Director of Public Prosecutions v Webb

[2019] VCC 1706

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00342

DIRECTOR OF PUBLIC PROSECUTIONS

v

GREGORY WEBB

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2019
DATE OF SENTENCE:	17 October 2019
CASE MAY BE CITED AS:	DPP v Webb
MEDIUM NEUTRAL CITATION:	[2019] VCC 1706

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Plummer	Office of Public Prosecutions
For the Accused	Mr P. Smallwood	Kylie Moloney Legal

HIS HONOUR: 

1Mr Webb, you can remain seated and I will speak louder than I normally would.

2OFFENDER:  Thank you.

3HIS HONOUR:  On 30 September 2019, I granted your sentence indication application.  As a consequence, I made it clear that should you plead guilty to a proposed six-charge indictment I would not impose a sentence that involved immediate incarceration, rather I indicated that a wholly suspended gaol term was the just and appropriate sentence.  With that indication given to you, you then pleaded guilty on arraignment.  The plea hearing was adjourned to today.

4The circumstances of your offending were set out in the summary of the prosecution opening read and tendered on the plea.  The six charges were all indecent assault of a male person.  Five related to one victim, who I will refer to hereafter as the first victim, and one charge to a second victim, who obviously I will refer to as the second victim.  The maximum term for those offences at the time was five years' imprisonment.

5Different offences and much longer maximum terms of imprisonment apply now for the same sort of conduct, or exactly the same conduct.  These increases in the maximum terms evidences our community's greater understanding of the seriousness of sex offences against children.  However, I must operate in my sentencing undertaking on what were the maximum terms at the time you offended in the late 1970s and early 1980.

6In saying what I have just raised, of course sexual crimes against children have always been serious crimes and abhorrent to rightminded members of our community. 

7The broad circumstances are that in the 1970s and 1980 you lived on a farm near a small Wimmera town of Natimuk.  The first victim lived on a neighbouring farm.  You would visit the neighbouring farm and spend time with the first victim.  The two families also went to Port Fairy for summer holidays.  The time frame of the charges are broadly between October 1977 and the end of 1980.  What is alleged is that you introduced sexual matters to the young first victim in a way that he thought you were educating him on how to be intimate with young girls.  So Charge 1 was when you touched the victim's nipples, saying you should circle a girl's breast in the same way.

8This progressed, and it progressed to you forcing the complainant or the victim to masturbate your penis.  On a separate occasion you bent the victim over a bale of wool in the shearing shed and put your penis between his legs.  Understandably, he was fearful you were going to or try to penetrate his anus.   On another occasion, this time seen by the victim's older brother, you masturbated the victim's penis. 

9At Port Fairy, after other aberrant behaviour, you put the victim's penis in your mouth.  This example of an indecent assault of a male person is particularly concerning and serious as an example of that crime.  The first victim was between the ages of 12 and 15 at the time you offended against him.  You were between the age of 18 and 22.

10As regards the second victim, you met him at the local gym and tennis club.  One day or on one day between May of 1977 and April of 1980 you took that victim and another young boy to the drive-in cinema at Horsham.  You encouraged the boys to masturbate in your car.  At one point you touched the second victim's penis but briefly.

11As to the nature and the gravity of these crimes, being sexual abuse of young children, it is inherently serious offending.  To masturbate a young child, to give him oral sex, and to force him to touch your penis and masturbate you introduced the young child, the first victim, to adult sexual interactions when he was too young; he was vulnerable.  You were persistent and this offending with the first victim went over a period of time and occurred in different places and in different circumstances.  It was not one off.  By contrast, it seems the offending with the second victim was more one off and brief.

12Your crimes have had an adverse impact.  The presumption of harm of sexual abuse of children is borne out in these matters.  The courts have learned how entrenched and enduring harm from sexual assault can be, that is sexual assault upon a child.  Over the four decades since the crimes the victims have never forgotten what you did.  It adversely impacted upon their childhood sense of trust and generally well-being.  The victim impact statement of the first victim was heartfelt and direct.  The effect on the victim could be heard and felt as he read his victim impact statement in this court.  His words were eloquent and I quote just a few.

13He commences with, 'I feel sad and grief for my loss of innocence.  As a little boy I had my innocence taken from me.  Once taken, it has been lost forever and I will never have the opportunity to discover it again'.  I pause there to note that in my experience over a number of years of dealing with these historic child sex offences victim impact statements often speak of the sadness and the grief of loss of innocence.  It is easily said that it is no small matter.

