Director of Public Prosecutions v Thornton (a pseudonym)
[2016] VCC 946
•6 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. 15-01506
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HUGH THORNTON (a pseudonym) |
---
JUDGE: | HER HONOUR JUDGE PULLEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 June 2016 | |
DATE OF SENTENCE: | 6 July 2016 | |
CASE MAY BE CITED AS: | DPP v Thornton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 946 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms M. Stylianou | Office of Public Prosecutions |
| For the Accused | Mr C. Pearson | Greg Thomas Solicitors |
This matter has been anonymised and a pseudonym allocated per the Court’s Anonymisation Protocol
to ensure there is no possibility of identification of the accused, victim and family or witnesses.
HER HONOUR:
1 Hugh Thornton[1] you have pleaded guilty to one charge of sexual penetration of a child under 16. This is a course of conduct charge between 30 November 2014 and 6 March 2015. The maximum penalty applicable, given Isabella Field’s[2] age at the time, is 25 years' imprisonment.
[1] Hugh Thornton is a pseudonym.
[2] Isabella Field is a pseudonym.
2 You have also pleaded guilty to one charge of indecent act with a child under 16. This is also a course of conduct charge between 30 November 2014 and 6 March 2015. The maximum penalty applicable to that offence is ten years' imprisonment.
3 The victim of your offending is Isabella Field, who was 8 years of age at the time of your offending.
4 Charge 1 encapsulates four different types of penetration which occurred between 30 November 2014 and 6 March 2015 (approximately three and a half months).
5 Charge 2 encapsulates four different types of indecent act engaged in by you towards Isabella Field between those same dates.
6 It is not necessary to recount in great detail the facts in this matter, as the matter was opened in some detail by the learned prosecutor [Exhibit A].
7 I proceed to sentence you on the basis of the facts as summarised by the prosecution and discussed during the course of your plea hearing. It is sufficient for present purposes to simply say the facts in this case are most serious and disturbing.
8 You also have an extensive and relevant criminal history.
9 I turn to the background to your offending.
10 During your offending Isabella lived with her father, Arthur Field[3], a single parent.
[3] Arthur Field is a pseudonym.
11 Arthur Field always tried to work around his daughter’s school hours. However, in mid-November 2014 he was required to work on a weekend and needed someone to look after Isabella.
12 At his employment Arthur Field met the receptionist, Catherine Thornton[4], your daughter. They became friends, and Arthur Field spoke to Catherine Thornton about the difficulty he had with his work hours and Isabella’s care. Catherine Thornton suggested she and her parents would look after Isabella while he worked.
[4] Catherine Thornton is a pseudonym.
13 Catherine Thornton, at that time, lived with her boyfriend, her mother, her brother, and you in Deer Park.
14 Arthur Field met you and your wife in November before he was required to work on the weekend. He dropped Isabella at your home on Saturday morning at 8.00am and returned at 5.00pm to pick her up.
15 You said that if ever Arthur Field needed help looking after Isabella then they were happy to help.
16 Initially, from that time, Isabella would stay at your home at least once or twice a week, sometimes during the day while Arthur Field worked. At other times, when he had to work all weekend, Isabella stayed overnight.
17 Approximately two weeks prior to the end of the school year in 2014 Isabella was expelled from school. That was when overnight stays at your home commenced.
18 For a week during Christmas, Arthur Field went away with Isabella, and did not stay with you, however, upon their return in January and February 2015 Isabella stayed overnight at your home ten to twelve times, and was there most days during that period and up to 6 March 2015 whilst her father worked, as she was still not attending school.
19 I turn to your offending. Between 30 November 2014 and 6 March 2015, when Isabella Field attended at your home, she would regularly go with you into a garage in the backyard. You spent much of your time in the garage when Isabella was at the house.
20 You called Isabella into the garage to show her pornographic magazines and pornographic movies on a computer, as described in the Prosecution Opening (paragraph 13). This is relevant to Charge 2.
21 You also stored a number of sex aids in your garage. Your wife said none of those items were used with or by her. Isabella described what you showed her, as described in the Prosecution Opening (paragraph 14).
22 Isabella referred to your use of the purple vibrator upon her on one occasion. She described that you would pull her pants and undies down, ‘put it in and take it back out’ (of her vagina). When he did that she said she told you ‘No’. This is part of Charge 1 and part of Charge 2 relevant to you putting the vibrator to her anus. She said 'he made me!’
