Director of Public Prosecutions v White
[2021] VCC 977
•7 July 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-19-00995
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LES WHITE |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 June 2021 | |
DATE OF SENTENCE: | 7 July 2021 | |
CASE MAY BE CITED AS: | DPP v White | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 977 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr .R. Pirrie | |
| For the Accused | Ms M. Brown |
HER HONOUR:
1Les White, a jury has found you guilty of 13 charges of committing an indecent act with a child under 16, three charges of sexually penetrating a child under 16 and one charge of attempted sexual penetration of a child under 16. The facts underlying your offending are as follows.
2At the time of this offending, which took place between 2006 and 2009, you were aged between 60 and 64 years of age. You lived alone at a house in regional Victoria. You were a friend of the complainant's mother. The complainant during this offending was aged between eight and 13 years. You had known the complainant's mother for most of her adult life. You became a close friend. You regularly spent time with her and the children. They lived in difficult circumstances. The complainant gave evidence that you supplied the treats that her mother could not afford and which were normally enjoyed by children with parents who had more money at their disposal than the complainant's mother had.
3The complainant’s mother appreciated your generosity. She trusted you to look after her children, that being, the complainant and her brother, and on occasions you spent time alone with them, you took them on outings to the movies, to swimming, and occasionally arranged for them to stay overnight at your home. You also regularly stayed overnight with the complainant’s mother and her two children, including the complainant, at their home.
4When the complainant Emily Cousins[1] was nine, her family moved to a rural property. The first incident occurred the night that the family first moved into their new home. The complainant was lying on the couch wearing her normal nightwear, which was a nightie and no underpants. You walked up to her from behind, put your hand under her clothing and rubbed her vagina. The complainant pretended to be asleep while you continued to rub her vagina for several minutes. She did not know what to do and she was too scared to tell her mother. The next day you spoke to the complainant and told her that she could not tell anyone about what you had done, saying bad things would happen if she did.
[1] A pseudonym.
5Charge 2 is a charge of sexual penetration of a child under 16. On another night when you were staying with the complainant’s family, you were sitting on a couch and the complainant's mother told her to go to bed and to say goodnight to you. The complainant’s mother left the room and the complainant, as usual, was wearing her nightie without any underpants, and she walked over to you to say goodnight. You picked her up, you stood her on the couch and told her that you were going to say goodnight to Flossy, which was a word she used at that stage to describe vagina. You lifted the complainant's nightie, you inserted your tongue into her vagina and you sucked and licked her vagina for several minutes. You then put the complainant on the ground. She went into her room and rubbed her vagina with a towel.
6Charge 3 is a charge of indecent act with a child under 16. On this occasion, you had stayed overnight, again, with the complainant’s family. You were in the kitchen and the complainant walked past to make her breakfast. You said that you were going to show her how to kiss properly and then kissed her, forcing your tongue into her mouth. The complainant went to the bathroom to cry and clean her teeth after this incident to get the feeling and taste of your mouth out of her mouth.
7Charge 4, was an indecent act with a child under 16, resulted in an acquittal by direction. You were also acquitted in relation to Charge 5, a further charge of indecent act with a child under 16.
8Charge 6 relates to an incident where you took the complainant and her younger brother to an indoor swimming pool. After they had finished swimming, the complainant’s brother went back into the swimming centre in order to retrieve the towel he had left behind. The complainant was left in the car with you. You tongue kissed her, at which time, she said in evidence, she was terrified that other people would see what was happening.
9Charge 7, indecent act with a child, involved an incident where the complainant, her brother and a friend of hers were staying with you at your home. During the night, she got up to go to the toilet, met you in the hallway and you put your hand under her clothing and rubbed her vagina with your fingers.
10Charge 8 is a charge of indecent act with a child under 16. On another occasion, you took the complainant's mother and her children to Melbourne to spend the day together at Luna Park. You all had a meal at a restaurant and then returned to your home. The complainant fell asleep on the drive home and on arrival at your house, you picked her up and carried her inside. While you carried her, you rubbed her vagina through her clothing with your fingers.
