Director of Public Prosecutions v Turner
[2012] VCC 822
•19 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL DIVISION
Case No. CR-12-00538
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| COLIN ERNEST TURNER |
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JUDGE: | HIS HONOUR JUDGE MASON | |
WHERE HELD: | Latrobe Valley | |
DATE OF HEARING: | 18 June 2012 | |
DATE OF SENTENCE: | 19 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Turner | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 822 | |
REASONS FOR SENTENCE
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Catchwords: Plea - sentencing - failing to comply with a reporting obligation contrary to s.46(1) Sex Offenders Registration Act 2004 - committing an indecent act with a child under 16
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Lynch | Office of Public Prosecutions |
| For the Accused | Mr R. Backwell | Victoria Legal Aid |
HIS HONOUR:
1 Colin Ernest Turner, you have pleaded to guilty to one charge of failing to comply with a reporting obligation contrary to s.46(1) of the Sex Offenders Registration Act 2004 and five charges of committing an indecent act with a child under 16 contrary to s.47(1) of the Crimes Act 1958.
2 Failing to comply with reporting conditions carries a maximum penalty of five years’ imprisonment and committing an indecent act with a child under 16 carries a maximum penalty of ten years’ imprisonment.
3 You have also admitted to a previous conviction on 28 February 2003 at the Wodonga Magistrates' Court for bestiality, and to two convictions for sexual penetration of a child under ten and two convictions for an indecent act with a child under 16 at the Melbourne County Court on 21 February 2003.
4
For the 21 February 2003 charges you were sentenced to a total effective sentence of imprisonment for 30 months with a non-parole period of
15 months and on the bestiality charge you were sentenced to imprisonment for six months concurrent with other sentences imposed.
5 The circumstances of your current offending are set out more particularly in the summary of prosecution opening tendered on your plea as Exhibit “A” and accepted by your counsel as an accurate factual summary for the purposes of sentence. I incorporate that summary into these sentencing reasons.
6 In essence the background of the current offences is as follows.
7 The victim in this matter was a young female born 29 December 2000 and was ten years old during the currency of your offending.
8 At the end of 2009 the victim's family was living in Yinnar and you had been invited to attend her family home by the victim's father, with whom you worked. The victim's father invited you around to his home because he felt sorry for you as you were on your own and did not have a family.
9 You started having meals and visiting on a regular basis and became a family friend. The family consisted of the parents, your victim and her three siblings. The victim was the youngest.
10 After a short time you started to take the children to various social activities such as the movies, and were spending money on them. You told the victim's mother that the children “were like [your] family and [you] would never hurt the kids”. She in turn began to appreciate your help, and began to rely on your help with the children as her husband was working every day.
11 In February 2010 the victim's family moved to Churchill and you continued to be a regular visitor to the home. The victim's mother states that after about six months she started to notice that you were beginning to favour the victim and you were asking the victim's mother if you could take the victim out on your own.
12 During the period 1 January 2011 to 22 April 2011 you assaulted the victim on a number of occasions when you were alone with her. You would hug her, then started kissing her on the cheek and then started kissing her on the lips. The victim stated that this would happen when “he wasn't around Mum and Dad." This conduct constitutes Charge 2, which is a representative charge for all the kissing that occurred at the victim's home in Churchill.
13
In April 2011 the victim's family were evicted from their home, and as they had nowhere else to go you agreed to let the family move in with you at Yinnar. Once the family had moved in you continued to pay special attention to the victim by continuing to buy her things and to take her places. The victim's mother has stated that you were starting to become possessive of the victim.
14 During this period of time whilst living at your address, you would place your hand under the clothing of the victim and feel her breasts and vagina on a regular and persistent basis. This conduct constitutes Charges 3 and 4 on the indictment, being representative charges of an indecent act with a child under 16 for the touching of the victim's breasts and vagina.
