IN THE COUNTY COURT OF VICTORIA	Revised
Not Restricted
Suitable for Publication	
AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
LIAM DORSEY (a pseudonym) 		

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JUDGE:	HIS HONOUR JUDGE MURPHY	
WHERE HELD:	Bendigo	
DATE OF HEARING:	2 April 2019	
DATE OF SENTENCE:	10 April 2019	
CASE MAY BE CITED AS:	DPP v Dorsey (a pseudonym)	
MEDIUM NEUTRAL CITATION:	[2019] VCC 494	

REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – SENTENCING - Plea of Guilty- Indecent Acts- Single event - Two counts of indecent act with a child under 16 contrary to s.44(1) Crimes Act 1958- 18 months aggregate sentence, 10 months suspended, offender on the Sex offender Register for 8 years. – No Prior convictions – Health Issues - Notion of Social Rehabilitation - DPP v DJK [2003] VSCA 109.
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APPEARANCES:
	Counsel	Solicitors	
For the Director of Public Prosecutions	Mr D Cordy	Office of Public Prosecutions	
			
For the Accused	Mr M Turner	Victoria Legal Aid	

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses

HIS HONOUR:  
1	Liam Dorsey, you have pleaded guilty to two charges of indecent act with a child under the age of 16. Which carries a maximum penalty of 10 years imprisonment.
2	The circumstances of the offending were set out in the prosecution opening which was read in open court on the plea, and which I incorporate by reference.
3	In brief outline, the offending occurred between March 2011 and October 2011.  The complainant was a young girl, Eva, then aged between 12 and 13.  
At the time, you were aged 50.  The offending is alleged to have occurred at your home in a suburb of Bendigo. Your then wife was friends of the mother of the complainant.
4	In the context of the friendship between the two women, the complainant had slept over at your residence a number of times, either at the complainant’s request or as a result of arrangements made between the two women.  
You were living with your son and wife.  The complainant and her family were living in another suburb of Bendigo.
5	Sometime over the charge period, there was an arrangement for Eva to sleep over at your home. You shared a bedroom with your wife and slept in a queen size bed.  Next to that bed was a camping mattress about the size of a single bed, and this was where Eva would sleep.  Usually the mattress was located on your wife’s side of the bed.  This was where Eva preferred it to be.  On this occasion, the mattress was on your side of the bed.
6	At some time during the night when Eva was asleep, wearing a T-shirt, underpants and a pair of pants, you had come to bed, and then she woke to hear your heavy breathing and could feel your hand on her.  You pushed your hand down the front of her pants and inside her underpants and proceeded to cup your hand and feel around her vagina using your fingers, skin on skin.
7	You were leaning over the side of the bed and where she was lying, she was close enough for you to reach her.  The touching continued for some time and she pretended to remain asleep.  She moved slightly and pretended to be waking up in the hope that you would stop, and you immediately pulled your hand away.
8	She did not fall asleep straightaway, but not long afterwards, you again reached under her blanket.  She froze.  She was still awake.  You reached again into the inside of her pants and began touching her vagina again, cupping it with your hand and using your fingers on her vagina and moving them around.  
At some point you stopped and went to sleep.  These two events constitute the two charges of indecent act with a child under the age of 16.
9	The complainant complained about your conduct to a boyfriend in 2014 and later told a counsellor about it in August 2016.  She then told her mother about it, and shortly after, that she went to the police.
10	You were interviewed on tape on 1 May 2017.  You agreed that she had slept over on a number of occasions in your bedroom on a mattress on your side of the bed. You stated it was possible that in your sleep you had flung an arm out of the bed and may have touched her. You did not believe it would have been to the lower part of her body.
11	You were subsequently charged.  The matter went to committal and you were committed for trial.  The trial was listed on 1 April in this circuit and after negotiations and the filing of a plea presentment, the matter resolved.
Victim impact statements  
12	The complainant filed a victim impact statement wherein she indicates that since the offending she has struggled with life and everyday tasks. She feels constantly uncomfortable around men.  She has trust issues and difficulty getting close to people.  She finds social activity a big struggle as she has lost confidence.  She feels scared about opening up and of being judged.
13	She does not have a job because she had lost confidence to try new things.  She has self-harmed and has had to have counselling.  She is continuing to take medication.  The counselling is continuing and she takes medication.  
She has money difficulties and has not had the confidence to obtain a driver's license.  She has difficulty sleeping and has nightmares about the offending.  She feels that her childhood has been ruined by your conduct.
14	The complainant’s mother filed a victim impact statement noting that her daughter has changed from a bright bubbly young girl with lots of energy to a scared young girl who does not want to go out.  She was unable to understand what was happening, and it affected the whole family.  She had to maintain constant vigilance with her daughter due to the risk of self-harm.  She felt her daughter pushing her and other family members away and she was forced to concentrate on her.
15	This created difficulties within her marriage and also with her son.  She has been unable to work.  She feels that your conduct has resulted in her being faced with every parent's nightmare, and that you have destroyed her daughter’s childhood. She has found it hard to even put into words the damage that you have inflicted.
16	It is clear from the two victim impact statements and in particular, the impact on the complainant in this matter, that your abusive and breach of trust offending has had a major impact on the complainant, on her childhood and on her family.  I have taken into account the victim impact statements and the impact on the complainant and her mother in sentencing.  Your counsel, in a frank submission, acknowledged that your offending has had a significant impact on the complainant.  

