Director of Public Prosecutions v Ward
[2023] VCC 1810
•9 October 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 22-02045
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERRENCE WARD |
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JUDGE: | HIS HONOUR JUDGE MULLALY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 October 2023 |
DATE OF SENTENCE: | 9 October 2023 |
CASE MAY BE CITED AS: | DPP v Ward |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1810 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Plea – Indecent Assault – Deterrence – Denunciation – Currently Serving Sentence – Protection of the Community – Concurrency – Proportionality – Totality – Wholly Suspended Sentence.
Cases Cited: Worboyes v The Queen [2021] VSCA 169.
Sentence: Two months' imprisonment wholly suspended for 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr T. Danos | Office of Public Prosecutions |
For the Accused | Mr R. Thyssen | James Dowsley & Associates |
HIS HONOUR:
1Terrence Ward, you have pleaded guilty to one charge of an indecent assault. It was set out on Indictment K12047704.2A. The indecent assault occurred between 12 January 1989 and 11 January 1990, all now over 33 years ago.
2The victim was a 10-year-old child who visited relatives in Warrnambool over the summer holidays. She was one of three girls. You were recently found guilty by a jury of serious sexual offences perpetrated on one of the victim's sisters.
3On 16 May 2023 the trial judge, Judge O'Connell, sentenced you to five years with a non-parole period of two years and three months. You are currently undergoing that sentence.
4These charges were severed from the charges on the indictment that proceeded as a trial before Judge O'Connell. Thus, there are real issues arising from the application of the sentencing principle of totality. I have read His Honour Judge O'Connell's reasons for sentence.
5The circumstances of this offending are very similar to the offending perpetrated on the victim's sister that went to trial, save that the extent and the gravity of those other crimes involved penetrations and are self-evidently more severe than what is before me here today.
6That said, any deviant sexual offending against a young child is abhorrent and requires denunciation and the expression of deterrence.
7The impact on the victim is presumed. There is no victim impact statement. The courts now are better informed on the impact of sexual offending generally on young victims. I take that into account.
8As I have said, I have read Judge O'Connell's sentencing remarks where he succinctly sets out your personal circumstances.
9You are now 77 and a half. You have advanced diabetes requiring injectable medication as well as daily oral medications. You have other cardiovascular disease. The diabetes is managed in prison and the management is appropriate, however diabetes is an ongoing disease without cure in which impact increases over time.
10What his Honour set out in paragraphs 32-37 of his sentencing remarks are adopted here. They set out, as I say, your personal circumstances, your upbringing, your work in the Pacific Islands and then subsequent. I will append His Honour's sentencing remarks to these sentencing remarks.
11It is to be noted you committed serious sexual offending between 1981 and 1987 which saw you sentenced in 1994 to a term of imprisonment of two years and three months with a non-parole period of 12 months. That sentence was imposed in the County Court. Upon release, you underwent a sex offender treatment program as well as private psychiatric treatment. You have not re-offended since your release from prison in the 1990s, but you have lived with your then partner for over 20 years. It seems following the conviction of the offences before Judge O'Connell the relationship is now problematic.
12It was put to Judge O'Connell that at your age and with your health concerns, that much of your remaining useful life could well be served in prison. His Honour factored in those matters in arriving at what was a just and appropriate sentence, but one that it is fair to say was a merciful sentence.
13You will be eligible for parole in two and a half years from February 2023. You will be 80 or into your 80’s.
14Taken separately from all of the other sex offending on the victim's sister, where you ran a trial, this offending may not have attracted a term of imprisonment to be immediately served if it was dealt with at the time or even separately from the offending that has seen you now serving a term of imprisonment, that is, if you were found guilty.
15Suspended sentences were available at the time of your indecent assaults on this victim in 1989-90. They are no longer available. The Court of Appeal has spoken of how Community Corrections Orders can often now be given for crimes that in the past would have attracted a suspended sentence, either wholly or partially. A Community Corrections Order which may well be an appropriate sentence is not possible in your circumstances, given the term of imprisonment you are currently undergoing.
16A proportionate sentence for the indecent assault of placing the victim on your lap when you were sexually aroused, is an indecent assault at the lowest end of the scale of seriousness. Both parties indicated that that was the assessment that I should take.
