Director of Public Prosecutions v Thompson
[2013] VCC 1477
•10 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01885
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RONALD THOMPSON |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 October 2013 | |
DATE OF SENTENCE: | 10 October 2013 | |
CASE MAY BE CITED AS: | DPP v. Thompson | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1477 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. O'Halloran | |
| For the Accused | Mr S. Ginsbourg |
HIS HONOUR:
1
You have pleaded guilty to an indictment charging you with an offence of persistent sexual abuse of a child under the age of 16 years, between
22 December 2010and 31 March 2011. Although that is the time period during which the offence is said to have occurred, it is agreed between the prosecution and defence that the last date upon which the abuse occurred was around about 14 February 2011. So the offending conduct lasted over a period of little under two months.
2 You have no prior convictions and I am told that you have not offended since the offence charged on the indictment. The offence is a serious one and it carries a maximum term of imprisonment of 25 years.
3 The prosecution has tendered and relied upon an amended prosecution opening for the hearing, which is Exhibit A. That was read this morning and I am not going to read it again. The nature of the offending conduct is set out in detail in the document. It catalogues 13 occasions upon which you engaged in the conduct the subject of the charge. As I understand it, it is not disputed either that the sexual abuse occurred on those occasions, nor that the nature of the sexual abuse alleged in the amended prosecution opening is an accurate reflection of the nature of the abusive conduct in which you engaged.
4 There is dispute about the entirety of the content of that document and I was invited to treat what you told Dr Lester Walton and what is set out in his report, which became Exhibit 2 on the plea, as your version of the context and the nature of the relationship that surrounded the offending conduct. In a sense I am asked to divine from those two different versions a satisfactory factual basis upon which to impose sentence.
5 It seems to me that I am entitled to approach the matter, as I am invited to, not just by your counsel, but also by the learned prosecutor, on the basis that the offending conduct was in the nature of that set out in Exhibit A, that it occurred on the number of occasions in which it occurred and that on some of those occasions the victim was not consenting to the conduct, although it is accepted by the prosecution that you were unaware at the time that she was not consenting. It also, as I understand it, is not in dispute that a number of those acts involved sexual penetration of the victim, penile penetration both anal and vaginal, and that you did not wear a condom or any other form of protection on those occasions.
6 It seems that it is common ground also that the relationship arose as a result of you "meeting" on a website which was for those with suicidal ideation and that it was through your conversations on that website that you developed an intimate relationship over the Internet, and it seems through subsequent telephone content. As I understand it, some of the days that preceded you first meeting the victim involved you having contact with her for a very considerable period of time. In any event, the situation arose where the victim came to Victoria and met you at Southern Cross railway station. You then took her to a motel and booked and paid for four nights accommodation in the days leading up to an including Christmas Day of 2010. It was during that stay at the hotel that a number of the incidents of sexual abuse occurred.
7 The prosecution has also relied upon a victim impact statement, which is Exhibit B on the plea. That document has a statement, essentially a two page statement typed wherein the victim endeavours to set out her perception of the various harms that she suffered as a result of the offending conduct.
8 Issue is taken on your behalf with the accuracy of that statement, in the sense that your initial discussions with her on the Internet had led you to believe that other factors which occurred in her life, prior to your developing any sort of relationship with her, had already created some very significant psychological stressors in her life. That proposition, to which you alerted the police when you were interviewed is borne out, it seems to me, by another document that I was handed which became Exhibit 3 on the plea, which is a printout of conversation on another suicide forum website in which the victim discusses, amongst other things, some of the factors which had led to factors in her life prior to meeting you which had led to her having a number of psychological issues.
9
It seems clear that the statements in that document, Exhibit 3, do indicate when you first had contact with her on the forum in which you conversed during the latter part of 2010 that she was on that forum because she was vulnerable and had suicidal ideation as a result, at least in part, of these various stressors to which she had spoken in the document, Exhibit 3.
10 I have no doubt at all that the person LAV11, that is the participant in that series of conversations that are set out in Exhibit 3, is the victim and that I should read the victim impact statement in the light of that material. Having said that, and I think this is not disputed on your behalf either, it is conceded indeed that there is no doubt that your conduct will have contributed to her emotional, psychological, perhaps psychiatric problems and contributed in a significant way.
11 Indeed there are a number of authorities, that is cases that come before appellate courts, where it has been recognised that it is an inevitable consequence of a minor, somebody under the age of 16, having a sexual relationship, particularly one with an older person and particularly perhaps where things do not go well in the end, that there will be a significant psychological effect which may be very long lasting or even affecting the victim for the rest of their lives. That is one of the reasons why these offences are treated as very serious offences by a court.
12 You may have thought at the time that you were helping her, or seeking to help her. It may be that you had difficulty in recognising the degree of harm that your conduct has caused, but I have to approach sentence on the basis that it has caused significant harm to an already very vulnerable and psychologically damaged individual. That is one of the factors that I have to consider in assessing an appropriate sentence and in assessing the seriousness of the offending conduct.