15 You had also kissed the victim regularly in an inappropriate manner. The victim has stated that you started to kiss her on the lips and: "he wouldn't care where we were or what we were doing. He would always expect a kiss or something." The victim's sister, who witnessed the kissing, has described the kissing as "tongue kissing". This conduct constitutes Charge 5, which is a representative charge of an indecent act with a child under 16 for the occasions of the kissing at your address at Yinnar.
16 On 20 December 2011 police received information from a member of the public that on 16 December 2011 a male was seen in a blue Holden car in a carpark at the Churchill Shopping Centre around 6 p.m. and that he was with a young girl in a school uniform and kissing the girl passionately on the lips. A vehicle check revealed your identity. This act of kissing constitutes Charge 6, indecent act with a child under 16.
17 At approximately 3.15 p.m. on 20 December 2011 the police attended at your home address in Yinnar and spoke to the victim's mother. The victim's mother informed police that she had been living at your premises with you since around Easter that year, and that she had moved in with her husband and four children. She told police that you were out collecting her daughters from school.
18 You arrived at the premises in your vehicle at approximately 3.38 p.m. and police observed that the victim was in the front passenger seat wearing her school uniform, and her sister was in the rear passenger-side seat. You were arrested and taken into custody.
19 You participated in a record of interview with police and admitted that you had been with the victim on 16 December 2011 and that you had driven around that afternoon. You stated that you had given the victim a few pecks and had not been kissing her in a passionate way. However, you further stated that you had been kissing her for some time but only like a parent would kiss their daughter. You also admitted further occasions of having kissed the victim. You stated that you knew what you did was wrong and that you should not have been kissing her like you did, but thought of yourself as like her grandfather. You stated that you had done nothing else to her or to any of the other children.
20 In relation to the family living with you, you stated that you were aware that you were on the Sex Offenders Register, but thought the family was only going to be with you for a short time and that you had not made any attempt to notify the Registry or your compliance officers of the fact that you had children living with you. You stated as your reason for not notifying the police of children being at your premises that "I keep coming into town and I keep forgetting." The reason for committing an indecent act with a child was: "No. I have no excuse to it."
21
You were remanded in custody following your arrest and you have spent
182 days in pre-sentence detention, not including today.
22 You are a registered sex offender pursuant to s.6 of the Sex Offenders Registration Act 2004.
23
On 5 January 2005 at the Wodonga Police Station you signed and received a receipt of Notification Of Reporting Obligations and Notification of Reporting Period documents. One of these obligations is that you must report three or more contacts in any 12-month period, with a child under the age of 18 years of age within one day of the third contact.
24 You have admitted in your record of interview that a family with four children had been living with you since Easter 2011. You also admitted that you had not reported this contact with the Sex Offenders Registration agency. This conduct constitutes Charge 1, failing to comply with reporting obligations pursuant to the Sex Offenders Registration Act 2004.
25 I now turn to your personal circumstances.
26 You are currently 63 years of age, having been born on 26 February 1949. You grew up in rural New South Wales in a poor family. Your father was largely absent as the police "would come and take him away because of the stupid things he would do." You have also described your father as being schizophrenic, who put wires through the roof of your family home, spoke of voices talking to him and doing "silly things".
27 You are one of 14 children, you were the 11th child. Your older brothers used to work and you and your younger siblings would collect firewood to sell. You mostly ate rabbit and often went hungry. You do not remember when your father died but remember he died "in a mental hospital in Goulburn". Your mother died in 1991 aged 78 or 79, and it appears that of your nine siblings still alive the only contact you have is with a sister named Judy who has visited you once in custody.
28 You left school at age 11 years, half-way through Grade 6, and started work at cleaning up a shearing shed floor. Thereafter you have been employed at a drycleaner’s and then 20 years in an apple-packing shed with your mother and sister. You subsequently worked a further five or six years in other apple-packing sheds and then either on sheep or dairy farms.
