DPP v Rawlinson (a pseudonym)

[2019] VCC 715

IN THE COUNTY COURT OF VICTORIA

Revised

(Not) Restricted

Suitable for Publication

AT GEELONG

CRIMINAL JURISDICTION

CR 19-00204

DIRECTOR OF PUBLIC PROSECUTIONS

v

PATRICK RAWLINSON (a pseudonym)

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JUDGE:

HIS HONOUR JUDGE GAYNOR

WHERE HELD:

Geelong

DATE OF HEARING:

DATE OF SENTENCE:

17 May 2019

CASE MAY BE CITED AS:

DPP v Rawlinson

MEDIUM NEUTRAL CITATION:

[2019] VCC

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 A. Moore

For the Accused

Ms C. Hollingworth

HER HONOUR:

Patrick Rawlinson, you have pleaded guilty before me to one charge of maintaining a sexual relationship with a child under 16.  The facts underlying your offending are as follows.

The complainant was a young girl who you came to know after you and your then wife conducted a garage sale at your home.  She was a mother of four children, she worked as a taxi driver, and her children, including the complainant, were often left for long periods of time on their own without appropriate food and clothing and were neglected.

You and your wife became, in effect, a substitute family for the complainant, Chelsea Kearney, who stayed at your house often and came to regard you, it would seem, as substitute parents. 

The offending occurred after your wife died in 2005.  The charge consists of a number of occasions of offending over a period of time, which I will now detail.  The first occasion of offending occurred between 1 March 2006 and 26 January 2007 when Ms Kearney was staying at your house.  During the time of this offending, she was aged between nine and 13 years of age, and you were aged between 63 and 67.

On the first occasion, the complainant was asleep in bed when you came into her bedroom, sat on the bed and pulled down the blanket and rubbed the outside of her vagina.  Ms Kearney kept her eyes shut and pretended to be asleep but could feel the bed moving and your heavy breathing while you masturbated your penis.

The second and third occasions occurred in the following two nights whilst the complainant was staying with you and, on both occasions, she pretended to be asleep. 

On the fourth occasion, which occurred shortly after the first three occasions, she opened her eyes and asked you what you were doing and you replied, 'You're all right, I’ve got you'.  She lay there and let you continue touching her whilst you masturbated your penis until you ejaculated.

The fifth occasion occurred between 1 March 2006 and 26 January 2007 and again Ms Kearney was staying at your house overnight.  The two of you were dancing and singing to music in the lounge room and at one point, as part of her dance, Ms Kearney got down on her hands and knees.  You approached her and asked if you could 'play' with her, she said 'okay' and you took off her pyjama pants, lowered your own pants and pressed your penis against the outside of her vagina, thrusting whilst Ms Kearney was on her hands and knees. 

The sixth occasion of offending occurred between 1 March 2006 and
26 January 2007 when Ms Kearney was with you at Kmart.  She wanted a particular toy and you whispered to her, 'I'll buy it for you if you let me play with you when we get home', and she said 'yes'.  You bought the toy for her, the two of you returned to your home and you got Ms Kearney to kneel on her hands and knees on her bed, you went behind her and rubbed your penis on the outside of her vagina, thrusting. 

You would buy her junk food and dolls with the promise that she lay still whilst you rubbed your penis against her vagina.  One day you said to her, 'When you are 13, we can play properly'. 

The seventh occasion of offending occurred between 1 January 2008 and
31 December 2009 when you and Ms Kearney had returned from a trip to Luna Park.  Whilst she lay still, you rubbed your penis on the outside of her vagina. 

The eighth occasion of offending occurred between 27 January 2008 and
26 January 2010.  Ms Kearney was with you after you had returned from a trip to Harvey Norman to buy her a Sims game.  By this stage, you had moved house and were living with your then girlfriend, Natalie Holt.  The complainant would continue to stay with you, using Natalie’s art room as her bedroom.  Once home, you got Ms Kearney to lie naked on her mattress and as she lay on her stomach, you rubbed your penis between her legs, ejaculating between her thighs, onto the mattress. 

The ninth occasion of offending occurred between 1 January and
31 December 2010, by which time you and Natalie had again moved house and now lived in Corio.  The complainant was then 12 years old and wanted to buy her friend an expensive toy collection which she could not afford.  You said you would buy it for her if she let you play with her.  She agreed.  You took her into your bedroom and rubbed your penis on the outside of her vagina. 

Ms Kearney first disclosed this offending to a school friend in Year 8.  In
August 2017, she attended the Geelong police multidisciplinary centre and reported the abuse.  She then engaged in Facebook communication with you, you by then having moved to Tasmania.  She discussed the offending and made a pretext call where you apologised.  It was clear from this material that you made some admissions to that offending. 

