DPP v McLeod (a pseudonym) [2020] VCC 1945 (4 December 2020)

Last Updated: 9 December 2020

IN THE COUNTY COURT OF VICTORIA

Revised Not Restricted Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS
V
XAVIER MCLEOD (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	19 November 2020
DATE OF SENTENCE:	4 December 2020
CASE MAY BE CITED AS:	DPP v McLeod (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2020] VCC 1945

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords: Sexual assaults occurring 45 – 46 years ago; Gross indecency with a girl under 16 years; Indecent assault upon a female; Indecent assault upon a male; Offender 61 years of age but a child aged between 15 and 16 years at the time of the offending; Three victims aged under 10 years; Significant impact on victims; Plea of guilty; No previous or subsequent convictions; Offender’s rehabilitation complete; Moral culpability and emphasis on punitive sentencing purposes reduced in sentencing adult for offences committed as a child.

Legislation Cited: Sentencing Act 1991.

Cases Cited: Scherrit v The Queen [2015] VSCA 1; The Queen v PJB [2007] VSCA 242; The Queen v Better [2003] VSCA 71; R v Nutter Unrep CA Vic 187/1995; R v Boland [2007] VSCA 242; (2007) 17 VR 300; Miller v The Queen [2011] VSCA 143; Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308.

Sentence: 2 year CCO with supervision and 200 hours of unpaid community work

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Hammill	Office of Public Prosecutions
For the Accused	Mr J. Lavery	McFarlane Criminal Lawyers

HIS HONOUR:

1. Xavier McLeod^[1], on 28 September 2020 you pleaded guilty to three charges of indecent assault upon a female, four charges of gross indecency with a girl under the age of 16 years and one charge of indecent assault upon a male.
2. The offending occurred about 45 or 46 years ago, sometime between

   9 October 1974 and 31 December 1976. These sexual assaults were committed against three young children, all aged under 10 years. At the time of the offending you were aged between 15 and 16.

3. Mr Hammill, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the court a summary of prosecution opening for plea, which set out the circumstances of your offending. Mr Lavery, who appeared on your behalf, accepted the accuracy of that summary and it will form the factual basis for sentence.
4. Relying on that opening, your offending can be summarised as follows.

Background

5. You were born in August 1959 and were aged between 15 and 16 at the time of the offending. At that time, you lived with your parents, older brother, younger brother and younger sister Tanya^[2] in the family home in north-east Melbourne. You were part of a close family which was actively involved in the local church.
6. The Goudie family were similarly involved with the local church. Cameron Goudie^[3] and his wife, Kate Molvig^[4], lived in a neighbouring suburb. They had three children including the victims, Stacey Goudie^[5] and her younger brother, Liam Goudie^[6]. The Goudie family were quite close friends with your family.

Charges 1 and 2 – Stacey and Liam Goudie – First babysitting incident

7. Turning to Charges 1 and 2, which has been described as the first babysitting incident, in 1974, on or around the occasion of their 10th wedding anniversary, Mr and Mrs Goudie went out for dinner. It was arranged that you would babysit the Goudie children that night. You were aged 15 or 16, Stacey Goudie was aged between seven and eight, and Liam Goudie was aged about five or six years old.
8. After their parents left you suggested that they play a game of ‘hide and seek’. After a few turns of the game in the normal fashion, you introduced a new rule, that the last person found had to stand in front of the heater, take off their clothes and be touched all over their body by the other two.
9. Liam was first to be ‘caught’ by the new rule. He was made to stand naked in front of the heater, whilst you told Stacey to touch him all over his body, including his genitals. After Stacey had done this, you then also touched Liam all over his body, including his genitals. This conduct was uncharged but contextualises other charged conduct. To be clear, you will not punished for offending with which you were not charged.
10. At some point Stacey was made to stand in front of the heater. You instructed her to remove her pyjamas and lay on the floor, naked. You then told Liam to touch his sister. He was reluctant, but after you encouraged him, stating it was just a fun game, he did so briefly. You then touched Stacey all over her body, including on the vagina. This act constitutes Charge 1 on the Indictment (indecent assault upon a female).
11. You were the next person caught and you took off your clothes and lay down in front of the heater and directed Stacey and Liam to touch your body, specifically your genitals. After they had both touched you, Liam became tired and 'cranky', so you dressed and put him to bed.
12. Stacey put her nightie back on but felt confused about what had just occurred and when you returned you wanted to continue the game. Stacey did not want to but you coaxed her and, ultimately, you both took off your clothes and stood near the heater, facing each other. You told Stacey to hold your penis hard and rub it up and down while holding your testicles in her other hand. She did as she was told and your penis became erect, which puzzled her. This act constitutes Charge 2 on the Indictment (gross indecency with a girl under the age of 16). On becoming erect you apparently became embarrassed and told her to stop. She then dressed and went to bed.
13. Neither victim said anything to their parents about what happened that night.

