Sentence: TES: 2 years and 9 months imprisonment, wholly suspended for an operational period of 3 years
[2]
Glenn McArdle following a 10-day trial, on 8 March 2022 a jury found you Guilty of Charge 2 - sexual penetration of a child under 16 years - maximum penalty 10 years' imprisonment, Charge 4 - attempted sexual penetration of a child under 16 years - maximum penalty of 5 years' imprisonment, and Charge 5 - committing an indecent act with or in the presence of a child under 16 - which has a 10-year maximum sentence. Given the date of your offending there are no statutory sentencing schemes that apply.
[3]
In considering the factual basis for sentencing I have had regard to and have carefully considered the arguments of the parties. Consistent with the jury verdict I find that the jury must have acted on the following factual basis.
In March 2001, when you were 26 years of age, you met the victim via an internet messaging service 'Teen Friend Finding Australia'. You sent the victim a private message asking to be friends, which she accepted. You then began a conversation with the victim and discovered that she was 14 years old, female and lived in Dandenong. The conversation between you and the victim continued and you requested and were provided her home phone number. Not long after the online chat you phoned the victim and arranged to meet her at the local horse paddocks on the corner of Stud Road and Brady Road, Dandenong North.
Approximately one week later you met the victim at the horse paddocks and from that time on you spoke to her on the phone almost every day and met up with her at the horse paddocks on the weekends. You developed a boyfriend girlfriend relationship with the victim, and it is apparent that you were accepted into her family home shortly after the first meeting. Photographs tendered on the trial and marked as Exhibit A depict you to be present at the victim's home as early as 27 May 2001, 24 June 2001 and 26 June 2001. The first of these dates was to celebrate the birthday of the victim's mother.
The prosecution case was that you had sexual relations with the victim on numerous occasions prior to her 16th birthday. The victim was able to remember two specific occasions. The first of these was the day the victim first wagged school and spent the day with you at your parent's home, that was Charges 1 to 5. The second was one year later when you and the victim celebrated your anniversary by staying at the Novotel hotel in Glen Waverley, that was Charges 6 and 7. The remainder of the Charges 8 to 10 were related to allegations that you caused the victim to have sex with another man named Tony.
The jury acquitted you of the Novotel offences and the offences involving Tony. In relation to the first occasion, the jury acquitted you of alternative charges of rape and attempted rape. It would appear the jury were not satisfied beyond reasonable doubt that the victim was not consenting or that you were aware she was not consenting or might not be consenting. You were found guilty of charges of sexual penetration of a child under 16, attempted sexual penetration of a child under 16 and commit and indecent act with or in the presence of a child under 16. In the circumstances, I find that the jury were satisfied beyond reasonable doubt that you knew that the victim was under the age of 16 at the time of this offending.
Specifically, the victim was able to date these offences because they occurred on the day she first wagged school. School records tendered on the trial and marked as Exhibit 1, confirm that the victim's first unexplained absence was just after her 15th birthday. Notwithstanding the indictment alleged that these charges occurred between 1 April 2001 and 31 May 2001, I find that the jury must have accepted 20 August 2001 as the date of offending. The victim's 16th birthday was in 2002. The victim dated the Novotel offences as being 1 year, (most likely 20 August 2002, after the initial offences for which you have been found guilty. In these circumstances, I find that the jury could not be satisfied beyond reasonable doubt that the victim was under 16 years of age at the time of the Novotel offences. This interpretation of the jury verdict is consistent with counsel's argument, my summary of the facts and your acquittal on the Novotel offences and that is, as I said, Charges 6 and 7.
I find that the jury accepted that you encouraged the victim to wag school and hatched a plan where you met her at the bus stop after her mother had dropped her off there for school. In accordance with your plan, you and the victim spent the day together at your parent's home where you were living at the time. You gave the victim some vodka cruisers to drink and watched some movies, including a pornographic movie. The victim felt unwell, and you suggested she lay down in your room, which she did.