23 You also penetrated Isabella’s vagina with your penis, as described in the Prosecution Opening (paragraph 17). Isabella said it happened in the garage and it hurt. This is also part of Charge 1.
24 Between 30 November 2014 and 6 March 2015 you also penetrated Isabella’s vagina with your fingers on three separate occasions. Isabella said that it would hurt, and that it felt bad. She told you how it felt and she said she would tell you stop (Charge 1).
25 Isabella also described an occasion when you showed her your penis, when you masturbated (Charge 2).
26 You also occasionally had Isabella hold your penis while you urinated. Isabella said ‘He told me to, or else I don’t get toys ... and I want my toys’. She said you made her do this when you urinated at the tree behind the garage (Charge 2).
27 Isabella also described an occasion when you put your penis into her mouth and had her perform oral sex. She described ‘white stuff pouring into her mouth’, and that she vomited everywhere and said it was disgusting (Charge 1).
28 On 6 March 2015, at about 9.45pm, Arthur Field received a text message from Catherine Thornton asking him to call her. Catherine Thornton then revealed her father had previously been incarcerated for ‘touching a little girl’, and that she was concerned about leaving Isabella alone with him whilst the rest of the family were out that weekend. Arthur Field requested Isabella be brought straight home.
29 Isabella Field never returned to your home.
30 On 9 March 2015, between 8.30 and 9.00pm, the night before Isabella was due to resume school, Arthur Field was sitting in the lounge and Isabella was in her bedroom. Arthur Field could hear Isabella in her bedroom and went to her room to check what she was doing. He saw Isabella had used sticky-tape to tape over her vagina and her bottom.
31 That evening Isabella disclosed to Arthur Field that you had interfered with her vagina and her bottom and shown her pornographic material. The following day Arthur Field reported this to police.
32 On 3 April 2015 detectives executed a search warrant at your home and located a number of items, including a purple vibrator, pornographic magazines and pornographic digital movies as described by Isabella Field.
33 You were arrested and interviewed on 3 April 2015 and made a ‘no comment’ response to the allegations. Of course, to answer that way was your right.
34 You were subsequently charged with these offences on 3 April 2015, and on 30 June 2015 a plea offer was made.
35 On 24 July 2015 the defence accepted a prosecution ‘counter offer’ and the matter resolved to a plea of guilty. On 31 July 2015 ‘course of conduct’ charges were filed. You were then committed on those charges on 28 August 2015.
36 There was a change in defence solicitors and on 23 November 2015, correspondence from your then solicitors confirmed the proposed prosecution opening was not accepted.
37 Negotiations/discussions continued until final resolution on 18 March 2016. Two days prior on 16 March 2016 the matter was then going to trial, and I note a s.37C application was refused on that date.
38 You have pleaded guilty to these two charges, and you are entitled to have that fact taken into account in your favour, and I do so. The community has by your plea of guilty been spared the time and cost of a trial and witnesses have been spared the ordeal of having to give evidence upon your trial, in particular I refer to the victim of your offending, Isabella Field.
39 I also take into account in your favour you intimated early your intention to plead guilty to these charges and that there were ongoing negotiations/discussions between those representing you and the prosecution in an attempt to resolve your offending to a suitable indictment, which has occurred.
40 I am prepared to accept your plea of guilty indicates some remorse for your offending, although I am concerned about the extent of your remorse beyond your plea of guilty. Measuring the veracity of remorse is a difficult concept to evaluate. Whilst your plea of guilty is indicative, as I have said of some remorse, I am concerned regarding the extent of your remorse having read the report of Ms Lechner, to which I shall later refer, and your extensive and relevant criminal history.
41 I turn to your prior criminal history. It is very disturbing.
42 You have appeared before the court on a number of occasions for offences involving sexual offending involving minors. You first appeared in that regard in the Children’s Court (adult) at Kalgoorlie on 3 September 1971, charged with indecent dealing with a child under 14 years and sentenced to 2 months’ hard labour.
43 Some details of that offending were contained in the prosecution opening (paragraph 29). Your offending involved you ‘playing’ with the vagina of your 5 year old niece.
