Director of Public Prosecutions v Yates

[2014] VCC 180

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 13-00122

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:	21 February 2014
CASE MAY BE CITED AS:	DPP v Yates
MEDIUM NEUTRAL CITATION:	[2014] VCC 180

REASONS FOR SENTENCE
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Subject: indecent act with a child under the age of 16, sexual penetration of a child under the age of 16, failing to comply with reporting obligations under the Sex Offenders Registration Act 2004, supplying a drug of dependence to a child, indecent act with or in the presence of a child under 16.Some representative counts. Second presentment pleas of guilty.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: TES 6 years 4 months,  NPP 4years 3 months

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr M. Fisher
For the Offender	Ms K. Churchill

HIS HONOUR: 

1Kerry David Yates, you were convicted by jury verdict of three counts of committing an indecent act with a child under the age of 16 and nine charges of sexual penetration of a child under the age of 16.  Each of these charges involved a young girl who I will refer to as "B" for reasons of privacy and anonymity.

2You also pleaded guilty to a separate indictment to ten charges: failing to comply with reporting obligations under the Sex Offenders Registration Act 2004, being a rolled up count, four charges of supplying a drug of dependence to a child, three of committing an indecent act with or in the presence of a child under 16, and two of sexual penetration of a child under 16. Count 5 of indecent act and two sexual penetration charges, Counts 5 and 6, are representative counts.

3A description of the prosecution case and the circumstances of the offending the subject of the trial and of the plea were separately tendered and will be retained on the court file for future reference.  I will summarise these matters briefly for the purposes of this sentence.

4In relation to the trial, B was an eight year old girl who lived close by.  The offences took place in late 2000 and early 2001.  She was in Grade 3 at school.  She had met your children and played with them on the park which separated her house from yours and then visited your house frequently to play.  You were 35 years old.  On a number of occasions particularised in each charge, B found herself alone briefly with you either in your daughter's bedroom or in the home's computer room.

5On the occasions of Charges 1 and 2, you touched her on the vagina over her clothing.  On the occasions of Charges 3, 4, 5, 7, 8, 10, 11 and 12 you sexually penetrated your vagina with your fingers.  On occasion of Charge 6, you sexually penetrated her with your tongue.

6You committed these offences whilst there were other family members and children in your home.  In relation to Charge 9, you placed her hand on your penis on the occasion of a sleepover.  On one occasion, that covered by Charge 12, you sexually penetrated her in the presence of your own daughter whilst in the computer room.  B complained of these matters when she was aged 16 to a friend and by the time of the investigation and of your interview it was 2010.

7In January 2013, a contested committal was held in which B was cross-examined and the trial proceeded in 2014 to conviction.  Although it is clear that you are not going to be additionally punished for running your trial in defence of these allegations which was your right, it is equally clear that by so doing, you have lost the opportunity for gaining a discount on the sentence which pertains to those offences.  As I noted during the plea, B was a very impressive and credible witness.  She gave her evidence in an open, candid and reasonable demeanour, which is to her credit.

8She has provided the court with a victim impact statement, as has her mother.  In the statement, she writes in a measured and dignified manner.  She speaks of living with the effect of these offences for 14 years and of the emotional trauma suffered at your hand.  Her peace of mind, her sleep, her innocence have been profoundly disturbed.  Her feeling of security and safety in the everyday occurrences of life was naturally affected and her sense of vulnerability enhanced.  These impacts have been longstanding and have affected her life, her relationships and her effective disposition.  She is rightly proud of her courage and strength of character which sustains her into the future.  Her mother has written of the self-doubt, hyper vigilance and moral disgust that accompanies the terror with which parents of the abused have to learn to deal with in their lives, all brought about by your behaviour.

9Sexual offences of this nature are repulsive to the community and the community rightly abhors them.  The court must denounce this behaviour in the strongest terms.  This vile conduct is repetitive, preys on the innocence of the young, abuses their physical integrity, the right to protection and safety, which is their right to expect from adults, it breaches trust and confidence, damages self-image and is physically degrading and calls for punishment to represent in part a retribution for these fundamental wrongs on behalf of the victim.

