Director of Public Prosecutions v White
[2019] VCC 1829
•7 November 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
CR-19-00431
Indictment No. J10968589
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| RICHARD WHITE |
---
| JUDGE: | HIS HONOUR JUDGE HIGHAM |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 12 June 2019 and 23 October 2019 |
| DATE OF SENTENCE: | 7 November 2019 |
| CASE MAY BE CITED AS: | DPP v White |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1829 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – indecent assault (person under 16) - plea of guilty
Legislation Cited: Crime Act 1958 (Vic), s 44
Sentence: Total effective sentence of 1 year and 10 months’ imprisonment with 17
months suspended for 17 months
Section 6AAA declaration: 2 years and 2 months’ imprisonment, with a
non-parole period of 18 months---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D Brown (Plea) Ms D Ellis (Sentence) | Office of the Solicitor of Public Prosecutions |
| For the Accused | Mr M Turner (Plea) Mr J Lavery (Sentence) | Victoria Legal Aid |
HIS HONOUR:
1Richard John White, you have pleaded guilty to two charges of indecent assault with a person under the age of 16. The maximum penalty for each of the charges is five years’ imprisonment.
2Tendered on the plea as exhibit 1 was a Summary of Prosecution Opening and I annex a copy of that document to these sentencing reasons. In brief, the circumstances of your offending was as follows.
3Your victims are biological sisters, Deborah[1] and Anne[2]. Deborah and Anne moved to Coburg with their family in about 1985 where they resided for about two to three years. Deborah and Anne attended Coburg Primary School where they met another student, Angela Jones[3]. You lived with Angela and her mother Lynette in living quarters behind an old shopfront in Coburg. You married Lynette Jones[4] in 1987. Deborah and Anne's parents worked long hours and so engaged Lynette Jones through the local council as a babysitter for their daughters before and after school. However, for most of the time you were left supervising Deborah and Anne.
[1] Deborah Matthews is a pseudonym
[2] Anne Matthews is a pseudonym
[3] Angela Jones is a pseudonym
[4] Lynette Jones is a pseudonym
4Your offending in this matter occurred on two separate occasions, between 1985 and 1987. The first instance of your offending was against Deborah Matthews. She was sitting on a chair in the shopfront area while you were on your knees in front of her. You removed Deborah’s underwear and then performed oral sex on her. Deborah was between the ages of eight and ten years of age. This is the offending that underpins Charge 1, indecent assault of a person under 16.
5The second instance of offending was against Anne Matthews. Whilst at home with Anne you asked her to come with you to the back shed. Once inside the shed, you stood in front of Anne, undid your trousers and showed her your penis saying, 'touch it, it's not going to hurt you'. You then touched your penis and said, 'kiss it', which Anne refused to do. You then began masturbating your penis and made her touch and rub your penis until you ejaculated onto the floor of the shed. You said, 'don't worry about it' and wiped it away with your foot. Anne was between the ages of six and eight. This is the offending that underpins Charge 2, indecent assault of a person under 16.
6Deborah made a statement to police on 20 March 2017. Anne made her statement on 22 April 2017.
7You took part in a record of interview on 24 July 2017. You denied the charges when put to you, but said,
'As I said before, my memory's hazy. I don't doubt, that I possibly did, but I can't remember any occasions. Um, yeah I – as I – I really can't remember it. All – All I can say is it might have happened but I can't remember it happening. Knowing what I was like at that time, like I was still what you call a paedophile, obviously.'
8You further stated,
'You know you can have like inclinations, but if it doesn't act on them, then that – that's what I mean, but at that stage I would have – I would have had to be classed as a paedophile. My record going back years, says that.'
9You were charged by police on 29 March 2018. The charges resolved on the day of the committal hearing, 4 May 2019 and you entered pleas of guilty to the two charges before me on 12 June 2019. I accept that your plea was entered at an early, if not the earliest stage.
10Tendered by the prosecution on the plea, were victim impact statements from Deborah and Anne, respectively exhibits 2 and 3.
11Deborah wrote,
‘I have spent my life running and hiding from my memories, relying heavily on drugs and alcohol to numb the pain. I have lost many jobs due to episodes of extreme depression. I used to stay awake for days so I didn't dream.'
She states that she has never allowed her children to be babysat; she does not trust males around them, and she restricts her children from going anywhere without her, especially when males could be present. She concluded, 'this event happened over 30 years ago, yet it has, and still has, an impact on my everyday life'.
12Anne also writes about the impact that your offending has had on her parenting. She describes being overly protective and stopping her children from attending social events. She experiences poor sleep, anxiety, post-traumatic stress disorder and a major depressive disorder. She feels like, 'the world is unsafe'. She has previously attempted suicide, and has been medicated for her mental health since she was 14.
