DPP and PG
[2014] VCC 163
•17 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
Case No. CR-13-00616
DIRECTOR OF PUBLICATION PROSECUTIONS
V
PG
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JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 February 2014 | |
DATE OF SENTENCE: | 17 February 2014 | |
CASE MAY BE CITED AS: | DPP and PG | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 163 – First Revision | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Indecent assault – Plea of guilty – Aged accused – Fragile mental and physically health of accused – Non-custodial disposition
Cases Cited: R v Verdins (2007) 16 VR 269
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. McKendry Ms J. Verkade (Sentence) | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Ms J. Sutherland (Plea) Mr E. Hume (Sentence) | Duffy & Simon Lawyers |
HER HONOUR:
1 PG, you have pleaded guilty to three charges of indecent assault, an offence which carries a maximum penalty of 10 years imprisonment. The maximum penalty shows how serious this type of offending is regarded by Parliament.
2 Your offending was opened by the Crown as follows:
3 I was told that you were 75 years old when you committed the offences.
4 By way of background I was told that you met the victim in August 2010 when she moved in next door and you became friends. She was 30 years old when you committed the offences.
5 From time to time you lent her money. In about October of that year you started to make sexually suggestive remarks to the complainant but she made it clear that she was not interested. She asked you to stop making the comments. Despite this request, after a period of time, you continued making the comments.
6 Three days before the offences you lent the victim $20 for a packet of cigarettes. You told her that you wanted a casual relationship with her but the complainant refused. You said that you loved her and knew what you wanted but you said that you knew how she felt.
7 On Wednesday 23 November 2011, you told the complainant that you wanted to speak to her, and asked her to go to your unit that night. You later rang her at about 6.10 pm to say that you were at home.
8 The complainant went over to your unit at about 6.30 pm. You let her inside, into the kitchen area. You said that you had spoken to the complainant’s mother and her partner Ian. You then asked the complainant if she had told her mother and Ian about your advances to her.
9 When the complainant said that she had, you became angry. You suddenly pushed her against the kitchen bench, grabbed her by the hair on both sides of her head, and kissed her on the mouth. The last mentioned act gives rise to Charge 1.
10 You said “Give me a proper kiss,” and the complainant replied “No, go away.” You continued to kiss her, and placed your hands on her breasts, on top of her clothing. You then put your hand up the complainant’s top, and touched her breast under her clothing. This conduct gives rise to Charge 2.
11 You stopped kissing the complainant and tried to remove her top, saying “I’ve missed this.” The complainant was up against the kitchen bench and could not move. She had her right wrist in a cast at the time, and you managed to remove the top half of her clothing. You then kissed and licked the complainant’s nipples, first one then the other side. This gives rise to Charge 3.
12 The complainant then left your unit, collected her keys, cigarettes and phone from her unit, and drove away.
13 Later that day, she told her mother what you had done. Her mother called the police, in the complainant’s presence, and reported the matter that night.
Police Investigation
14 Police attended shortly after this report to them. On 24 November 2011, Detective Boulton arrested you and conducted a taped Record of Interview at the Pakenham Police Station. During that interview, you admitted kissing the complainant on one occasion when she was leaving your home.
15 You also told police that the complainant had come to your unit to borrow money on 23 November, and that as she was leaving, you had kissed her; that this had lasted for about 10 seconds; and you had put your tongue in her mouth. When told what the complainant’s allegations were, you denied committing the offences, but mostly made “no comment” answers.
16 Mr PG, this is serious offending and I must impose a punishment which is just in all of the circumstances and which serves to denounce your criminal conduct. However, a relevant circumstance in your case is the state of your mental health, then and now, as well as your poor physical health and advanced years.
17 The relevant parts of the Victim Impact Statement reveal that your offending has had a severe impact upon the victim which has caused her a good deal of anxiety and heightened her depression. You were supposed to be her friend and you betrayed this friendship when you behaved as you did. In taking into account the relevant parts of the Victim Impact Statement I have also had to temper the degree of impact described, because more serious allegations are made in the course of this which are not the subject of any charge. I make it clear that I only sentence you on the basis of the indictment before me and the prosecution opening.
18 In your favour I take into account your plea of guilty which entitles you to a discount in sentence which is not insignificant. This is because you have spared the witnesses, especially the complainant, the time and trouble of giving evidence and you have saved the community the time and expense of contested proceedings.
19 I take into account the report of Mr Cummins, psychologist, and I make appropriate allowances for reduction in your moral culpability and in the weight that I would otherwise give to specific and general deterrence. At the time of these offences you were suffering from Persistent Chronic Bereavement Disorder and from severe depression, and it is likely that you also have been impacted by the onset of dementia - at least the latter condition may well be impacting on you now. Ordinarily strong weight would be given to general deterrence in order to ensure that others were deterred from behaving as you have. However, in view of your mental health I have significantly reduced the weight which would normally attach to this.