10It was submitted that the trial matters lack of aggravating features such as violence and coercion.  Although they may not have been in terms, the dealings which you had with B were in my view coercive, psychologically pervasive and done from the start from the point of view of a power imbalance.  This may not be an aggravating factor but it emphasises the gravity of the offences that I deal with.  In my view, there is no evidence of remorse in these instances and the circumstances of their commission, repeated, brazen and in the presence of children, requires condign punishment ,  for which imprisonment is the only option.

11I take into consideration that there have been delays in the manners, though since your interview the delay has not been caused by you beyond the steps required to take the matter to trial.  In my view, this is of little mitigatory effect in this case.  In that time, not only have you not embarked on any significant rehabilitative reform, but have in fact reoffended.

12As of the period of offending, you had a distant prior history of offending, that being an armed robbery in 1982 for which you received three years Youth Training Centre disposition.  In 1985, you were again sentenced, this time to adult prison for burglary and theft and causing injury and you were sentenced to 15 months imprisonment.  I take into account in setting the sentence for these trial matters, the fact that you did not at that time have priors for sexual offences.  In this context, I refer to the latter priors, which are of relevance to the plea, matters that I am to deal with and which I take into account in relation to those.

13In 2007, upon your trial, you were convicted of committing an indecent act with a child under 16 and sentenced in this court to a suspended sentence.  Although none of the offending subject to my sentence breached such a sentence, the circumstances are relevant.  The offence was committed in 2004 upon a 13 year old girl when you were aged 39, you were sleeping with your daughter and the victim, you touched her in indecent circumstances.

14In October of 2010, in a relevant  matter, you were fined for failing to comply to the reporting obligations and that conviction must have put you on notice of the requirements which applied to you because of your registration as a sex offender, obligations which were made clear to you since 2007 when you were convicted of the 2004 offence.

15As to the plea matters, the prosecution document  outlines the circumstances of your offending and was tendered and will be retained on the court file.  In brief summary, between 1 January 2012 and 18 January 2013 when you were between 47 and 48 years old, you were living in a small garage at the back of your ex-wife's house.  Your 16 year old son was living with her.  In that time, you also had regular contact with another son and your daughter and you had reported this regular contact with them, but you failed to report that in fact you had had in that period frequent, regular and unsupervised contact with a number of children, thereby failing to comply with your reporting obligations.

16In that period, you committed a number of sexual offences and drug offences against a number of young girls.  During this period, in breach of your obligations, you met a number of young girls when they visited your garage as friends of your son.  They referred to you alternatively as Papa K, PK, Big Kerry or BK.  Some of these girls were skipping school , had family difficulties and were the subject of DHS intervention.

17The offences occurred either in your garage or in your car, often in circumstances in which you supplied them with drugs.  Drug use was a pervasive activity in that garage and I find such use was used by you in order to cultivate their friendship, confidence, and to obtain sexual gratification.  You had unsupervised contact with three girls who were 14 or 15 years old.  You had unsupervised contact and supplied drugs to another 14 or 15 year old and you had unsupervised contact, supplied drugs and sexually offended against three other complainants to whom I shall refer to as J, T and V for the purposes of anonymity.  They were all under 16.

18In 2012, J would visit your son with another friend T.  They came into your garage and you used ice in front of J.  Other people would be present who would also be using drugs.  When J asked you for drugs, you gave her some and you gave her ice and cannabis for free.  On the occasion of Counts 1 and 2, you masturbated yourself in her presence and supplied her with ice.  She used it for five days in a row on one occasion.  J visited several times before her 16th birthday and you communicated with her by Facebook.  Between early 2012, over a period of months, you gave her ice almost daily.  You did not report this contact.

19T was also your son's friend.  You used ice in front of her, you offered ice to her and urged her to use it when she was initially reluctant.  Over the course of several months, you continued to supply her with ice for free as well as cannabis.  You masturbated in front of her on three occasions.  On one occasion, you ejaculated in front of her and watched pornography in her presence while masturbating.

