Director of Public Prosecutions v Troy
[2014] VCC 2275
•12 March 2014
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-02110
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| TONY TROY | Accused |
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JUDGE: | HIS HONOUR JUDGE LACAVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2014 | |
DATE OF SENTENCE: | 12 March 2014 | |
CASE MAY BE CITED AS: | DPP v Troy | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2275 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Registered Sex Offender failed to comply with reporting obligations without reasonable excuse – attempted indecent act with a child under 16 – indecent act with a child under 16 – sexual penetration of a child under 16
Legislation Cited: Sentencing Act 1991; Sex Offender Registration Act 2004
Sentence:Total effective sentence of 9 years’ imprisonment. Non-parole period of 12 years and 6 months. Sentenced as a Serious Sexual Offender.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J Verkade | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr T Sullivan |
HIS HONOUR:
1 Tony Troy, you have pleaded guilty to 12 charges contained in Indictment D11232742. Charge 1 is that being a registered sex offender, you failed to comply with reporting obligations without a reasonable excuse. The maximum penalty for this offence is five years’ imprisonment. Charges 2 and 4 are charges of attempted indecent act with a child under 16. The maximum penalty for each of these offences is also five years’ imprisonment.
2 Charges 3, 5, 6 and 9 to 12 inclusive are each charges of indecent act with a child under 16. The maximum penalty for each of these offences is 10 years’ imprisonment. Charges 7 and 8 are each a charge of sexual penetration of a child under 16. The maximum penalty for each of these offences is 25 years’ imprisonment. Each of charges 3 and 5 to 12 inclusive is a sexual offence within clause (1) of schedule 1 of the Sentencing Act 1991 which I shall hereafter refer to as “the Act”.
3 You are a “serious sexual offender” within the definition contained in s6B(2) of the Act, having already been sentenced as such by another court for other offending. That means in sentencing you in respect of charges 3 and 5 to 12 inclusive, if I consider that a sentence of imprisonment is justified, then in determining what the length of that sentence should be, I must regard the protection of the community from you as a serious sexual offender as a principal purpose for which the sentence is imposed and may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of any particular offence considered in the light of its objective circumstances.
4 In addition, there are other considerations relevant to sentencing you. Because you are by definition “a serious sexual offender” then in accordance with s6E of the Act, I must, unless I otherwise direct, order that any sentence I impose on each charge be served cumulatively on any sentence or any sentences I may impose on the other charges, save for charges 1, 2 and 4. Further, I am required to have the fact that I have sentenced you as a serious sexual offender on each of charges 3 and 5 to 12 inclusive entered into the records of the Court in respect of your sentencing on those charges.
5 These provisions do not mean that the principles of proportionality and totality of sentencing are to be disregarded unless, in the exercise of discretion, I consider that the circumstances before me make it appropriate to do so for good reason. I do not consider that a disproportionate sentence is called for and the Prosecution has not submitted that I should impose a disproportionate sentence. In my view, the overall sentence I propose will properly and adequately provide for protection of the community. In my sentence, I will impose some accumulation and order some concurrency which I regard as appropriate taking account of all the circumstances.
6 You have admitted a prior criminal history dated back to 1985. Relevantly, you were convicted on 13 November 1997 in this Court of sexual offences relating to children aged between 10 and 16 years of age and you were dealt with by his Honour Judge Campbell. I have read his Honour’s sentencing remarks made at that time.
7 Further, although not prior convictions for these purposes, but nevertheless very relevant to the issues I must consider when sentencing you, on 29 July 2013, you were sentenced by this Court by her Honour Judge Campton for further sexual offences against children. Her Honour imposed a sentence of 14 years’ imprisonment and ordered that you serve a minimum term of ten-and-a-half years before you would be eligible for parole. Her Honour sentenced you as a serious sexual offender and declared that 90 days pre-sentence detention be reckoned as time already served under the sentence she passed. Accordingly, that sentence imposed by her Honour will have been served on or about 29 April 2027 and you will not be eligible for parole under that sentence until at least October 2023.
