R v Rawson
[2009] VCC 1
•18 December 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-09-01239
| THE QUEEN |
| v |
| GLENN KINGSLEY RAWSON |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | La Trobe Valley | |
DATE OF HEARING: | 3 December 2009 | |
DATE OF SENTENCE: | 18 December 2009 | |
CASE MAY BE CITED AS: | R v Rawson | |
MEDIUM NEUTRAL CITATION: | [2009] VCC 1 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Doherty | Mr C. Hyland - Solicitor for Public Prosecutions |
| For the Accused | Ms J. Sutherland | Dr S. McKay & Associates |
HER HONOUR:
1 Glenn Kingsley Rawson, you have pleaded guilty to one count of maintaining a sexual relationship with a child under the age of 16 and one count of possession of child pornography contrary to s.47A(1) and s.70(1) of the Crimes Act 1958.
2 These offences are serious both by the nature of the type of the offending and also the maximum penalty prescribed by Parliament. The maximum penalty of 25 years imprisonment in respect of maintaining a sexual relationship with a child under 16 reflects the gravity with which the community views sexual crimes against children and five years for possession of child pornography. I shall proceed to sentence you in accordance with the Crown opening, there being no objection taken to that opening at the plea hearing.
3 You met the victim whom I shall refer to by the pseudonym XXY through a shared mutual interest in BMX bikes. You own Rawson's Cycles in Bairnsdale and over the years you have enjoyed a reputation stemming from your significant contribution to BMX bike racing, having been both an Australian and State champion rider. XXY contacted you at the shop and arranged to undertake some work experience commencing in 2005 when she was aged about 11. She commenced working in the August-September of that year just before her 12th birthday. Over the course of the next year you assisted her with the purchase of a bike, helped her with her riding and took an active interest in supporting her to pursue her interest in BMX racing and riding. You developed a close friendship.
4 On your 39th birthday in October 2006, when the victim had just turned 13, you asked her for a birthday kiss. She expected a peck on the cheek but without warning you returned a hard lingering kiss on her lips. She was shocked by your actions.
5 The following month in November 2006 the Bairnsdale and District Agricultural Show was held on 11 and 12 November. You conducted a bicycle display demonstration at that show. At the completion of the show, XXY helped you to pack up and returned with you to the bike shop and assisted you to unpack your work van. Once inside the shop, you commenced kissing her and thereafter you pushed your hand under her clothing and inserted a finger into her vagina. You took her hand and placed it on the outside of your pants and she was aware that you had an erection. You then pulled her lower clothing down her legs and did the same to yourself and then rubbed your penis against the victim whilst continuing to kiss her. Shortly thereafter, you moved into the office area and thereafter you had penetrative penile/vaginal sex until you ejaculated.
6 Following that first sexual contact, intercourse between you both became a regular event. XXY stated that during the Christmas holiday period of 2006, sex may have occurred on at least ten occasions although you stated that it was only half as many. Sex took place in the bike shop usually on a makeshift bed. Sex was oral, digital, penile, and vaginal penetration. You made XXY promise you not to tell anyone about the relationship.
7 The victim commenced high school at the beginning of 2007 and continued working at your shop and she would be there most nights and on the weekends. The sexual relationship continued throughout that year. On 31 December 2007 you were present with her and several other people celebrating New Year and ended up at Mount Taylor. In the early hours of 1 January 2008, you had sex with her.
8 The first half of 2008 continued the same as before with an ongoing sexual relationship being maintained. On 25 July 2008, you went to Melbourne to watch a motor cross display. You contacted the victim and asked her to come to Melbourne by train which she did. You had sex with her in the underground car park near Flinders Street railway station and then returned to Bairnsdale. The sexual relationship continued and the last sexual contact took place after the Christmas party for the bike shop in 2008. The relationship endured for some 16 months and at the end of the relationship the victim was aged 15.
9 In relation to Count 2, possession of child pornography, on Thursday 5 February 2009 a search warrant was executed at your home and business premises. On your mobile phone, police located two images of the victim that are pornographic in nature. They depict her nude torso and show her fingers being inserted into her vagina. Those images had been bluetoothed to your mobile by one of your employees, Anthony John Hardy, in January 2008. Police located four images of females under the age of 18 depicting them in poses that show them in nude or partially nude poses, exposing their breasts on your computer.
10 You were then arrested and interviewed by the police. It is to your credit that when confronted with the victim's allegations, you made full and frank admissions to each of those allegations. You admitted to the police that you were aware of her age but saw her as a person rather than a child. You told police that you were aware that she had no father figure in her life and looked to you as her hero and role model. You admitted that the sex had been constant since the first contact on 12 November 2006 when the victim had just turned 13 up until the Christmas party of 2008.