20On several occasions you drove T to a remote location.  While in the car, you touched her breasts, used ice together and, when she was affected, you touched her sexually.  You then got her to perform fellatio upon you.  You engaged in sexual acts with T at that location on at least ten occasions under similar circumstances.  On three other occasions, she sucked your penis in the garage, once when your son was in the garage behind a curtain.  On another occasion, you penetrated her vagina with your fingers, Charge 6, a representative charge, and this occurred on three other occasions.  Before sexual activity you gave her drugs and you failed to report this contact.

21In August 2012, T complained of sexual assaults upon her to J.  She was distraught and crying.  She complained also to V's mother.  V was the third young girl who was a victim in relation to these matters involving sexual offending.  V's girlfriend was also a friend of your son's.  V became your son's friend and would spend time in your garage.  She used ice there, which you supplied.  You asked her to massage you and you touched her whilst doing so, including her vagina, Charge 7.  On occasion, she skipped school and stayed at your place, using ice for days.  She received texts from you commenting on her uniform and that she was beautiful.  You did not report these instances of contact.

22Another friend of your son's was B.  She had family problems and was not attending school in early 2012.  She slept in your son's room and was in your garage many days and you would have friends and others smoking ice and cannabis in her presence.  You supplied cannabis to your son and to B.  When she stopped coming over, you contacted her on Facebook and told her to come back.  B brought K to the house.  She also came into your garage and saw cannabis there.  S also met you through your son and saw other girls there and stayed at the address on many occasions, a matter you did not report.

23In the middle of 2012, another young girl, L, was introduced to your son by a friend.  You met her and knew she was skipping school and stayed overnight on at least ten occasions.  She often saw many young people at those premises and you did not report this contact.

24On 18 January 2013, you were arrested.  You denied offences against T and C and denied supplying children with ice.  You admitted to police you used ice every day in your room and admitted that T was addicted to ice.  You admitted that your son's friends were hanging out in your room.  The prosecution case was that you supplied drugs to these children in order to make them dependent upon you and compliant to sexual acts with them.  No contrary position was taken up by you upon your plea.

25In mid-2013, while on remand, you told a fellow prisoner that there was always ice in the garage and people could help themselves.  The garage shed was at the back of the house and your son used to invite kids around.  The drugs were given mostly for free, you told him, and you said it was very easy to get sex out of girls by giving them ice.

26This is behaviour which is of significant gravity.  You created an environment in which vulnerable young girls could access free drugs and by that such supply you manipulated some of them into sexual misconduct for your gratification.  Such a course of conduct is reprehensible and to my mind represents grave examples of this type of criminality.

27You may have been affected by ice yourself but it is clear that in your conduct you were single minded in the exploitation and manipulation of these young women.  The court must denounce such a perversion of relationship between an adult male and young children, in effect.  It is conduct which debases their humanity and places them at the service of your deviance.  This is aggravated by the fact that your son, through whom you met most of them, is autistic and has ADHD and is impaired therefore socially and entitled to look to you as his father, to protection and safeguarding.  You have abused that sacrosanct relationship for your gratification.

28Victim impact statements were received by the court from T.  In her statement, she betrays by her language her youthfulness.  She says she became addicted to ice which has made family relations difficult and which has affected her ability to work.  She has experienced issues with anger, anxiety and lack of trust and her sleep has been affected.  She became a recluse in her home and dropped out of school.  She carries bad memories and feels depressed and angry that she has had to deal with some profound effects on her.

29J has written that she is fearful for her safety.  She experiences nightmares, she became addicted, and this affected her family life, relationships and future outlook.  Her mother also wrote of the impact and anxiety these matters have caused.  She had to engage in counselling to deal with the upheaval in their lives.

30V has written that the drug use has impacted on her both health wise and financially.  She lost her self-esteem, she has flashbacks and feels scared and scarred for life at the loss of her childhood, in effect.  Her mother has written that these matters affected confidence of her own judgement and engendered a sense of deep shame and dread.  She wrote that you would often pick V up in your car and you acted like her friend.  She has now regained her daughter but is traumatised by your deception.