8 You were born on 6 January 1967 and you are now 47 years of age and so will be 55 at the time of your earliest release date under the sentence you are presently serving. The offending for which Judge Campton sentenced you all occurred with young boys with whom you came into contact through family who trusted you. The offending spanned about nine years from 2001 to 2010. The offending for which I sentence you occurred between August 2012 and March 2013 and whilst you were on bail for the charges dealt with in Judge Campton’s sentence. That is an aggravating circumstances of your offending which I have had regard to in arriving at an appropriate sentence.
9 Section 16, ss(3C) of the Act provides, in summary, that any sentence imposed for an offence committed whilst on bail for another offence must be served cumulatively on any uncompleted sentence unless I otherwise direct. Your counsel, Ms Ramsay, conceded on the plea that having regard to the circumstances of your further offending, it was appropriate that some of the overall sentence that I will shortly impose, cumulate upon the sentence imposed by Judge Campton. The principal issue here is the issue of totality. Further, in the circumstances of sentencing you, s14 of the Act requires that I fix a new non-parole period.
10 The circumstances of your offending are contained in a Prosecution Summary that was tendered and marked as Exhibit A. It was read in open court by the Prosecutor, Mr Devlin, and it is not necessary that I here repeat it. These sentencing remarks, however, must be read in the light of what is there set out.
11 You became friendly with a work colleague and his wife. One of your victims in this offending is their son. The other victims are friends of that son. You were invited into the home of your workmate. He and his wife later trusted you to live in their home and babysit their son. That gave the opportunity for you to commit the offences. Other opportunities for offending arose when you were trusted with the children on overnight camping trips and on other outings.
12 You were registered as a sex offender under the provisions of the Sex Offender Registration Act 2004 on 21 November 2006. Charge 1 arises because you did not comply with your reporting obligations under that Act. Charge 2 is a representative charge of attempted indecent acts which occurred on three to four occasions. Charge 4 is a standalone charge of attempted indecent act. Charges 3, 5, 9, 10 and 11 are each a representative charge of indecent acts described in the summary. Charges 6 and 12 are standalone charges of indecent acts. Charges 7 and 8 are charges of sexual penetration of a child under 16 where the victim was in fact aged only nine.
13 Charge 8 is representative of conduct that occurred approximately 20 times where you sucked the penis of your victim. I was told, and accept, that the evidence upon which that charge is based came solely from you when interviewed. That is to your credit and I have taken it into account. It shows insight on your part and remorse for your conduct. As can be seen from a reading of the summary of evidence, your offending is a very serious example of what are all very serious offences.
14 You were charged with this offending on 25 April 2013 and interviewed on 27 June 2013. There followed two committal mentions and a case conference, during which time there were discussions leadings to your pleas of guilty. You were committed for trial on pleas of guilty entered on 6 November 2013.
15 I treat you as having indicated you would plead guilty at the earliest opportunity. By your pleas of guilty, you have saved the time and cost of a trial or perhaps trials. Your guilty pleas have saved your victims in this offending having to give evidence and be cross-examined about your criminal behaviour towards them. For that you are entitled to a lesser sentence than I would have imposed had you not pleaded guilty and this is reflected in the overall sentence I will shortly impose.
16 I admitted into evidence Victim Impact Statements from the parents of your victims and also from some of your victims. I have read each of them in detail. They each bring home in strong terms how profound the effects of conduct such as yours can be for the victims and their families. The parents blame themselves for not protecting their children and for trusting you to be either caring for their children or in contact with them. The victims themselves feel unsure of themselves and are now untrusting of generally older people. All require counselling or help in one way or another. The consequences from the offending has a ripple effect that is almost unending.
