DPP v Crowl, Peter [2013] VCC 161 (22 February 2013)

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IN THE COUNTY COURT OF VICTORIA	Revised Not Restricted Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

PETER CROWL

JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2013
DATE OF SENTENCE:	22 February 2013
CASE MAY BE CITED AS:	DPP v Crowl, Peter
MEDIUM NEUTRAL CITATION:	[2013] VCC 161

Subject: Plea - sentencing
Catchwords: Unlawful and indecent assault of a girl
Legislation Cited: Sentencing Act 1991, Sex Offenders Registration Act 2004
Cases Cited:
Sentence: Total effective sentence 9 months' imprisonment,
wholly suspended for an operational period of 18 months

APPEARANCES:	Counsel	Solicitors
For the DPP at hearing For the DPP at sentence	Ms R Sleeth Ms F Pace	Office of Public Prosecutions

For the Accused	Mr D Brustman SC with Ms L Featonby	Victoria Legal Aid

1 Peter Crowl, you have pleaded guilty to two charges of unlawful and indecent assault of a girl. This offence carries a maximum penalty of five years' imprisonment.
2 You are presently 61 years of age, having been born on 23 July 1951, and you were aged 27 or 28 when this offending occurred in 1979.
3 You have no relevant criminal history of prior offending for the purposes of this sentence. However you do have some minor offending in the 1980s and you were convicted of carnal knowledge in the Perth Children's Court, Western Australia, in 1981. That offence arose in the circumstances of an intimate relationship with the current victim which developed after these matters.
4 The circumstances of the offending as to this matter are as follows.
5 The victim is now 47 years of age. She was born on 14 August 1965 and was aged 13 to 14 at the time of offending.
6 You commenced a relationship with the victim's mother when the victim was five or six years of age and at that time the victim went to live with her grandmother. She returned to your and her mother's home when she was ten years old. You were in the position of stepfather to the victim during the occurrence of the alleged offences. You and the victim's mother had two male children together, born 24 October 1973 and 10 November 1975.
7 On a night in 1979, you came into the room where the victim was sleeping and she woke up to you getting onto your mattress. The next thing she felt was your hand coming across her leg under the blanket and into the back of her underpants. You moved your hand into the front of her underwear between her legs and stimulated her vagina and clitoris. That conduct constitutes Charge 1, indecent assault of a girl.
8 On another occasion in 1979, you came into the victim's room one night and woke her up by saying, "They are out in the lounge room, can I sit down here for a second?" You sat on the edge of her bed and she was lying on her back. You put your hand under the blanket and touched her vagina, moving your fingers around her clitoris. This conduct constitutes Charge 2, indecent assault of a girl. You then rolled on top of her and put your penis inside her vagina and moved up and down until you ejaculated on the sheet.
9 You continued to have sexual intercourse with the victim on various occasions whenever you got the opportunity from that point on.
10 The victim missed her period in the middle of 1979 and told her mother she was pregnant to another boy in Sale. The victim was in fact pregnant to you. You continued having regular sexual intercourse with the victim during her pregnancy.
11 In November 1979 you left with the victim and your two boys and went to Sydney. You all arrived in Sydney and stayed there until the victim's child was born on 9 March 1980.
12 At some later stage, the five of you went by train to Adelaide. You stayed there for a couple of months and then went by bus to Perth. The victim's baby was about six months old when you arrived.
13 The victim then discovered she was pregnant with her second child. The police became involved and the victim and her baby were placed in a government ‘mothercraft home’.
14 The victim and her children remained in government care until she was 16. At this stage her mother came to Perth and took custody of her sons, and the victim told her that you were the father of her children.
15 You were arrested in Perth on 26 March 1981 for having had sexual intercourse with the victim between 1 and 25 March 1981.
16 On 25 March 1991 you pleaded guilty to a charge of carnal knowledge and were sentenced to a bond in the sum of $500 to be of good behaviour for six months.
17 The victim had sought, with the assistance of the West Australian Department of Community Welfare, to be allowed to marry or at least resume cohabitation with you upon her reaching 16. She returned to live with you after her 16th birthday with the approval of that Department. The victim's mother gave her written consent and extended well wishes to you both for the future.
18 You thereafter remained together for a short time before the relationship broke down, you separated and the victim began to live independently with her two children.
19 The West Australian welfare file expresses confidence in the victim's maturity and capabilities at the time as a homemaker and carer and notes at one point, "The family is a happy and well-nurtured unit."
20 Following her separation from you, the victim's wardship was extended by six months at her request and she appears to have managed well for a time. This did not continue however, and by August 1982 it became clear that she was not coping and her youngest child had been removed from her care because of neglect. It appears that he was later adopted out and the victim has not had any contact since. The older child remained in the victim's care and is now aged 32.
21 You were interviewed in relation to these current offences on 25 January 2010. You said you started a sexual relationship with the victim when she was about 14 or 15 years of age but denied you were her stepfather. You said that the victim came to live with you and her mother when she was 10 or 12 years old. You admitted to fathering two children with the victim. You admitted to leaving with the victim and your two sons without their mother's knowledge.
22 You were committed to this court on 6 October 2011 on three charges of unlawful and indecent assault of a girl and one charge of child stealing. There were early offers to plead to two sexual assault charges, but these overtures were rejected by the prosecution.
23 The matter was listed for trial on 25 June 2012. The trial was not reached on that date and was then fixed for 11 February 2013. On that date, as pre-trial issues, your counsel made an application for a permanent stay of proceedings and the Crown made an application to admit into evidence the statement of the mother of the victim.
24 Following my rulings on 14 February 2013 refusing your counsel's application and granting that of the Crown, a jury was empanelled and the trial proceeded to the extent that opening addresses were heard.
25 The following day the matter then resolved, with you pleading guilty to two charges of unlawful and indecent assault of a girl, the Crown having given an assurance that a suspended sentence would be sought. The charge of child stealing was withdrawn.
26 The victim has explained her conduct with you at the time of offending as being as a result of gratitude for attention she was receiving and what she thought was some sort of love. It appears also that she willingly left her mother at the time you took her and your two boys away.
27 In her victim impact statement, the victim states that she feels that her childhood and education opportunities were truncated by your acts, that she used drugs and alcohol to hide her past and that she experiences a lack of trust in people. She reported these matters because she was worried that you might be abusing other people.
28 I now turn to your personal circumstances.