The victim woke up and you were sitting on her thighs and you were naked. You took down the victim's underwear and put your penis in her vagina and proceeded to have sex with her (Charge 2). The victim cried because she was ashamed and confused. She hid this from you. At this time, it was the victim's evidence that she did not feel the effects of the alcohol she had consumed.
After sexually penetrating the victim's vagina with your penis you then told her to roll over and said to her 'good girls take it up the arse'. You then tried to put your penis in her anus, but you were too forceful and the victim's anus tore (Charge 4). The victim cried out and you stopped. You then proceeded to masturbate yourself until you ejaculated in front of the victim, which is the factual basis of (Charge 5). Not long after this you then dropped the victim back to the bus stop in time to be collected by her mother as if she had attended school that day.
I find that from this time you went on to have a relationship with the victim. The photographs that make up Exhibit A depict you at a variety of the victim's family events or at the victim's family home on occasions over the next four years. The victim's mother's evidence was that you regularly attended at their home. The victim's mother thought you were a nice enough young guy and she thought you were in your early 20's. The victim's mother did not see you as threatening, and she considered that you were quiet and seemed a lot younger than you were. The victim's mother formed this view because of the way you presented and because you played board games with the younger children. The victim's school principal also gave evidence of observing you on maybe four occasions with the family at school events. It was his evidence that your clothes were a bit old fashioned and that you looked to be about 17 or 18 years of age.
The victim's school friend also gave evidence at trial. It was her evidence that she was good friends with the victim particularly from Year 8 through to Year 10. In Years 11 and 12 although they remained friends, they spent less time together because the victim had gone into a different stream undertaking the VCAL course. The victim's school friend described the victim as mature for her age both physically and mentally. She agreed that at the age of 14 or 15 she could easily have been mistaken for 16 or 17 years of age. The victim's school friend knew of the relationship between yourself and the victim and gave evidence that she had met you on several occasions. To her, observations of your relationship with the victim was a normal boyfriend girlfriend relationship and she heard your name mentioned quite a lot.
It appears the victim ended your relationship in around August 2004. At that time, you appeared to be on relatively good terms. One of the photos in Exhibit A depicts you at the victim's 18th birthday which occurred after you had separated.
This matter came to be reported to the police in a somewhat unusual way. Your most recent ex-partner reported it to the Department of Human Services and then to the police in the context of a custody and care dispute in relation to your daughter. It was the police who approached the victim to make a statement, which she did in October 2018, a period of 17 years after the acts had taken place.
On 13 November 2018 you were arrested and interviewed by police. It was not until 17 September of 2019 that you were charged. Your matter then proceeded through the court system until the jury gave its verdict on 8 March 2022.
[4]
The maximum sentence prescribed by Parliament is an important yardstick in the assessment of the gravity of offending and a fixing of sentence. The relevant yardstick is not that currently prescribed for similar conduct, but that in force at the time of the offending[1]. The subject offending in this case occurred 21 years ago. At that time the maximum penalty for a charge of sexual penetration of a child under 16 was 10 years' imprisonment.
There is a requirement pursuant to s5(2)(b) of the Sentencing Act1991 (Vic) that the court must have regard to current sentencing practices as a factor to consider in the sentencing process. Such practices are those that apply at the time of sentence rather than at the time of the offending[2]. In relation to the charge of sexual penetration of a child under 16 there has been an increase in the applicable maximum penalty to 15 years and further, a standard sentence of six years now applies. In these circumstances, the Court can and should consider the sentencing practices at the time the offence was committed as one of the factors in the sentencing synthesis because those sentencing practices are relevant to arriving at a sentence which is just in all the circumstances.[3]
It must, however, be recognised that the courts now have a greater understanding of the devastating impact sexual offending has upon child victims. Clearly, any sexual offending involving children is inherently serious. The absolute prohibition on sexual activity with a child is founded on a presumption of harm. The prohibition is intended to protect children from the harm presumed to be caused by premature sexual activity, that is, activity before the age when a child can give meaningful consent.[4]
A proven absence of consent would significantly increase the seriousness of the offending and your culpability. In your case the jury returned verdicts of not guilty on the alternative charges of rape and attempted rape. Inherent in this result is that the jury were not satisfied beyond reasonable doubt that the complainant was not consenting or that you were aware she was not consenting or might not be consenting. I intend to sentence you consistent with the jury verdict in this regard. In my view this does not mitigate your offending, rather I see it as an absence of an aggravating feature.
