Director of Public Prosecutions v Williams (a pseudonym)

[2019] VCC 1599

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

VICTOR WILLIAMS (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2019
DATE OF SENTENCE:	25 September 2019
CASE MAY BE CITED AS:	DPP v Williams (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1599

REASONS FOR SENTENCE
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Subject:  Sexual penetration of a child under 16 years
Sentence:  12 years' imprisonment, non-parole period of eight years

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms M. Revell
For the Accused	Mr D. Gray

HIS HONOUR:

1Victor Williams[1], you have pleaded guilty to four charges of sexual penetration of a child under 16 years of age.  In each of the cases, the victim was aged under 10 years.  In those circumstances, the maximum penalty for each charge of sexual penetration is imprisonment for 25 years.  You have also pleaded guilty to one charge of attempted sexual penetration of a child under 16 years, for which the maximum penalty is imprisonment for 20 years.

[1] A pseudonym.

2Your offending occurred on four separate occasions over a period of nearly twenty months between March 2012 and November 2013.  At all times the victim was aged under 10 years and you were 62 years.  Your age, and that of the victim, is testimony to just how despicable your conduct was in committing these crimes.  The maximum penalty for sexual penetration of a child so young of 25 years imprisonment, reflects the Parliament's intention that sentences imposed by the courts must deter others from offending in the way that you have, in order to protect children.

3Your offending is described in the summary of prosecution opening dated
9 September 2019.  That document was tendered in evidence and read in open court by the prosecutor, Mr Sharpley.  Your counsel, Mr Goodfellow, accepted that the summary was accurate and formed a proper basis upon which I can proceed to pass sentence upon you.  In those circumstances, it is not necessary that I here again describe your offending in full and will do so only in an abbreviated fashion.  These sentencing remarks must, however, be read in conjunction with what is set out in more detail in the prosecution summary.

4You were a neighbour of the victim and her family.  You lived alone and you became friendly with the mother of the victim, a young girl who was born in
August 2004.  She is now aged 15.  The prosecution did not tender a victim impact statement.  However, it is the experience of the court that young victims of this kind of offending, are likely to suffer one way or another as a consequence for a long time.  You had a computer set up in your house and you allowed the victim to attend at your home with the consent of her mother to use your computer to do her homework.  You were a trusted friend and neighbour who abused the trust placed in you.

5Charges 1 and 2 arose out of the one incident where the victim visited your home when you sexually violated her.  Charge 1 was an occasion of digital penetration by you of the victim's vagina after you first rubbed, what is described as a pasty substance on your penis.  You then rubbed your penis up and down on the victim's vagina which is Charge 2 of attempted sexual penetration.  The full circumstances of your offending are described in the summary and I have taken them all into account.

6Charge 3 is another occasion of digital penetration by you of the victim's vagina.  This time it occurred when the victim and her sister attended your home.  Whilst watching television, the victim was leaning against you and you were both covered by a blanket at which time you committed the offence charged, with the victim's sister present.  The full circumstances of your offending are described in the summary and I have taken them all into account.

7Charge 4 is an incident where the victim attended at your home after school.  You removed her pants and underwear and inserted your tongue into her vagina, orally penetrating her.  The full circumstances of this offending are described in the summary and I have taken them all into account.  Charge 5 is another instance of oral penetration, where you had the victim briefly suck your penis, whilst in the toilet with her.  She initially refused your request for her to do so, but succumbed, due to your persistence.

8You have pleaded guilty to the charges and your pleas have saved the time and cost of a trial.  You entered a guilty plea on 19 May 2019.  There was no contested committal.  I treat you as having indicated that you would plead guilty at the earliest possible opportunity.  For this you are entitled to a reduction in sentence because your pleas have saved the time and cost of a trial and importantly, they have saved the need for the young victim from having to give evidence against you and from being cross-examined about your vile and repugnant conduct towards her.

9By your pleas of guilty, you have admitted responsibility for your offending and I also treat your pleas of guilty as signifying your remorse for your offending behaviour.  The complainant first told school friends at what happened to her about three years after the offending behaviour.  The complainant first told school friends of what happened to her about three years after the offending occurred.  You were interviewed by police on 26 May 2017 and to your credit, you admitted having a close relationship with the victim and too on one occasion, having examined a rash on or near her vagina and as having given her some cream to rub on it.

10You also said there was an occasion of simulated sex and you admitted there was an occasion where you would have touched the victim's vagina, but you denied any penetration of her.  Your description appeared to try to apportion blame for what occurred to the young child.  Later in 2017, the victim made a further complaint to her mother, which resulted in her being further interviewed wherein she recalled more detail about what you had done to her.

