Director of Public Prosecutions v Yates

[2014] VCC 1477

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-01093

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERRY YATES

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 August 2014
CASE MAY BE CITED AS:	DPP v Yates
MEDIUM NEUTRAL CITATION:	[2014] VCC 1477

REASONS FOR SENTENCE
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Subject: sexual penetration of a child under 16- representative charge-
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S Ballek
For the Offender	Ms K Churchill

HIS HONOUR: 

1Kerry Yates, you have pleaded guilty to one charge of sexual penetration of a child under 16, between 17 May 2006 and 30 June 2007.  This was a representative charge.  The details of your offending are contained in Exhibit A on your plea and will be retained on the court file.

2Briefly stated, in the period of the offending you were separated from your wife in 2003 and you then had entered into a relationship with your victim's mother, to whom I shall refer as M.  This was from late 2005 to May 2006.  M had a son and a daughter, the victim in this case, who was aged six at the time.  This child had an illness which affected her liver function and which caused brain swelling and consequent brain damage.  M and the children would often stay at your home on weekends.  The relationship ended, but you and M remained on friendly terms.

3In October 2006, M began a relationship with a male who had shared your house, so that she and the children would visit your house and often see you there as you were still living there.  In January 2007 the male moved in with M, into her house.  Whilst you had a falling out with both M and her partner, you still occasionally visited them, until June 2007.

4It is noteworthy in this chronology to appreciate that in 2004 you had committed sexual offences against another child for which you were charged in early 2006.  The period during which you committed these offences overlaps with the time during which a contested committal took place in relation to those matters and in which you were consequently waiting to be put upon your trial, which took place on 14 May 2007, which is during the offending period, a trial at which you were convicted and for which you were sentenced on 18 May 2007, to six months' imprisonment, which was totally suspended for three years.  That charge related to the commission of an indecent act with a child under the age of 16.  It was your daughter's friend and you had accompanied her on an access visit.  It involved grooming and inappropriate behaviour, culminating in inappropriate touching, which you categorically denied.  I note on that occasion your wife gave evidence at the plea that she was confident that you would not re-offend in the future.

5On that occasion you fell subject to the obligations under the Sex Offender Registration Act for some eight years. The sentencing judge noted in the sentence that the young girl trusted you and relied on you for advice and support, a position which you abused for your own gratification.

6When the victim in this case was six, I shall refer to her by the letter J, hereafter, for the purposes of privacy and anonymisation, you took her to a workshop area underneath your house and there you rubbed her vagina, sexually penetrating her with your fingers, inside her underwear.  You digitally sexually penetrated J in the same manner on approximately ten other occasions.  Some instances occurred in the car.  On one occasion, having bought something for her from a milk bar, she was sitting in the front passenger seat when you stopped and parked under a tree in a secluded spot and you then proceeded to penetrate her sexually.  On the last occasion, before coming to visit at M's house, you called J to tell her not to wear underwear under her nightie.  When you arrived there you sat on the couch in the lounge room and in the presence of M, her male friend, and others, including probably your children, you had J sit on your legs and while in that position you sexually penetrated her for an extended period of time, although she had kept her underwear on.

7These details are noteworthy because some of the features are recurring in terms of the offences for which you were later to be sentenced by me, this year, and which occurred both before and after this offence. 

J disclosed these offences in November 2013 when she was 13 years' old.

8The victim impact statement of J is a powerful yet unusual document which speaks of the significant effects of your abuse of this young child.  It reflects confusion, when reflecting upon the feelings which are generated, but they are consistent with loss of innocence, loss of security, dark thoughts, loss of self-esteem and sad memories coupled with anxiety, rage and fear. 

9These consequences are often seen by this court as the impact on young victims of sexual abuse.  They are profound, scarring, and take a lifetime to heal.  Often the offender moves on to the next phase of his life, leaving the young victim to deal with the debilitating and emotional trauma as the effects of his conduct.  Her peace of mind, her sleep, her feeling of security have been profoundly disturbed.  Often, as in this case, these effects impact on general health, educational, vocational, and affective aspects of their lives.

10In this case, in my view, your offending is particularly vile and aggravated by her age, her relationship of trust developed with you, the almost familial context in which you chose to offend.  Her vulnerability as a child who was dealing with a significant illness is also important.  I have noted the grooming behaviour in your prior, which is also consistent with your later offending.  Taking children into your confidence and trust, creating comfortable quasi-familial environments in which to gratify your own reprehensible urges.  These were not spontaneous actions, this was conduct which was pre-meditated, and although opportunistic, took place because you took advantage of situations you have purposely created. 