You were arrested in July 2018 and interviewed at the George Town police station in Tasmania.  In that record of interview, you initially denied the offending but later admitted to repeatedly sexually assaulting Ms Kearney.  You said you remembered rubbing her vagina, you sending the Facebook message, and that you recalled the pretext conversation.  By way of explanation, you said your wife had passed away and that Ms Kearney became something of a replacement for her.  I make the note that that continued even after you had formed another relationship. 

Ms Kearney compiled, and very bravely read out her victim impact statement in court.  It is clear that your offending has had a devastating impact upon her.  I will not attempt to repeat large portions of her very eloquently and well-expressed victim impact statement.  As a result of your offending, she has been diagnosed with depression, post-traumatic stress disorder and a depersonalisation and de-realisation disorder, which appears to have arisen from her learning at a young age that her body was an object that could be bartered.  This has led to enormous emotional suffering and distress on a daily basis, which continues to this day.

A clearly intelligent person, Ms Kearney has been unable to complete her education, to undertake further education, has experienced long periods of homelessness, has been unable to undertake employment, she battles daily with the challenges that her continuing debilitating mental health throw up for her to the point that she is in a vicious cycle where her depression and panic attacks can become so bad that she is unable to attend upon psychological treatment that she clearly needs so desperately. 

It is to be hoped that over time that Ms Kearney is able to understand and undertake, as best she can, the assistance she requires.  And it is to be hoped that, to some extent, the resolution of these matters allows her something of a launching pad to move onto the next stage of her life.  But there is no doubt, as is so often the case with survivors of sexual abuse which has been metered out to them, that she has suffered enormously long-term devastating mental health difficulties.  And I add, she has also suffered long-term suicidal ideation and, indeed, made suicide attempts as well. 

As I have said, your offending upon her has been extraordinarily damaging and was, as your counsel conceded, a gross breach of trust, not only in relation to Ms Kearney’s mother who unfortunately appears to have sided with you (causing further distress to Ms Kearney), but in particular to Ms Kearney, who was a vulnerable child and who turned to you in the difficult life she had been born into as providing an alterative home for her that she sorely needed. 

I now turn to your personal circumstances.  You are 76 years of age, shortly to turn 77.  You had a difficult childhood.  Your father was a seaman who was often absent from home.  Your mother took on boarders, and when you were a child she formed a relationship with one of those boarders as a result of which you were removed from her care and spent many years in and out of boy's homes. 

You have a solid work history which began after you left school in Year 9, undertaking a number of labouring jobs before becoming a train guard and working for VicRail for a period of 22 years.  You were retrenched from that position in the late-80s when positions such as train guard and station master disappeared.  Two years later, you were involved in a car accident, blood clots formed after that and you underwent amputation of your right leg; you have not worked since.  Unsurprisingly, as a teenager and young man in your 20s, you became involved in criminal offending primarily for dishonesty offences, including burglaries and theft and served a number of sentences totalling about nine and a half years in gaol.  You last appeared before a court in 1991.  Before that, your priors go back to the 1970s.  It appears you did turn your life around. 

You were married for many years to your former wife, Ava, who died of complications of an enlarged heart.  I was informed, and indeed it appears in the psychological report of Jeffrey Cummins which is tendered on the plea, the offending began in the context of extreme grief by you and a sort of perverted view of Ms Kearney as some sort of a replacement.  As I have said a couple of times however, it is clear that this offending continued after you moved on to a second relationship.

That relationship with Natalie lasted for a period of 13 years and the two of you moved to Tasmania together.  Following your arrest and charging for these offences, you returned to Geelong.  Your relationship with Natalie has ended; you now have a relationship with Sofia, who I am informed remains supportive of you and will continue the relationship with you once you are released from gaol.

It is quite clear, and it was conceded by your counsel, that the only way a court can deal with you is by way of a sentence of imprisonment to be immediately served.  This was extraordinarily grave offending.  I have already in some detai, outlined your effects upon Ms Kearney. 

The maximum penalty for this offending is 25 years' imprisonment, which is the second highest maximum penalty available pursuant to the Crimes Act, second only to the maximum penalties for murder and drug importation, where the maximum penalty is life.  I should note drug importation falls under Commonwealth legislation.  But in any event, the seriousness of this offending is made clear by the maximum term available. 

However, in your case, I must take into account very serious medical issues that you face.  You suffer from diabetes, which is in and of itself not necessarily of great seriousness, but it has led to vascular difficulties.  It appears that those vascular difficulties, which may also derive from an ischemic heart disease, which you also suffer, have led to a position where you are shortly to be investigated for possible removal of your left leg. 