20 As you have no prior convictions, and in view of all that has been put to me, I would ordinarily place some weight on specific deterrence. However, I have also significantly reduced this weight that would otherwise attach. I place minimal weight on protection of the community. Ms Sutherland, who appeared for you at the plea, placed some reliance on paragraph 33 of Mr Cummins’ report that you believed that the victim was consenting to what you did and you may have misread non-verbal cues. I must say I have difficulty with this, in circumstances where you angrily attacked the victim after she told you she had told her mother and partner about the advances you had previously made. Further, she said “no” and "go away" after you asked her for a proper kiss, which was a blatant verbal cue that your advances were again, unwelcome.
21 It may be that your impaired mental state at the time or since has put a gloss of consent over a clearly non-consensual situation from start to finish. However, in light of the previous findings which I have made in respect of your moral culpability and other sentencing factors, I need not deal with this aspect any further. As an aside, I am concerned that Mr Cummins, psychologist, has seen it fit to suggest how I might apply the Verdins principles. This is inappropriate and I would ask that he sticks to his role and not attempt to take on mine.
22 You are now 78 years old and in fragile health both physically and mentally. You have led a blameless life up until now and in all of the circumstances it is unlikely that you will re-offend, especially with the assistance of Community Corrections and the programs and counselling which you will be required to undergo. You must obey all of their instructions and it is very important that you stay on your medication which will help you with your well-being and further reduce the risk of your re-offending.
23 I take into account your background. You have had a very sad life, having lost your first wife to Multiple Sclerosis, having seen her suffer from acute symptoms of this for four years before she finally passed away. This death triggered the disorder that you have laboured under. You had given up work for the last year of her life to be her full time carer. You spent two-and-a-half months in a psychiatric ward after your wife’s demise, suffering from acute depression.
24 Your second wife, who you referred to as your ‘saviour’, as she rescued you from suicidal thoughts, had a serious car accident at one stage but then died of bowel and liver cancer in 2008. It would appear that the victim reminded you of your second wife, to whom you were devoted as much as you were to your first wife. To make matters even worse, you suffered a broken ankle about two weeks before your second wife’s death, which became infected and which led to the amputation of one of your legs below the knee. You now wear a prosthetic leg but still experience chronic phantom pain.
25 In the circumstances of your case it is agreed as between the Crown and Defence that a Community Corrections Order with conviction is appropriate. In my view, this is an appropriate disposition and you have now been assessed as suitable for a Community Corrections Order. However, the order can only be imposed if you agree to its terms. In coming to this view I have taken into account your plea of guilty and the stage of which you entered the plea, and the fact that you have saved the victim and witnesses time and trauma in giving evidence, and you have saved the community the expense and time the contested proceedings involve.
Ancillary orders
26 First of all I make an ancillary order, that is a disposal order in the terms that are set out, which order is not opposed.
27 I make an order for the retention of the forensic sample previously obtained because of the seriousness of the offences, because the order is not opposed and because it is in the public interest for the order to be made.
Sentence
28 I propose placing you on a Community Corrections Order for a period of 18 months with conviction. The order can only be made with your consent, and so I will now set out the mandatory terms and then the further conditions which will attach to that order and ask you whether you consent to the making of the order.
29 The mandatory terms that apply to all community corrections orders are:
You must not commit another offence for which you could be imprisoned during the time that the order is in force.
You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011.
You must report to, and receive visits from, the Secretary to the Department of the Justice or his or her delegate.
You must report to the Community Corrections Centre within two clear working days of the order starting. In this case there is a specific appointment to which I will refer, which the is the appointment within those two clear working days;
You must let a community corrections officer know within two clear working days of the change of your address or, if you are employed, of your employment.
You must not leave Victoria without first getting permission to do so from the Secretary or his or her delegate.
You must obey all lawful instructions from and directions of the Secretary or his or her delegate.
Supervision
Further, I impose the condition that you must be under the supervision of a Community Corrections Officer for a period of 18 months.
You must undergo medical and mental health assessment treatment as directed by the Regional Manager, and that includes psychiatric and psychological assessment and treatment.
You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the Regional Manager.
You must report to Dandenong Community Correctional Services on this Wednesday 19 February 2014 at 11.00 a.m.
Now, having heard those conditions Mr PG, and I understand that they may have been explained to you previously as well, do you consent to the terms and conditions of the order?
42 Mr PG: Yes Your Honour.
43 Thank you sir.
44 I should tell you that if you do not comply with all of the requirements of this Community Corrections Order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to gaol.
45 Do you understand that? Stay seated Mr PG, that's all right. Stay seated. Do you understand that?
46 Mr PG: Yes Your Honour.
47 So understanding all of that do you still consent to the making of the order?
48 Mr PG: Yes certainly.
49 Therefore in relation to the charges you are convicted and sentenced to a Community Corrections Order in the terms and conditions that I have just set out. I will have your solicitor attend to helping you sign the order which indicates your consent to the terms and conditions of it. If you could approach the Dock please.
50 Thank you. I have now made that order and you can now step out of the Dock, and before you go Mr PG, I just want to make sure that you understand that you really need to stay on that medication and you need to take every advantage that this order will offer you in terms of your medical and mental health issues.
51 Mr PG: Yes Your Honour.
52 Yes you are excused.
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