44 Your next appearance involving sexual offending was on 6 December 1979. You were sentenced on one charge of aggravated assault, which involved you rubbing a 10 year old complainant’s vagina over the outside of her jeans. You were placed on a 12 month good behaviour bond.
45 Your next appearance for sexual offending was at the Children’s Court (adult) at Perth on 21 August 1984 when you appeared on two charges of indecent dealing with a child under the age of 14. You were sentenced to six months’ imprisonment on the first charge, and three months’ imprisonment on the second charge, to be served concurrently.
46 That offending involved you fondling a young boy’s penis, putting your penis to the entrance of a girl’s vagina, and putting your finger in her anus and ejaculating.
47 You next appeared at the Children’s Court (adult) at Perth on 27 March 1985 on eight charges of indecent dealing with a child under 14 years and were sentenced to 12 months’ imprisonment.
48 That offending involved the two daughters, 7 and 4 years of age, of their mother with whom you were then living.
49 You next appeared at the County Court at Melbourne on 4 May 1993 on four charges of committing an indecent act with a child under 16 and were sentenced to nine months’ imprisonment on Charges 1 and 2 wholly suspended for 24 months, and on Charges 3 and 4 were sentenced to be released on a community-based order for a period of 24 months with special conditions to undergo medical, psychological and psychiatric assessment.
50 There were three victims of that offending, a 10 year old boy and two young girls.
51 You next appeared at the Melbourne County Court on 20 October 2000 on six charges of committing an indecent act with a child under 16 and one charge of knowingly possessing child pornography and were sentenced to a total effective sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 6 months.
52 That offending involved a friend of your daughter, Catherine, aged 8, who was staying at your home for a sleep-over, as described in the Prosecution Opening (paragraph 29).
53 Your prior relevant offending is particularly troubling. I also note the significant increase in the gravity of your offending involving Isabella Field.
54 In addition to those relevant prior offences, you have also previously appeared at court for other offences, including dishonesty, possess a firearm, amongst others.
55 There were two victim impact statements before me from Arthur Field, which were read into the transcript. From those statements and the observations by Arthur Field of Isabella putting tape over her vagina and bottom, it is clear the victims of your offending have suffered considerably as a result of it and I shall return to pass some remarks on that later in these sentencing comments.
56 There are a number of aggravating features of your offending. There was a breach of trust, an offer of ‘toys’ by you to Isabella to encourage her compliance with your sexual demands, the young age of Isabella (then 8) relative to your age (then 69), your failure to wear a condom relevant to the penile/vaginal penetration (R v Khem[5]). I note the penetration was of Isabella’s external genitalia, and whilst possible pregnancy is not an issue given Isabella’s young age, there was, nevertheless the risk of infection. You also ejaculated into Isabella’s mouth and used a vibrator on her.
[5] (2008) 186 A Crim R 465
57 Mr Pearson, who appeared on your behalf at your plea hearing, provided a written outline of submissions (Exhibit 1) and addressed those during the course of your plea hearing.
58 At time of sentence you are 70 years of age.
59 You were raised in Kalgoorlie, Western Australia and are the youngest of five children. Your father was a heavy gambler and a volatile and abusive man. Domestic violence was commonplace in the family and towards all members of it.
60 Your parents separated when you were 10. Your parents died many years ago. One of your brothers died at age 15 years, and you do not have any real contact with your other siblings.
61 You were educated to Year 9 level. You started Year 10 but did not complete it ultimately leaving school in 1961. You do not have any trade qualifications. Despite your limited educational opportunities, you were fully literate and had relatively consistent employment when not in custody.
62 Before your parents separated you were removed from the family between 1954 and 1958 (between 8 and 12 years of age) and placed in boys’ homes. You, along with other children, were the subject of regular and routine sexual abuse by the adult carers. I discussed this with Mr Pearson, and the transcript will reveal that discussion.
63 Your formative years were, he submitted, shaped by your background of domestic violence, parental neglect and routine sexual abuse. In that regard, I am conscious of authorities such as DPP v Terrick & Ors[6] relevant to background, and R v AWF[7] relevant to sexual abuse of offender. That list, of course, is by no means exhaustive.
[6] [2009] VSCA 220
[7] (2000) 2 VR 1
64 After leaving school you worked as a farm labourer, in mining and as a crane operator and also had a number of sundry labouring positions. When you were in your 40s, you had high blood pressure, which caused you to then cease crane operating as employment. In the years prior to your recent remand, you worked as a cleaner.
