Director of Public Prosecutions v Whitney (a pseudonym)

[2016] VCC 1671

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

FREDRICK WHITNEY (a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	10 November 2016
CASE MAY BE CITED AS:	DPP v Whitney (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1671

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke
For the Accused	Mr R. Alexander

HER HONOUR:

1Fredrick Whitney[1], you have pleaded guilty before me to four charges of indecent assault of a female.  The facts underlying your offending are as follows.  The victims in each case, and there are two of them, are your two nieces, Nardine Piper[2], your sister being her mother, and Aleesha Wright[3], whose father was your brother.  Apparently those siblings are deceased.

[1] Fredrick Whitney is a pseudonym.

[2] Nardine Piper is a pseudonym.

[3] Aleesha Wright is a pseudonym.

2In relation to Charge 1, Nardine Piper, who was then aged between eight and nine, at sometime between 13 November 1955 and 12 November 1957, was playing with her sister, Deanna[4], and another friend at a house in Ballarat in the backyard.

[4] Deanna is a pseudonym.

3You then took Deanna inside whilst the other child and Ms Piper continued to play.  Sometime later Deanna returned to the yard and you called Ms Piper into the house.  There you took her to a back bedroom and laid her on a bed on her back and removed her underwear from under her dress.  You then rubbed your penis against her vagina.  This action underlies Charge 1 on the indictment, indecent assault on a female.  Ms Piper then returned to the yard but did not tell anybody about what had occurred.

4On other occasion, this being Charge 2, when Ms Piper was nine or ten she was at your house in James Street, Ballarat with her sister, Deanna.  You came into the lounge room, took her up to the front bedroom and again laid her on the bed on her back and took her underwear off.  Again you rubbed your penis against her vagina.  These actions underlie Charge 2 on the indictment, indecent assault on a female.

5Ms Piper returned to the lounge where her sister was but said nothing about what you had just done to her.  Soon after this Ms Piper and her sister were spoken to by their mother about the facts of life, at one stage talking about not allowing boys to touch either Ms Piper or her sister on particular parts of their body.

6At that stage apparently Ms Piper and her sister disclosed to their mother that you had touched them and she replied "it is a girl's responsibility not to allow boys to do this" and unsurprisingly Ms Piper never spoke about the incident again.  The second charge is dated as of occurring between 1 January and 12 November 1958.  At the time of this offending relating to Ms Piper you were aged between 22 and 25.

7Charges 3 and 4 on the indictment relate to your second niece, Aleesha Wright, who was born in December 1957.  When she was aged seven, almost eight, in December of 1964, she was in a room alone with you at which stage you were at her family home building wardrobes there.  You would let her play up and down the ladder and while she did this would tickle her under the arms and down her sides over her clothes, which happened about three times.

8On the fourth time she recalled you pulling her in and giving her a cuddle and telling her that she was beautiful.  A couple of days after this you were again in the bedroom working on the wardrobes and Ms Wright was playing there and you were talking to her.

9You put her on the ladder and started tickling her again, and as you did this put your hands into her underpants and between her legs, rubbed her vagina and then inserted one of your fingers into her vagina.  These actions underlie Charge 3 on the indictment, indecent assault of a female.  Ms Wright recalled that she froze, you let her go and told her it was their "little secret".

10Charge 4 occurred about two days after this incident, again when you were at her home, got her to come into the room and again rubbed her vagina before inserting your finger into it, those actions underlying Charge 4 on the indictment, indecent assault of a female.

11At the time of this offending you were aged between 30 and 31.  Ms Wright never told anyone about these incidents until about 2009.  The matters were reported to police in 2015.  You were arrested on 29 May 2015 and interviewed at the Ballarat Police Station where after receiving legal advice you answered questions with "no comment" answers.

12This matter was settled at a reasonably early stage prior to committal proceedings and you entered pleas and the matter proceeded without Ms Wright or Ms Piper having to be cross-examined.

13I now turn to your personal circumstances.  You are 83 years of age, almost 84.  You have no prior convictions, apart from this offending. I might say as I have remarked during the plea, this is commonly the case in offending of this kind, that is sexual offending against children.