11Charge 9 is a charge of indecent act with a child under 16. On this occasion, you were staying with the complainant’s family overnight. The complainant got up during the night and walked to a nearby creek. She was wearing a long nightie. You followed her. When she realised you were there, the complainant turned back to walk to the house but you picked her up, because she was not wearing any shoes, and sat her on your shoulders. While you were carrying her, you put your hand behind your neck and used your fingers to rub her vagina around the clitoris. She asked you to put her down but you said you could not because she was not wearing any shoes.
12Charge 10 and 11 both arise in the same incident, and are both charges of indecent act with a child under 16. This was an occasion where you were staying at the complainant’s family new home. You and the complainant were sitting on a bed that had been provided for you in the loungeroom. You were wearing no pants or underwear and you encouraged the complainant to rub your penis. You moved your hand to help her rub up and down on your penis. That is Charge 10. You then told the complainant to kiss your penis. She did not respond immediately but you insisted. As a result of this, the complainant became fearful due to what she had been told at school, about contracting a sexually transmitted disease from you.
13Charge 12 is a charge of indecent act with a child under 16. Again, you were staying with the complainant’s family. The complainant, her mother, brother and you were sitting around the kitchen table which was covered with a tablecloth. The complainant's mother was sitting opposite the complainant. You, who were sitting next to the complainant, put your hand under the tablecloth and into the complainant's panties and rubbed her vagina with your fingers. You continued to do this for several minutes.
14Charge 13 is a charge of indecent act with a child under 16. On this occasion, you took the complainant’s family and two of the complainant's friends to a nearby cinema and then, afterwards, to an arcade area where there was several games. One of them was a horse-riding game, whereby the complainant sat on a replica horse. She pushed it backwards and forwards to gain motion. She was wearing a dress and while she was riding the horse, you put your hand under her buttocks and moved your fingers to push her underwear aside and rubbed her vagina with your fingers.
15Charge 14 is a charge of indecent act with a child. On another occasion, the complainant was staying at your home with two of her friends and you took them to play at a park across the road. You and the complainant ended up in a cubby house away from the others, at which time you rubbed her vagina until she left and ran out of the cubby house.
16You were acquitted on Charge 15, indecent act with a child under 16.
17
Charges 16 and 17 occurred when you took the complainant’s family to either the Traralgon or Melbourne Show and then drove them back to their home. You stayed the night. You got undressed and got into the bed that had been made up for you in the lounge area. The complainant, as usual, went to say goodnight. You told her to come over next to you. You pulled aside the blankets and she could see that you had no clothes on. You then took hold of her wrist and placed her hand onto your penis and guided it up and down. Those actions underly Charge 16, indecent act with a child under 16. You then told the complainant to suck your penis. You pushed her head down towards your penis, which you inserted into her mouth and she was made to suck your penis. That action underlies
Charge 17 on the indictment, sexual penetration of a child under 16.
18Charge 18 is a charge of attempted sexual penetration of a child under 16. On that occasion, you took the complainant’s family to a tractor pull and they returned to spend the night at your home. During the night, the complainant got up to use the toilet and had to walk through the kitchen where you were sitting. You showed her a box. You opened it and took out a vibrator, which she described as long and pink. You then put the vibrator between her legs. At this stage, the complainant became extremely scared, as she said, bolted and ran to the toilet.
19Charge 19 is a charge of sexual penetration of a child under 18. On this occasion, the complainant was staying with you at your home and you produced a battery powered back massager which you placed against her vagina. It consisted of three balled structures attached to the main shaft and you inserted one of those ball shaped parts of the massager into her vagina.
20Charge 20, a charge of indecent act with a child under 16, occurred when you were staying at the complainant’s home, and you turned on the massager and placed it against the complainant’s vagina.