65 You had never used illicit drugs, although at times over the years consumed alcohol to excess, and I note two prior court appearances for exceeding the prescribed concentration of alcohol. At the time of your recent remand, you were a regular although moderate drinker of alcohol. You instructed Mr Pearson that some of your previous offending had occurred when alcohol-affected, although not your offending before me.
66 Reference was also made in Mr Pearson’s written submissions to your prior criminal history.
67 Between 1971 and 1975, you were in a relationship. There is a son of that relationship who currently lives in Queensland and I am told you have some contact with him.
68 You were with another partner between 1977 and 1983 when living in Western Australia. It was shortly after that you were sentenced in 1984 and again in 1985 for sexual offending, when you were approximately 38 years of age.
69 Upon your release from prison you came to Melbourne in 1986 and met your current partner whom you married in 1999. There are two children of that marriage, a daughter, Catherine, and a son. Your wife and Catherine live in Sydney. You are unsure of your son’s whereabouts. You have had phone contact with your wife whilst on remand but do not receive visitors in custody.
70 Mr Pearson submitted that in 1993 you were placed on a community-based order and underwent regular relapse prevention counselling with Jeffrey Cummins, Psychologist, between 1993 and 1994, and I note and have read the report tendered as part of a folder of material produced to the Court by the prosecution [Exhibit A], that report dated 10 October 2000.
71 He further submitted that after completing your sentence imposed in 2000, you participated in the Intensive Sex Offender program at Ararat prison and were released on parole in 2003, complying with conditions of your parole. I also note and have read the two reports behind Tab 8 in the folder, provided by the prosecution [Exhibit A].
72 Mr Pearson submitted you had previously undertaken counselling for your sexual offending and deviant sexual urges and were willing to participate in such programs whilst in custody. I discussed this with Mr Pearson as the transcript will reveal. It is of some concern to me, however, that your counselling in the past had not prevented you from your offending before me, nor prompt you to seek counselling once your offending involving Isabella Field had begun, to help you to then desist.
73 Mr Pearson also tendered a report from Carla Lechner, Consultant Psychologist, dated 20 June 2016. In her opinion you fulfilled the criteria for diagnosis of a paedophilic disorder.
74 Despite your age and failing health, in light of your history and lack of insight regarding your sexual impulses and the impact of your behaviour on your victims, she considered you to be a ‘high risk of re-offending’.
75 Ms Lechner noted you exhibited residual symptoms of Post-Traumatic Stress Disorder arising from your own experiences of sexual and physical abuse in your formative years and said you were keen to re-engage with the Sex Offenders Program.
76 Further details were provided in her report of your background and history. Your brother had died in a truck accident when he was 15 years of age. You had some contact with one of your sisters, however, had not had contact with your other two other sisters for the past 20 years. You have been married to your current wife for 16 to 17 years. Your eldest child, Eugene, 45, was living in Queensland.
77 You described yourself as an ‘above average’ student with no social or behavioural problems despite the turmoil of your home life. Reference was made to your abuse when living at a boys’ home (page 3).
78 Reference was made to your employment over the years. You estimated you had been out of work only five per cent of the time. Your wife remained supportive of you, despite now living in Sydney.
79 Whilst not formally assessed by Ms Lechner, you impressed as being of ‘low average/average’ intelligence, with the capacity to reflect on the impact your behaviour has had on yourself and others. You were, however, less well connected with your emotional world finding it hard to identify triggers to your negative feelings.
80 Reference was made to your diagnosis in 2000 of Wolff Parkinson’s White Syndrome characterised by chronic tachycardia. In addition, you suffered sleep apnoea and required a CPAP machine. You were not on any prescribed medication.
81 While acknowledging your role in the offending before me, you were inclined, according to Ms Lechner to ‘seek to justify his position’. Of concern to me was your reference to Ms Lechner that ‘you didn’t know if your behaviour had an impact on the victim’ and her conclusion that you struggle with a breach of trust concept. You also attempted to rationalise your actions “because I was gentle”.
82 Reference was made to you working as a carer of older prisoners whilst in custody at the Metropolitan Remand Centre (“MRC”) prior to your move to Marngoneet. I am also told by Mr Pearson following the riot in the MRC earlier this year, you were for some time the recipient of 23 hour lockdown whilst on protection, not through any involvement of you in the riot but rather the sequelae and ramifications to other prisoners as a result of it.