Although, I accept that you gave the victim vodka cruisers to drink, I do not accept Dr Harkess' characterisation that you plied the victim with alcohol so that you could easily carry out the offending. This was part of his argument to the jury in regard to the victim's lack of consent. Given the jury verdict it is more likely that the jury did not accept that alcohol had any real bearing on this issue. This is particularly so in light of the evidence of the victim that it was sobering, she felt sober, and she did not feel like she had anything to drink at that point.
Mr McArdle in your case I accept that there was a significant age disparity between yourself and the victim. You were 26 years old at the time of your offending and she was 15. However, in considering whether this represented a true power imbalance I have had regard to the evidence of the victim's mother, the victim's school principal and the victim's school friend. It is my view that although you were 26 years old you presented as somewhat younger and immature. On the other hand, the victim presented as more mature for her age. In these circumstances I do not accept that there was a significant power imbalance in your relationship.
Dr Harkess in his written submissions urged me to find as an aggravating feature of your offending, that you deliberately deceived the victim as to your true age until you took her to your house to isolate her for your sexual gratification. I do not find that you deliberately deceived the victim in such a way. It is apparent from Exhibit E the notes of the victim's school counsellor, that the victim mentioned in March of 2001 that she was dating a 26 year old. Further, although I accept that you took the victim to your parents' home so as to have privacy and most likely to have sexual relations, I do not accept the characterisation urged by the learned prosecutor that you isolated her for your sexual gratification.
In terms of your relationship with the victim generally, I accept the evidence of the other witnesses in this trial for instance the victim's mother, the victim's school principal and the victim's school friend. They each described your relationship with the victim as a normal boyfriend girlfriend type relationship except for the difference in age. The photographs in Exhibit A depict you at family events or otherwise at the family home, at times with your hand on the victim's knee and at other times embracing her. Overall, these photographs depict happier times in your relationship.
I accept that as a child, the victim was vulnerable. It is certainly apparent from her Victim Impact Statement, that I will refer to in more detail shortly, that the victim was, and still is, significantly and detrimentally impacted by your offending.
Otherwise, I consider that your offending occurred on one occasion in the context of a relationship that then continued for 4 years. I accept the victim's evidence that the relationship was flawed and at times toxic and this led to her leaving you and commencing a new relationship when she was 18 years of age. It is the fact that your offending occurred in the context of such a relationship that distinguishes your case from the purely predatory and exploitative offending often seen in relation to charges of this nature. Lastly, I accept that many of the usual circumstances of aggravation such as the use of force, intent to inflict harm and breach of trust are not features of your offending for which you were found guilty.
[5]
On 6 May 2022, the victim appeared before the Court and read her Victim Impact Statement with courage and dignity.[5] Although this statement appears to relate to more than just the offending for which you were found guilty, I accept that it would be very difficult for the victim to separate this out from all that she has experienced. I consider that your offending has caused significant harm to the victim. She suffers from terrible nightmares, she has difficulty trusting others, she feels unworthy and worries for the safety of her own children. I hope that the victim takes away from her court experience the fact that she has been believed by the jury and as such her suffering has been vindicated.
When the victim read her statement to the Court, I indicated I would take it into account in sentencing. I want to assure the victim that the Court has heard her voice and there will be accountability and consequences for you having caused her harm.
[6]
It is appropriate at this point to describe your personal history. You are now 47 old. You are the fourth and last-born child of your family and have two brothers and one sister. You grew up in Keysborough with your siblings, and your parents, who both worked as public servants.
Your early education was not extensive. You successfully finished primary school, and then went on to attend St John's College in Dandenong until Year 9. Your departure has been attributed to several factors, including that you were the victim of bullying at school.
