Director of Public Prosecutions v Whitmore

[2013] VCC 730

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

AT LATROBE VALLEY

CRIMINAL DIVISION

Case No.

DIRECTOR OF PUBLIC PROSECUTIONS

v

GARY KENNETH WHITMORE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	21 May 2013
CASE MAY BE CITED AS:	DPP v Whitmore
MEDIUM NEUTRAL CITATION:	[2013] VCC 730

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr K. Doyle	Office of Public Prosecutions
For the Accused	Mr N. Howard

HIS HONOUR:

1       Gary Kenneth Whitmore, you have pleaded guilty to one charge of indecent assault.  That crime carries a maximum penalty of five years imprisonment.  You are now 55 years of age.  You pleaded guilty to a settled indictment which was resolved before trial.  You must get the benefit of that plea of guilty.  You also get the utilitarian benefit.  The complainant in this matter was not called to give evidence on her special hearing and it is clear from the nature of your record of interview that were she to have been called the cross-examination may have been very unpleasant for her.  It is to your credit that that did not occur and I take that very much into account.

2       You have no prior convictions.  I say that because of the nature of the offending you will be placed on the Sex Offender's Register and the reporting conditions will be for eight years.  I will just ask you to sign the acknowledgement of that now.

3       The matter resolved in March of this year and a settled summary has been provided.  In essence you and your family were friends with the family of the complainant.  She was 13 years of age.  You were her coach at one stage for ten pin bowling and she worked in the kiosk in an area where you were frequently there, being the bowling club.

4       On a night in early 1984 before she turned 14 she was unwell and left the kiosk early.  You drove her home.  Before leaving the kiosk you asked her into the back area of it.  You got her to sit on your knee, picked her up and sat her on the counter.  You put your hand down her pants and rubbed her vagina for about ten minutes.  That is occasion 1 of what is obviously a rolled up Count.

5       The second episode was about three weeks later again while she is still only 13.  She stayed at your house, slept in a separate room.  She woke up in the late hour of the night to find you using your fingers to massage her clitoris.  One week after that, still before she turned 14, you picked her up from home, took her to your house, took her to the lounge room and you sat her down on a pouf, took her pants down and licked the outside of her vagina.  That gives rise to occasion 3.

6       By way of context it is clear that a sexual relationship continued on from that time to around about 1988 or early 1989.  At that point she broke of the relationship with you.  There was a pretext conversation where you essentially acknowledged the wrongfulness of what you had done.  In your record of interview you denied any offending before her 16th birthday.

7       The report from Mr David Bruce, psychologist, does not really go into the detail of how the relationship started other than you expressed to him that it was "a real one".  That may well have been the case eventually but the fact of the matter is that you, at the time, were 26 and she was 13 and you simply cannot do it.

8       Her victim impact statement shows exactly why it cannot occur.  She talks about the ongoing stress and trauma and psychological difficulties that have occurred.  She is referring to the entire relationship so of course I have to be careful in terms of trying to relate it to this rolled up count but from what I can gather this would seem to be the start of all that.  I clearly take into account the damage that has been done to her.

9       This sort of offending is always serious, even if it is historical.  General and specific deterrence are called for as well as denunciation and appropriate punishment.  I then look to matters personal to you. Tendered on your behalf was a report from a Mr David Bruce that I have already referred to and also a number of quite glowing references. 

10      The situation is clear that you have a very good work record and have been with the same employer for years.  You have a marriage which has existed now for a couple of decades and you have step-children.  You have been a member of the Traralgon golf club and would appear to have been, in all respects, a good and community minded citizen. 

11      I note in the reference, and there a number of them all of which I have read, from your employer that you had discussed it with him and told him what you had been charged with.  He says it is a testament to your integrity with your action that you took to resign your post of secretary treasurer at the Traralgon golf club.  That also meant that you needed to explain yourself to the members of that club which took some courage to do so.  I accept that that is right.  I also accept that because that clearly there is going to be community knowledge of all this and that will not have been pleasant for you or for your family.

12      At 55 with no priors, a good work record, a stable environment and an opinion from Mr Bruce that you are a low risk of offending I think that a suspended sentence is the appropriate disposition.  There was talk of a community corrections order but I cannot see the point of that so long down the track.  A suspended sentence covers both general and specific deterrence and also shows the denunciation of such offending and recognition of why 13 year olds cannot be treated in this way.

13      Accordingly on the Count of indecent assault you are sentenced to be imprisoned for a period of six months which is wholly suspended for a period of 12 months.  I do that because it is in the interests of justice to do so.  I say this pursuant to s.6AAA whilst of course you cannot be convicted by a jury of a rolled up count it is important that you understand the benefit to both yourself and your family of having resolved this matter.

14      I say but for your plea of guilty you would have been sentenced to be imprisoned for a period of 12 months with six to serve.

15      All right, stand up for me, Mr Whitmore.  You have got six months suspended for 12.  Anything that involves an offence punishable by imprisonment breaches it.  Shoplifting, driving whilst disqualified, anything like that, a second 0.5.  Do not come back. Obviously I have got no concern that this is going to happen again but you can breach it through other sorts of offending so just be careful for the next 12 months.  All right?

(At this stage the court proceeded with another matter.)

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