11Your counsel Mr Goodfellow provided a helpful outline in writing of his submissions, which I marked as Exhibit 1 on the plea.  He conceded appropriately that your offending against a child in this way was serious and warrants the imposition of a term of imprisonment in the fixing of a non-parole period.  He submitted, and I accept, that your offending did not involve violence or threats of violence or risk of pregnancy. 

12You are now aged 70 years and you were aged 64 at the time of offending.  You were born and raised in India and are one of four children.  You came to Australia aged 21.  In 1970 you married and had two children.  Your marriage broke down in 2011 and 2012 and ended in 2014.  Your relationship with your children were said to have been damaged by the divorce process and has now been irrevocably damaged by this offending.  You have no contact with your children or grandchildren which you understandably find difficult.

13You remarried in 2015.  I received into evidence as Exhibit 7, a letter from your new wife Anne[2], whom you  met on a dating site in 2014.  She has pointed out that you have been a recipient of the aged pension and this will not automatically pass to her, because she is not yet an Australian citizen.  This will make her life difficult and I have had regard to this fact which I accept.  Your wife, not unexpectedly, speaks highly of you as a man and devoted to your marriage and who has been committed to serving and caring of other less fortunate people.

[2] A pseudonym.

14She has stated, and I accept, that every day since being charged, you have exhibited guilt, shame and remorse for your offending.  I accept you are remorseful for what you did.  I doubt you will ever reoffend in this way or have the opportunity to do so.  I assess your prospects for rehabilitation as being good.  You have no prior convictions and this offending aside, you have led an unblemished life.  You are a well educated man, having matriculated in India before undertaking various tertiary studies in Australia, qualifying you as an accountant.

15You have been constantly employed in that field in both the public and private sectors for all of your working life in Australia.  You have worked in the community in various roles, including as a minister of religion.  I accepted into evidence a number of references, each of which testifies to the way you were previously regarded in the community and as to the way you have contributed to the community, in which you have lived.  A Minister from the Doncaster Church of Christ, Exhibit 4, speaks highly of you as a man of great integrity.  A family friend Lisa Thompson who was present in court to support you, has known you since 1972.  She speaks highly of you as a person always willing to help others in the community and that you suffered after the breakdown of your marriage.  She also speaks of your remorse and shame at this offending.

16She still holds you in high regard, Exhibit 5.  Your brother has written a similar reference, as has another friend, Exhibit 9.  I accept this offending aside, you were a person regarded as being of excellent character and this offending does not fit with the way you have previously been regarded.  It is entirely out of character, but that is probably why you were trusted to be alone with a child, which created the opportunity for you to offend.

17You have a history of clinical depression since the breakdown of your first marriage and the offending is said to have occurred in that context, which I accept.  It was properly not submitted that your clinical depression was causative of your offending in any way.  I receive into evidence as Exhibit 3 a medical report relating to you from your general practitioner at Hallam Medical Group.  You have been referred to a psychologist within the Hallam Group,
Dr Murdoch, Exhibit 6 and Dr Ding, Exhibit 2 for counselling and the report confirms the stress and depressive mood you went through following the breakup of your marriage.  The report also confirms the disgrace and shame that you feel because of this offending. 

18Not unexpectedly, you are being treated for a number of medical conditions.  But it was not suggested any of these will make your time in custody more burdensome than for other prisoners.  You are currently prescribed Lexapro, 20 milligrams daily for depression.  Coveram, five milligrams daily for blood pressure.  Crestor, 10 milligrams daily for cholesterol and Xalatan and (indistinct) eye drops for Glaucoma. 

19Mr Goodfelllow submitted that I must have regard to your age at the time of sentencing, and the fact that you are likely to spend a considerable proportion of your remaining life in prison.  He also submitted that I must avoid imposing a crushing sentence.  I accept those submissions.  The principles to be applied in such cases where the sentencing court is dealing with an offender of advanced years, facing a lengthy sentence, in circumstances of ailing health have been set out by the Court of Appeal in R v RLP, 2009, VSCA 271, at paragraphs 32 to 40.

20Mr Goodfellow referred to this case in his submissions.  At paragraph 39 the court summarises seven principles which need to be addressed in sentencing in circumstances such as found here.  The court said this:

'We approach the conjunction of the appellant's advanced years and ill health with these propositions in mind.

1.  The age and health of an offender are relevant to the exercise of the      sentencing discretion.

2.  Old age or ill health are not determinative of the quantum of sentence.

3.  Depending upon the circumstances, it may be appropriate to impose a minimum term which will have the effect that the offender may well       spend the whole of his remaining life in custody.