11There is nothing novel in this, rather it is the norm, but they show the true gravity of your conduct.  The community is rightly repulsed by this behaviour and rightly demands that is abhorrence be denounced and punished in the strongest terms.  Your conduct was repetitive, preyed on the innocent girl, abused her physical integrity, right to protection and safety in breach of trust, and such punishment as is appropriate must in part be a retribution for these fundamental wrongs.

12Like in your earlier and later offending, certain aspects are particularly troubling and give rise to significant consideration of special deterrence in your case.  These are the recurrence of access to victims through your family connections, or here in the connection you had created between M, and J, yourself, and your children.  Your use of secluded, exclusive, areas of a home, or in your car, also recurs, as does offending in the presence of others at close proximity, no doubt to enhance your gratification.  These features also go to describe precisely the depth of criminality in which you have engaged.

13I want to clearly emphasise to you that I do not mention your prior offending, or your more recent offending, because I intend to punish you again for those matters.  Those matters have been dealt with by courts.  However, these other instances, in my view, are relevant to understand the context of your offending, the gravity of it, and to best assess your prospects of rehabilitation and the risk you may pose to the community.

14I take your plea into account, you were charged in April 2014 and when the matter was listed a second time for a committal case conference, the matter resolved into a plea.  This is rightly seen as the earliest opportunity and it will generate a discount on your sentence, which I will make clear.  By this plea you have spared the expense of a trial and that utilitarian aspect should be acknowledged and taken into account, as well as the fact that the complainant will have been spared the trauma of a trial process.

15It was submitted that "the plea in itself stands as evidence of remorse."  In some instances, such a plea may provide, of itself, evidence of remorse.  However, as I said in the February sentence, although there are, interspersed in the plea material, assertions that you are remorseful, these come from your family members and I have found them difficult to accept and that view has not changed in the period which has passed, and was not evidenced by any new material at this plea.  Remorse is a profound state which accompanies recognition of the wrongdoing done.  I accept your plea is an acceptance of responsibility for your conduct.  The opinion contained in the assessments by experienced expert witnesses, and your own words in a letter written by you, which was tendered again on your behalf, betrays a distinct lack of sympathy, shame, or insight in to the impact of your conduct on the victim.  Such expressions usually arise out of genuine remorse.  I do not accept that it has been demonstrated, or that I should give it significant weight.

16When coupled with the opinion tendered on your behalf, this determination affects my view as to your prospects of rehabilitation, which in my view are poor.  This outlook further reinforces in my mind that the primary purpose of this sentence is to address general and specific deterrence.

17It was submitted that these offences occurred at a time when you have described yourself as being "disassociated with the world."  You were heavily influenced in drugs and you had separated from your wife and family.  I do not accept these matters in mitigation.  It is true that the material, through the evidence of relevant witnesses, identifies you as being a drug user, of ice in particular, at that time.  This was a self-inflicted and self-administered condition and a recurrence of a pattern which had already established in your life, the consequences of which must have been very familiar to you.  But this association, whatever that may have meant for you, was of your own making, although even on your own chronology you had regained work and had a stable life, a new relationship, and you were seeing your children regularly  after separation from your wife, which you instigated.

18It was further argued that "no violence, coercion, or threats accompanied the sexual abuse, which was opportunistic and a relative short duration."  I do not accept this submission.  The lack of aggravating features such as coercion and violence, are not ameliorating matters to the gravity of the offence.  In truth your dealings with J were psychologically manipulative and you used your influence and status as a trusted adult for your exploitative purposes.  The opportunism, which I have already dealt with, does not ameliorate the offending because the opportunity was created and manipulated by you.  The duration and frequency of the offending is not short, or slight, rather sustained, wilful, obstinate offending.

19I take into account that there has been some overlap in the disposition of this matter with other matters which have been dealt with.  In this sense, that is not in the form of delay.  It is true that some years elapsed between the commission and the complaint being made in November 2013, that is often the result, for these type of offences, depending on the age of the complainant.  Thereafter the process has been relatively expeditious, with charges laid in April 2014, after the full brief was compiled, and the committal mention in June and the plea in August.