21Ultimately, your sexual abuse of the complainant ended in the last part of 2009 when the complainant’s family was staying with you at your home and the complainant's mother, brother and the complainant were all sharing the same room. The complainant's mother woke in the earlier hours to see you enter the room and go to the bed where the complainant was sleeping. She saw you lift the covers and look at the complainant and her brother. She coughed and you left the room, but she said you came back several times. The next morning the complainant’s mother packed up her children and left. A few days later she confronted you about what she had seen. In evidence, her mother said you broke down and said that you loved the children and would not do anything to hurt them. You were shaking and crying and very distressed.
22The effects of your offending have had a devastating impact upon the complainant who read her victim impact statement out to the court. I make the observation that it was clear during the evidence that the complainant is an extremely intelligent person and her victim impact statement made for very difficult listening. One of her tragedies was that she was brought up in the Catholic faith and as a result of your actions on her as a little girl, felt that she was no longer a virgin, that she was unworthy, that she was going to go to hell, and that if she ever told her mother, she was essentially unclean, and because of what you had done to her, she would be rejected by her mother.
23The complainant said that the offending caused her severe stress and fear. She became unable to trust anyone, she began being scared of people in the streets, of being at school, or of being with her family. She said, 'I was scared of what they would say or do if they found out what happened. I thought I would be in trouble, that I would be punished physically or my mum would send me away and that I would go to hell instead of heaven. I was scared that no-one would believe me if I did tell them.' In other words, she suffered immense emotional anguish in addition to the distress she experienced as a result of your offending against her.
24She said she withdrew from family and friends. Her only escape was reading. She said she still experiences flashbacks and intrusive thoughts every day. She said she ended up sleeping in her mother's bed until she was 13 because she could not sleep alone. She said she developed nightmares, and indeed, there was evidence from her grandmother of a time when her granddaughter was staying with her, of the complainant’s nightmares, and of calling out in the night. She said that she developed an eating disorder, an anxiety disorder, depression and suicidal ideation. She has been diagnosed with complex post-traumatic stress disorder.
25The complainant said she began self-harming, scratching her skin and progressing to self-harming with razor blades and knives. She resorted to piercings and tattoos, 'Because piercings and tattoos were easy to hide but it was used as a self-harm.' She now has two children aged five and one. Because of the impact the offending had on her mental and physical health, her son was taken from her by the Department of Human Services and still remains located away from her. The complainant said, 'They said because I was a victim of sexual abuse as a child, that it might make me an unsafe parent to my son. I now haven't seen my son for over a year.'
26In common with many victims of child sexual abuse that this court has seen, the complainant has developed into an overprotecting parent towards her daughter. She says she doesn't feel, 'like anyone is safe to be near my daughter without me present. I am very cautious and suspicious of people around my children, including my daughter's father, and this causes difficulties in our family because I don't even feel safe to leave her with him.' She said she still sees people as threatening and struggles to make friends or trust people.
27In her last paragraph, the complainant stated: 'I have been unable to live a normal life since the crimes happened. I cannot work. I panic every time I see an older man with a white beard or grey hair. I have worse flashbacks when I do and it takes weeks to recover. Because I can't work due to the severity of the flashbacks and panic attacks when I'm triggered, I spent many years homeless and am still struggling just to have food on the table. I'm unable to do normal things like go to see a movie or go to lunch or go grocery shopping that most people would take for granted. I'm unable to provide the extra things for my children that they may love to do like sports or dance classes or days at places like Luna Park, which now trigger me. Holidays are out of the questions too financially, as I can't get a job to support myself and I've been getting benefits from Centrelink that barely cover rent and bills’. She described the difficulty of getting to medical appointments and counselling because of her fear of leaving home and because of the financial difficulty she said, 'When I do manage to go them, I generally go without food myself for about a week to make up for the cost.'