17Any gaol term to be served immediately would at the time, and still now, be a stern sentence. This is especially so as you are undergoing a long sentence and many of the sentencing purposes such as specific deterrence and protection of the community are now managed by the sentence that you are currently undergoing.
18You are declared as a serious sexual offender under the serious offender provisions of the Sentencing Act1991. The primary sentencing factor to be, once you are convicted of this sentence, protection of the community. As I indicated, protection of the community by incapacitation is well and truly managed by the sentence that you are currently undergoing.
19The other factor of the serious offender provisions is that the sentence that I impose, if it is imprisonment, ought to be cumulative upon any sentence that is imposed at the same time, or any sentence that you are undergoing, unless I otherwise order.
20For all the reasons that I have outlined, in my view it is not appropriate to have a sentence that is cumulative upon the sentence that you are currently undergoing.
21The prosecution urged that there be a sentence of actual imprisonment, but it should be wholly concurrent.
22In my view, the sentencing purposes of denunciation and general deterrence can be met by a sentence of imprisonment that is wholly suspended. That type of sentence is one that adheres to the ongoing and very important sentencing principle of proportionality. It also is appropriate in terms of totality.
23Your plea of guilty and the benefit that thereby comes to you because you pleaded guilty, in my view also makes a suspended sentence appropriate. Or to use the language of the statute of the time, it is desirable.
24The benefit to you is an augmented one because you have pleaded guilty while the court lists are affected by the pandemic, at least in the sense that the Court of Appeal in Worboyes,[1] that decision still applies.
[1]Worboyes v The Queen [2021] VSCA 169.
25So, the sentence that I impose upon you for the single crime of indecent assault is a sentence of two months' imprisonment wholly suspended for 12 months, and it be operative from now. That is, the sentence is imposed but it is wholly suspended.
26I am required to indicate to you what a wholly suspended sentence means and what would occur if you breached it. The suspension period that I have imposed will be totally absorbed by the time that you spend in prison, but nonetheless if you commit an offence that is punishable by imprisonment while you are in the prison, then you would breach the suspended sentence and you would return back to me, and I would be almost certainly obliged to impose the two months that I have said is the term of imprisonment. So, there is still something operative as to the suspended nature, that is if you commit an offence that is punishable by imprisonment within the next 12 months that would breach this sentence.
27Had you pleaded not guilty to this offence and been found guilty of it I would have imposed a sentence of six months and ordered that four months be cumulative upon the sentence that you are currently undergoing, and I would have adjusted your non-parole period by that amount as well.
28You are already declared as a serious sexual offender and you are also for this offence. By reason of the statute, the Sex Offenders Registration Act 2004 (‘the Act’), you have been required to register upon your release as a sexual offender under the Act for the offences that were before Judge O'Connell. His order was that the length of time that you will be registered is life. The length of time that is set out for this offence is eight years, however under subsection 34(1)(c) of the Act, you must continue to comply with the reporting obligations for the remainder of your life given previous findings of guilt.
29The consequences of you not registering or not complying with the Act are serious to those upon their release who are registered, if they do not abide by all that is required of them, which are onerous responsibilities.
30Documents will be provided to you and further assistance will be provided to you no doubt by lawyers or Corrections once you are released, as to what your obligations are. It is necessary for you to sign a document to say that you have been given documents relating to your sex offending. That is difficult to do when you are not in the room, but do I take it that you give your consent to the signing of those documents, Mr Ward? That consent means simply that you consent to the fact that I will give you the documents. It is a strange concept, but it is not you consenting to doing the order but rather at this point, you indicate. I sign a document that says I have given you documents, and you sign a document that says you have been given documents. But can you say whether you consent to all that, Mr Ward?
31OFFENDER: I do, Your Honour.
32HIS HONOUR: Thank you kindly. That is covered. We will note that on the various documents when they are sent off to the Chief Commissioner. Is there anything further required?
33MR THYSSEN: Not from me, Your Honour.
34MR DANOS: No, Your Honour.
35HIS HONOUR: Thank you. Do you want some time, Mr Thyssen, just to have a quick chat?
36MR THYSSEN: I'll have a quick chat to him.
37HIS HONOUR: I will stand down and Mr Danos can head off and do other things. Thank you.
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