20It is true that you entered pleas of guilty in October 2013 for some matters and were sentenced in February, and theoretically you may have been able to be dealt with together with those, ultimately resulting in some concurrency, even though the matters were separated by a period of some years.  I take this into account in determining the period of cumulation and have assigned some concurrency to reflect this practical matter.  In this context I take into account the important principle of totality in determining the period of cumulation referable to this sentence, to reflect the total criminality involved.

21I do not agree with the submission that these offences are "closely related in time" to justify a substantial measure of concurrency which was sought.  They are not so closely related and must reflect the criminality of the offending on a separate victim at a separate time.

22At the time of these offences you had some distant priors in the period 1982, 1985, which involved the period of youth training for armed robbery and theft, as well as burglary and theft.  Also in 1985 there is a conviction in this court for occasioning grievous bodily harm, for which you were sentenced to 15 months' imprisonment.  The 2006 priors of making a false report to police, for which you were fined, refers to a false claim made upon the destruction of your factory by fire in July 2004.  These priors are not for sexual offences, however subsequent relevant matters, which have already been mentioned, are to be properly considered in the context of this offending, particularly the sexual offences in 2001, which related to a guilty verdict in 2014 at a trial and one you had committed in 2004, which resulted in a guilty verdict at trial in 2007.  These are much more relevant than your early priors and I do not consider that those earlier priors have a significant impact on the sentence at all.

23I take into account your personal circumstances, which I have extensively set out in my sentence on 21 February 2014, in particular Paragraphs 35 and following.  That sentence will be appended to this sentence and is Exhibit C upon the plea.  The impact of your difficult background, which encompasses childhood abuse, I have taken into account, and in particular its impact on your mental state as described in reports by two forensic psychologists, David Ball and Pamela Matthews, to which I have extensively referred to in the February sentence at Paragraphs 44 - 53 and which I repeat and rely on here.

24I take into account the letters written by your ex-wife, which highlights your ability to work  and past difficulties.  She asserts her affection for you and this also applies to letters written by your children.

25I take into account the fact that you have continued to undertake some of the courses and programs available to you whilst in reclusion, which indicates your capacity to direct your energies to useful and positive endeavours.

26I have again sighted a number of certificates which were tendered as part of Exhibit 3.  I note you have been placed in a position to be a peer educator, and particularly since February 2014 you also participated in a drug and alcohol orientation program in expectation of a full course.  The GROW voluntary mental health program and the Blood Spilts training program are currently undertaking certificate courses in horticulture and furniture making.  Negative urine screens for drugs were also included in the documents.  These matters, together with past efforts to obtain educational and business certificates are coupled with the support of your family and your willingness to engage in the sex offender treatment program, enhance your prospects, which are not extinguished by this sentence, but allow for a parole period which may allow some measure of rehabilitation.

27You fall to be sentenced as a serious sexual offender.  The Crown does not submit, in this case, that I should impose a disproportionate sentence in the circumstances, and I do not do so.  Because of the last conviction and sentence you are registered already for life under the Sex Offender Registration Act and these obligations will continue.

28

Mr Yates.  Would you mind standing up?  On the charge of sexual penetration of a child under 16, a representative charge, you are convicted and sentenced to three and a half years' imprisonment.  I fix a non-parole period of two and a half years.  I order that two years of the head sentence be cumulative on the head sentence being currently served, which is six years and three months, making a total effective head sentence of eight years and three months.  I order a new non-parole period of four years and six months from today.  I note that you had served 399 days when I sentenced you in February and you have served approximately another four months since that, on that sentence.  But for your plea, I would have sentenced you to four years with a three year non-parole period.  Are there any other orders,

Mr Ballek, that I need to make?  Have I made my purpose clear?

29MR BALLEK:  I believe so.

30HIS HONOUR:  The non-parole period of four years and six months is from today.

31MR BALLEK:  Yes Your Honour.

32HIS HONOUR:  I do not think I need to nominate any other pre-sentence detention periods because they were taken in to account on the last occasion and with the time served between February and now that amounts to some approximately 16 months served.

33MR BALLEK:  As Your Honour pleases.

34HIS HONOUR:  Yes.  Remove Mr Yates, please.  Thank you, I have another matter which starts soon.

35MR BALLEK:  May I be excused?

36HIS HONOUR:  Certainly.

37MS CHURCHILL:  Thank you Your Honour.

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