28Overall, because of your offending against her, the complainant has been, as she said, 'Unable to live a normal life, unable to work, study or to have ongoing stable housing or counselling to get better.' Sadly, she said she has come to terms with the fact that her life would never be, 'good, safe, normal or something I enjoy. I will forever be looking over my shoulder, scared of every car door, white flash of hair in a crown or white beard that I see. I will never be able to go without support to shop or experiencing anything outside of my home.' Again, incredibly tragically, she said that she hated herself because she was too scared to report the offending when it happened. She said that that meant that, 'Everything from when it first to now was my fault.'
29I want to say to the complainant that it is absolutely recognised in this court and, indeed, to the point that there is a new direction to the jury, which was given in this trial, that it is extremely common for victims of sexual abuse, particularly child victims, not to report that abuse for many, many years. Many victims of sexual abuse never report their offending. Your failure to report what was happening to you was absolutely not your fault and is an entirely common reaction for persons like yourself who were the victims of sexual abuse and I hope you hear me. You absolutely behaved completely in a way that the courts have come to recognise as an entirely normal response to the sexual abuse that you endured.
30The complainant stated, 'I had been terrified and felt responsible and powerless to help every other child who may have been in contact with the accused since the first incident because I was too scared to report anything.' Again, a feeling of being responsible to other children – (I do note that the only sexual offending that has ever been charged against Mr White is related to you) - fears about other children, fears about responsibility - and I am not saying that there were - again, are an entirely normal reaction. So that whilst you feel yourself to be abnormal, you are actually reacting in an entirely consistent way with that of many victims of sexual abuse.
31I now turn to your personal circumstances. You are now 76 years of age. You have no prior convictions. You left school when you were aged 14. You worked for most of your adult life. You worked as a farmhand, as a brick layer's labourer, in a plating room doing flash pipes, as a cattle truck driver, and you worked for Holden fixing wheels, wheel bearings and breaks. You married when you were 21 and you have two children from that marriage which ended many years ago. You are estranged from those children who now aged in their 50s. You apparently had a close relationship with a stepdaughter, but that has now broken down. You suffer from hypertension, emphysema, heart arrythmia and asthma.
32Whilst conceding that only a custodial sentence is the appropriate response by this court, your counsel did, in my view, make the following points on your behalf, which I accept. That is, that because of your age, you are less likely to pose a danger to the community most particularly to other children. You are more likely to die in gaol. You are, as an older person, more likely to experience difficulties serving a term of imprisonment and that, in terms of general deterrence, the sentence will be served in the context of advanced age, which must be considered, as your counsel said, in light of a gaol sentence on an older person. No psychological material was tendered on the plea.
33Ultimately, this was classic predatory, paedophilic behaviour involving the remorseless exploitation of a vulnerable little girl for a period of years. The acts you performed on her were degrading and callous. You saw her, quite clearly, as an object for the satisfaction of your own perverted sexual lusts. That poor little girl was entirely at your mercy. Her own religious training persuaded her that she was at fault in the ways that I have described. As I have said, she is an obviously highly intelligent person. Her life has been rendered, in many ways, an emotional agony because of what you did to her. Your monstrous selfishness and utterly callous sexual exploitation of that little girl already growing up in a family which suffered financial and social disadvantage was simply for the satisfaction of your sexual desires.
34Your offending represented a gross breach of trust. Her mother trusted you. You presented, I am sure, as somewhat of a saviour, as a family friend, as a person who was generous and who could provide things for her children that the complainant’s mother could not. You exploited a vulnerable family and, as I have said, a vulnerable little girl. You have shown not one shred of remorse. You have fought these charges from beginning to end. The complainant has had to give evidence twice; both at committal and at trial. During trial she not only underwent the trauma of cross-examination but had to face allegations that she was fabricating and making up these appalling sexual acts which you perpetrated upon her. In my view, it was a strong Crown case.