13Anne expresses the shift in emotions that she has felt throughout her life since your offending. As a child she felt lost, powerless, scared, fearful, sad and confused. As a teenager she felt angry at herself, scared and disappointed that she didn't speak up, but also she lacked confidence to speak up. As an adult she describes feeling disgust, anger and hate.
14Whilst victim impact statements must not be permitted to overwhelm the sentencing process, no one can be in any doubt as to the lasting impact that your offending has had upon your victims.
15I turn now to your personal circumstances.
16At the time you committed these offences you were in your mid to late forties. You are now 80 years of age, born in March 1939. You currently reside in public housing in Warrnambool and have done so since your release from prison in 2011. I am told that the Department of Health and Human Services has a firm policy of tenancies being terminated upon an absence of six months or more. Your father had mental health issues and your mother died when you were 11 years of age. You were placed in a boys' home upon your mother's death, where you were then a victim of serious and sustained sexual assaults. You left the boys' home and schooling when you were 16. You told Murray Kingsley, Consulting Psychologist, that after you left the home,
‘I moved around for a while and finally moved into a house with Dad. But I hated him and resented the uncles and aunts for looking after my sister but sending me to the boys' home. I lived with him until I married. Dad was bad. He had been gassed in World War I’
17You attended a technical school for three years and commenced an apprenticeship as a carpenter but did not complete it. You've worked in the trucking industry as a labourer in factories, including eight or nine years at a paper mill. You've also attended adult night classes in maths and English. I'm told that you currently live a quiet life as a pensioner occupying your time with sketching and a weekly art class at a senior citizens centre.
18You married in 1964 and have also had a number of subsequent defacto relationships. You have two adult children, Alan and Kim, who are now in their 50s and you also have two grandchildren and one great grandchild. You have just completed a course of radiotherapy for lung cancer. You are awaiting further test results in relation to an updated prognosis of this cancer and the results of a separate test in relation to potential bowel cancer.
19Your other medical conditions include chronic obstructive pulmonary disease, atrial fibrillation and osteoporosis. Letters and reports from various medical practitioners were tendered as exhibits 8RJW and 10RJW on your plea. Indeed your plea was adjourned to enable you to complete the treatment course and for the Court to be provided with an updated prognosis. You have, it seems, suffered from depression for a number of years and I am told your current depression is quite severe.
20You now have a home in the Warrnambool region and Mr Turner, your counsel on the plea, described your current situation as the most stable that you have had in your 80 years of life. You currently live a very moderate existence. I am told that you completed the Sex Offender Treatment Program on 13 April 2011, during your most recent period in custody.
21I am now going to turn to your criminal history.
22You have a criminal history that is particularly relevant to the sentencing exercise, both in terms of the nature of your prior offending and the relationship in time, between some of that offending and the offending for which you now fall to be sentenced. On 3 June 1968, you were convicted and sentenced to two years’ probation, for two charges of carnal knowledge of a girl between the ages of 10 and 16 years of age. That offending occurred in 1967, when you were 28. On 1 April 1969, you were convicted and sentenced to 12 months imprisonment, with a non-parole period of six months, for a further charge of carnal knowledge of a girl between the ages of 10 and 16 years. This offending occurred against the same complainant from the above matter, after you had already been sentenced for offending against her.
23On 1 October 1980, you were convicted and sentenced to three years and three months’ imprisonment with a non-parole period of two years and six months for 12 charges of indecent assault of a female under 16. This offending occurred between 1972 and 1978 and involved five separate complainants. On 16 May 1988, you were convicted and sentenced to two years and six months imprisonment with a non-parole period of 12 months. This offending occurred in 1985 against your stepdaughter Angela Jones, who was also the school friend of the victims in this matter, Deborah and Anne Matthews. I note the proximity in time of this offending to the offending before me. The index offending was clearly committed at or about the time of that offending for which you were dealt with on that occasion.
24On 17 January 2010, you were convicted of one charge of gross indecency with a girl under 16 and two charges of indecent act with a child under 16. You were sentenced by Her Honour Judge Campton of this Court to two years and six months’ imprisonment. This offending occurred between June 1976 and June 1979.
25Mr Darryl Brown, learned counsel for the prosecution, submitted on the plea that general deterrence and denunciation were to the fore in this sentencing exercise. The offending represented a gross breach of trust, the children having been left effectively in your care. He noted your status as a serious sexual offender, although did not seek a longer than commensurate sentence. Rather, having regard to the principle of totality, which has particular relevance in your case, the prosecution fairly conceded that a partially suspended sentence was open as a sentencing disposition.