Assessing the seriousness of the offending.  
17	The offence of indecent act under the age of 16 covers a wide range of offending.  Here, your counsel did not dispute that this was serious offending.  It involved skin on skin touching of the genital area.  At the time, you were in a position of responsibility and trust in relation to the complainant.
18	This is an aggravating feature in that the complainant trusted you and looked up to you as a father figure.  You thus breached your duty to protect the complainant, and breached the trust of her mother, who also entrusted you to protect the complainant when she was staying at your home.
19	The impact on the complainant and her mother add to the seriousness of the offending.  Further, numerous court authorities recognise that sexual activity with children is presumed to cause long-term serious harm, both physical and psychological, to the child.  The victim impact statements indicate that that risk has sadly been manifest in this case.
20	Although your counsel accepted that this was serious offending, it is significant that it was in effect a single transaction, relatively brief and isolated, which could be seen as opportunistic.  There were no aggravating features such as threats, violence or attempt to impose secrecy, although there could be said to be premeditation in that the camp stretcher was on your side of the bed.
21	Overall, I regard it is proper to characterise this offending as in the mid-range of seriousness.  It does lack features of aggravation often seen in these cases where the offending involved a protracted period and psychological coercion.
Matters in mitigation.  
22	Your personal circumstances were set out in the sentencing submission, and elaborated on the plea, and I incorporate them by reference.  You are now aged 58.  Your father is still alive.  He worked as a van driver.  Your mother passed away in 2014.
23	You were brought up in the inner northern suburbs of Melbourne, where you completed the equivalent of year 10.  You had a younger sibling who died in a shooting accident when you were 14 and he was 12.  You have two other younger brothers and two younger sisters.  None of your family have been caught up in the criminal justice system.
24	You worked in a number of factory positions until, from about the age of 23, you commenced driving professionally.  You then had a number of driving positions in the Melbourne area before moving to the Bendigo area.  You then worked in factory jobs in that area until, some years ago, you purchased a truck and worked as a driver.
25	For a considerable period, you worked for one company and suffered depression as a result of the stress of a claim made against them for underpayment. It was at that point that you had your first and only period where you were on any form of government benefit.  Thereafter, you started working with a local courier company.  You brought your own van and you are still working for a delivery company in the local area.  I was advised that you believe that you will lose your position as a result of your conviction for these offences.
26	You have been involved in your local community, in particular, the local football club, playing football and in other capacities until you retired from football at 48.  You have contributed to the club. You are also involved in a number of outdoor leisure activities.
27	A significant matter on the plea and relevant to mitigation is your medical history.  In April 2018, you were diagnosed with a rare form of cancer requiring major abdominal surgery.  You are on medication which has significant side-effects, and there is a significant risk of recurrence as set out in the medical reports that have been filed, which indicated that while present investigations show the surgery has been successful and there is no recurrence, there is a 90% chance of a relapse within five years, and a very high risk of relapse after three years when you complete your current therapy.