11 Victim impact statements were tendered at the plea hearing from both the victim and her mother. They reveal the devastating impact that your behaviour has had on both those people. I have read those statements and taken them into account. It is apparent from the content of the victim statement that she suffered considerably as a result of your offending. Your sexual relationship has had an adverse effect on her and also upon her relationship with her mother. She is currently being cared for through the auspices of the Department of Human Services. XXY's victim statement describes the difficulty she has coping. She is currently taking Lovan for depression and has self-harmed. She is aware that a lot of people in the Bairnsdale area know what has happened and that has caused her real difficulty on occasions. The disruption caused through her disclosure has adversely impacted on many aspects of her life. She has been required to move school and it has also impacted on her ability to secure and maintain employment. She has difficulty sleeping and often has dreams about the abuse.
12 Her mother refers to the impact of your offending on her daughter's behaviour and also their relationship. She feels very guilty and responsible for the abuse that had occurred and it has diminished her trust in people. She attests to the emotional pain that her daughter has suffered and the difficulties that she now has in trusting males and her ability to have and maintain normal relationships. Her relationship with her daughter is very fraught and fragile. There are many comments made in the mother's victim impact statement that are inadmissible and I have disregarded those. In particular, I have disregarded her views concerning the likelihood that you will re-offend again and also her comments in relation to sentencing.
13 Mr Rawson, the Court of Appeal in this State has repeatedly stated sexual offending against children is a matter of utmost seriousness.[1] You were the adult who was a trusted friend and confidant of a young child. You abused that trust and therefore your moral culpability is high and this is a serious example of this type of offending. There were many aggravating features of your offending. First the gross breach of trust, the victim respected you and looked up to you as an adult role model. Second, the lengthy period of 26 months over which the repeated sexual exploitation of the victim occurred. Third, the disparity in ages between yourself and the victim. Fourth, you exploited her emotional needs for your own sexual gratification. And fifth, the fact that you made the victim promise to keep your relationship secret. I refer to questions 145 and 146 in the record of the interview.
[1]See DPP v Shields [2005] VSCA 150 [19]-[20] (Vincent JA) for an example.
14 There is a need in these circumstances for the court to emphasise both general and specific deterrence. Young people must be protected from adults who exploit them for their own sexual gratification. The duty of the courts must be to emphasise to the community that such crimes will not be tolerated. As stated by President Winneke in the case of R v WEF:[2]
"It must be understood by the community and in particular those who stand in a position of trust and responsibility towards young children that if they wish to enjoy the benefits which derive from a relationship with young children, they will pay a heavy price if they abuse such trust and responsibility by resorting to their own sexual gratification at the expense of those whom they have in their charge."
[2][1998] 2 VR 385, at p.387.
15 I consider that the child pornography depicting the victim and the four other images found by the police on your computer are at the lower end of the scale for this type of offending. Nonetheless, the victim was aware that you did possess the two images depicting her and that caused her further upset and humiliation and is also a demonstration of your lack of regard towards the victim's emotional wellbeing.
16 I have been told something of your personal history and background. You are aged 42, you have been married for some nine years. Your wife Kathleen gave evidence at your plea hearing. You have two young daughters aged four and six years respectively. Both of you are the joint proprietors of Rawson's Bike Shop. You commenced that business in 2000 having taken over from your late father. In the past, as I have stated, you excelled in BMX riding and racing and you have kept up your involvement with that sport over the years. In your capacity as the proprietor of the local bike shop, you were looked up to by many young people and adults in the Bairnsdale area who shared your mutual interest and respected your expertise.
17 It is important that you did acknowledge, when arrested, that you had offended in the manner described. You did tell the police that the victim was quite adult in her manner and extremely comfortable in adult male company, and over time you developed a distorted image of her and disregarded the fact that she was still a child. As stated, it is important that you did not desist from any of the allegations and you now take full responsibility for the sexual relationship that persisted. You now understand that you should not have entered into this illicit relationship and that you were transferring adult concepts inappropriately into a young child's mind.
18 Following your arrest, you did fully disclose your offending to your wife and many members of your family and extended friendship groups and it has been very difficult for them. They have been utterly devastated by your gross breach of trust and the fact that you carried on the relationship for such a lengthy period of time. To your credit, you sought professional assistance from Ms Tracy Marshall, psychologist, in Bairnsdale with whom you had four or five sessions and through working with her, you came to the understanding that the victim is a child and that your perception that she was an adult person with whom you could share a sexual relationship was wrong. You now understand that the victim's consent was meaningless or irrelevant and you are very upset and concerned about the harm that you had caused the victim.