35The recordings of the complainant's calls with you were damning evidence of your evident sexual relationship with her as a child. I also congratulate the complainant on having the tenacity to pursue these charges. It appears at first there was some difficulties until the case got into the hands of the SOCCIT unit. In any event, in those calls, not only is it clear you are admitting to a sexual relationship with her, but you held and continued to hold the view that it was somehow consensual; that you only did things to her that, 'you wanted,' almost as if your victim had perpetrated the offending. Although there was no psychological material, it is my view that this was almost the classic narcissistic response of the paedophile who cannot and will not accept responsibility for his actions. At some stage in the pretext conversation you even managed to turn the conversation into a lament about your own failed relationships with other people and, incredibly, the complainant in that conversation sympathised with you.
36Whilst I accept your counsel's submission, I regard your offending as a grave example of a grave crime. The lack of previous convictions as a factor of mitigation, the authorities have made it clear, have far less weight in cases such as these involving a prolonged period of sexual offending against a child. In my view, just punishment and condemnation of your appalling callous offending dominate the sentencing exercise before me. I need to make a point about the maximum penalties available which apply to this offending.
37Pursuant to s.45 of the Crimes Act, as it then was, which was the charge of sexual penetration of a child under 16, the aggravating factors of either a child being under the age of 10 or under the care/supervision or authority of an adult, could affect the maximum sentence to the tune of 25 years and 15 respectively. However, these circumstances of aggravation can only be acted on by a sentencing judge in a trial where those aggravating circumstances have been pleaded on the indictments. They were not. Pursuant to s.45(2)(c), the maximum penalty for the charges is the sentence applicable to the charge of sexual penetration of a child under 16 which is 10 years imprisonment. The maximum penalty for committing an indecent act with a child under 16, is also 10 years imprisonment.
38Taking into account the mitigatory factors presented by your counsel in this case, I therefore sentence you as follows.
· Charge 1, you are sentence to 12 months' imprisonment.
· Charge 2, you are sentence to two years' imprisonment.
· Charge 3, you are sentenced to eight months' imprisonment.
· Charge 6, you are sentenced to eight months' imprisonment.
· Charge 7, you are sentence to 10 months' imprisonment.
· Charge 8, you are sentenced to 10 months' imprisonment.
· Charge 9, you are sentence to 12 months' imprisonment.
· Charge 10, you are sentenced to 16 months' imprisonment.
· Charge 11, you are sentenced to 20 months' imprisonment.
· Charge 12, you are sentenced to 16 months' imprisonment.
· Charge 13, you are sentenced to 16 months' imprisonment.
· Charge 14, you are sentenced to 16 months' imprisonment.
· Charge 16, you are sentenced to 16 months' imprisonment.
· Charge 17, you are sentenced to two years' imprisonment.
· Charge 18, you are sentenced to 14 months' imprisonment.
· Charge 19, you are sentence to two years' imprisonment.
· Charge 20, you are sentence to 12 months' imprisonment.
39
The base sentence will be the sentence imposed on Charge 2, two years' imprisonment. I order that six months of the sentence imposed on Charge 1, four months of the sentence imposed on Charge 3, four months of the sentence imposed on Charge 6, five months of the sentence imposed on Charge 7, five months imposed on the sentence on Charge 8, six months of the sentence imposed on Charge 9, four months of the sentence imposed on Charge 10,
10 months of the sentence imposed on Charge 11, 12 months of the sentence imposed on Charge 12, eight months of the sentence imposed on Charge 13, eight months of the sentence imposed on Charge 14, four months of the sentence imposed on Charge 16, 12 months of the sentence imposed on Charge 17, seven months of the sentence imposed on Charge 18, 12 months of the sentence imposed on Charge 19, and six months of the sentence imposed on Charge 20 be served cumulatively to the sentence imposed on Charge 2 and all other sentences. This give a total affective sentence of 11 years and one month and I order that you serve a minimum term of 8 years and nine months before becoming eligible for parole.