14You have led a fairly unremarkable and blameless life.  You left school in your early teens and you took up a job which you held for 49 years until your late 60s when you suffered a heart attack and underwent bypass surgery.

15You worked for that period of time in Ballarat as a machine operator for Robert Sims Timber in Ballarat.  You married, you have four children, you have a number of grandchildren.  One difficulty in your life it appears, having regard to the psychological report of Jeffrey Cummins dated 12 September 2016, was in your marriage, your wife apparently having been a long term alcoholic and sexual relations therefore being unsatisfactory to say the least.

16It would seem that this might provide some sort of partial explanation why you at that stage, a married man, notwithstanding your early age - I note that you married at the age of 21 - sexually abused your nieces in the way that you did.

17You now have a number unsurprisingly of fairly serious medical conditions relevant to your age.  You appear not to have suffered any enormously debilitating effects from your bypass surgery which occurred almost 20 years ago, but in 2012 stents were placed in your heart which is noted in the written report from your general practitioner, Dr Remus Liavenis.

18Your carer, Ms Laurelle Hext[5], gave evidence on the plea to the effect that you take Warfarin, blood thinning medication for blood clot difficulties that you have, which was commenced at the time that the stents were inserted in your heart in 2012, presumably because there was problems with blockages in the arteries to your heart at the time.

[5] Laurelle Hext is a pseudonym.

19You take several medications, some in the morning and some at night, which are administered to you by Ms Hext in her role as carer.  On her evidence she said that you were susceptible to blood clotting and you also take medication for blood pressure.  She said you become confused about the medication that you are supposed to take.

20In general terms Dr Liavenis described you as suffering cardiac arrhythmia which is irregular heartbeats if you like, requiring medication.  He described your cardiac condition as currently stable with minimal angina, but noted that you get intermittent chest tightness, which he stated would put you “at a significantly higher risk for a coronary event if placed under further stress".

21That further stress of course is the possibility of you being gaoled for this offending.  Notwithstanding that this offending is something in the region of
60 years old, it is quite clear that the impact of what you did to your nieces who were then little girls aged between five and about eight continues seriously to this day.

22Both Ms Piper and her cousin, Ms Wright, compiled victim impact statements.  Ms Piper very courageously read her victim impact statement out in court and it was quite clear that the gravity and the impact of your offending against her stays with her to this day and still causes her enormous distress.

23I remarked during the plea and I repeat my comments in these sentencing remarks.  The continuing emotional struggles that both your nieces experience as a result of your offending despite its age is entirely consistent with the hundreds of victims of child sexual assault that the County Court sees every year.

24What you did amounted to actions which completely destroyed those little girls' feelings of safety within their family, their relationships within that family, their self-esteem.  They grew up at a time when, as is quite clear from what
Ms Piper told police about her own experience, girls who were sexually assaulted were made to feel it was their fault.

25One of the issues for Ms Piper to this day is ongoing feelings of guilt.  It is enormously difficult for victims of sexual abuse to actually comprehend that it was not their fault.  I am going to refer specifically to what each of the nieces said in their victim impact statements.

26Ms Piper stated, and again this is routine and normal and I am not trying to trivialise the trauma for her, I am simply saying that this is utterly typical of what happens to children who are sexually abused, particularly by members of their family.

27"I experience feelings of loss and grief at what I could have been and also for the loss of trust and family relationships these crimes have caused me.  I have experienced feelings of isolation and self-blame for the events, for as a child, adolescent and adult I have struggled to come to terms with the events and ensuing feelings.  I am often overcome with feelings of fear, sadness, shame and despair and retreat to numbness to escape the terrible feelings.

28At other times I am forced to engage in frenetic activity to stop me thinking and feeling about the horrible events and how they have left me.  I am also plagued with a negative sense of self and am often plagued by self-doubt.  I feel like that little girl, alone, hurt and crying."

29Likewise, Ms Wright stated, "The abuse affected me with male trust, intimacy and sometimes self-worth."  She went on to talk about how frightened and careful she was in respect of her own children.  She stated, "Long periods of depression and therapy I have endured because of your actions."