14He says, 'I often wonder how my life would have turned out if I was able to discover naturally the wonders of puberty.  Instead I had to live with this feeling of expectation, a feeling to perform, before I was physically mature enough'.  He spoke about the difficulties that he had when he did form friendships with young girls.  He found that his emotions were 'not quite there'.  It led to a number of relationships breaking down, and he says, 'I'll never know how my life would have been if I was able to go through puberty without being interfered with'.  He says, 'There were a lot of wonderful things from my childhood'.  He grew up it seems with other siblings on the farm in the Wimmera in what would have been and described that way as an idyllic setting, but he says 'Unfortunately I can't look back on it fondly like I should be able to do because all I can see is a sweet boy being groomed and trained'.

15He does speak of being able to come to grips with what happened to him in recent times of contrasts to and impacts upon him.  He said three years ago he told his elderly parents.  He said the hurt in seeing his wonderful and otherwise happy 85-year-old father crying was something that will never leave him.  That is a matter that he should not have had to endure, but he said as to other matters that he is glad that five years ago he found himself in a position where he had the strength to confront and deal with what you did to him.

16All that said about your crimes, what has to be also necessarily acknowledged is there was no gratuitous violence, humiliation or degradation, although there was some abhorrent or aberrant behaviour, but not as there is in some of the sex crimes against children that sadly come before this court.  There was some but not a serious and comprehensive breach of trust, which is also so often the case in the matters before this court.

17In my view, these offences, save for the oral penetration which is more serious, are to the middle or lower end of the broad spectrum of this offending.  As to your moral culpability, that is itself significantly affected by your own young age at the time.  You were a young offender, aged 18 to 22 at that time, and although you were an adult at law when you committed these offences you were still very young and it seems immature. On this topic the words of the well-known and experienced criminal judge, Justice Vincent, are often repeated.  He said in respect of sentencing young people that when youth is raised for sentencing considerations the focus usually is placed upon the offender's prospects of rehabilitation but this is by no means the only basis upon which it assumes relevance.

For at least a century the attribution of criminal responsibility and the response in terms of dispositions handed down upon offenders has increasingly reflected developing ideas and understanding concerning personal responsibility, moral culpability and accountability. In the case of young people, to some extent the law incorporates acknowledgments of aspects of immaturity.  By reason of the stage of development that an offender may have reached, he or she may not fully appreciate the seriousness and the real consequences of offending actions.

18Also to the fore are the principles set out by Justice Nettle in Boland v R where he said the following, albeit about offenders a little younger than you were in these circumstances.  He said:

Decisions of this court in R v Nutter and R v Bedder recognise that where offences which are committed while an offender is a child or immature and not prosecuted until many years after the event there is good reason to mitigate penalty or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending.  Although such an offender falls to be sentenced as an adult, common sense and fairness dictates that the assessment of the nature and gravity of the crime and of the offender's moral culpability take into account that what was done was done as a child or a person of immature years and not as an adult or person of greater maturity.

19These words have been adopted and repeated in a number of cases that have been heard by our Court of Appeal in recent times: in Sheraton (2015), Hutchison (2018), in other cases such as Fleming and Routsie.  This indicates what the Royal Commission into Institutional Responses to Child Sexual Abuse have found is that coming forward to reveal sexual offending is no easy matter and there is often many, many years that passed and we are more often dealing with sentencing adults who committed crimes when they were children or of immature years, crimes committed on other children.

20His Honour Nettle J went on to say in those circumstances that general deterrence, which ordinarily plays a lesser role in sentencing in children than it does in the case of mature adults, must also apply in these cases, that is general deterrence which is an important sentencing purpose must be moderated in these cases, and so it is that there are a number of examples where offending of this kind has seen sentences of community corrections orders imposed or wholly suspended sentences of imprisonment or partially suspended sentences of imprisonment.

21As noted, these offences occurred somewhere between 38 to 42 years ago.  You are now 60 years old.  As to your personal circumstances, in the years intervening you have not reoffended.  This is a matter of considerable importance.  You have been a hardworking man on your farm and for a time in the local hotel.  You met and married your wife when you were in your early 40s.  You worked together for a while but that was years ago. 

22Due to your health and your emotional problems that have arisen as a consequence of the acute kidney or renal problem that you had, you have come to rely upon your wife in significant ways, so while you are able to perform routine farm and other tasks, you do not make or are not able to as you once were able to make more complex decisions.  Your wife is herself vision impaired and you play an important practical role in assisting her.  In short, you rely on each other to a great deal.