13 Turning to matters personal to you. I have been greatly assisted by the report of Dr Walton, which is Exhibit 2 on the plea, as I have already indicated. That document is helpful also in that it does catalogue many of the matters relating to your personal history to which your counsel drew my attention. You come from a family where you are the younger of two siblings, indeed your sister gave evidence and produced the document which is Exhibit 3. It seems that for various reasons you left school at the age of 16 and that you have had no significant employment history and indeed no employment for approximately the last ten years, as I understand it. Since you were aged 25 you have been living a lonely rather solitary life, within your own home, but a somewhat reclusive life. Such friends as you have had have been those that you have established contact with on the Internet. It seems that you have spent a good deal of your time on the Internet and that that represents a good part of your life in recent times.
14 It is also clear from Dr Walton's report that you suffer from what is known as a personality disorder with borderline and dependent traits. It seems that you have also developed something of an anxiety disorder as a result of the police attention in this matter and this matter hanging over your head. Dr Walton also speaks of you having recurring bouts of depression which, as he says, "waxes and wanes in severity". At the time he reported on you, as a result of seeing you in August of this year, he described it as being currently of suicidal intensity. Although your education was not particularly long and successful, it seems that your intelligence is quite normal and that you also have a psychological immaturity which you, yourself, I think recognised and accepted in your consultations with Dr Walton.
15
Dr Walton supports the submission made by your counsel that your personality disorder and psychological immaturity do operate to reduce your moral culpability somewhat and may, to a minor degree, reduce the need for the court to hold you up as an example to others in terms of deterring others from committing offences of this kind. He also supports the submission that imprisonment would be especially burdensome to you with the psychological profile that he has spoken to in his report. I accept that it will make serving your sentence more onerous than somebody without the deficits to which
Dr Walton has spoken.
16 Dr Walton also expressed the opinion that your apparent lack of remorse should not diminish the weight given to the plea of guilty, in the sense that he regarded you as psychologically incapable in all the circumstances of remorse. As I indicated to your counsel, whilst I cannot give you any credit in terms of reduction of sentence for remorse, I note Dr Walton's opinion as to the reasons for that. I note that your plea of guilty has had the effect of ensuring that the State of Victoria is not put to the expense of a trial and most particularly that the victim is not caused the anguish of having to give evidence in court and be subjected to cross-examination. You are entitled to full credit for your plea of guilty in that regard.
17 I note that this was a negotiated plea, as your counsel pointed out. It seems to me with respect to both sides that a good deal of common sense has been brought to bear, not just on negotiating an appropriate plea, but negotiating and agreeing upon an appropriate basis for placing the facts of this matter before me and enabling me to divine a factual basis upon which to sentence you. I have no doubt there was a degree of compromise on both sides, but the result seems to me to be a just one in all the circumstances.
18 It was submitted on your behalf that your prospects of rehabilitation are good. I think that because you have no prior convictions and because you have not offended since. I am entitled to accept that at this stage that that is true, with one qualification. That your present inability, it seems, to understand the full ramifications and consequences of your conduct and to express remorse for your behaviour is of some concern. I think that it is unlikely that you will offend again, but with the personality and psychological issues that you have had and which are probably not amenable to treatment, except in the very long term, that one must be somewhat guarded about your prospects of rehabilitation. I do not regard individual deterrence as being particularly significant in this case but it is a factor that I have to take into account to some extent.
19 As far as general deterrence is concerned, I think it is right, as your counsel has put it, that general deterrence as a factor is reduced but only to a minor degree. It is very necessary that courts express not only the denunciation of conduct of this kind on behalf of the court and the community, but that they impose sentences which have the effect of deterring others from committing offences of this kind. I am also of course required to punish you appropriately for your offending conduct.
20 One of the factors that bears upon your prospect of rehabilitation is the question of whether you have paedophilic tendencies. Dr Walton's opinion is that you do not. That I think also reduces the risks of you re-offending and lends further support to the proposition that your prospects of rehabilitation remain good, albeit with the slight qualification that I have spoken of earlier. I am bound to impose a sentence which facilitates your rehabilitation as far as I reasonably can, having regard to the other sentencing considerations.
21 One of the other factors relied upon on your behalf, and which I accept is a significant matter, is the delay which has occurred in this case between when you were first spoken to by police and today's date. I have not been given any explanation as to why it took so long to bring the charges against you, but it certainly does not seem to be any fault of your own that it has taken this period of time. I do not infer that you have contributed in any real sense to the delay. Indeed, whilst clearly there was a period of negotiation, you have, it seems, pleaded guilty at the first reasonable opportunity. That delay of course has given rise to two matters of significance. One is that the offence has been hanging over your head for a significant period of time and will have added to the anxiety which you undoubtedly feel as a result of the police involvement and this prosecution action being initiated and that is to be taken into account in reduction of sentence. The other aspect is that you have now gone another two and a half years since the offending conduct and more without having offended again. That too supports the proposition that you have good prospects of rehabilitation.