31In relation to the plea matters, I take into account your plea of guilty.  It has a utilitarian value in that it has avoided a lengthy trial and its connected costs, as well as the necessity for calling evidence from these young girls.  A discount will be applied to the sentence in recognition of this.

32There are interspersed in the plea material some assertions that you are remorseful, particularly from your family members.  Although such expressions are to be expected and may be genuinely perceived by them, I have considered that such an assertion of the existence of remorse is difficult to accept.  Remorse is a profound state  which accompanies a recognition of the wrongdoing done which, as the words suggests, literally bites at the conscience of the wrongdoer.

33Beyond your plea of guilty, which I accept is an acceptance of your responsibility for the conduct, the statements contained in the assessments by experienced experts and in your own words through the letter that you have written entitled "my story" betrays a distinct lack of the insight and shame which accompanies true remorse.  I do not accept that it has been demonstrated, contrary to submissions which were made, or that I should give it significant weight.  That determination of course must affect, when coupled with the opinions to which I will refer in a moment, your prospects of rehabilitation which in my view are poor .

34This outlook serves to emphasise in my mind that the primary purpose of my sentence should be to address special deterrence and general deterrence as its starting points.  I must of course consider your personal circumstances.

35You are 49 years of age.  When you were aged two years your father was imprisoned and your mother moved to Melbourne when you were three and she repartnered.  Your mother passed away in 1991 and in 1998 you visited your biological father, but that in effect was the beginning of the end of that relationship.  Your stepfather was said to be strict.

36When you were aged seven, your nine year old brother was drowned in an accident when you were present.  This youthful trauma impacted significantly upon you.  You began to run away from home and by age nine you were made a ward of the state.  It is a sad reality that until the age of 16 you were placed in state institutions where you were exposed to physical, emotional and sexual abuse over a number of years.  This has had  consequence on your development and outlook.

37At age 17, you received a three year youth training centre sentence I mentioned before.  This was followed by a period of instability with further criminal convictions.  Through this period you continued, however, to have work and you have demonstrated an ability to work and seek further education throughout, which is to your credit.

38In the 1980s you completed your HSC whilst in gaol and even began a tertiary law course.  In 1985, you commenced work with an engineering company and an apprenticeship.  It was then that you met your future wife  and  you held down a truck driving job for some ten years.  You married in 1989 and have three children.

39In 1998, you ceased truck driving because of a back injury and commenced to produce outdoor furniture.  Soon after this, you committed the offences the subject of the trial.

40In October 2003, you left the marriage and became a recluse.  You maintained contact with your children and with your ex-wife, who remained supportive of you.  Your furniture making factory burnt down in 2004, close to the time of the allegations which led to the 2007 convictions for indecent acts.

41The charge and conviction of making a false report to police which appears on your record relates to an attempt to include items for insurance purposes which you had already disposed of.  You obtained a job with a  self-storage facility, with your wife's encouragement, to deal with a depression which had settled upon you after the fire.  You lost that position in 2011 because of your drug use and lifestyle.

42In November 2010, you had been allowed to move into the small garage at the back of your ex-wife's home and the offenses to which you pleaded took place.  You have been on remand since January 2013 and I will note the days which you have already been detained.

43It was argued that your background, particularly your childhood abuse, should significantly moderate personal and general deterrence in favour of other purposes  than punishment, including rehabilitation.  The effect of these matters do not diminish with time and I will give full weight to such background.  However, such matters are not relevant for all purposes of punishment.  Its impact on your mental state has been described in expert reports to which I will refer.

44The weight to be accorded to the effects of social deprivation must be assessed individually.  Though I accept that this background is relevant and has contributed to your criminality, in my view it reduces only slightly your moral culpability because the consequences which have flowed from these earlier events are not absolutely central to your state of mind.  Rather, in a derivative way.  That is, I accept that there is a link which is commonly made between victimisation and offending conduct in that sexual abuse appears often to lead to a failure to develop appropriate inhibitions and lead to offending conduct later in life.  Developmental factors in your early years have meant you have difficulty in forming and maintaining age appropriate sexually intimate relationships.  This in turn has led you to behave in a way which is consistent with such difficulties and I consider that I should reduce your sentence accordingly to reflect this aspect.