Charges 3, 4, 5 and 6 – Stacey and Liam Goudie – Second babysitting incident

14. Sometime later you again babysat the Goudie children. Once again, after the parents had left, you suggested they play the ‘hide and seek’ game with the same rules. Liam was first to stand in front of the heater. You instructed him to take off his pyjamas and for Stacey to touch him on his genitals. You also touched Liam on his genitals before he complained his penis was getting too hot and moved away from the heater. This conduct was also uncharged but contextualises the charged offending.
15. You then pulled down your pants and made both Liam and Stacey separately touch and fondle your genitals. You each got dressed and played another round of the game before Stacey was caught and made to lay down naked in front of the heater. You instructed Liam to touch his naked sister, and then you touched her, focusing on her bottom and inner thighs.
16. You then told Liam to get undressed whilst you also undressed, which resulted in the three of you standing naked in front of the heater. You then guided Stacey’s hand onto your penis and made her rub it, and after a short while you made Liam do the same. You then had the two children touch your genitals simultaneously and then alternate, with one child rubbing your penis and the other fondling your testicles. These acts constitute Charge 3 (gross indecency with a girl under 16) and Charge 6 (indecent assault upon a male).
17. After a short time, Liam said he did not want to play anymore so you put him to bed. When you returned, Stacey had put her nighty back on. She said she was tired and after brushing her teeth she put herself to bed. You followed her into her room, told her to again take off her nighty and to get into bed, naked. You undressed, pulled the covers off Stacey and put one of your fingers into her vagina and rubbed her. This act constitutes Charge 4 (indecent assault upon a female) on the Indictment. You then lay on top of her and rubbed your naked body against hers, for what seemed to Stacey to be a long time, before ejaculating onto the bed covers. That act constitutes Charge 5 (indecent assault upon a female).
18. After getting dressed, you told Stacey in what she described as a 'deadly serious' manner that what had just happened was 'a secret' between the two of you. She was very frightened and took the words as a warning to keep quiet, which she did. At some point after this, she told her parents she did not like being babysat by you but did not say why. You did not babysit the Goudie children again.

Circumstances of offending against Tanya Ray (nee McLeod)

19. The balance of the charges on the Indictment relate to offending against your sister, Tanya Ray nee McLeod. Ms Ray was the youngest child in your family, and when she was aged between approximately eight and nine you would sexually assault her on a regular basis. Charges 7 and 8 relate to specific events that Ms Ray can recall, but they are not isolated events.

Charge 7 – Hayshed incident

20. Between 1975 and 1976, your family went to visit your great aunt near Merrigum, Victoria. At some point during your stay there, you asked the victim to come with you to the hayshed located away from the main residence. In the shed, you pulled Ms Ray’s pants down and put your finger into her vagina. That act constitutes Charge 7 (gross indecency with a girl under 16 years) on the Indictment.

Charge 8 – Bathroom incident

21. Again, between 1975 and 1976, while in the bathroom with Ms Ray, you were naked and asked her to lick your penis. She did so and you then asked her to put your penis in her mouth. She did so, giving you, as she described it, a ‘head job’. This act constitutes Charge 8 (gross indecency with a girl under 16 years) on the Indictment.
22. Either later on the same day or another day around that time, you were in the bath and asked Ms Ray to undress and join you in the bath. She did so and you positioned her so that she was sitting in your lap, facing you in a straddling position. You then rubbed your erect penis along the outside of her vagina. On another day during this time period, the victim recalls a further event where you licked her vagina. All of that conduct was uncharged.
23. In 1976, Ms Ray spoke to her friend Rachel Loder (nee Ward)^[7] about your actions. Ms Loder indicated that if Ms Ray did not speak to her parents about it, she would. In response, your sister told your mother that you had been touching her 'in bad ways'. Your father was furious, confronted you, and you did not sexually assault her again.

Disclosure and reporting of offending

24. Given the families were so well known to one another, over the years,

    Ms Ray and Ms Goudie would sometimes talk with each other about what you had done to them. They made various complaints to different people over the years. Liam Goudie spoke to his sister about what had happened when he was aged about 12 or 13, but ultimately never told anybody else until 2018 or 2019.

25. Sometime in early 2018, Ms Goudie and Ms Ray discussed a recent birthday celebration which you attended. You told Ms Ray that you had 'no regrets' about your life. This upset Ms Ray and after discussing it with Ms Goudie they decided that Ms Goudie would report the matter to police. She did so in March 2018 and subsequently, both her brother and Ms Ray also made statements to police.

