Director of Public Prosecutions v White (a pseudonym)
[2021] VCC 2153
•17 December 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GORDON WHITE (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 October 2021 |
DATE OF SENTENCE: | 17 December 2021 |
CASE MAY BE CITED AS: | DPP v White (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2021] VCC 2153 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Sexual Penetration of a Child Aged Between 10 and 16 – Indecent Assault of a Child Under 16 – Historical sexual offending – Delay – Police action not taken initially – Relevant subsequent offending.
Legislation Cited: Sentencing Act 1991 (Vic); Sex Offenders Registration Act (Vic).
Cases Cited:
Sentence:Total effective sentence of 27 months imprisonment wholly suspended for a period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms G. Daniel | Office of Public Prosecutions |
For the Accused | Mr M. Habib | Docherty Legal |
HIS HONOUR:
1Gordon White[1], you have pleaded guilty to one charge of sexual penetration of a child aged between 10 and 16, which carries a maximum penalty of 10 years' imprisonment and one charge of indecent assault on a person aged under 16, which at the time it was committed carried a maximum penalty of five years' imprisonment.
[1]A pseudonym.
2You have admitted prior convictions that are of little relevance in the sentencing exercise. You have admitted subsequent matters that have some relevance to the sentencing exercise.
3In relation to the circumstances of offending I refer to the summary of prosecution opening for plea, which was Exhibit A on the plea and forms part of these reasons for sentence.
Circumstances of offending
4Referring to those facts briefly. Your offending was committed against Angelique McCoy[2], in respect of Charge 1. She was born in 1970 in New Zealand and at the age of six moved to Australia with her parents. Shortly before her parents moved to Australia they adopted Sophie Philips[3], who is the second victim in relation to this matter.
[2]A pseudonym.
[3]A pseudonym.
5The relationship between the two victims is best described as adoptive sisters. Sophie Philips mother was in fact Ms McCoy’s mother's first cousin and Sophie was adopted by Ms McCoy’s parents when she was a few weeks old. There is a six-year gap between the sisters.
6The victims’ mother separated and formed a relationship with another man who lived across the road from them at the time when they were living in Kerang and that man became the victims’ stepfather.
Background
7The family background was a turbulent one. There was a lot of family violence in the victims’ family. There was excessive drinking. And I only mention these matters because it provides the setting in which you, Mr White, entered their lives and committed the offending which damaged them in ways they express in the victim impact statements.
8There would often be parties at that household involving alcohol and drinking to excess, people becoming intoxicated, some adults staying overnight. Both victims recall little adult supervision as they were growing up. It was an environment in which they were exposed to those experiences and an environment in which they were not safe in the way they should have been.
9You were born in 1963 and you lived with your family in the same street as the victims did in Kerang. You had a younger sister. As your family only lived three houses away Angelique McCoy, the victim in relation to Charge 1, would often play with your younger sister growing up. Members of your family were often at the parties that I have mentioned that were held at the victims’ home.
10When Angelique McCoy was 14 years old she had a party at her home to celebrate her birthday. She says it went for five days. Towards the end of the celebrations she was alone in the loungeroom with you and you kissed her. That was a consensual act. A relationship commenced. You were 21, she was 14. Only a few weeks after turning 14 in fact.
11The basis of Charge 1 relates to an occasion of you having sexual intercourse with her a few weeks after her 14th birthday. In her bedroom she was getting changed to go to work for a part-time job at the local fish and chip shop and you had vagina-penial intercourse with her on her bed prior to her going to work.
12You were living at that time in a caravan at the Kerang Caravan Park and Ms McCoy’s mother used to give her permission to stay the night with you in the caravan. Ms McCoy’s ended up living with you in that caravan and continued to be in a sexual relationship with you until she was 18 years of age. During that time you and her lived in premises in Kerang and also St Kilda. She fell pregnant to you and your son Daniel was born in 1988.
13The relationship ended on the instigation of Ms McCoy when your son was about six months of age. The circumstances of that were at a party at her mother's place and her sister, Sophie, the victim in Charge 2 told her that she had woken up to you touching her ‘down there.’ You were at the party, Ms McCoy confronted you and that resulted in an argument, which in turn resulted in you leaving Kerang for some time.
14Ms McCoy endeavoured to report your sexual crime against her in 2005 when she was in Sydney and she went to Blacktown police station apparently to report the matter, and make a statement to police but that statement has not been able to be located. She understood that because the matter took place in Victoria no action would be taken. She reported the matter to police in Victoria in 2016 after discussing the matter with her sister, Sophie.