83 Turning to your future risk of sexual violence, as previously stated Ms Lechner described you as ‘a high’ risk of re-offending. You still had thoughts of sexual contact with a child. It was also noted by Ms Lechner you had a degree of minimisation/denial of your offending, placing the blame for your relapse onto the victim.
84 Ms Lechner noted, as do I, an escalation in your current offending before me from your prior offending.
85 You appreciated and understood you would remain in custody for some time and said you welcomed the opportunity for further intervention to help you understand your offending.
86 In the opinion of Ms Lechner you required re-engagement with the sex offenders program, in particular one-on-one therapy. Your mood state should also be monitored.
87 Turning to her summary and opinion. You described your relapse to this offending was triggered by alleged precocious behaviour by Isabella Field. That assertion troubles me. Whilst you have expressed disgust for your actions, you have limited insight regarding the impact on Isabella. Given the escalating nature of your offending as well as your past history, you were, according to Ms Lechner, a ‘high risk of further offending’.
88 I note that Mr Pearson was not relying upon the principles in R v Verdins& Ors[8] and such was an appropriate concession in my opinion, based on the material before me.
[8] (2007) 16 VR 269
89 Also before me was a medical report prepared by Dr Le dated 23 November 2015, which provided some details of your medical history and prescribed medication over the years.
90 Mr Pearson was not relying upon your health in mitigation of sentence, conceding you could be managed appropriately whilst in custody for your medical conditions. That was an appropriate concession by him. I am, however, mindful of your age at sentence and shall return to that later.
91 There was a reference before me from Roger Mount dated 20 November 2015. Mr Mount was, at the time of this correspondence, a remand prisoner at MRC confined to a wheelchair. Since July of 2015 you had been his appointed carer and Mr Mount outlined a number of ways you had assisted him whilst in custody.
92 There were also two certificates before me, one referrable to a completed program ‘Coping Inside – Managing Loss’, completed on 2 June 2015 and also a certificate from Kangan Institute ‘Participate in Workplace Safety arrangements’.
93 Mr Pearson conceded you had a highly relevant past criminal history, and that despite having undergone counselling and treatment, it was clear you had struggled with your paedophilic urges over many years.
94 Regarding your current circumstances, you were arrested in April 2015 and had been on remand since, currently in protection at Marngoneet Correctional Centre.
95 Mr Pearson urged however your offending did not involve you seeking out your victim Isabella Field. Whilst that is so, you volunteered to look after Isabella being aware of your deviant sexual urges.
96 Mr Pearson sensibly conceded your offending was serious. It certainly is.
97 Mr Pearson relied upon your plea of guilty and the stage at which it was entered. I am also aware of that and have taken that into account when sentencing you and I have previously referred to that.
98 Turning to your prospects of rehabilitation, Mr Pearson submitted you had some realistic prospect of rehabilitation in that in the past you had completed relevant counselling, complied with terms of parole, had a level of insight into your paedophilic problems, had the ongoing support of your wife and immediate family structure. Mr Pearson also referred to you having most recently spent 11 years in the community without offending.
99 I, however, have grave concerns regarding your rehabilitation prospects. It is concerning you have received treatment for sexual offending involving minors over an extensive period of time with Mr Cummins, and had undergone intensive programs in custody, yet offended again in this most serious way. I have concerns about your prospects of rehabilitation, given the conclusion of Ms Lechner. Further, despite a gap of 11 years in your sexual offending you nevertheless re-offended in the ways before me, arguably an escalation in the gravity of your offending.
100 Mr Pearson conceded the only appropriate disposition for your offending was a term of imprisonment which exceeded that currently referable to your pre-sentence detention. I agree.
101 Ms Stylianou, who appeared on behalf of the prosecution, submitted your offending involved a breach of trust and also given Isabella Field’s age she was also particularly vulnerable.
102 Ms Stylianou referred to Sex Offender Programs Exit Report dated 2 October 2003, and your participation in it. You had participated well in the Program, however, Ms Stylianou also referred to the Sex Offender Program Intensive Sex Offender Program Completion Report dated 9 December 2002. In that report (page 4) reference was made to your then ‘sound understanding of empathy regarding your then victim’. Ms Stylianou submitted that different from the conclusion of Ms Lechner, and your statement that you ‘didn’t know if your behaviour had an impact on the victim’ and your description of Isabella Field as precocious.