Upon leaving school, you worked at Aussie Disposals for four years, until you were 19 years old. Your employment was terminated because you stole from your employer. In 1993 you were dealt with at Springvale Magistrates' Court for eight charges of theft. You were convicted and placed on a community-based order for six months and required to undertake 120 hours of unpaid community work, which you did without incident. I note that this is the sole criminal offence for which you have been convicted. I do not consider it to be a relevant prior conviction for the purposes of the current sentencing exercise before the court.
Not long after your termination you commenced lasting employment with Coles. You began working in the fruit and vegetable department, before progressing to the role of produce supervisor.
In 2007, you commenced a relationship with your ex-partner. Your daughter was born a few years later. During your relationship with your ex-partner, you report acting as a carer to her four children, as well as to your own daughter. Although the relationship you shared lasted nearly 10 years, it was one of some difficulty. You found that the troubles in the relationship interfered with your ability to function mentally and emotionally, and it impacted upon your sense of self.
In 2016, you and your ex-partner separated. In the wake of your separation you sought voluntary admission into psychiatric care for a two week period at Sunshine Hospital. This period of time has been described as 'an acute transient psychotic episode' and resulted in your being prescribed Olanzapine for some 12 months. Proximate to this time, you also voluntarily engaged with 'Co-Health' to seek assistance to better understand your habits around alcohol consumption and this has not been an ongoing problem.
The breakdown of your relationship resulted in you leaving Sunbury, and your employment with Coles. You moved in with you sister and her children for a time, and by all accounts this was a very successful arrangement. You commenced working at Nason Engine Parts. Your role there changed, from the selection of components to send other stores to the part-time making of engine components. I was told at your plea hearing on 15 July 2022 that you had recently left your employment and had been accepted into a fitness course at Carolyn Chisholm. You are hoping to make your hobby and love of gym, yoga and pilates your new vocation.
You presently have no contact with your daughter, nor do you have access or visitation. You engage the services of Dr Morrell to assist generally with depression and anxiety, and specifically the emotional vulnerability arising from your inability to see your daughter, as well as the nature of these proceedings.
[7]
When you were 18 years old, you disclosed to your parents that you had been the victim of sustained sexual abuse at the hands of a family friend. This abuse continued for 13 years. It commenced when you were five 5 years old and lasted until you were 18. The offender also abused your siblings. He was found guilty and sentenced to eight years gaol. The impact of this ongoing abuse has no doubt plagued you for much of your adult life. At the time of disclosure, you engaged sporadically with psychological services. You spent some two to three years working with a psychologist and engaged in 'trauma work' throughout the course of your early 20s.
Approximately three months after your arrest for this matter, you commenced treatment with Dr David Morrell, clinical psychologist. Since your first appointment on 23 February 2019 you have attended at least 25 sessions of counselling with Dr Morrell. You have developed a significant therapeutic relationship with him. It is my view that you would benefit from ongoing treatment from Dr Morrell.[6]
A comprehensive report authored by Dr Dion Gee and dated 25 April 2022 was tendered on your behalf on your Plea.[7] Dr Gee provides the following opinions:
[8]
(i) You do not present with psychopathology suggestive of a major mental illness.
[9]
(ii) You present with a turbulent and histrionic personality structure, which has some level of influence over the way you think, feel, behave and relate to others.
[10]
(iii) You do not fulfill the diagnostic criteria for a Paedophilic Disorder.
[11]
(iv) Your past aberrant sexual behaviour appears motivated by an implicit need for self-regulation, rather than an explicit desire to commit sexually aberrant acts because of an ingrained and pervasive deviancy.
[12]
(v) You demonstrate a low risk of reoffending sexually in the future.
[13]
(vi) Critically your current constellation of risk factors sees minimal room for further reduction, as many of those identified risk markers for sexual violence are already at their lowest level.
[14]
(vii) You do not have a personality disorder but you do have some generalised anxiety.
[15]
(viii) You would benefit from ongoing counselling and psychological treatment.
[16]
I take these opinions into account in sentencing you.