4.  It is a weighty consideration that the offender is likely to spend the whole       or a very substantial portion of the remainder of their life in custody.

5.  Other sentencing considerations may be required to surrender some     ground to the need to exercise compassion to take account of the real prospect that the offender may not live to be released and that the       offender's ill health will make his or her period of incarceration      particularly onerous.

6.  Just punishment, proportionality and general and specific deterrence      remain primary sentencing considerations in the sentencing disposition    notwithstanding the age and ill health of the offender.

7.  Old age and ill health do not justify the imposition of an unacceptably      inappropriate sentence'.

21In arriving at an appropriate sentence here, I have so far as possible, have full regard to and applied the principles in RLP.  As I said earlier, your offending was most serious for offending of this kind.  Whilst I have had full regard to your age and health, and the fact you have no prior convictions and the fact you have pleaded guilty and appear to be remorseful, nevertheless the sentencing principles of just punishment, denunciation and general deterrence here required the imposition of a lengthy sentence.

22Your offending in four separate incidents involving a young child aged under 10 is very serious and the sentence imposed must reflect the gravity of your behaviour.  I believe that the sentences I will shortly impose achieve this result.  Because I will sentence you to imprisonment on all charges, you fall to be sentenced on Charges 3 to 5 as a serious sexual offender.  The prosecution appropriately in the circumstances has not asked that I impose a disproportionate sentence on those charges and I will not do so. 

23In sentencing you on these charges, I am mindful that I must have regard to the protection of the public as a first priority and I will sentence you on these charges as a serious sexual offender, without imposing a sentence that is disproportionate.  The sentences imposed on Charges 3 to 5 are deemed to accumulate upon each other, unless I order otherwise. 

24Mr Goodfellow submitted that I must have regard to appropriate principles of concurrency and totality, subject of course to the requirements of s.6B(2) of the Act.  I will impose some accumulation and some concurrency as I deem appropriate.  As I said before, I think it is unlikely you will again offend in this way.  Would you please stand Mr Williams.

25On Charge 1, you are convicted and sentenced to seven years imprisonment.  On Charge 2, you are convicted and sentenced to five years imprisonment.  On Charge 3, you are convicted and sentenced to five years imprisonment.  On Charge 4, you are convicted and sentenced to five years imprisonment and on Charge 5, you are convicted and sentenced to five years imprisonment. 

26I direct that one year of the sentence imposed on Charge 2 and two years of the sentence imposed on each of Charges 4 and 5, cumulate upon the sentence imposed on Charge 1, making a total effective sentence of 12 years imprisonment.  I direct that you serve a minimum term of eight years imprisonment before being eligible for release on parole.

27Pursuant to s.6F of the Sentencing Act, I direct that I have sentenced you on Charges 3 to 5 inclusive, as a serious sexual offender within s.6B of the Act and I direct the fact that my having done so, be entered into the records of this court.  For the purposes of s.6AAA of the Act, I state I have imposed sentences being terms of imprisonment and I have reduced the overall sentence I have imposed, but for your pleas of guilty.

28Had it not been for your pleas of guilty to the charges, I would have imposed a total effective term of imprisonment of 16 years and I would have fixed a non-parole period of 12 years.  I note that you have served five days pre-sentence detention.  Accordingly, pursuant to s.18(4) of the Act, I declare that the period of five days be reckoned as time already served under the sentences passed this day, be entered into the records of the court and be deducted administratively.

29Because you have been convicted of these crimes, you are a registerable offender within the meaning of the Sex Offenders Registration Act 2004, with reporting obligations for life. The prosecution seeks the making of a forensic sample order under s.464ZF of the Crimes Act.  The making of that order was not opposed and for the reasons stated in the order, I have signed it, which means that whilst in custody, you may be approached by a police officer to provide a forensic sample from your body and if you refuse, the police officer may use reasonable force to obtain the sample from you, which is in the form of a swab from your mouth.  Are there any questions arising out of that Mr Gray?

30MR GRAY:  No, Your Honour.

31HIS HONOUR: Ms Revell? Thank you. Mr Gray I've got the Sex Offender Registration Act orders. Would you provide those to your - to the prisoner please?

32MR GRAY:  Of course.  Might I be excused Your Honour?

33HIS HONOUR:  Yes certainly.

34MR GRAY:  That's been completed, Your Honour.

35HIS HONOUR:  Yes thank you, Mr Gray.  Thank you, Ms Revell.

36MS REVELL:  Your Honour pleases.

37HIS HONOUR:  Could you take Mr Williams into custody please. 

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