19 There were a number of mitigating factors that were referred to by Ms Sutherland your counsel. I accept that you did plead guilty at the earliest opportunity and indicated your willingness of plead at committal mention on 8 July 2009. Further, during the record of interview with police you were cooperative, made full and frank disclosures and at no time attempted to obscure the circumstances of the offending. That is very important because you validated the victim's complaint and that is to be encouraged in this type of offending. It demonstrates remorse and also all augers well for your future rehabilitation inasmuch as you accept full responsibility for your actions. Hopefully it will assist the victim to know that when confronted with the allegations, you did not seek to shift the blame to her and accepted full responsibility.
20 I accept through your plea of guilty that you have spared the victim the trauma and inconvenience of a trial and also saved the State the cost of a trial and you have thereby facilitated justice. I further accept in the circumstances that your plea is a real indication of remorse and that you are generally remorseful for your actions. You are entitled to a discount for your plea of guilty and I have taken that into account in your favour. You now demonstrate proper insight into your offending and understand that this behaviour was wrong and that you are now resigned to undertaking a gaol term as punishment for your actions.
21 The effects of your offending have had monumental consequences, not only for the victim and her mother but also for your wife and your family generally and your friends. You were, in effect, your business and it is going to be very difficult for your wife and family to bear the consequences of your actions. Your reputation is now in tatters and your business will now effectively not be able to operate so that the consequences of your offending will have had a real impact on your and your family. Further, it will impact on your ongoing relationship with your two young children. The Department of Human Services have commenced proceedings, as I understand it, in the Children's Court.
22 You are man who has no prior criminal history and your background is unremarkable. You grew up in the Bairnsdale area and your father, with whom you had a close relationship, died aged 58 from lung cancer. He was an asbestos victim. Your mother is retired and lives in Bairnsdale and you have one sibling who is aged 45. I think I said you grew up in the Bairnsdale area but I think it is only latterly that you have come to live in the Bairnsdale area.
23 You completed Year 11 and thereafter you have an excellent work history. You have worked in the capacity of assisting your father in the mechanical engineering and plumbing business as a maintenance worker, you have done landscaping and over the years you developed your ongoing interest in bicycles into a business that was very effective, as I understand it. Through your local business, you further undertook a lot of charity work and made significant contributions to the community helping out local primary and secondary schools. There were also other community efforts that were referred to by the various witnesses, such as helping out at the local show and also financing road trips and assisting other young people who were interested in BMX racing.
24 There was a lot of character evidence called on your behalf. Lucas Burton gave evidence, he has known you since 1993 through a shared mutual interest in BMX racing. You have maintained regular contact over the years. He was shocked when you disclosed to him the nature of your offending which he considered such was out of character. You expressed remorse to him and sorrow for what you have done to the victim. He describes you demonstrating genuine concern for the victim.
25 Mr Dennis Davitt gave evidence, he is a retired police officer who worked in the police force for some 35 years and he has known you for about 20 years. He was a very close friend of your late father and he too was shocked by your offending. He described you as being a very charitable person who has contributed generously to the local community over the years. You were frank with him about your offending and he considers you to be very remorseful.
26 Your wife Kathleen gave evidence and she too described the remorse that you have suffered and that you have acknowledged what you put the victim through.
27 Mr Sturt, another friend, gave evidence and he was devastated by the disclosure of your offending and described it as being out of character.
28 In addition there was a bundle of written references from friends and business acquaintances who still hold you in high regard notwithstanding that they have been told that you have offended in this manner. Those written references reflect the same sentiment that were expressed by the witnesses who gave evidence at your plea hearing. I have taken all that into consideration.
29 Finally, Mr Cummins a forensic and clinical psychologist provided an oral report to the court. He initially assessed you on 15 July 2009 and thereafter on two subsequent occasions. He undertook personality testing and also questionnaires with respect to sexuality. Such tests are routinely used by Forensicare. He did not consider that you had any personality disorder or any major mood disorder, depressive disorder or adjustment disorder. He found the results of the sexuality questionnaire were all within a normal range. He did not consider that you have any propensity to be a paedophile or a hebephile, that is somebody who has a special sexual interest in a person who is post-pubescent or under legal age.
30 He did not consider that you exhibited any negative attitudes towards women. He considers that you have a normal personality and that this offending is an abhorration specific to the circumstances that prevailed. Your offending he described as opportunistic, given the frequent and close contact that you had with the victim and the ongoing relationship that ensured. He noted that you had a distorted view about the victim and that you did not regard her as being an adolescent but rather as an adult person.