26Your counsel Mr Turner, on your behalf, expressed the hope that this plea proceeding could aid your victims in finding some closure. He conceded that you have relevant prior and subsequent convictions. As to the instant offending, he conceded that this was serious offending, that you were a carer for your victims, and thus your offending constituted a gross breach of trust on your part. He urged upon me your plea of guilty, which brought with it the saving to community of the time and cost of a trial, but also saved your victims from the trauma of having to give evidence. Your plea he submitted, was one of real value. He also submitted that it was indicative of remorse on your part. He referred to the report of Mr Kingsley[5], to which I have already made reference. Mr Kingsley is a clinical psychologist and his report was dated 25 May 2019.
[5] Exhibit 6RJW
27That report detailed an apparent recognition by you and insight on your part as to the nature of your offending. This apparently occurred during a group session of treatment during your last period of imprisonment. You recognised that you were settled and entrenched in your desires, you recognised the wrongfulness of those desires and the impact of your offending on your victims. You have instructed your counsel that those desires have gone. Mr Turner submitted that there were real prospects for your rehabilitation, both in terms of your own developing insight and, externally, the lack of any opportunity for contact with children of what had been the target age of your desire. Mr Turner submitted that in light of your prior prison sentence for offending committed at a similar time to the instant offending, the principle of totality has particular application in your case.
28He also raised the question of delay. He submitted that you have not acted on your desires for many years. As to your health, you have severely diminished physical capacity and your movement is restricted. Mr Turner submitted that you would find incarceration particularly arduous, that prison would be more burdensome for you than for a man of your age without your physical incapacities. Mr Turner accepted that general deterrence and denunciation must be to the fore, in addition to the need to protect the community from you. Mr Turner submitted that the need for a specific deterrence was considerably moderated, if not entirely diminished. His ultimate submission was that a term of imprisonment was the only appropriate disposition, but that a partially suspended sentence was open to the Court and could meet all relevant sentencing purposes.
29Mr White, you deliberately used the opportunity provided to you, to reduce these children in your care to objects, whose sole purpose was to satisfy your deviant sexual desire. As you must well know, offending against children will always be viewed by the Courts as serious offending. There has been over the past years a growing recognition by the courts of the, at times, lasting, impact that such offending has upon children. It follows them into and throughout their adult lives. It can often lead to lives that are not fully lived. Children who have been sexually offended against have their innocence and their sense of self stolen from them and they struggle to engage in healthy relationships. They struggle to find their right place in the world. Crimes against children are crimes against our common future and are thus crimes against our common humanity.
30Now, the sentencing process is not and cannot be about revenge. It is not about retribution and I am acutely aware that the sentencing process cannot give back to your victims that which they feel has been taken from them.
31In sentencing you, I must have regard to a range of different. I must give effect to the principle of general deterrence and I must consider specific deterrence. I must consider the need to protect the community from you and I must express the community's denunciation of your conduct. I must take into account the effect of your crimes upon your victims. I must have regard to the statutory maximum penalties for the offences to which you have pleaded guilty and to current sentencing practices and to sentencing practices at the time of your offending, insofar as they can be ascertained.
32In short, I must try to balance your personal circumstances with the circumstances of your offending. In my view, general deterrence, just punishment and denunciation are the primary sentencing considerations in your case. Your age and the time that has passed since any offending by you, reduces in my view, the need for specific deterrence and reduces the community's need for protection from you. Even though your offending occurred many years ago, a clear message must and will be sent from this Court to anyone who contemplates offending against children placed in their care, that if you are caught and brought before the court, even many decades later, even as an old man, you will be punished.
33I am required by law to pass no longer a sentence than is necessary. I am required to sentence you as a serious sex offender on these charges. Ordinarily, that means that I would be required to impose a sentence that is cumulative upon other sentences. I have moderated the orders for cumulation that I would otherwise have made, having particular regard to the principle of totality.
34I have had regard to all of the matters urged upon me on your behalf by your counsel. For the avoidance of doubt I have particular regard to your plea of guilty, which I do find to be of high value and which is indicative of remorse; to your age and infirmities; to the fact the prison will be more onerous for you; and to the principle of totality which has in my view, particular application in your case.
35Can you stand please Mr White?
36On Charge 1, indecent assault of a person under 16, you are sentenced to a term of imprisonment of sixteen (16) months.
37On Charge 2, indecent assault of a person under 16, you are sentenced to a term of imprisonment of twelve (12) months.
38I order that six (6) months of the sentence imposed on Charge 2 is served cumulative upon the sentence imposed on Charge 1.
39This makes a total effective sentence of twenty-two (22) months’ imprisonment. I order that seventeen (17) months of this sentence be suspended for a period of seventeen (17) months.
40I note that you have not served any pre-sentence detention in relation to this matter.
41Mr White, that means that you have five (5) months to serve and then you will be eligible for release.
42On Charges 1 and 2 you are sentenced as a serious sexual offender and I direct that this be entered into the records of the Court.
43Pursuant to section 6AAA Sentencing Act, had you not pleaded guilty, you would have been sentenced to a total effective sentence of two (2) years’ and two (2) months’ imprisonment, with a non-parole period of eighteen (18) months.