23The psychological report of Ms Matthews which was dated 25 April 2019 and an earlier neuropsychological report makes it clear that you have significant memory problems arising from your reaction to that significant health scare in 2012.  Beyond helping your wife, you do a lot to assist your 90-year-old father in aged care, that is daily attendance to help him with meals.  In my assessment of all the material which has been distilled it seems to me that this behaviour, the crimes that you committed, did not reveal psychological or psychosexual deviancies that have persisted.  In recent times the assessment of you is that you are a low risk of reoffending.  Though this was a factor in the assessment, the point to be made is that given the lack of any subsequent offending, that assessment of low risk has been borne out over a number of decades.  As you age and deteriorate in your health and otherwise the risk that you present to other children in the community is likely to further reduce.

24I see you at the present time as a vulnerable man. Although just 60 and not elderly, you have a number of health and mental health problems such that gaol, actual gaol, would be more onerous upon you given these deficits in memory and decision making and your physical health, and in addition to it being onerous upon you for those reasons personal to you, you would also be anxious and stressed about how your wife and frail father would be coping.

25A further important mitigatory matter is that you did plead guilty.  The plea of guilty in this matter is a valuable one and means the sentence that I impose is much lower and indeed of a different kind due in large part to the fact of your plea of guilty.  You relieve the victims of having to give evidence before a jury in a public forum.  I note, however, they were cross-examined at a committal.

26Your prospects are, it seems to me, to just continue your law-abiding life; however, you will live with the fact that your crimes of the past, hidden away for so many years, are now exposed in your community.  I do not overlook for a moment that these crimes have had a significant adverse impact on the principal victim and I infer upon the second victim, but taking into account all the factors I am of the view that all sentencing purposes, in particular protection of the community which must become the primary sentencing consideration due to the serious offender provisions within our Sentencing Act, that applies from the time that I have imposed two sentences of imprisonment and it applies thereafter for all other offences.

27However, central in the sentencing purpose is denunciation of these horrid crimes.  The community is intolerant of sexual offending against children.  No right-minded member of our community could feel any sense of comfort with the community and its values while child sex abuse still persists.  A matter of very significant importance is deterrence to others.  It must be unequivocally shown that those that enter what I have called before the dark realm of sexual offending against children, that if they do then stern sentences, most often involving actual imprisonment, will be imposed.  But these sentencing purposes together with the facilitation of your reform can be appropriately and justly met by the sentence of imprisonment that I will shortly impose, with an order that the sentence be wholly suspended.

28The words of the statute that existed at the time but suspended sentences no longer exist require me to consider whether it would be desirable if the sentence of imprisonment was wholly suspended.  I am required to come to this view in light of all factors including the need for denunciation and deterrence and the impact upon the victim.  I have come to the appropriate view that a wholly suspended sentence should be imposed.

29Would you please stand now, Mr Webb.  I have come to the view that for Charge 1, indecent assault of touching the nipples, that a term of imprisonment for such conduct is not just and appropriate.  It is not proportionate, it would be disproportionate.  What I impose is a conviction and fine for that crime of $500.

30For Charge 2 the sentence will be eight months' imprisonment; Charge 3, eight months' imprisonment; Charge 4, nine months' imprisonment, and Charge 5, the oral penetration charge charged as the indecent assault, 14 months' imprisonment.  For the indecent assault upon the second victim, Charge 6, four months' imprisonment.  I order that two months of Charge 2, two months of Charge 3, four months of Charge 4, and two months of Charge 6 be cumulative upon each other and upon the base charge, Charge 5 of 14 months.  If my mathematics are correct, and I will ask counsel to assist, that brings a total effective sentence of 24 months or two years.  I order that this sentence of imprisonment be suspended for a period of three years.

31I need to explain to you what a suspended sentence is.  I will do when I explain some other orders, but what I make clear is that had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of four years with a minimum of two years and six months.  For Charges 4, 5 and 6 I declare that you are a serious sexual offender.  That declaration will be entered into the records of the court.

32As a consequence of the crimes that you committed, that being more than three of this kind of offence, you are required to register on the Sex Offenders Register.  That is mandatory; so, too, is the period you must remain on it which is life.  The next matter is that an application has been made that you provide a forensic sample, that is a scraping from your mouth so forensic material can be obtained, DNA extracted and put on a database.  I intend to grant that application, the reasons being the seriousness of the offending and it is in the interests of justice that a forensic sample be taken and your DNA be placed on the database.

33I need to explain about that.  You have to get to a police station and have the forensic sample taken.  The police station nominated is on the form that you will get, but there is a period of time in which you have to do it so the window that opens in which you must get this done starts four weeks from now and it stays open for four weeks.  In that time you must get the forensic sample done.