31 You clearly perceived her as being older than her chronological years and her level of maturity. He says you now know that you should not have done that and he says you have insight into your offending behaviour and that you expressed appropriate remorse. You now view your offending as being impermissible and know that you should not have become sexually involved with such a young girl. He considered that you have appropriate insight and victim empathy and confirms that you do not wish to shift the blame to the victim. He describes you as being a quiet unsophisticated fellow who is straightforward with no signs of any mental illness or adjustment disorder. He considers it appropriate that you undertake a Sex Offender Treatment Program in custody and you have demonstrated your willingness to do this. Importantly, he considers your risk of re-offending as so minimal as to be effectively zero.
32 Having considered the evidence of Mr Cummins, I accept that there was some continuing cognitive distortion on your behalf that, to an extent, explains your behaviour. However it in no way excuses your behaviour. I am satisfied that you now appreciate the significance of the harm that you have caused to the victim and the damage that you have caused to her by continuing your secret and illicit sexual relationship.
33 I accept, having regard to the evidence of Mr Cummins and the other character material before the court and also your willingness to undergo the Sex Offender Treatment Program, that the risk of you re-offending in a like nature is low, given that you sought out professional counselling on being charged and have accepted the need for further treatment. I accept that you do have good prospects for rehabilitation. I recommend that while in custody, you be assessed for and participate in the sex offender treatment program. You acknowledge the very serious nature for your offending.
34 Having regard to all the factors that I have referred to including the circumstances of your offending and the mitigating factors including the fact that you have no prior criminal history and that there are no other matters outstanding, in all the circumstances nevertheless, I have come to the conclusion that there is no alternative than to impose a custodial sentence, part of which is to be served.
35 Mr Rawson, I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose just punishment. The Crown have submitted in the particular circumstances of this case that a range of seven to nine years is appropriate for the head sentence and five to seven years is appropriate for a non-parole period, that is the minimum gaol term that you must serve. Ms Sutherland on your behalf acknowledged that a gaol term was appropriate.
36 I have considered the decision of DPP v DDJ, an unreported decision, [2009] VSCA 115, that dealt with the charge of maintaining a sexual relationship with a child under 16 which was the predecessor of the charge of persistent sexual relationship with a child under 16. That decision reviewed a number of recent cases that were like nature and also discussed the adequacy of current sentencing practices. I have taken into account the comments made by the Court of Appeal in this sentence.
37 In sentencing you, you must be deterred, and others must be deterred, from like offending and I must establish conditions for your ultimate rehabilitation.
38 Mr Rawson could you please stand.
39 The formal court orders are, in respect of Count 1 maintaining a sexual relationship with a child under the age of 16, you will be convicted and sentenced to six years imprisonment. In relation to Count 2 possess child pornography, you will be sentenced to six months imprisonment. I order that three months of the sentence imposed on Count 2 be cumulative on Count 1 and that makes a total effective sentence of six years and three months imprisonment. I fix a non-parole period of four years imprisonment.
40 I declare, as required, by s.6AAA of the Sentencing Act that I would have sentenced you to a total effective sentence of seven years and eight months with a minimum of five years before you are eligible for parole but for your plea of guilty.
41 I make the retention order sought pursuant to s.464ZFB of the Crimes Act.
42 I note that you have served some 16 days in custody and I make the declaration pursuant to s.18(4) of the Sentencing Act that 16 days is to be reckoned as time already served under the sentence passed today. I direct that this fact be entered into the records of this court.
43 Count 1 is a Class 1 offence under the Sex Offenders Registration Act 2004. Mr Rawson, you are a registrable offender on sentence and the reporting period applicable at law is life. Accordingly, I order that you be registered for life under the Sex Offenders Registration Act 2004. I confirm, Mr Rawson, that you are now subject to reporting obligations for the remainder of your life and the court is required to notify you in writing of those obligations and any consequences that follow from any failure to comply. My associate will now provide a written notice and I ask that you provide your written acknowledgement of receiving this notice.
44 (Order signed and acknowledged.)
45 MR DOHERTY: Your Honour, can I just confirm it's six years three months head sentence?
46 HER HONOUR: That is right.
47 MR DOHERTY: Minimum four years three months?
48 HER HONOUR: No, four years.
49 MR DOHERTY: Four years.
50 HER HONOUR: All right, well we will now turn off the video link to La Trobe Valley. Thank you Ms Buckley for your assistance, thank you. I will just stand down.
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