103 In the report from Mr Jeffrey Cummins, dated 10 October 2000, Ms Stylianou referred to Mr Cummins’ opinion there was a ‘distinct element of denial’ by your statement that you become ‘amorous’ when intoxicated, as a description of your then offending.
104 Ms Stylianou referred to your significant and relevant priors over a number of years and your recent assessment as ‘high’ risk of sexual re-offending. I also note this.
105 Ms Stylianou referred also to the escalation in the gravity of your offending involving Isabella Field.
106 She submitted when sentencing you there was the need for specific deterrence, general deterrence, just punishment and denunciation. I agree.
107 She described your offending as utterly appalling and exploitative. I agree.
108 She described your abuse of Isabella was atrocious. I agree.
109 Turning to sentence, Ms Stylianou referred me to a number of documents referrable to sentencing for offences involving a ‘course of conduct’.
110 Section 5(2F)(a) Sentencing Act 1991 says that:
“In sentencing an offender for the incidents of the commission of an offence included in a course of conduct charge”
“... a court—
(a) must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and
(b) must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence.”
111 I have in that regard read a recent sentence by his Honour Judge Gucciardo of this Court, DPP v Aparo[9], which involved an adult complainant and it appears an accused who did not have any relevant (sexual) prior convictions, which distinguishes that case from yours in two respects. I have also read the Second Reading Speech of the Crimes Amendment (Sexual Offenders & Other Matters) Bill 2014 [p.25-26], the Explanatory Memorandum to that Bill (p.31) and the written submissions of Ms Stylianou regarding sentence.
[9] [2016] VCC 7 June 2016
112 In brief, Ms Stylianou described a ‘course of conduct charges’ as equivalent in the sentencing context to ‘rolled up’ charges, with the latter recently referred to in Clarkson v R[10].
[10] [2011] VSCA 157 at [87]
113 When sentencing on ‘rolled up’ charges and now course of conduct charges, the Court ‘must impose a sentence that reflects the totality of the offending that constitutes the course of conduct’ (s5(2f)(a) Sentencing Act 1991).
114 I discussed with both Ms Stylianou and Mr Pearson totality when sentencing for such offences and, in your case, the ramification of R v HMcL[11] when addressing totality.
[11] (2000) 174 ALR 1
115 Following your plea of guilty to these charges and conviction on them, the serious sex offender provisions also apply when sentencing you. You have previously been convicted of two or more sexual offences and were sentenced to terms of imprisonment, therefore, pursuant to ss.6B and 6C Sentencing Act 1991, you fall to be sentenced as a serious sexual offender in relation to both the charges that are before me. I direct the records of the Court reflect you have been so sentenced.
116 Consistent with s.6D Sentencing Act 1991, when sentencing you I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. In order to achieve that purpose I may impose a longer sentence than that which is proportionate to the gravity of the offences considered in the light of your objective circumstances. The prosecution is not seeking a disproportionate sentence and I am of the opinion I can appropriately sentence you without the need to impose a disproportionate sentence.
117 Pursuant to s.6E Sentencing Act 1991:
“Every term of imprisonment imposed by a court on a serious offender for a relevant offence must, unless otherwise directed by the court, be served cumulatively”,
and s.6F:
“A court that sentences a serious offender for a relevant offence must, at the time of doing so, cause to be entered in the records of the court in respect of that offence the fact that the offender was sentenced for it as a serious offender.”
118 I am, as I have said, conscious of the need to not ‘compress’ sentences, however am mindful of the need to consider totality.
119 Following your being found guilty of more than three Class 2 offences (relevant to the 1993 and 2000 offending) you were already a registrable offender for life. Charge 1 of your current offending is a Class 1 offence, and pursuant to s.34(1)(c)(ii) or (iii) Sex Offenders Registration Act 2004 it is also mandatory registration for life on that charge.
120 There were two victim impact statements before me from Isabella Field’s father, Arthur Field. There was no statement from Isabella, although given her age this was not surprising. I discussed with Mr Pearson, and he agreed, Isabella taping her vagina and bottom spoke ‘volumes’.