15In relation to Charge 2, Sophie Philips was six years younger than Angelique McCoy. She would often stay overnight with you and her sister, wherever you were living. On one occasion you sexually assaulted her. She was 12 years of age at the time. It was when you were living in Kerang. She was sleeping on a stretcher bed in the loungeroom. During the night she woke up and you were beside the stretcher, her underwear was around her ankles. She could feel your hand on her vagina. Sophie asked you what you were doing and you said, 'Can I? Can I?' Sophie yelled out to Angelique and you left the room.
16Sophie raised the alarm about this with relatives. No action was taken initially. She told an aunt and the aunt took her to the police station to report it. Police have a record of Sophie making a statement in 1990 but the statement cannot be located.
17Sophie of course later told her sister at the party about that and recalls Ms McCoy reacting furiously and going to the backyard, yelling at you and punching you.
18The Prosecution Opening notes in passing that later in life when Sophie was about 30 she had contact with you again because your son, Daniel, that is her nephew, was living with her in Melton and she ended up having a relationship with you. I was told she fell pregnant to you and that relationship later ended. I mention that as an example of the sort of counter intuitive behaviour that can take place when first; one so young as Ms McCoy is in a damaging relationship involving such a power imbalance, and second, where one is offended against at the age of 12, such as Sophie, particularly given their damaged and dysfunctional background, that sort of counter-intuitive behaviour often occurs.
19The community's becoming more aware of those sorts of issues in 2021. In 1990 police were not so aware of those sorts of issues. So too even perhaps in 2005 in Sydney. But quite clearly your victims both experienced and lived with a lot of pain during their lives and still do.
20It is unfortunate, that is perhaps an understatement, that police did not take action in 1990 or that liaison between New South Wales police and Victoria Police in 2005 did not take place because there have been effects of delay in your case, which I will come to and they are effects that operate in a mitigatory way.
21What I am endeavouring to emphasise is that there is good reason for those delays. There are also unfortunately reasons why the authorities did not take action at a more proximate time to the events once they were raised with them. They are not reasons to the credit of those authorities but they are reflective of society and the changes that have taken place and society's understanding of the damage and effects of sexual offending against young children and how that can manifest throughout life.
22There were victim impact statements tendered in relation to each of your victims, Ms McCoy and Ms Philips. The impacts upon them have been far reaching and significant. I have to observe, however, that I am dealing with you for two discrete charges and mere common-sense dictates that the sort of effects and trauma they speak of in their statements, that they no doubt experienced to a very significant extent due to their interactions with you, cannot all be distilled down to particular instances. That is part of the trauma and damage that gets occasioned when a 21-year-old enters a relationship with a 14-year-old and it becomes an ongoing sexual relationship or when someone much older than 21 indecently assaults a 12-year-old in the way you did. The trauma flows on down the years and manifests itself in all sorts of ways as are described in the disturbing victim impact statement material.
23I am not going to read from those impact statements. All I will say is I have read the statements, I take them into account. Their trauma is real and the impact upon them resulting from your actions has been severe.
24Sexual offending against children is inherently serious and one reason, one only, that it is so serious is what I have just touched on. That the damaging arising from the crime may not manifest for some time. The age disparity, the power imbalance, the abuse, are features the effects of which arise many years down the track.
25There are some features of your offending, however, that place it toward the lower end of the range of what is seen in these courts. Charge 1, the fact of the relationship is double edged. It is a relationship between a 14- and 21-year-old which had a level of family approval apparently. But there were dysfunctional family dynamics at play, obviously. The victim was not protected within her family and nor was Ms Philips. They were in an unsafe environment. The drunken parties that I have referred to are relevant to that assessment.
26You preyed upon that vulnerability but you did so as a 21-year-old. You were a youth yourself when you entered that orbit and no doubt were also under the influence of adults and older people that should have known better, but instead were giving tacit approval to the conduct.
27Charge 2 in its particulars, notwithstanding it is non-penetrative, has the more serious aspect that it depicts predatory and concerning behaviour. She was 12, you were in your 20s. Nevertheless, as Mr Habib points out, it was one incident and non-penetrative.
Personal circumstances
28I will turn now to your personal particulars. You are 57 years of age. I have been referred of course to your early 20s when you, as I put it, entered the orbit of both victims’ household. You were born in Melbourne, raised in Victoria. I was told you were raised in a religious household with six siblings. You were close with your parents. Both your parents have passed away. I was told you were raised in a stable home and were not exposed to sexual abuse, family violence or drug or alcohol abuse.
29You completed school until Year 11, went into farming and you have been gainfully employed up until around six years ago. You became a recipient of Centrelink and NewStart around six years ago but medical issues have intervened and I presume you are now on a disability pension. You have had a number of physical ailments in recent years, including a heart attack and issues with your digestive system.