[17]
Delay is an important mitigatory factor I take into account in your case. You have lost the benefit of having this matter dealt with when you were younger. It is now 21 years since the offending occurred. In that time, you have not reoffended. In addition, you have worked hard.
I note that you were arrested in November 2018 and not charged until the following September. This matter has been hanging over your head since that time and has caused you great stress to the extent that you have sought professional counselling. As I have said, you remain engaged in such counselling with Dr David Morrell, clinical psychologist.
Although the longer period of delay is not something usually given great weight in sentencing, given there are multiple reasons why a victim of sexual abuse may fail to report, I do however take into account that it has now been over two decades and you have not re-offended. This provides the court with a concrete demonstration of rehabilitation.
[18]
I consider the relevant sentencing principles that must be applied in your case are general deterrence, denunciation and just punishment. In my view, specific deterrence has a limited role in the sentencing matrix, given your age, your background and the delay in this matter. The sentence that I impose I am sure will sufficiently deter you from offending in the future and I do not expect to see you back inside a court room.
Other sentencing principles that I must apply are parsimony and proportionality. That is, not only should I do no more than is necessary to punish you, but I should impose an appropriate punishment to fit the crimes you have committed.
Mr McArdle, after careful consideration of all of the above matters, including the oral and written submissions of both defence and prosecution, the Victim Impact Statement from the victim, and all of the tendered material, I have come to the view that the only sentence that can be imposed for the serious offending before the Court is one of imprisonment.
I would ask that you stand. In relation to Charge 2 of sexual penetration of a child under 16, I sentence you to 2 years and 6 months imprisonment - this is the base sentence.
On Charge 4 of attempted sexual penetration of a child under 16 I sentence you to 12 months' imprisonment.
On Charge 5 of committing an indecent act with or in the presence of a child under 16, I sentence you to 9 months imprisonment.
I order that 2 months of the sentence on Charge 4 and 1 month of the sentence on Charge 5 be served cumulatively. This makes a total effective sentence of 2 years and 9 months.
In my view, for a combination of the reasons detailed above, I consider it is desirable in the circumstances to suspend the whole of this sentence for an operational period of 3 years.
Now, Mr McArdle, what this means is that you do not have to serve the 2 years and 9 months. If, however you commit an offence punishable by imprisonment within the next 3 years you will be in breach of the suspended sentence and you will have to show exceptional circumstances if you are to avoid activation of the 2 years and 9 months. Do you understand that?
ACCUSED: Yes, I do, Your Honour.
HER HONOUR: All right.
Pursuant to s11 of the Sex Offender RegistrationAct 2004 I declare that you are a registrable offender as you have been found guilty of two class 1 offences and one class 2 offence. As these offences 'arise from the same incident', they are considered to be one class 1 offence, or a single class 1 offence. Pursuant to s34 of the Sex Offender Registration Act 2004 you are required to report for 15 years.
Now, Mr McArdle, my staff will print some material for you and you will need to sign an acknowledgement that you have received that material. In that there will be information about what is required of you pursuant to the Sex Offender Registration legislation, but basically you will have to go down to a police station in a certain time period, there will be a case manager who is assigned to you, and it will be necessary for you to give certain information to them and to continually update that information if it changes, but I am sure that Ms Harman will be able to help you with that and explain what is required, as will Victoria Police when you go down and report, as will the information that my staff will provide to you, all right?
ACCUSED: Thank you, Your Honour.
HER HONOUR: Is there anything further, either Ms Hartman or Dr Harkess?
DR HARKESS: No, thank you, Your Honour.
MS HARTMAN: No, Your Honour.
HER HONOUR: Very well. Is the victim present?
DR HARKESS: Yes, she is, Your Honour.
HER HONOUR: (Her Honour addresses the victim) I just want to say to you that I have taken into account the great hurt and suffering that you have been through and I have taken that into account in the sentence. I consider that you gave your evidence with courage and dignity, as I said, so I hope that now that this process is over that you can put it behind you and move forward and I wish you all the very best in the future.