You suffer significant nerve ending pain in your right leg.  You suffer cramps at night.  You have significant pain medication - Panadeine Forte and Valium, as well as specific medication for nerve ending pain.  You are also suffering from a condition whereby deposits of calcium are occurring in your brain, which may be the precursor to a condition of dementia. 

A combination of all these illnesses mean it is quite clear that service of a term of imprisonment will be significantly more difficult for you than for another prisoner.  In particular, I have regard to the fact that on your admission to gaol, you will still undergo investigation for possible amputation of your left leg and if that occurs in gaol, that is going to be an extraordinarily difficult undertaking for you.  In the circumstances it is quite clear that there must also be a commensurate significant diminution or lessening of the sentence that would otherwise be imposed upon you 

However, the authorities make it abundantly clear that only a term of imprisonment is appropriate (for understandable reasons) in cases of this kind.  The damage that is done to children, the breach of trust that it involves, the enormity of this offending cannot be understated.  It is quite clear that principles of punishment, condemnation of your offending and general deterrence are the primary principles to which any sentencing court must have regard. 

In all the circumstances, therefore Mr Rawlinson, I sentence you as follows.  I do not ask you to stand, understanding that that is difficult for you.  On the charge of maintaining a sexual relationship with a child under 16, you are sentenced to three years' imprisonment.  I order that you serve a minimum term of 14 months before becoming eligible for parole. 

I absolutely emphasise, were it not for your serious medical condition, sir, you would have had a considerably longer term of imprisonment to endure.  I also take into account that this matter resolved prior to the conduct of a committal and Ms Kearney was spared the trauma of the giving of evidence in court and cross-examination, and the community was spared the expense of a trial.  This is a mitigating factor which often does not arise in cases of this kind.  You are entitled to a discount in relation to that as well. 

Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a maximum term of four and a half years and order that you serve a minimum term of two and a half years. 

I should add, if I have not already made it clear, that a plea of guilty in cases of this kind also attracts a significant discount.  All too often, persons who have offended as you have against small children refuse to acknowledge their offending and will drag their victims through everything a court has to throw at them.  You have not done this and again, the authorities have made it clear that sentences are to serve as a form of encouragement to offenders such as you to plead guilty at the earliest opportunity.  Yes, thank you.

Yes, I am going to order that police take a swab from your mouth, Mr Rawlinson.  It will just be a saliva swab so that your DNA can be placed on the national database.  I need to advise you that if you refuse this, police are entitled to user reasonable force in order to obtain that swab.  Do you understand what has happened today, sir?

OFFENDER:  Yes, ma'am.

HER HONOUR:  Did you understand what I said about why?  Do not stand up, it is all right, sir.  Do you understand why?

OFFENDER:  Yes, ma'am.

HER HONOUR:  Thank you very much.  Your counsel will speak to you in the cells, thank you.  I am granting the s.464ZF application.  Thank you.  Now, what I want to do is, once I have stood down ‑ ‑ ‑

MR MOORE:  Sex offender registration.

HER HONOUR:  You are also to be placed on the sex offenders register for life.  Your obligations under the sex offenders register will be explained to you by your counsel.  We will just get you to sign that.  I also want to arrange for the appropriate documentation to make sure that goes down.  We will arrange to get that material.  Who should I - thank you very much, so we will get all that material to the cells.  It is quite possible he might have to go straight to the hospital when he gets there, I do not know.  But I think they should have all that material.  We will make sure we will get it to you.  Thank you very much.  Thank you. 

I will just - how would you like me to do this, Ms Hollingworth, do you want me to - have you got material there or would you like me to give you what I have got here?

MR HOLLINGWORTH:  I may need to - I apologise - or I can make arrangements with my instructors to get copies of the ‑ ‑ ‑

HER HONOUR:  We could do that.

ASSOCIATGE:   Mr Rawlinson needs to stay to sign the sex offenders register papers.

PRISON OFFICER:  Sorry.

HER HONOUR:  No, that is all right.  Thank you.  Please have a seat, sir.

MR HOLLINGWORTH:  Yes, so if I can organise, I will get copies to ‑ ‑ ‑

HER HONOUR:  We will get the copies.

MR HOLLINGWORTH:  Yes.

HER HONOUR:  I will give the form to my - it is just that last - did you hand it up?

MR HOLLINGWORTH:  I did, the - but I have got another copy if that ‑ ‑ ‑

HER HONOUR:  The outpatient appointment.  Yes, I have got that as well.  I will put that there.  We will photocopy - photocopy of it.  In fact, I will - we will photocopy the neuropsychological - we will photocopy the reports as well.

MR HOLLINGWORTH:  Yes, Your Honour.

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