Victim impact

26. Turning to the impact this offending has had on the victims. Ms Goudie provided a moving victim impact statement which chronicles the extensive damage caused by this offending. She has had extensive counselling which has not yet enabled her to come to terms with the abuse.
27. She describes feelings of guilt and shame that she did not protect her younger brother, Mr Goudie, and did not come forward to the police earlier, which might have prevented further incidents. She continues to suffer from low self-esteem, self-doubt and a lack of self-confidence. The offending has affected her ability to form healthy relationships, as she says, 'I feel damaged, shattered and broken’.
28. Significantly, she describes the process of giving evidence at the contested committal as ‘profoundly emotionally and mentally exhausting’. However, she does state that the fact you have now pleaded guilty 'quite clearly vindicates the stance I have taken and corroborates the truth for myself and Tanya'.
29. Liam Goudie provided a victim impact statement which was not read in court. In deference to his wish to privacy, it is sufficient to indicate that your abuse of him has had a lasting and damaging impact.
30. Lastly, Ms Ray, your younger sister, provided a statement in which she described the emotional and psychological impact the offending has had on her. For as long as she can remember she has suffered from anxiety, insecurity and low self-esteem. Speaking out about what happened has been a heartbreaking experience and fractured her extended family. In essence, she says that all she has ever wanted is for you to admit what you have done, show remorse and take responsibility for your actions. I make the observation that it is to be hoped that now that this has happened she will find some solace.

Procedural history

31. Turning to the procedural history in this matter. You were arrested and interviewed on 11 April 2018. However, you were not charged until 18 February 2019 and the matter proceeded as a three day contested committal on 5 – 7 August 2019.
32. The trial was listed for 10 days to commence on 5 October 2020. The final directions hearing was to take place on 6 August 2020 but was administratively adjourned to 22 September 2020 for a sentence indication hearing. On

    28 September 2020, you were arraigned on this Indictment and the plea in mitigation proceeded on 19 November 2020.

33. It follows from that history that your plea of guilty could not be characterised as an early plea. Even so, Mr Lavery submitted that your plea of guilty should still merit a substantial reduction in the sentence that would otherwise be imposed because of its utilitarian value and the vindication it provides to the victims. I will address that argument shortly.

Personal history

34. Turning to your personal history. As I have indicated, you were born in August 1959 and are now 61 years of age. It is important to bear in mind that you were a child between the ages of 15 and 16 when you committed these offences. You have no prior convictions, nor in the 46 or so years since this offending have you been convicted of a criminal offence.
35. In addition to your sister, Ms Ray who is eight years younger than you, you have an older brother and younger brother. You attended primary school and high school, completing Year 11. Whilst you were still at school you worked for Safeway part-time and once you left school you commenced your first full-time job as a trainee manager with that company.
36. Not long afterwards, you started with a fruit juice company as a sales representative, and over the rest of your working life you have worked for various companies in senior sales executive positions. For example, in around 2006 you commenced working with a company as a field sales manager for Australia and New Zealand with responsibility for six regional managers and 65 sales representatives.
37. When you were 20 years of age you married your childhood girlfriend with whom you had been in a relationship since you were both 16. There were three children of the marriage now aged 37, 34 and 32. Together with your wife, you purchased a house which you renovated and sold four years later. The family then moved to rural Victoria and then returned to north-east Melbourne to accommodate your work commitments.
38. Through the interest of your youngest son, you became involved in the Scouting movement. According to the evidence tendered on your plea, you have devoted over 20 years of your life to Scouts Victoria as a venturer leader. In a reference of 20 August 2020, Owen Raymond^[8] documents how you have, in his words:

... positively contributed to the lives of hundreds of young people and dozens of adults.

...

Xavier has been providing encouragement, leadership, knowledge, friendship and confidence to venturers and leaders alike for over two decades, and for this the community is indebted to Xavier immeasurably.