29 You had to cease work in 2010 because of a developing arthritis condition and have been placed on the disability pension. Since retiring you have spent your days gardening, mowing lawns and various other more sedentary activities because of increasing difficulty with arthritis.
30 You have reported no illicit drug use and no history of gambling or of alcohol abuse in any recent period.
31 You have described an incident which occurred in 1998 where you had been hit across the nose with a piece of steel or chain for which you were hospitalised, and also remembered breaking an ankle whilst working on a dairy farm in Numurkah. You report no history of counselling or psychiatric intervention other than the Sex Offenders Treatment Program whilst you were at Ararat Prison.
32 A report from Ms Pamela Matthews, forensic psychologist, was tendered on your plea. Ms Matthews has taken a background history from you and conducted a psychometric assessment. Testing places you in the mildly delayed range of functioning and it appears that you are significantly challenged in cognitive ability, having an overall chronological age equivalent intellectual function of between six and seven years. You are borderline intellectually disabled.
33 Furthermore, as to risk assessment for repetition of offending you are regarded as being in the high category, your history of chronic sexual offending meeting the diagnostic criteria for paedophilia. You have a limited history of intimate and non-intimate relationships with a tendency to be reclusive. Psychometric testing suggested an overlay of acquired brain injury of unclear origin. Your history has described a two- to three-year period of depressed mood, lowered appetite and suicidal ideation suggestive of a major depressive disorder.
34 You currently evidence some problems with stress and coping, and in Ms Matthews' view your relationship with the victim's family effectively was both a psycho-social and psycho-sexual stressor with which you did not cope. You also lack insight into your condition, which is consistent with your cognitive functioning. You are unable to identify to Ms Matthews what you had previously learned in the sex offender treatment at Ararat Prison.
35 According to Ms Matthews you were frank about your past offending, but had forgotten detail and seemingly had forgotten most of your current offending. You had a limited memory for most of your life story, and Ms Matthews concluded that it is likely that your lack of memory for your offending is a complex mixture of cognitive disability and conscious and unconscious forgetting.
36 Despite being unable to express specific remorse or empathy, you were able to express some generalised regret for your offending. Overall you were assessed by Ms Matthews as in the range of moderate to high risk of re-offending.
37 The commission of your indecent acts with the victim was persistent and sustained over time. Furthermore, your conduct can be appropriately described as incorporating grooming and a gross breach of trust. Although your offending on these occasions does not evidence escalating sexual violence it has involved a repetition of sexual offences with a child similar to those for which you were convicted in 2003.
38
Your offences for indecent assault are aggravated by the fact that you were at the time a registered sex offender and subject to the conditions of the
Sex Offenders Registration Act2004.
39 In mitigation I accept that you pleaded guilty at the first opportunity and that as a consequence the victim has not had to experience the further process of cross-examination, and that you should receive the full benefit of the utilitarian value of that plea as well as its expression of remorse.
40 Whilst I do not accept that sufficient evidence is before me to suggest that your moral culpability for this offence should be moderated by depressive illness, I do accept that at the time of the commission of these offences you were suffering from a lowered mood following your inability to maintain your employment and the developing restrictions and pain you were experiencing from arthritis. Your offending should be seen in that context.
41 I accept that your low level of intellectual functioning made you less capable of dealing with the psycho-social and psycho-sexual stressors which accompanied your contact with the victim's family, and some moderation of specific and general deterrence should be allowed for your moral culpability.
42 However, had you complied with the reporting conditions under the Sex Offenders Registration Program you would have been protected from those stressors. Other aspects of your personality and history suggest that you have no problems with basic planning, have always been able to find work and accommodation, had not breached bail conditions and did not appear to have difficulties with employment supervision. You had a clear capacity to comply with the program obligations you have breached and simply ignored them. I regard your breach as particularly serious and the moderation, otherwise allowed, should be militated by that circumstance.
43 I accept that your intellectual disability, arthritic condition and depression are such that your time in custody will weigh more heavily upon you than upon a person in normal health and that the sentence should be moderated accordingly.