30You have regular contact with one sister who lives in Sydney. Two of your siblings have passed away. But you also regularly spend time with one of your brothers who lives in Adelaide.
31You have had three long term relationships, I was told, two of those involve the two victims in this matter.
32You have a limited social circle. You currently rent a room at a boarding house in South Australia where you have resided since March 2021. Clearly you are a man of limited means.
33I was told you battled alcohol abuse but that alcohol consumption has decreased significantly in recent years. I accept also that you have difficulties with short term and immediate memory. However, there are no other cognitive difficulties or mental health disorders.
34You do have subsequent matters which I have referred to and they are relevant to sex offender registration. They are also relevant in assessing the period of delay. You have not been of good character in that period of delay, that is the period since the commission of these offences. But also of relevance is the fact that you have been required to engage in sex offender programs during that period of delay.
35You were convicted of indecent act with a child under 16 at the Geelong Magistrates' Court and sentence to 12 months' imprisonment. That was in 2014.
36OFFENDER: Eighteen months.
37HIS HONOUR: Sorry, 18 months' imprisonment, yes. Yes, I think there was a non-parole period of 12 months. You ended up serving all 18 months.
38In 2010 you pleaded guilty to indecent assault in relation to an offence which occurred in 1995 and you received an 18-month community corrections order. A 2014 conviction related to offending which occurred in 2012.
39I was told that you have been on the sex offenders registry since 2010 and that since 2012 there have been no reported breaches.
40During your time in custody you engaged in offender specific programs, including drug and alcohol treatment, sex offender program and specialised offender assessment and treatment service, which is commonly referred to as SOATS. Since 2014 you have not breached the sex offender registry requirements or the South Australian equivalent.
41A report from Ms Heimerich was tendered on your behalf, which highlighted your difficulty with immediate memory, referred to your stable upbringing, your history of gainful employment, your compliance with SORA and the South Australian equivalent, your current circumstances residing with six other men in a boarding house.
42In Ms Heimerich's opinion the treatment you entered into, pursuant to those subsequent sentences, the offender specific program, appears to have been effective. And that given the time since your last sexualised offending it appears to her in her opinion that you have been able to successfully rehabilitate. You have been managing your risk factors in the community, essentially keeping to yourself and associating with adults.
Mitigating factors
43A number of matters were raised on your behalf by Mr Habib in his excellent written outline and oral plea. I accept that in relation to Charge 1 your plea is an early plea. In relation to Charge 2 it is not as early as Charge 1 but I accept it is relatively early.
44Your pleas are extremely significant in the context of the pandemic. There is a significant utilitarian value to them, given the crisis in the trial lists.
45Mr Habib on your behalf made a number of submissions in relation to aspects of the offending which I should take into account in assessing the objective gravity of the offending. He conceded the seriousness of the offending, but I accept the matters he raised at paragraphs 35 and 36 of his outline in relation to factors that can be taken into account in assessing the overall gravity of the offending.
46Delay is a significant sentencing consideration in your matter, and I am not merely speaking of the period of time that has elapsed since the commission of the offences. Both complainants, both victims took steps at different times to bring this matter to the attention of the authorities but were let down. That is one aspect of it. The other aspect of it is had they not been let down you would have faced the court many years ago when you were a different man, a much younger man. Yes, you have had the benefit of living your life without this hanging over your head until the matters came to light in 2016. Having said that you have not lived an unblemished life in that time, as those subsequent convictions indicate.
47But in particular there has been a significant delay between the raising of these matters, your interview in April 2016, as I understand it, and you were not charged until June 2020. And of course we are in the pandemic which has made things difficult. You have been in South Australia. So those, whether it is three years or four years between the matters being raised and you being charged of unexplained delay is an appropriate matter for me to take into account.
48I also take into account that during the period of the whole of the delay, the whole of the delay I mean since the commission of the offences. During that period you have served an 18 month term of imprisonment in relation to sexual offending and participated in the designated programs as part of your rehabilitation. So that is a consequence of delay or an effect of delay which I take into account in your favour.
49I also have taken into account the consideration that if I were to gaol you to an immediate term of imprisonment you would be entering custody here in Victoria in the pandemic, in circumstances where you would be in isolation and then serving such term in the more onerous conditions that have arisen since the pandemic has required restrictions to be in place. You have no effective supports here in this state, which is another matter I have considered. You have essentially established your life in South Australia.
50I was also told that during your last period of imprisonment you abandoned your parole application due to not being able to arrange suitable accommodation in Victoria. So there are additional hardships you would face if I was to form the view that an immediate term of imprisonment was appropriate.