28	The medical material, I am satisfied, does indicate that a term of imprisonment will be more burdensome, and indeed shows that your overall physical condition is significantly compromised with other conditions as well.
Other matters in mitigation.  
29	On the plea, your counsel led evidence as to your good character.  I take it into account, the evidence of your good character, and you are entitled to be given the full benefit of that.  The character references tended to indicate that this offending is seen as very much out of character, and that you have been hard-working, contributed to the local community and to your family, and you are regarded as a kind, decent hard-working and trustworthy person.
30	I also take into account in mitigation your plea of guilty.  Although it was late, it is evidence of remorse and does constitute acceptance of responsibility by you for this offending.  It also has significant utilitarian value as it obviated the need for a trial, and in particular, the need for the complainant to give evidence.  This is a significant consideration in this matter.  Your plea and your public acceptance of responsibility will also allow the complainant to move forward in relation to this offending. 
Prospects of rehabilitation.  
31	This offending occurred some years ago.  You have nothing outstanding against you. You are of previous good character.  Relevant to your risk of reoffending is the fact that subsequent to this offending, the complainant continued to attend at your home for a further three or four years without reoffending.
32	Given your prior good character, your lack of other offending of this nature, your family support, and your compromised health - putting all those matters together, I regard your prospects of rehabilitation, as submitted by your counsel, as excellent.  Considerations of specific deterrence are therefore of little weight in this matter.
33	A significant matter on the plea was the issue of delay.  I am required to take into account the delay from the time of the offending to when the matter was brought to the attention of the authorities and the further period, now nearly two years, since you were interviewed.
34	You are entitled to have your lack of offending over this period taken into account in relation to your prospects of rehabilitation, and also that you have had the matter hanging over your head for that period.
35	Also relevant is that as a result of your medical condition, as it has emerged, you are now in a significantly worse physical condition to face sentencing.  
This is a matter that I will have regard to in your favour.  It does call for some leniency.  Any sentence of imprisonment will be more onerous upon you than other able-bodied people of your age.
36	The learned Crown prosecutor also referred to the fact that publicity associated with your convictions will, in a relatively small community where you currently reside, have a significant impact on your reputation in a way that might not apply had you been living in a large city.  This is an additional matter that I do take into account.
37	In a comprehensive submission, your counsel submitted that either a wholly or partially suspended sentence, or alternatively a sentence of imprisonment followed by a community corrections order, would be an appropriate disposition.  The learned Crown prosecutor submitted that the seriousness of the offending here called for a sentence of imprisonment, which he submitted should be of less than three years duration, and then it would be a matter of discretion as to whether it should be wholly or partially suspended.

