I have decided that there is no alternative to a term of imprisonment, that is, for each offence. The offences are too serious to be dealt with in any other way, despite the factors in your favour, including that you will be going into prison for the first time at the age of 65. I urge you to complete the Sex Offenders’ Program while in custody if possible. Stand up, please, Mr Thompson[9].
[9] A pseudonym.
36 You are convicted and sentenced as follows:
37 Charge 1 – indecent act – 14 months’ imprisonment.
38 Charge 2 – incest (representative) – 3 years’ imprisonment.
39 Charge 3 – indecent act – 12 months’ imprisonment.
40 As you have been sentenced to a term of imprisonment on the first two charges, you are to be sentenced as a serious sex offender on charge 3, and that will be noted in the record of the court. That sentence must be served cumulatively on the other sentences unless I order otherwise. Because of your relatively low risk of re-offending, I have decided to order that only three months of the sentence imposed on charge 3 be served cumulatively on the sentences imposed on charges 1 and 2. I have not imposed a disproportionate sentence on charge 3, because the prosecution have not sought it, and I consider that an adequate sentence has been imposed on the usual sentencing principles.
41 Charge 2 is the base sentence. I direct that three months of the sentence imposed on charge 3 be served cumulatively on the sentence imposed on charge 2. The sentence imposed on charge 1 is concurrent. That makes a total effective sentence of 3 years 3 months’ imprisonment.
42 I direct that you serve a minimum term of 12 months before becoming eligible for parole.
43 If you had not pleaded guilty but been found guilty after a trial, the sentence I would have imposed is hard to say, as there is a representative charge involved, but doing the best I can, your sentence would have been 7 years’ imprisonment with a minimum of 5 years.
44 I will now have my Associate hand to you a form which notifies you of your reporting obligations under the Sex Offenders Registration Act 2004. Mr Martini, would you accompany my Associate?
45 MR MARTINI: Yes. I will.
46 HER HONOUR: Mr Thompson, you will be asked to sign where indicated to acknowledge that you have received this form. Yes. That concludes my sentence. The other orders will be handed down. Mr Martini.
47 MR MARTINI: Yes, Your Honour.
48 HER HONOUR: I have another matter to come on, but do you want me to have Mr Thompson remain in court, or will you see him in the cells?
49 MR MARTINI: No. I will see him downstairs, Your Honour. I think that’s more convenient. I can then go over the issues, I think, at some length rather than just rushing it. I would prefer to do it that way.
50 HER HONOUR: Certainly.
51 MR MARTINI: As Your Honour pleases.
52 HER HONOUR: Yes. Thank you. I thank counsel for your assistance in this difficult matter. Yes, Mr Thompson may be removed.
- - -
0