51I have had regard to current sentencing practices in relation to matters such as these. I must have regard to current sentencing practices. I must also have some understanding of sentencing practices at the time of the commission of these offences.
52Taking into account all of the matters I have referred to, Mr White, I am going to sentence you as follows. You can stand up, please.
Sentence
53In relation to Charge 1, you are sentenced to 12 months' imprisonment.
54In relation to Charge 2, you are sentenced to 18 months' imprisonment.
55Nine months of the sentence imposed on Charge 1 will be served cumulatively upon the sentence imposed on Charge 2. That makes a total effective sentence of 27 months' imprisonment. I wholly suspend that sentence of imprisonment for a period of three years.
56The effect of my sentence, Mr White, is that you have got a 27 month period of imprisonment but it is suspended, it is wholly suspended. So you can return to South Australia today but you have that hanging over your head.
57OFFENDER: Not good.
58HIS HONOUR: Had you not pleaded guilty - had you pleaded not guilty to these matters, pursuant to s 6AAA, I indicate that I would have sentenced you to a total effective sentence of three and a half years with a non-parole period of 18 months.[4]
[4]Sentencing Act 1991 (Vic)
59Now there is no PSD in this matter?
60MR HABIB: No.
61HIS HONOUR: No. All right, no other orders that are ‑ ‑ ‑
62MR HABIB: SORA, Your Honour.
63HIS HONOUR: Yes, of course the SORA, thank you very much. Yes.
64MR HABIB: Perhaps while Your Honour - is Your Honour ready to turn to that or perhaps I might take a moment to speak to Mr White.
65HIS HONOUR: You go down to speak to him, I will only need a moment. I just overlooked that.
66MR HABIB: Thank you. Thank you, Your Honour, for that time.
67HIS HONOUR: All right. Now you have previously been convicted of two Class 2 offences. The charges before me, sexual penetration of a person aged between 10 and 16 is a Class 1 offence. Indecent assault of a person under 16, Class 2 offence. Given your previous convictions for two Class 2 offences the appropriate period of registration is for the remainder of your life. So you will have reporting obligations for life. That needs to be understood and I think there needs to be documentation given to him and signed to that effect before he goes today.
68MR HABIB: Absolutely.
69HIS HONOUR: I do not need to remain on the Bench while that takes place. Your client ‑ ‑ ‑
70MR HABIB: Your Honour may need to sign the ‑ ‑ ‑
71HIS HONOUR: I have got to sign it too, do I? All right. You get so used to do everything remotely I forgotten what it is like to have people in court for these things. I will just wait out the back.
72ASSOCIATE: Yes.
73HIS HONOUR: Your client understands the sentence, Mr Habib?
74OFFENDER: Absolutely.
75MR HABIB: Yes, Your Honour, can you give me one moment to check my notes. It may be that Your Honour needs to make a declaration under the Serious Offences Act.[5]
[5]Serious Offenders Act 2018 (Vic)
76HIS HONOUR: Yes, well I am not sure but yes, I will have a look at the back.
77MR HABIB: It will be referred to in Mr Brown's submissions but ‑ ‑ ‑
78HIS HONOUR: I don't think it is but I will have a look out the back.
79MR HABIB: I'll know the answer in five minutes, Your Honour.
80HIS HONOUR: I will just stand down. We will get that documentation prepared.
81MR HABIB: Yes, as the court pleases.
82(Short adjournment.)
83HIS HONOUR: Yes, there is a serious offender provision. I have got it underlined and I had a look. But what is required is that I enter into the records of the Court that he is being sentenced as a serious sexual offender.
84MR HABIB: Not if it's suspended, Your Honour.
85HIS HONOUR: Not if it is suspended. Cause ‑ ‑ ‑
86MR HABIB: Under s 3(H), custodial sentence only applies if it's - well, one of the exceptions is a suspended sentence.
87HIS HONOUR: All right, yes.
88MR HABIB: I only found that out five minutes ago, Your Honour.
89HIS HONOUR: I mean it has no practical effect. Even if it did apply it has no practical effect on the sentence I have imposed, other than whether I needed to register it into the records of the Court. But I will not do that, I accept what you say about that, Mr Habib.
90All right, your client's got the reporting documents and understands it and has signed it?
91MR HABIB: Yes, Your Honour.
92HIS HONOUR: All right, well is there nothing further?
93MR HABIB: No, Your Honour.
94MS DANIEL: No, Your Honour.
95MR HABIB: Thank you, Your Honour.
96HIS HONOUR: Thank you very much, have a good Christmas everyone.
97MR HABIB: You to, Your Honour.
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