45Two reports were tendered.  They were prepared by Mr Ball and Ms Matthews in December 2013.  Mr David Ball wrote that you were housed in the sex offender protection unit and were employed as a gardener and peer educator.  You wrote that you had undertaken numerous occupational and rehabilitative programs.  You were receiving regular visits from your ex-wife and children and you were being treated for diabetes and hypertension.  He found no evidence of an underlying disorder, but high levels of situational anxiety.  There is no evidence of mental illness, neither of thought disorder nor of cognitive impairment.  You presented as being unable to maintain adult intimate relationships in the community.  You denied attraction to children or teenagers.  You acknowledged daily use of methamphetamine since the loss of your business.  You attributed your offending to this use and importantly you were "unable to demonstrate any understanding of the effects that might flow from sexual interaction with girls 30 years your junior".

46Mr Ball was of the opinion that lack of mature interpersonal relationships stems from the childhood abuse.  Your lack of emotional awareness makes mature and strong relationships difficult.  This finding is echoed in much of what your ex-wife Gail has written in her letter of support.  Dr Ball's opinion was that you failed to satisfy the diagnostic criteria for paedophilic disorder in DSM-V.

47He then referred to a risk assessment using static and dynamic factors and concluded that you are in the moderate to high risk category of recidivism.  Your poor judgement, propensity to drug use, social isolation and personality functioning, as well as your "deliberate choice to select underage or much younger females partners" increases this risk.  He recommended treatment and monitoring and supervision.

48This assessment was echoed in the report of Ms Matthews, an experienced forensic psychologist who also provided a report.  She had the advantage of having met you in 2002 when you had sought assistance for your son's educational and behavioural needs as a child with autism and ADHD.  She was also contacted in 2007 by you in the context of your conviction for indecent act.  It is noteworthy that at the time, Ms Matthews recommended that you not be involved in sole or unsupported contact with your daughter and her friends.

49She assessed you in a period May to July 2013.  After reciting your history, Ms Matthews commented on the fact that as of the last time she saw you, you were "struggling to come to terms with accepting responsibility for his behaviour and that struggle was contributing to his elevated levels of anxiety".  That was before you entered pleas of guilty.  She found you operated within a normal mental range.

50It was submitted on your behalf that you had been assessed as having a borderline impaired range of intellectual functioning with a chronological age equivalent to ten years.  This is an oversimplification of what Ms Matthews explains on p.7 of her report, where she writes that your performance on a test  of intellectual ability placed you on that functioning range and equated that functioning to that age.  These tests are standardized norm reference measures of intellectual ability and I accept that you display post-trauma symptomology and borderline personality features.

51I note however that it is not argued that these factors diminish your moral responsibility and should significantly moderate deterrent aspects of the sentence.  What is significant in Ms Matthews' report is the extensive risk assessment which she details in p.8 to 12 of her report.  She goes into some detail in outlining the many factors to consider.  These matters in combination give rise, in my view, to the need for community protection and special deterrence.

52Amongst the details, Ms Matthews notes that there is a pattern suggesting persistent sexual interest in pre-pubertal to early post-pubertal adolescent females with an escalation of frequency.  The material, she opined, suggests significant psychological coercion or grooming.  Further, she finds these factors to be a real concern in the extreme minimisation or denial of sex offences, struggled to acknowledge behaviour was wrong, lack of insight, failure to confirm to norms in respect of lawful behaviour, deceitfulness as to your sex offender reporting arrangements, deficits in remorse, maladaptive coping mechanisms in response to stress, persistent drug use, failure to establish and maintain intimate relationships and a positive social network.  Finally, these matters suggest to her paedophilic sexual interest.

53Ms Matthews diagnoses paedophilia and estimates the risk of future sexual offending as being on the high side of moderate to high risk offending spectrum.  These factors I take into consideration.

54I take into account the letters written by Gail, your ex-wife, who I accept highlights your ability to work hard and your past struggles and attests to her continuing affection and love for you.  This also applies to letters written by your children.