30She stated, "Exposing the abuse that happened to me was sickening.  To see the look in the eyes of my brothers and sisters, not to mention having to tell the police and counsellors at the Sexual Referral Centre."  She stated that your abuse even negatively affected her own relationship with her father because of the physical resemblance between the two of you stating, "When this is over I will return to Ballarat," where she stated that she has not been able to visit for many years, "so I can finally visit my father's grave as he is buried with my mother.

31I now know that there is no getting over sexual abuse, there is only getting through it," and that is almost a classic statement of what victims of sexual abuse, particularly victims who were so young and so vulnerable, always end up enduring as a result of the offending against them.

32It goes without saying that your offending was extremely serious.  It used to be the view many, many decades ago that those who engaged in child sexual abuse were themselves somewhat inadequate persons who needed to be pitied and that children would grow up and forget it.  Experience has shown that of course this is absolutely not the case and that enormous suffering is engendered precisely of the type described by each of your nieces.

33Your offending was extremely serious.  The courts must take a very grave view of such offending.  It is particularly important that courts respond severely to offending which is prevalent in the community and it is quite clear that intra-familial sexual offending is rife in our community and it does an enormous amount of damage, most hidden damage, as it is so difficult for victims of sexual abuse to come forward, or if they do come forward it is only after many, many years of suffering before they feel capable of undertaking the disclosure by which time years and years of grievous suffering have usually occurred.

34Had you been a younger man I would not have hesitated to sentence you to a lengthy term of imprisonment.  Sexual abuse of children under ten is considered to be especially heinous and grave offending.  Had this offending occurred post-1991 the offending would have been classified in a much more serious way than it was in the 1950s.

35All your offending in my view involved sexual penetration.  Digital penetration of the vagina is now classified as sexual penetration and it is an aggravating feature if the child is under ten.  Digital penetration without consent is now classified as rape.  In terms of Charges 1 and 2 where you rubbed your penis against the vagina of your small niece. The legal definition of vagina includes external, as well as internal genitalia, so that penetration to any extent of the external lips of the vagina is considered a sexual penetration.  If this was done against the will and without the consent of a person then it is classified as rape.

36Fortunately for you the classification in 1959 was indecent assault with a maximum penalty of three years.  The maximum penalty for sexual penetration of a child under ten is 15 years' imprisonment and the maximum penalty for rape is now 25 years' imprisonment.

37I am only mentioning the current attitude towards this offending and the classification of it so that everyone in this courtroom completely understands the gravity of this offending.  It appears there has been some family divide in relation to the revelation of this offending which is unfortunately so often the case.

38As I stated, let there be no mistake about it, both Ms Piper and Ms Wright are suffering the classic traumatic aftermaths of sexual abuse committed against them, perpetrated upon them, when they were very little girls.  There is no getting around it by saying it happened so long ago it should all be in the past, there should be no repercussions.

39There are repercussions.  They are repercussions that have lasted for 60 years and that is ordinarily and normally the result of sexual offending perpetrated on children.  I have anxiously considered this matter.  There was a fairly lengthy break during this plea hearing in order to obtain greater medical material.

40I accept that you do suffer a medical condition which would be considerably exacerbated were you placed under the stress of imprisonment.  I do accept it is potentially life threatening.  In my view, because of the lapse of time, which is of no fault to anyone, as I said it is more than often the situation that those offended against as children, particularly in that era, would remain silent about it for such a long period of time.  Nevertheless, it does have application in this case.

41You have no prior or subsequent convictions.  You are an elderly man.  You have never been to gaol before and I accept and it is a significant mitigatory factor that service of a sentence of imprisonment would be considerably more onerous for you than for the ordinary prisoner.

42Additionally you have pleaded guilty.  This is a very, very significant mitigatory factor.  In all the vast numbers of sexual offending cases that pass before the County Court the percentage of those who plead guilty and take responsibility for their offending is pitifully small.  Those who do spare their victims the further trauma of undergoing court proceedings and cross-examination and this you have done.

43In my view, and indeed it is not simply my view, it is quite clear that those who plead guilty to this significant offending save a great deal of further suffering, notwithstanding the suffering they have inflicted, and this is deserving of particular mitigatory attention by a court.