121 There is no doubt the victim of your offending has suffered considerably as a result of it.
122 Arthur Field’s statement sworn 25 November 2015 described how Isabella came to live with him in 2013 as a result of having a difficult time with her mother. Arthur Field worked weekends and needed assistance with childcare, and that was how Isabella came into contact with you. As a result of your offending, Isabella’s social skills and learning had suffered. Isabella was two years behind her peers. Arthur Field no longer trusted anyone, and was anxious whenever Isabella was away from him. Finding work had been difficult, as Isabella has only been at school four hours a day as a result of your offending. He noted Isabella was not comfortable around males, and was rude in front of males. He slept on the couch near the front door to protect her. As a result of your offending they had to move, and as a result Isabella had lost the stability of her friends.
123 There was a second statement from Arthur Field dated 25 November 2015. He stated before your offending Isabella ‘never lashed out at anyone’ but since then she had. Isabella’s behaviour had become difficult, she also had nightmares and could not concentrate,
124 Also before me was a report from Lesley Trumble, Senior Social Worker at the Royal Children’s Hospital, dated 19 November 2015, regarding Gatehouse Centre’s involvement with Isabella Field and the impact upon her of your offending, which I have also read.
125 I turn also to the concept of social rehabilitation.
126 A number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[12], in which his Honour Justice Vincent referred to the social rehabilitation citing DPP v DJK[13] (again allowing for the differences, of course, in factual circumstances between that case and the present case):
“… each of the victims, including N, asserted in their victim impact statements that the effect of the offending upon him was to "profoundly and permanently psychologically [scar] him and in a tangible way, has affected many aspects of [his] behaviour". With respect to those statements, I repeat comments that I have made as a sentencing judge on more than one occasion. They constitute a reminder of what might be described as the human impact of crime. They draw to the attention of the judge who would of necessity have to consider the possible and probable consequences of criminal behaviour, not only its significance to society in general but the actual effect of a specific crime upon those who have been intimately affected by it. The statements provide an opportunity for those whose lives are often tragically altered by criminal behaviour to draw to the court's attention the damage and sense of anguish which has been created and which can often be of a very long duration. For practical purposes, they may provide the only such opportunity. Obviously the contents of the statements must be approached with care and understanding. It is not to be expected that victims will be familiar with or even attribute significance to the many considerations to which a sentencing judge must have regard in the determination of a just sentence in the particular case. Nor would it normally be reasonable or practicable for a sentencing judge to explore the accuracy of the assertions made. Nevertheless, there has been an increasing level of appreciation by the courts of the value of victim impact statements. In my view they play an important role with respect to an aspect of the criminal law to which reference is not often made. They play their part in achieving what might be termed social and individual rehabilitation. Rehabilitation, in this sense, is not perceived from the perspective of the offender, but from that of those persons who have sustained loss and damage by reason of the commission of an offence.”
[12] [2006] VSCA 90
[13] (2003) VSCA 109, paras 17 & 18
127 The effects upon a victim are a relevant sentencing consideration (see s5 Sentencing Act 1991). However, I am conscious I must not allow the effects upon a victim to swamp the sentencing process.
128 As well as matters personal to you, to which I have referred, including your prospects of rehabilitation as I find them to be, I must also take into account such matters as general deterrence which is of considerable importance in a case such as this.
129 The courts have repeatedly referred to the seriousness of sexual offending involving children (see Burnett[14], Roosmalen[15], Wayland[16], Parente[17], and recently DPP v DJK[18], DPP v CPD[19], Clarkson and very recently DPP v Dalgleish[20], although specifically relevant to charges of incest, which yours are not. However that case contains recent pronouncements of the Court of Appeal regarding the seriousness of sexual offending against children. The list to which I have just referred is by no means exhaustive.
[14] (1993) 70 A Crim R 469
[15] (1989) 43 A Crim R 358
[16] 14/9/1992 CCA Victoria
[17] 20/2/1996 CCA Victoria
[18] [2003] VSCA 109
[19] [2009] VSCA 114
[20] [2016] VSCA 148
130 There is also the need for specific deterrence when sentencing you as you have an extensive and relevant criminal history. Your offending before me also occurred on a number of occasions (ie: was not a ‘one off’ incident). I am also concerned regarding the increase in gravity of your offending.
131 I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. This concerns me given the conclusions and opinion of Ms Lechner.