HER HONOUR: You may have a seat. Thank you. Is there anything else that I need to attend to?
MR PIRRIE: I'm sorry, Your Honour. Would you mind repeating the total effective sentence and the - - -
HER HONOUR: The total effective sentence - I hope my maths is right - 11 years and one month, with a minimum term of eight years and nine months.
MR PIRRIE: Thank you, Your Honour.
HER HONOUR: Thank you very much. I thank counsel for their assistance in this matter.
MR PIRRIE: Thank you, Your Honour.
HER HONOUR: You will be placed on the sex offender register for life. My associate will print that out and it will be served upon you. I declare that
22 days of this sentence have already been served by way of pre-sentence detention.
MS BROWN: As Your Honour pleases.
HER HONOUR: I'm going to have to stand down. Our wonderful CLMS program here has just stopped working for the moment. I'll just stand down whilst that is printed out. Mr White needs to stay in the dock so that that can be served on him. Thank you, I'll just stand down.
(Short adjournment.)
HER HONOUR: Yes, thank you. I understand there's some dispute over my additions but, anyway, we'll go through that.
MR PIRRIE: No, no dispute, Your Honour, we're just trying to work it out.
HER HONOUR: All right, so you've got the base sentence is two years. First, we will serve the sex offender's register papers on Mr White. I'll just add up again.
MR PIRRIE: We both get 113 if you add up the generated figures.
HER HONOUR: All right, so the cumulation Charge 1, six months, 3 four months, 6 four months, 7 five months - - -
MR PIRRIE: Yes.
HER HONOUR: - - - 8 five months - - -
MR PIRRIE: Yes.
HER HONOUR: - - - 9 six months, 10 four months, 11 10 months, 12 and 13 and 14 eight months each, four months 16 - - -
MR PIRRIE: No, I think I've got 12 months. We've both got 12 months on 12.
MS BROWN: And, Your Honour, if the cumulation ordered on Charge 12 is eight months instead of 12 months, which Her Honour's just said, that fixes the error that both my learned friend and I - - -
HER HONOUR: I must've said 12 months.
MS BROWN: Because it was Charge 12, perhaps we misheard, but in any event, if the order for cumulation - - -
HER HONOUR: I'd like to think counsel misheard; I don't like it being my fault.
MS BROWN: It must've been us, Your Honour.
HER HONOUR: It probably was me.
MR PIRRIE: We must've misheard it, Your Honour.
HER HONOUR: It probably was me. All right.
MR PIRRIE: That's the difference.
MS BROWN: Yes.
HER HONOUR: That's the difference? Good, I'm glad. No, I've obviously said Charge 12, 12 - I'm sorry about that, it was my fault. All right, does that take care of everything?
MS BROWN: And just for the record, Your Honour, that Your Honour has to declare that from Charge 3 onwards he falls to be sentenced.
HER HONOUR: He falls to be sentenced as a serious sexual offender. Mr Pirrie should've told me that, not you, Ms Brown.
MS BROWN: Well, Mr Pirrie did mention it while Your Honour was off the Bench.
HER HONOUR: You thought you'd take it and look good?
MS BROWN: I thought I would steal his thunder, Your Honour, unashamedly.
HER HONOUR: No problem. All right.
MR PIRRIE: I'm just a humble male in the background, Your Honour.
HER HONOUR: You're in the background, Mr Pirrie. It's probably good for you.
MR PIRRIE: Yes, I feel very much in the background, Your Honour.
HER HONOUR: That's terrible. All right, thank you. All right, that takes care of everything. The sex offender's been registered on him. I've already indicated how press are to report this. I wish you well, Ms Cousins.
MS COUSINS: Thank you.
HER HONOUR: Yes, I hope life pans out a little more easily for you in the future, all right? Thank you. Yes, very well. We will stand down. Thank you very much.
MR PIRRIE: Thank you, Your Honour.
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