22 Your family are here. That too bodes well. I have no doubt they will support you and stand by you and offer you support once your sentence has come to an end. That too in determining that you are a good prospect for rehabilitation.
23 I invited the learned prosecutor to assist me in determining an appropriate range of sentencing for your offending conduct. I was very helpfully supplied with a document which summaries a number of the other cases that come before the courts, particularly the appellate courts of this kind of offending and that helps identify some of the aggravating features and also some of the mitigating features to provide a basis for determining what an appropriate range of sentence is.
24 My attention has been drawn to a document known as the sentencing snapshot which deals with the various sentences that have been imposed over a period of time. That indicates that the median term of imprisonment for this offence is six years. The most common sentence for this offence has been between six and seven years and no doubt that onformed the range that the prosecution has put forward which is a total effective sentence of between six and eight years with a non-parole period of between four and six years.
25 Although the prosecution do not take issue with the opinion expressed by Dr Walton or the application of the Verdins principles, they nevertheless point out the fact that there is in cases of this nature where there is an age gap of some considerable period of time, 16 or 17 years in your case, there is an inherent exploitation in that you have an adult, albeit with personality and psychological issues, who is aware that it is wrong to engage in sexual contact with a person under the age of 16 years, an adult who is aware that if he tells his mother the true age of the victim that she is likely to inform police. So he tells her a lie. And an adult who was acutely aware of the vulnerability of the individual as a result of prolonged contact through the website prior to meeting up with her. Whatever your intentions might have been in meeting her and booking the hotel room, there is no doubt that you were aware of all of those facts when you did engage in the sexual abuse of your victim.
26 You also lied to the police about the sexual nature of your relationship. That too indicates that your understanding of the respective roles of adult and child was significantly deficient and perhaps reflects the degree of immaturity and certainly lack of remorse spoken to by Dr Walton.
27 In cases such as this it may be necessary to look to community protection. Again your counsel submitted that the sentence that I impose does not need to be higher in order to achieve that end and I accept that submission. I think that, on balance, it is unlikely that you will offend again. I suspect that this has been a very stern lesson to you and certainly serving a sentence for this offending conduct will operate as a very significant deterrent to you.
28 It undoubtedly does aggravate the offence that the penetrative sex was engaged in without protection. You risked the victim becoming pregnant and you risked passing on sexually transmitted disease. You may or may not have been aware of any sexual transmissible diseases that you had. It does aggravate the offence that you engaged in unprotected sex. You persisted in the conduct when you had plenty of opportunity to reflect on what you had done and what you had got yourself into.
29 Your counsel submitted that the prosecution range is too high and my attention was drawn to a number of cases. Obviously every case has to be decided on its own particular facts and this is no different. I accept that in the range of conduct that is encompassed by this offence, there are many of the aggravating features to be found in other cases that are not present in your case. You were not in the kind of position of trust as a parent with a child or as a school teacher with a pupil, that kind of thing. It seems to me that this is no higher than a mid range course of conduct.
30 Having regard to the various factors that reduce your moral culpability and your plea of guilty, I am inclined to accept your counsel's submission that the prosecution range is a little too high.
31 Ronald Matthew Thompson, for the offence of persistent sexual abuse of a child under the age of 16, to which you pleaded guilty, I sentence to you to imprisonment for five and a half years and I convict you.
32 I order that you serve a period of three and a half years before you become eligible for parole.
33 But for your plea of guilty, I would have sentenced you to imprisonment for seven and a half years with a non-parole period of five years.
34 I declare that you are subject to the reporting conditions of the Sex Offenders Registration Act for the rest of your life and you will be given a document which indicates your obligations under that Act.
35 I also make the order for the provision of a forensic sample, which I indicated would be made earlier in the day. That will entail you providing a sample of your DNA by taking a scraping from your mouth. I must warn you though that if at the time of the request for a scraping from the inside of your mouth made by an authorised member of the police force, if you provide the sample all well and good, if you fail or refuse to provide the sample by a scraping from the inside of the mouth an authorised officer will be authorised to take a blood sample instead and to use reasonable force to obtain that blood sample. I am sure you will not put the officer to that trouble.
36 Are there any other orders gentlemen?
37 MR O'HALLORAN: No, sir.
38 MR GINSBOURG: No, Your Honour.
39
HIS HONOUR: All right. You can take a seat for a moment. Yes. I think,
Mr Ginsbourg, I should note that there are actual potential custody management issues. Your client undoubtedly has a history of depression and suicidal ideation and I think I should note that on the order.
40 MR GINSBOURG: With respect I agree.
41 HIS HONOUR: Yes. Thank you.
42 MR GINSBOURG: Sorry, if I could go to the dock with Your Honour's leave.
43 HIS HONOUR: Yes, of course you can, yes. I thank counsel for their assistance.
44 (Sex Offenders Registration signed and acknowledged.)
45 (Section 464ZFB order signed and acknowledged.)
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