34Back to the suspended sentence.  I have imposed a sentence of imprisonment but wholly suspended it.  What you have to understand is that during the time of the period of suspension, of three years, so within that period of time that if you commit another offence punishable by imprisonment of any kind, that is an offence punishable by imprisonment, that is all – it may be theft from a shop – that is punishable by imprisonment whether you go to prison for that crime or not, that would breach the suspended sentence.  That would mean you would come back before me and I would be obliged to order that you serve every day of the suspended sentence, two years – every day of it – unless you can show that exceptional circumstances have arisen and it is in the interests of justice.  Do you understand that?

35OFFENDER:  I do.

36HIS HONOUR:  All right.  It requires you to be of good behaviour for the next three years and essentially the requirement should be for your own moral compass that you do not reoffend ever.

37Is there anything else required?

38COUNSEL:  No, Your Honour.

39HIS HONOUR:  Did the maths add up?  It did, thank you.  The police station is the Horsham Police Station.  Do you know where that is?

40OFFENDER:  Yes.

41HIS HONOUR:  The Sex Offenders Registration Act requires certain things happen in court about that.  What has to happen is that I sign a document that says that I gave you a document.  You then get the document and sign another document to say that you got the document.  There it is.  It is the document itself that you keep that is critical.  It sets out your responsibilities in respect of the Sex Offenders Register.  They are numerous and onerous, for good reason.

42What also is set out there is perhaps briefer, but the consequences of not complying.  To not comply is a criminal offence punishable by imprisonment, so non-compliance with the Sex Offenders Register will breach your suspended sentence.  Do you follow?

43OFFENDER:  Yes.

44HIS HONOUR:  That is probably your greatest risk.  I am signing this document to say I am giving you the document.  Mr Smallwood, or if your instructor can just show Mr Webb where to sign the other document.

45MR SMALLWOOD:  Yes, Your Honour.  Indeed.

46HIS HONOUR:  And then we will give it to the Chief Commissioner of Police.

47MR SMALLWOOD:  If the court pleases.  Mr Webb has signed that acknowledgment, Your Honour.

48HIS HONOUR:  Thank you.  The document I received back is signed by
Mr Webb acknowledging that he has received the notification of reporting obligations and the notification of the reporting period.  My associate will sign that and forward it to the Chief Commissioner of Police.

49Mr Smallwood and Mr Plummer, firstly thank you very much for your assistance.  The second thing is that, Mr Smallwood, you raised the issue that the press are here and they have an interest in all these matters, and rightly so.  The second thing you raised about an investigation just throws another dynamic in so we just need consideration of these things.  First I might address Mr Mackley again about something, which I often start with and did not in this case at the start of the sentences.

50Mr Mackley, I never refer to victims by name any more and many of my colleagues do not.  It is not out of disrespect as if I do not know who you are and I just give you a title, Victim 1 or something, but it is out of respect for your privacy and the like because of the things we are talking about.  We can in certain instances go further and anonymise various things in our sentences.  There are plusses and minuses about that.  I have to make that decision, I am just explaining that to you, so that is why you are not referred to and I will work out whether this case is anonymized, simply by anonymising
Mr Webb's name and calling him something else.  That is where it begins and ends.  There is not a lot about the circumstances that would reveal, maybe Natimuk is small but that is about it, so I have to give that some thought.

51The other consideration about all that is what I have been told, but rest assured that no one can publish anything that could identify you as a victim of a crime of this kind.  The press know that and they do not, so have some assurance about that.

52Mr Plummer, is there any reason why I would not allow the press the benefit of having this on the portal, as we call it, so that they can listen again to what I said immediately and make sure they have got it right as they busily took notes.

53MR PLUMMER:  No, Your Honour.

54HIS HONOUR:  Thank you.  Do you say anything that might compromise any further proceedings or might have any impact, adverse or otherwise, to any further investigations if this matter remained, as I would be inclined to, not anonymised, does not have those familiar connections and the like?

55MR PLUMMER:  I don't have any information that could require that, Your Honour.  I don't believe it would cause any difficulties.

56HIS HONOUR:  All right, thank you.  Mr Smallwood?

57MR SMALLWOOD:  Your Honour, there's no sound basis that I can think of on which I could make an application for anonymisation or non-publication and I don't seek to make either application.

58HIS HONOUR:  Thank you very much.  This matter will be on the portal for anyone who wishes to check things through and it will not be anonymised.

59MR SMALLWOOD:  As the court pleases.

60MR PLUMMER:  As Your Honour pleases.

61HIS HONOUR:  Again, I thank the parties for their assistance and those that came and the dignity shown and the distances travelled.  Thank you.

62COUNSEL:  If the court pleases.

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