Director of Public Prosecutions v Thompson (a pseudonym)

[2024] VCC 1771

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

STUART THOMPSON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE HASSAN
WHERE HELD:	Bendigo (Trial) and Melbourne (Plea and sentence)
DATE OF HEARING:	Trial: 6-10 May 2024 (inclusive); 13-15 May 2024 (inclusive); Plea: 13 September 2024 and 28 September 2024.
DATE OF SENTENCE:	8 November 2024
CASE MAY BE CITED AS:	DPP v Thompson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1771

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — Found guilty by jury verdict – sexual penetration of a person between the ages of 10 and 16 (1 charge); indecent assault of a person under 16 (9 charges). Offending occurred between 1981 and 1988.

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:Fitchner v The Queen [2019] VSCA 297; Hall (a pseudonym) v The King [2023] VSCA 221; Buckley v The Queen [2016] VSCA 222; Burgess v The Queen [2017] VSCA 59; R v Iles (2009) VSCA 197; DPP v Reynolds [2019] VCC 922; DPP v Waters [2021] VCC 880; DPP v Frank [2022] VCC 1682; DPP v Morris [2022] VCC 1955; Brooks v R [2023] VSCA 4; Argyle v R [2023] VSCA 51; R v Engert (1995) 84 A Crim R 67.

Sentence:                  Total effective sentence of: 5 years and 9 months, non-parole period is 3 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S. Devlin	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C. Thomson	Stary Norton Halphen

HER HONOUR:

Introduction

1Stuart Thompson,[1] you have been found guilty by jury verdict of one charge of sexual penetration of a person between the ages of 10 and 16 (Charge 1) and nine charges of indecent assault of a person under 16 (Charges 2 – 5 and Charges 7 – 11). You were acquitted on one charge of indecent assault of a person under 16. (Charge 6).

[1]A pseudonym.

2The maximum penalty for the charge of sexual penetration of a person between 10 and 16 is 10 years' imprisonment. The maximum penalty for the charge of indecent assault upon a person under 16 is five years' imprisonment.

3In accordance with the verdicts of the jury, I find the facts and circumstances of your offending to be as follows.

4Your offending occurred between late 1981 until around 1988. You were aged around 36 to 40 years old and you lived with your wife Suzanne,[2] your daughter Annabel[3] and your step-daughter Louise Finnigan,[4] who is one of your victims.

[2]A pseudonym.

[3]A pseudonym.

[4]A pseudonym.

5Your other victims are Tina Sykes[5] who is your wife's niece and Melissa McGeorge[6] and Angela Smart,[7] who were both friends of your daughter, Annabel and who visited your home.

[5]A pseudonym.

[6]A pseudonym.

[7]A pseudonym.

6The first victim is Ms Sykes. In late 1981 when she was 12 years old she stayed with you and your family at your home at Castlemaine. She awoke one night with an earache. Your wife was not at home. You came to her room and gave her some Panadol. A short time after this Ms Sykes came into the living room to see you because she could not sleep. After sitting with her a few minutes, you took the opportunity to sexually abuse her by making her suck your penis. This continued for some moments until you heard your wife coming home. (Charge 1)

7Charges 2 – 5 concern Melissa McGeorge. When Ms McGeorge was around 13 years old in around 1982, she was staying at your home in Castlemaine. She was sick and was home from school and she stayed with your daughter Annabel who was also unwell and they were being cared for by you.

8The two girls were in beds in the lounge room. When your daughter was asleep you approached Ms McGeorge who was in bed and you put your hand on her breast and you kissed her on the lips. (Charges 2 and 3).

9You asked her to come to your bedroom. You laid her on the bed. She was wearing a nightie which you pulled up and Ms McGeorge then covered her vagina with her hands. You got on top of her and simulated sex with her by rubbing your body on her leg and you ejaculated on her leg. (Charges 4 and 5).

10Louise Finnigan is the daughter of your wife Suzanne and her first husband. After her parents' separation she initially just visited you and her mother until she moved in with you in around 1983 when she was aged 14. You were still living at Castlemaine but later moved to Bendigo.

11When the family moved to Bendigo you touched Ms Finnigan’s breast with your hand in the hallway. (Charge 7).

12When Ms Finnigan was around 15 years old she attended the doctor for thrush and was prescribed a cream. She was at home in the bathroom applying the cream to her vagina. You came into the bathroom and said you would apply the cream. Ms Finnigan said no but you took the cream and began to rub it into her vagina.   You then without warning inserted your finger into her vagina. (Charges 8 and 9). Ms Finnigan said she would tell her mother but you laughed and said she would not be believed.

13The final victim is Angela Smart. She was a friend of your daughter Annabel and stayed at your home in Castlemaine when her parents were on holiday. It became unclear on the evidence if this was in January 1988 or was in January 1990. Ms Smart would have been somewhere between the age of 12 to 14 years old.