Sentencing considerations.  
38	The basic purposes for which a Court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection	of	the	community.	In	sentencing, I must have regard to a range of matters such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
39	Here, both the learned Crown prosecutor and your counsel referred the Court to a number of authorities that may assist in providing yardsticks or signposts in sentencing you.  I have had regard to those cases.  Each case turns on its own facts, but they do provide some indication of current sentencing practices, which itself is only one matter to be taken into account.
40	In this type of case, I regard it as appropriate to refer to the concept of social rehabilitation which was addressed by Vincent JA, in a case DPP v DJK, where he said this: 
"This notion of social rehabilitation is one that I do not believe has been accorded anything approaching significant recognition as an identifiable underlying concern of the criminal justice system.  It seems to me that the process of social and personal recovery which we attempt to achieve in order to ameliorate the consequences of a crime can be impeded or facilitated by the response of the courts.  The imposition of a sentence often constitutes both a practical and ritual completion of a protracted painful period.  It signifies the recognition by society of the nature and significance of the wrong that has been done to affected members, the assertion of its values and the public attribution of responsibility for that wrongdoing to the perpetrator.  If the balancing of values and considerations represented by the sentence which, of course, must include those factors which militate in favour of mitigation of penalty, is capable of being perceived by a reasonably objective member of the community as just, the process of recovery is more likely to be assisted.  If not, there will almost certainly be created a sense of injustice in the community generally that damages the respect in which our criminal justice system is held and which may never be removed.  Indeed, from the victim's perspective, an apparent failure of the system to recognize the real significance of what has occurred in the life of that person as a consequence of the commission of the crime may well aggravate the situation."
41	He went on:
"It is well to bear in mind that rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator.  Frequently, the damage will be profound and a long time will pass before it can be addressed at all.  In the meantime, childhood will be destroyed, self-esteem damaged, educational and career opportunities lost, and the capacity to form and maintain relationships seriously impaired.  The notion to which I have averted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability.  The vindication of the victim in cases of this kind in particular is profoundly important if the criminal justice system is to perform its role properly."
42	I have weighed the submissions of your counsel that any sentence of imprisonment should be wholly suspended.  Clearly, you have had and continue to have very significant medical issues.  On the other hand, this was serious offending that has had a very significant impact on the complainant and her mother. Considerations of general deterrence and denunciation loom large.
43	The sentence of the court must vindicate community values, which are that children are to be protected from premature sexual activity.  The sentence of the court must confirm to the whole of the community that offending against children by those in a position of trust will be met by serious punishment to vindicate community values, notwithstanding that there may be significant matters personal to the perpetrator calling for leniency.
44	Weighing the competing considerations and giving full weight to the matters urged on your behalf and personal to you, I am not satisfied that it is in the interests of the community that any sentence of imprisonment here be wholly suspended.
45	In fixing a term of imprisonment, I must have regard to the maximum penalty, the circumstances of the offences, your personal circumstances and to current sentencing practices.  As I have indicated, the various cases provided by the parties show a relatively wide range of sentences imposed for this offence.
46	As this offending was constituted by two separate acts that occurred over a short period of time on a single occasion, I regard it as appropriate to treat the two offences as part of a course of conduct and to impose an aggregate sentence.
47	Could you please stand?
48	On each charge of indecent act with a child under the age of 16, you are sentenced to 18 months imprisonment.  This is an aggregate sentence.
49	I direct that 10 months of the sentence be suspended for a period of 18 months.
50	You will therefore be required to serve eight months imprisonment and in the event that you commit an offence in the 18 months following your release, then absent exceptional circumstances, you may be required to serve the balance of the sentence.
51	So it is a sentence of 18 months with eight months to be served and ten months to be suspended for a period of 18 months.
52	As a consequence of your convictions for these offences, you will be required to be registered on the sex offender register for a period of eight years.  The relevant papers will be provided to you to sign.
53	In relation to your medical condition, I will include on the indent the details of your medical condition and provide copies of the relevant reports.
54	I declare that had you not pleaded guilty, I would have imposed a total effective sentence of two years' imprisonment with a minimum term of 16 months.  
55	As a consequence of the convictions, the prosecution has sought a forensic sample.  I regard it as appropriate to order that you provide a forensic sample, and I must advise you that the authorities have the right to use reasonable force to obtain that sample.  Are there any other matters?
56	MR CORDY:  No, Your Honour.  
57	HIS HONOUR:  Mr Turner?
58	MR TURNER:  No, Your Honour.  
59	HIS HONOUR:  I want to thank you, Mr Turner, for your assistance in this matter, and Mr Cordy.  
60	HIS HONOUR: Adjourn the court until 10.30 tomorrow.
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