17 Judge Campton set out fully your background history and it is not necessary that I again do so. I have taken it all into account. I received into evidence a psychological report from Carla Lechner dated 9 November 2012, Exhibit 1, and a psychological report from Tjana Djokic dated 15 November 2012, Exhibit 2. Both reports were relied upon before Judge Campton and each was referred to by her in her sentencing remarks. Each expert has opined that you suffer from a psychosexual disorder of paedophilia. Both have opined you suffer from depression. You have previously participated in a sex offender program and that participation preceded this offending. That program did not assist, it would seem, a person in your situation.
18 You are now 47 years of age and you have had an unfortunate life. You had a transient lifestyle in your younger days. You have never known your biological father and were raised by your maternal grandparents until age five. It was then that your mother partnered a naval officer, said to have been an alcoholic. You moved around a lot and attended up to 25 different schools. You have five half-siblings, all girls. You continue to have contact with four of them. You have limited education to Year 9. You have reported that you were sexually abused yourself on at least two occasions. This is referred to in the report of Ms Lechner.
19 You left home at 15 and have had various unskilled jobs. You have a 20 year old son who lives in Queensland. You lived with your mother when released from prison in 2007 on an extended supervision order and you lived with her until January 2013 when you moved to the south east of Melbourne where this offending occurred. You are currently serving your sentence in protection at Port Phillip Prison. This arises because of the nature of your offending the fact you have complained to authorities regarding inappropriate videos being available within the prison system.
20 You are thus a target for other prisoners and in need of protection. Your time in prison will thus be harder than for others and I have taken this into account in arriving at my sentence. Would you please stand, Mr Troy.
21 On charge 1 of being a registered sex offender failing to comply with reporting obligations, you are convicted and sentenced to a term of imprisonment of one (1) year.
22 On charge 2, attempted indecent act, you are convicted and sentenced to a term of imprisonment of two (2) years.
23 On charge 3, indecent act, you are convicted and sentenced to a term of imprisonment of three (3) years.
24 On charge 4, attempted indecent act, you are convicted and sentenced to a term of imprisonment of one (1) year.
25 On charge 5, indecent act, you are convicted and sentenced to a term of imprisonment of three (3) years.
26 On charge 6, indecent act, you are convicted and sentenced to a term of imprisonment of two (2) years.
27 On charge 7, sexual penetration of a child under 16 years of age, you are convicted and sentenced to a term of imprisonment of four (4) years.
28 On charge 8, sexual penetration of a child under 16, you are convicted and sentenced to a term of imprisonment of five (5) years.
29 On charge 9, indecent act, you are convicted and sentenced to a term of imprisonment of three (3) years.
30 On charge 10, indecent act, you are convicted and sentenced to a term of imprisonment of three (3) years
31 On charge 11, indecent act, you are convicted and sentenced to a term of imprisonment of three (3) years.
32 On charge 12, indecent act, you are convicted and sentenced to a term of imprisonment of two (2) years.
33 I direct that one (1) year of the sentences imposed on charges 3, 5, 10 and 11 cumulate upon the sentence imposed on charge 8 and upon each other making a total effective sentence of nine (9) years’ imprisonment.
34 Pursuant to s16, ss(3C) of the Act and s6E of the Act, I direct that four (4) years of the total effective sentence cumulate upon any uncompleted sentence presently imposed on you.
35 Pursuant to s14 of the Act, I direct that you serve a minimum term of twelve-and-a-half years before you are eligible for release on parole.
36 Pursuant to s6F of the Act, I have sentenced you on charges 3 and 5 to 12 inclusive as a Serious Sexual Offender and I direct the fact that my having so sentenced you be entered into the records of the Court.
37 Pursuant to the requirement contained in s6AAA of the Act, I state that but for your pleas of guilty to the charges on the Indictment, I would have imposed a total effective sentence of 12 years’ imprisonment on those charges and I would have fixed a minimum term of nine years during which you would not be eligible for release on parole. There has been no presentence detention under the sentences passed this day.
38 Any matters arising out of that?
39 MS VERKADE: No, Your Honour.
40 MR SULLIVAN: No, Your Honour.
41 HIS HONOUR: Very well. Can you remove the prisoner, please.
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