44For those two reasons it is my view that I should deal with you by way of a sentence which does mark the seriousness of your offending but does not require that you go to gaol.  I am going to impose a suspended sentence upon you.  In doing so I want to make it very clear to Ms Piper and Ms Wright that the court regards the offending against them with extreme gravity.

45The way it was put to me by both prosecution and the defence is that this should be calculated as being at the mid-range of seriousness.  That does not mean it is middlingly serious or of middling gravity, it means that it is a seriously grave offending, simply not at the upper end that might involve multiple violent rapes and the like.

46I note that you have suffered significantly and seriously since the revelation of this offending and I also note, and it is to your credit, that others in your family have been made aware of this and aware that you are pleading guilty.  I accept that this is a fairly heavy burden for a man of your age to bear.

47Again, I am anxious to reassure the complainants in this matter, both
Ms Piper and Ms Wright, that the court fully recognises their sufferings and again I am at pains to make it clear to Ms Piper and to Ms Wright that their sufferings are not because there is anything particularly wrong with them or that they are not reacting in anything other than a perfectly normal way to the offending that was perpetrated against them.

48That is an extremely important thing for any complainant in a sexual offence in my view to understand because of the feelings of isolation and loss of self-worth, that there is "something wrong with me".  There is nothing wrong with you at all.  You are simply reacting as unfortunately thousands of other women who have been treated the way you were have similarly reacted.  There is nothing wrong with you.  There is nothing weak, there is nothing psychologically misguided in your reactions.  They are normal, understandable reactions and they are commonly seen in these courts.

49However, as I have said, in all the circumstances for the reasons I have outlined I am going to sentence you as follows.  Could you stand up please, sir?  In relation to each charge you are sentenced to one year imprisonment.  I order that three months of the sentences imposed on Charges 2, 3 and 4 be served cumulatively to the sentence imposed on Charge 1, giving a total effective sentence of one year and nine months.

50I note that I am constrained in my sentencing by the maximum terms applicable.  I order that this total effective sentence of 21 months be suspended for a period of three years.  What that means is, sir, that if you commit any offence punishable by imprisonment in the next three years - I regard that as unlikely and I note Mr Cummins' opinion that the likelihood of reoffending is extremely low.

51But were you to offend in the next three years you would be brought back before me on breach of a suspended sentence and unless there are exceptional circumstances attached to your reoffending I would make you serve all of that 21 months.  Do you understand, sir?  Thank you, have a seat.

52Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of three years and order you serve a minimum term of two years.

53MR BOURKE:  Your Honour, as of Charge 3 ‑ ‑ ‑

54HER HONOUR:  Yes, I declare that Mr Whitney is charged as a serious sexual offender.  You are also placed on the Sex Offenders Register for life and the obligations in relation to that - that is what I understood it to be - is that right?

55MR BOURKE:  Yes, Your Honour.

56HER HONOUR:  Will be explained to you by your counsel.  Thank you.

57MR BOURKE:  Finally, Your Honour, there is an application for a 464.

58HER HONOUR:  On what basis?

59MR BOURKE:  The seriousness of the offending, Your Honour.

60HER HONOUR:  I do not think it is necessary in this case.

61MR BOURKE:  If Your Honour pleases.

62HER HONOUR:  Thank you.  Is there anything else that I need to attend to?  Sorry, I also note that the imposition of a suspended sentence is not resisted by the prosecution and further it does not seem to me that the time and money attached to a community corrections order is appropriately applied in this case.

63MR BOURKE:  Your Honour, just in relation to the registration, things might have changed, but I was of the understanding that what occurs is a document is printed out.

64HER HONOUR:  Yes, we do that and then I sign it and my associate gives it to Mr Whitney.

65MR BOURKE:  Yes, thank you.

66HER HONOUR:  Yes, thank you, Mr Whitney can come out of the dock and counsel are excused and I might speak to you and I might speak to your informant as well just briefly.  Everyone else is excused and may leave the court.  I thank everyone for their attendance and I thank you, Ms Piper, for your assistance in this matter as well.  Thank you.

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