55Your own letter entitled "my story" relates primarily to difficult childhood experiences, but is utterly devoid of any expression of sorrow or remorse or shame for any of the young girls who were victims of your conduct.  I have taken into account the fact that you have undertaken during your detention a number of courses and programs and that tends to indicate that you have the capacity to direct your energy to productive endeavours and to future employment.  You have accessed educational opportunities when you have been able to and that may provide you with a better outlook once you are paroled.

56I have sighted a number of certificates for courses ranging from safe working in the construction industry to cleaning operations, work hygiene, to word processing applications and others.  You have in the past obtained educational and business certificates such as small business management courses and professional development courses.

57I take into account also the fact of the ongoing support of your ex-wife and children and positive signs for your future and that your efforts during custody to deal positively with your reclusion warrants a non-parole period which hopefully will allow for some ongoing effort to supervise, motivate and monitor you towards some measure of rehabilitation.  In my view, there should be significant cumulation within the trial matters and the plea matters.  You can remain seated, Mr Yates.

58On the trial presentment, on Count 1 of indecent act, you are sentenced to 12 months' imprisonment.  On Count 2 of indecent act, you are sentenced to 12 months' imprisonment.  On Count 9, indecent act, you are sentenced to 12 months' imprisonment.  On the charges of sexual penetration, Counts 3, 4, 5, 6, 7, 8 and 10,11 and 12 you are convicted and sentenced to 24 months on each.

59The base sentence will be Count 6.  I order that two months on Counts 1, 2 and 9 - that being the indecent act charges - and three months on each of the other sexual penetration charges be cumulative on Count 6, making a total effective sentence of four years' imprisonment.

60On the plea presentment, on each of the count of indecent act, that is Count 1, 4 and 7, you are convicted and sentenced to 12 months' imprisonment.  On each of the counts of supplying drugs to a child, Counts, 2, 3, 8 and 9, you are convicted and sentenced to 18 months' imprisonment.  On each of  the charges of sexual penetration of a child under 16, Counts 5 and 6 being representative counts, you are convicted and sentenced to 24 months' imprisonment.  On the rolled up charge of failing to comply with the obligations of registration , charge 10, you are convicted and sentenced to nine months' imprisonment.

61I order that one month on each of the indecent act charges, 1, 4 and 7, be cumulative on Count 5, the base sentence.  I order that three months on each of the supply drug charge, Counts 2, 3, 8 and 9, be cumulative on each other and on Count 5 and I order that two months on Count 10 be cumulative on Count 5 and on each other and I order that six months on Count 6 being the second sexual penetration charge be cumulative on Count 5, the base sentence.

62That makes a total effective sentence on the plea presentment of three years and eleven months.  I order that two years and five months on the trial presentment be cumulative on the plea indictment, making a total effective sentence of six years and four months.  I fix a non-parole period of four years and three months imprisonment.

63In fixing this sentence, I have considered the principle of totality.  But for your plea in the plea indictment, I would have sentenced you on that indictment to five and a half years with a non-parole period of four years.  I have signed disposal orders and I have signed a retention order for your biological material to be placed on a database.  I make the order because of the seriousness of the circumstances of the offences and because it is in the public interest.

64Because of the registrable nature of the offences of sexual penetration and indecent act being Class 1 and 2 under the Sex Offenders Registration Act 2004, you will be required to continue to comply with reporting obligations for life.

65As for Count 3 on the trial presentment, I declare that I have sentenced you as a serious sexual offender.  The Crown does not submit that I should impose this disproportionate sentences and I do not do so.

66I note and declare that you have served 399 days excluding today in pre-sentence detention.  I have signed the disposal and retention orders.  Are there any ancillary orders, Mr Prosecutor?

67MR FISHER:  No, but there is one document Your Honour asked for last week and that was the notice of abandonment in relation to the weapon that was seized.  I's the summary matter that was before Your Honour.  I've got a copy of that for the file.

68HIS HONOUR:  Yes, well I note that that has been filed and it will be retained on the court file.

69MR FISHER:  As Your Honour pleases.  No other orders.

70HIS HONOUR:  Thank you.  You can remove Mr Yates.

71MS CHURCHILL:  Thank you, Your Honour.