132 I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally to impose a just punishment.
133 I return to your age at sentence of 70 years. I have not lost sight of that when sentencing and the result of this sentence, that you will be significantly older when you complete the non-parole period.
134 In R v Whyte[21], President Winneke of the then Court of Appeal, whilst noting that a sentencing judge must be astute to pay due attention to the age of an accused stated:
“[they] must also be careful to ensure that confidence in the administration of justice is maintained by imposing sentences which reflect the gravity of the crime which is being punished.”
His Honour referred to R v Yates and R v Crowley & Garner[22].
[21] (2004) 7 VR 397 at [29]
[22] (1991) 55 A Crim R 201
135 His Honour further stated:
“In such cases, the court said that it would be inappropriate to approach the selection of a proper minimum term from the point of view that, because of the offender’s age, there was a need to grant some measure of life after release. Such an approach, it was said, would mean that general deterrence and retribution would receive insufficient weight.”
136 In R v Iles[23] the Court referred to R v Cumberbatch[24] that “an offender’s age does not militate against the imposition of a significant period of imprisonment in the appropriate case”. I note the advanced age of the appellant in Iles.
[23] [2009] VSCA 197
[24] (2004) 8 VR 9
137 In R v RLP[25] in the joint judgment of Neave, Redlich JJA and Hollingworth AJA, several propositions were therein stated when considering an offender’s advanced years and ill health:
[25] (2009) VSCA 271
1.The age and health of an offender are relevant to the exercise of the sentencing discretion.
2.Old age or ill health are not determinative of the quantum of sentence.
3.Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well spend the whole of his remaining life in custody.
4.It is a weighty consideration that the offender is likely to spend the whole or a very substantial portion of the remainder of their life in custody.
5.Other sentencing considerations may be required to surrender some ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the offender’s ill health will make his or her period of incarceration particularly onerous.
6.Just punishment, proportionality and general and specific deterrence remain primary sentencing considerations in the sentencing disposition notwithstanding the age and ill health of the offender.
7.Old age and ill health do not justify the imposition of an unacceptably inappropriate sentence.
138 It is clear from the authorities that age (and ill health) should not be permitted to unduly influence a sentencing process such that it would result in the imposition of an unacceptably inappropriate disposition (R v Smith[26]).
[26] (1987) 44 SASR 587
139 I sentence you as follows.
140 On Charge 1 you are convicted and sentenced to 10 years’ imprisonment.
141 On Charge 2 you are convicted and sentenced to 6 years’ imprisonment.
142 Charge 1 is the base sentence, and I direct that 4 years of Charge 2 be served concurrently and 2 years cumulatively upon Charge 1.
143 That results in a total effective sentence of 12 years’ imprisonment, and I direct you serve a period of 9 years before you are eligible for parole.
144 Pursuant to s.6AAA Sentencing Act 1991, had you been found guilty of these charges following jury verdict I would have sentenced you to a term of imprisonment of 15 years’ imprisonment and set a non-parole period of 12 years.
145 Pursuant to s.(18)(4) Sentencing Act 1991 I declare, by way of pre-sentence detention, you have spent 460 days in custody (up to and including 5 July 2016) by way of pre-sentence detention and I direct this be entered into the records of the Court.
146 You are also, as I have said, subject to the Sex Offenders Registration Act 2004 for life, and such is mandatory.
147 Following this sentencing, my associate will approach you and ask you to sign acknowledging receipt of documents that tell you about the Registration Act and you are already aware of that, I am sure. You are not being asked if you want to be on the Register, I have determined you will be, rather you are just acknowledging receipt of the paperwork.
148 I declare you have been sentenced as a serious sexual offender on both Charges 1 and 2, and direct that be entered into the records of the Court.
149 The prosecution also made application for a Disposal Order, and this was not opposed by counsel on your behalf. I make the order in the terms sought.
150 I did not have any other Orders. Were there any?
151 MS GRAY: No, Your Honour.
152 MR PEARSON: No, Your Honour.
153 HER HONOUR: No? All right. Ms Jackson, you will need to prepare the paperwork.
154 HER HONOUR: Yes excellent. All right thank you, both. Can you remove - -
155 TIPSTAFF: Yes, Your Honour.
156 HER HONOUR: Thank you, Mr Thornton. Yes thank you.
- - - - - -
11
0