44Pursuant to the Sex Offenders Registration Act2004 (Vic), you again become a registrable offender but the period of registration is now for the remainder of your life. I note that you have previously been registered as a sex offender for a period of 15 years, but you are required to resign a document acknowledging that you have received notice of your obligations.
45Mr White, it will be clear to you that I've listened to the submissions that were made on your behalf and also to the very fair submissions that were made by Mr Brown on behalf of the prosecution, effectively on behalf of the community. So, I have passed a sentence which is so far as I understand, enables you to keep your housing, rather than you run the prospect of being back out on the street at your age with your infirmities. So I've tried to strike that balance ‑ ‑ ‑
46OFFENDER: I don't know if I can say anything but I think I've been very fairly treated um as you – as you say they're atrocious crimes and they're definitely not happening now and won't ever happen again so ‑ ‑ ‑
47HIS HONOUR: No. Well the Court tries always to find – to pass sentences that are just in the true meaning of that word ‑ ‑ ‑
48OFFENDER: Yep.
49HIS HONOUR: ‑ ‑ ‑ which tried and addresses the completing concerns.
50And to Deborah and Anne Matthews, can I say that
I have observed the way that you have conducted yourself this morning and throughout the other hearings and I thank you for the grace and the dignity that you have displayed, it doesn't go unnoticed by the Court.(Short adjournment.)
51Mr White, now I told you by operation of statute, you're now a registrable offender for the rest of your life and my associate Mr McKenzie is going to come and bring you a document which you need to sign, which just shows that you've been told of your registration requirements. Mr Lavery will go with Mr McKenzie and he'll be able to explain its meaning. Essentially, when you're released, once a year you have to provide your address and all of your online personas.
52OFFENDER: Yes.
53HIS HONOUR: There we are, we're all good to go now.
(Orders signed and acknowledged.)
54Thank you Mr Lavery. Now I've received a report from an endoscopist and a gastroenterologist surgeon Mr Wilhelm Wiggett and let me see, that details the discovery of sigmoid rectal polyps. And the plan is preparation for a full colonoscopy with allocated time for treatment. Now we'll provide a copy of this to Corrections.
55OFFENDER: Thank you.
56MR LAVERY: Thank you.
57HIS HONOUR: So this will go with the order. Corrections proudly boasts community equivalence in terms of the health care, so that will go with them.
58MR LAVERY: Yes Your Honour.
59HIS HONOUR: So in terms of custody management issues, I'm going to say that he has recently had – was it chemo or radio? Did you have chemo or radiotherapy, Mr White?
60OFFENDER: I had – I had radio.
61HIS HONOUR: Radio, all right. That he's recently had radiotherapy to treatment for lung cancer and there are suspicious polyps requiring ongoing monitoring.
62MR LAVERY: Yes Your Honour.
63HIS HONOUR: If I put something in those terms, will that sufficiently address?
64MR LAVERY: Yes Your Honour.
65HIS HONOUR: Mr White, are you in receipt of medication for your depression?
66OFFENDER: Yes.
67HIS HONOUR: You are.
68OFFENDER: Yes.
69HIS HONOUR: And do you have a prescription with you?
70OFFENDER: Yes, I do.
71HIS HONOUR: All right.
72OFFENDER: I have – I have a – an almost brand new packet on me - down in my bag.
73HIS HONOUR: You may not be able to take those in, but certainly if you have the prescription ‑ ‑ ‑
74OFFENDER: No, not the actual prescription.
75HIS HONOUR: All right, well you'll be seen by someone fairly early on there, this afternoon so if you just say what your medication requirements are, then certainly they'll make sure that you get them.
76OFFENDER: Yep. Okay, thank you.
77HIS HONOUR: All right? There are issues about taking medication in with you.
78OFFENDER: Yep. Thanks.
79HIS HONOUR: All right, Mr Lavery is there anything else you want to be put on in terms of custody management issues?
80MR LAVERY: No Your Honour.
81HIS HONOUR: All right Mr White, you can please go with the officer. You'll be seen this afternoon and it's very important, you tell them, in respect to your health ‑ ‑ ‑
82OFFENDER: Yeah, thank you very much Your Honour.
83HIS HONOUR: ‑ ‑ ‑ and particularly in terms of your anti-depressants. Thank you officers for taking him with you. Counsel are excused.84MR LAVERY: Thank you Your Honour.
85MS ELLIS: Thank you Your Honour.
86HIS HONOUR: Well both have a good day. We got there in the end.
87MS ELLIS: Thank you. You too.
88MR LAVERY: Thank you Your Honour.
89HIS HONOUR: Thank you Mr Lavery, thank you Ms Ellis.
‑ ‑ ‑
0
0
0