14

One afternoon when she was staying at your home she was standing at a kitchen bench. Your daughter was in the nearby living room. You came up behind

Ms Smart and hugged her.  You then took your hand from her shoulders and slid it down the front of her shorts under her underwear and rubbed her vagina.  You then inserted your finger into her vagina and began to move it around. (Charges 11 and 12). This lasted for a few minutes.

15You gave evidence at the trial and denied the offending. The jury clearly rejected your denials and accepted the evidence of your victims beyond reasonable doubt.

16All four of your victims have made victim impact statements.

17Ms Sykes has had ongoing difficulties with her mental health. She says her relationships with her mother, partners and daughter have all suffered. Ms McGeorge says your offending has left her with low self-esteem and has affected her ability to parent her own children because she is fearful and overprotective. Ms Finnigan also says that your offending left her with little self-worth and that in her adult life she has struggled with toxic relationships. Like Ms McGeorge, she describes being an overprotective parent. She has had a problem with alcohol which reemerged when your crimes were reported to the police. She says:

Without this offending against me and the trauma I have had since I was a child who could I have been? I remember I really wanted to be a chiropractor but I had no support, I lacked concentration in school and my grades were low.

She says your offending and her reporting of it has destroyed her relationship with her sister, who continues to support you.

18Ms Smart says she trusted you and your offending has taken away her trust in others.  She says:

My life has been a vicious cycle with moving houses, changing jobs, not being able to work, feeling like I can’t maintain or function properly. I have suffered depression, anxiety, PTSD and panic disorders. I used a lot of alcohol to block things out and to stop me thinking. I still do to a degree but not as much.

19As all of the victim impact statements eloquently describe, and which the Courts now well-recognise, the effects of childhood sexual abuse are ongoing and profound. Victims of childhood sexual abuse never know what life could have been and who they would have grown up to be, if they had not been subject to childhood sexual abuse which, as the Courts have regularly observed, destroys the opportunity of a healthy and natural transition into adulthood.[8]

[8]        Fichtner v The Queen [2019] VSCA 297 at [66] – [67]

20Your crimes against all of your victims are very serious. All involve a breach of trust. Ms McGeorge and Ms Smart were friends of your daughter for whom you were entrusted to care. Ms Sykes was your wife's niece and therefore a family member and Ms Finnigan was your own stepchild. The offending against Ms Sykes, Ms Finnigan and Ms Smart all involved acts of sexual penetration which left them humiliated and confused. You did not penetrate Ms McGeorge but your conduct in simulating sex upon her and ejaculating is a very grave example of an indecent assault which must have been degrading and humiliating for her.

21Your conduct in respect of each of your victims is objectively serious and your moral culpability high.

22You maintain your innocence and consequently have offered no explanation for your behaviour but clearly you were sexually interested in teenage girls and acted upon this interest when the opportunity presented itself.

23Turning to your personal circumstances. You were born in July 1944. You are presently 80 years old.

24Prior to your incarceration you lived with your wife Suzanne. You have the continued support of your wife and your daughter Annabel who visit you every fortnight in prison.

25You have worked hard all your life. You have not re-offended since these charges which is now over 35 years ago. You have a prior matter going back to 1963 for carnal knowledge with a girl between 10 and 16 for which you received a bond. I am told the offending concerned some sort of premature sexual activity with your now wife Suzanne.

26You have multiple health conditions. You are deaf and wear hearing aids. You have chronic kidney disease, high blood pressure, high cholesterol, hyperthyroidism, prostate cancer in remission, colon cancer in remission, type 2 diabetes, heart disease, a problem with your oesophagus and an aneurysm in the abdominal aorta. You are on a suite of medications. You had a fall in custody and there is a provisional diagnosis of Wernicke-Korsakoff Syndrome, which as I understand it can cause mental confusion and unsteadiness of gait.  An ultrasound on 16 September 2024 also disclosed the presence of multiple cysts and lesions on your kidneys which need further investigation.

27You are currently housed in Ravenhall in a unit with six other elderly offenders.

28In mitigation your counsel Mr Thomson relied upon the following considerations.

29First, that you are elderly with multiple health conditions that will make your time in custody more onerous. Mr Thomson acknowledged that Victorian prisons operated on an equal care model, that is a prisoner will receive health care equivalent to a patient in the public system, but he submitted your health needs are complex, you have a new and emerging conditions which require exploration and he submitted you will not get the same level of care as you would receive in the community.

30Mr Thomson submitted that your time in custody may involve some of the last years of your life.

31Mr Thomson submitted that these offences occurred around 36–42 years ago. You have not offended since and have led an otherwise productive and unremarkable life. He submitted you pose a low risk of reoffending.