44 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
45 With respect to Charges 2 to 6 you fall to be sentenced as a serious sexual offender. I am required to have regard to the provisions of Part 2A of the Sentencing Act 1991 which requires that I regard the protection of the community as the principal purpose for which the sentence is imposed. I may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of the offence considered in light of its objective circumstances. Any sentence imposed upon these counts must be served cumulatively unless otherwise ordered.
46 I have determined that in this case, because of your mental and physical disabilities, it is not necessary or appropriate in order to achieve protection of the community to impose a sentence which is longer than that which is proportionate to the gravity of each relevant offence in light of their objective circumstances and I note that the prosecution did not urge that I should do so.
47 Mr Turner, could you please now stand.
48 On Charge 1, failing to comply with a reporting obligation, you are convicted and sentenced to 6 months’ imprisonment.
49 On Charge 2, the representative charge of indecent act involving kissing at Churchill, you are convicted and sentenced to 6 months’ imprisonment.
50 On Charge 3, the representative charge of indecent act by touching the victim's breasts, you are convicted and sentenced to 12 months imprisonment.
51 On Charge 4, the representative charge of indecent act by touching the victim's vagina, you are convicted and sentenced to 2 years’ imprisonment.
52 On Charge 5, the representative charge of indecent act by kissing at Yinnar, you are convicted and sentenced to 6 months’ imprisonment.
53 On Charge 6, the indecent act of kissing in the car park, you are convicted and sentenced to 4 months’ imprisonment.
54 I direct that two months of each of the sentences imposed on Charges 1, 2, 5 and 6 and four months of the sentence imposed on Charge 3 be served cumulatively on the sentence imposed on Charge 4 and upon each other. Your sentences are otherwise concurrent, thereby producing a total effective sentence of 3 years’ imprisonment.
55 I direct that you serve 2 years’ imprisonment before being eligible for parole.
56 Pursuant to s.6AAA I declare that had you not pleaded guilty the sentence I would have imposed would have been a total effective sentence of 4 years’ imprisonment with a minimum of 3 years to serve before being eligible for parole.
57 I declare that the period that you have been in custody, namely 182 days not including today, be reckoned as a period of imprisonment already served under this sentence which is to be deducted administratively.
58
Pursuant to s.6F of the Sentencing Act you are sentenced as a serious sexual offender in respect of Counts 2, 3, 4, 5 and 6. All those offences, as I have already indicated, are registrable offences under the provisions of the
Sex Offenders Registration Act2004 and are categorised as Class 2 offences.
59 Because of your previous 2003 convictions for sexual penetration of a child, you have been found guilty of a Class 1 offence and now one or more Class 2 offences. By reason of your convictions you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
60 Pursuant to s.50 of that Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of the reporting period which, in your case, is for the remainder of your life.
61 The Notification of Reporting Obligations will be shortly handed to you by my associate and in the company of your barrister I will ask you to sign the Acknowledgement and return that to my associate in a moment after I retire from the Bench.
62 As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored the consequences that may arise, and in this case do arise, under the Sex Offenders Registration Act from the imposition of this sentence today. In other words the reporting burden you carry as a registered sex offender is not a matter that can objectively influence the imposition of a just sentence today. You may be seated for the moment, Mr Turner.
63 Mr Lynch, Mr Backwell, are there any other matters that I may have overlooked?
64 MR LYNCH: No Your Honour.
65 MR BACKWELL: No Your Honour.
66 HIS HONOUR: Is it necessary for me to make any formal recommendation of participation in the Sex Offenders Program whilst in custody? If not, in any event, I make that recommendation. I am sure it will be - - -
67 MR LYNCH: I am sure it will be - Your Honour is aware that he had done it.
68 HIS HONOUR: Yes that is right. Well, if there is any ability for him to do it again it would probably be helpful. I will just leave the Bench while those matters for the registration and signature are complied with.
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