29 As noted earlier, you are now aged 61. At the time of offending you were aged either 27 or 28.
30 You have no relevant prior convictions and you have otherwise led an honourable life with full employment and contributions to community causes. In particular, you have participated directly in road safety reform and served as a rural fire volunteer.
31 You were educated to Year 10 and subsequently obtained qualification as a motor mechanic and, later, journalist. You met your current partner in Perth and have maintained a stable relationship for over 20 years. You have a daughter together who is now completing Year 12. You are now not in the best of health, suffering osteoarthritis and osteoporosis. Since 1997 you have been in receipt of a disability pension.
32 The offences you have committed are serious. The culpability is that, despite what you may feel about the victim's acquiescence at the time, these laws were intended to protect children from themselves, they not having the maturity when at a tender age of being capable of fully appreciating the consequences, both physical and perhaps more particularly, emotional, of their acts. As a mature adult and in the position of stepfather, there was a profound power imbalance between you and the victim, which you exploited. It was a significant breach of trust.
33 Despite the time that has elapsed, the principles of general deterrence, that is, making an example of your case to deter others who may be likeminded, as well as specific deterrence, remain applicable.
34 In mitigation, I have taken into account your pleas of guilty and the earlier offers that were made, your otherwise good life with contributions to the community, the very long period that has elapsed since the commission of these offences and the staleness that results in dealing in penalties so long after the event.
35 I have also had to give very real consideration to what I consider to be a very lenient sentence that you received from the West Australian court in 1981 and the fact that that sentence was delivered in the context of the fuller relationship which had developed between you and the victim. Notwithstanding that fact, these offences represent the grooming and seduction of a very young girl leading to the conduct to which the victim later acquiesced.
36 Your counsel submitted that a sentence of imprisonment, but wholly suspended, was appropriate to the circumstances and the prosecution accepted that as realistic.
37 After careful consideration, I am satisfied that in all the circumstances a sentence of imprisonment is necessary to achieve the purposes for which the sentence is imposed. In the exceptional circumstances of this case, however, I am prepared to order it to be wholly suspended. In my view, a powerful constraining factor is the terms of the sentence imposed upon you in 1981. In today's sentencing climate, where there is an increased understanding of the prevalence of this type of offending and the impact of the offence upon victims, you would ordinarily expect to serve a significant period in custody.
38 Mr Crowl, could you please now stand.
39 On each of Charges 1 and 2 of unlawful and indecent assault of a girl you are convicted and sentenced to a term of imprisonment of nine months. The sentences are concurrent.
40 The total effective sentence is nine months' imprisonment.
41 Pursuant to s.27 of the Sentencing Act, I order that this sentence be wholly suspended and I declare that the operational period of the suspended sentence is 18 months.

42 Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is 24 months' imprisonment with a non-parole period of 15 months.
43 There is a further matter to which I need to attend. Take a seat for the moment, Mr Crowl.
44 I need to speak to you about the provisions of the Sex Offenders Registration Act. The offences to which you have pleaded guilty are registrable offences pursuant to the provision of the Sex Offenders Registration Act and by reason of you being sentenced for these offences you are a registrable offender obliged to comply with reporting obligations imposed by that Act.
45 As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
46 Further, pursuant to s.50 of the Sex Offenders Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period which is 15 years.
47 My Associate will in a moment hand to you the Notification of Reporting Obligations, which I have already signed. Your representative in court today will ensure that you understand the requirements set out in this form and I will ask you once it is given to you to sign the Acknowledgement that you have received the Notification form and return the Acknowledgement to my Associate. That can take place now, if the registration materials could be passed, please, to the offender.
48 (Document signed and acknowledged.)
49 At the plea hearing the Crown sought an order for the taking of a forensic sample of a scraping from the mouth, which through your counsel you opposed. I have decided that it is not necessary in the circumstances to make such an order due to the age of the offending, your present age and medical condition, your otherwise honourable life, my being satisfied that you are no longer likely to be a threat to the community and that the making of such an order is not in the public interest.
50 That concludes these reasons. Are there any other matters from either counsel?
51 MR BRUSTMAN: No, if it please the court.
52 HIS HONOUR: All right, thank you very much.
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County Court of Victoria