32He submitted that your prior matter was of little relevance.

33Mr Thomson acknowledged the inevitably of a custodial sentence but submitted it should be heavily moderated by the matters in mitigation, in particular your advanced age.

34Mr Devlin on behalf of the Director submitted that given the serious nature of the charges, the breach of trust involved, the only appropriate sentence was a sentence of imprisonment consisting of a head sentence and a non-parole period.

35Mr Devlin provided me with comparator cases and also with cases setting out the principles involved in the sentencing an elderly offender, as did Mr Thomson.[9]

[9]Prosecution: DPP v Reynolds [2019] VCC 922 ( 27/6/2019) - aged 78; Fichtner v R (2019) VSCA 297

(12/12/2029) - aged 70, Note - recites RLP principle at paragraph 89; DPP v Waters [2021] VCC 880 (29/6/2021) - aged 80; DPP v Frank [2022 VCC 1682 (28/9/2022 - aged 72; DPP v Morris [2022] VCC 1955 (10/11/2022) - aged 80; Brooks v R [2023] VSCA 4 (3/2/2023) - aged 72; Argyle v R [2023] VSCA 51 ( 14/3/2023) - aged 79. Defence: R v Engert (1995) 84 A Crim R 67.

36I turn now to consider the applicable sentencing considerations in your case and my conclusions.

37I have already in these remarks referred to the objectively serious nature of your offending and your high moral culpability.

38I take into account also the effects of your offending on your victims. The Courts now recognise the enduring harm childhood sexual abuse, the enduring harm that it causes and that it 'constitutes an egregious breach of the moral standards of the community'.[10]

[10]        Hall (a pseudonym) v The King [2023] VSCA 221 at [43]

39The sentencing principles of general deterrence and denunciation are the predominant sentencing consideration in a case involving child sexual abuse. I must denounce your conduct on behalf of the community and the sentence I impose must send a clear and unequivocal message that the sexual abuse of children will not be tolerated by the Courts.

40I accept the submission of your counsel for the reasons he articulated that you now pose a low risk of re-offending and that your rehabilitation has been demonstrated.  I accept the submission that the sentencing principles of specific deterrence and community protection carry very little weight in sentencing you.

41Your age is an important consideration.[11] In sentencing you I must take into account that you are 80 years old with multiple health conditions and that the experience of imprisonment will be difficult for a man of your years and poor health, and that  a sentence of imprisonment may therefore involve the last years of your life.  Having said that, your advanced age at the time of sentence cannot be given undue weight in a case of such serious and prolonged sexual offending against children. Nor too, given your abhorrent and morally deviant conduct, can too much weight be placed upon your lack of a relevant criminal history and otherwise good character.

[11]        Buckley v The Queen [2016] VSCA 222; Burgess v The Queen [2017] VSCA 59

42You fall to be sentenced as a serious sexual offender on Charges 3-11 (excluding Charge 6 of course). The sentences on these charges must be served cumulatively unless otherwise ordered. Your serious sexual offender status must be entered into the Court records. The serious sexual offender provisions do not displace the principle of totality. I do not intend to order full cumulation between the charges, that would produce an entirely unrealistic outcome, but I do intend to order some cumulation between some of the charges to take into account that your offending involves multiple victims and to achieve an appropriate overall sentence.

43I take into account the maximum penalty for the offences as they were at the relevant time.

44The authorities provided to me have been of some assistance in formulating a sentence for you, ultimately however I must sentence you on the facts and circumstances particular to your case.

45Taking into account all the matters I am required to under the Sentencing Act 1991 and matters personal to you I intend to sentence you as follows. You can remain seated in the circumstances, Mr Thompson.

46You are convicted on all charges.

47On Charge 1 you are sentenced to 3 years' imprisonment.

48On Charge 2 you are sentenced to 3 months' imprisonment.

49On Charge 3 you are sentenced to 3 months' imprisonment.

50On Charge 4 you are sentenced to 1 year and 6 months' imprisonment.

51On Charge 5 you are sentenced to 1 year imprisonment.

52On Charge 7 you are sentenced to 4 months' imprisonment.

53On Charge 8 you are sentenced to 18 months' imprisonment.

54On Charge 9 you are sentenced to 2 years' imprisonment.

55On Charge 10 you are sentenced to 1 year imprisonment.

56On Charge 11 you are sentenced to 2 years' imprisonment.

57Charge 1 is the base charge.

58I order 6 months of the sentence on Charge 4, 3 months of the sentence on Charge 5 and 12 months of the sentences on Charges 9 and 11 to be served cumulatively upon Charge 1 and upon each other.

59That makes a total effective sentence of 5 years and 9 months.

60I direct you serve 3 years before you are eligible for parole.

61The pre-sentence detention is 169 days not including today.

62You are a registered sex offender for life.

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