39. In 1996, you separated from your first wife and remarried in 2001. Your wife and family remain supportive of you.
40. In 2011, you resigned your sales executive position and decided to assist your son by starting a handyman business with him which you ran for about three years or so. Your son went on to undertake other work whilst you returned to sales work, ultimately with a company, where you worked as a business development manager. References were provided by the owner of that business, and another executive, which confirmed the valuable contribution you made to that business. You made your employer aware of these allegations and ultimately you tendered your resignation in September 2019 because you felt that your continued presence there had the potential to damage the reputation of the company.
41. Since that time you have undertaken some casual work as a traffic controller and sales work, although it was not possible to continue any of that work during the pandemic.
42. When these allegations were first put to you back in April 2018 you sought some psychological treatment from Mr Bruce Sylvester, psychologist. He provided a report of 27 October 2020 in which he confirms that you have attended on him on 12 separate occasions, essentially, it would appear, to deal with the shock of being confronted with these allegations.
43. You told your counsel that you could not remember this offending and there is no clear explanation as to why you abused these much younger children. In his report, Mr Sylvester speculates that you may have committed these offences as a young boy in the context of exploring your emerging sexual identity through sexualised activity. However that may be, Mr Sylvester concludes his report with the following statement:

Xavier is now 61 years of age, a loving husband and father, and a grandfather to three grandchildren; two biological and one step-grandchild. His wife, two brothers and his children have all 'stood by him'. Xavier's behaviour to the best of my knowledge since late teenage years, appears to have been without flaw, and thus the risk of sex offending in the future in my opinion is highly unlikely given decades of Xavier being what I would understand and classify as a 'model citizen.'

I see no reason for ongoing treatment at this time. Xavier has found the matters leading up to his admission of these offences extremely difficult emotionally, and he is seeking to put these matters behind him.

Defence submissions

44. Mr Lavery submitted that you must be taken to have committed these offences before your 17th birthday and that you were then, for all intents and purposes, a child within the jurisdiction of the Children’s Court. You are now to be sentenced as an adult, first offender who has entirely rehabilitated himself over the last 45 or so years. It was unfortunate, to say the least, that even though this matter was brought to the attention of adults not long after it had occurred, it was not dealt with at that time.
45. Had the matter been dealt with in the Children’s Court then, as your counsel pointed out, you could not have been imprisoned, you would have been unlikely to have been convicted, the publication of proceedings would have been prohibited and the proceeding would have been regarded as stale once

    10 years had elapsed.

46. Moreover, in that sentencing exercise, rehabilitation would have been the primary sentencing purpose and there can be no question that you have now fully rehabilitated. In addition to the material to which I have already referred, further character references were provided by Brianna Dawes^[9] and Abby Antsey^[10] which further confirm that you have led a blameless life in which you have contributed to the betterment of many friends and acquaintances.
47. On the strength of that material, Mr Lavery relied on a line of authorities to which I will refer shortly, which deal with the vexed issue of sentencing adults who have committed offences as children, to submit that the only appropriate penalty in the unusual circumstances of this case was the imposition of a Community Correction Order (‘CCO’).

Prosecution submissions

48. Mr Hammill, on behalf of the Director, accepted that the court should not impose an immediate custodial sentence for this offending. Having regard to the authorities, and particularly what was said by the Court of Appeal in

    Scherritt v The Queen^[11], a sentence of imprisonment wholly suspended or, alternatively, a CCO were dispositions which he submitted were reasonably open.

Consideration

49. In considering these submissions, I should acknowledge that there is nothing about the sentence that I must impose in this case that could adequately reflect the harm and damage that your offending has caused. The long-term effects of sexual abuse are too often seen in this Court and the pain and suffering described in the victim impact statements is very much a case in point.
50. It is, however, very much to your credit that you have acknowledged that you have caused that harm and have now taken responsibility for it. As I see it, that acknowledgement has meant a great deal to your victims. Ms Ray said as much. Although your plea of guilty was entered at a later stage in these proceedings, there are two aspects of it which seem to me to operate to significantly to reduce the sentence that would otherwise be imposed. The first is its clear utilitarian value. The second, and perhaps the more important of the two, is the vindication it finally provides to your victims.
51. Despite the abhorrent nature of this offending, the fact remains that you were a child of 15 or 16 when you abused your sister and two family friends.

    Mr Lavery relied on four authorities which deal with offences committed by children but prosecuted many years later, in support of his submissions. They were Sherritt, The Queen v PJB^[12], The Queen v Better^[13] and R v Nutter^[14] to which I would add R v Boland^[15] and Miller v The Queen^[16].

52. The principle to be taken from these authorities is, with respect, concisely stated by Nettle JA, as he then was, at [16] of Boland, and there his Honour said this:

Decisions of this Court in R v Nutter and R v Better recognise that where offences which have been committed while an offender is a child or immature and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender's moral culpability, take into account that what was done was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults, and that it is significant that the appellant has not re-offended in more than 24 years.

53. Miller is another example of the application of that principle. Likewise, Sherritt, which involved the sexual abuse of a sister who was nine years younger than the offender and five years of age at the start of the offending. That case was decided after Boulton v The Queen^[17] and the application of the principles explained in that decision resulted in the Court of Appeal imposing a CCO.
54. Having regard to that line of authority, I accept that here, to adapt what

    Nettle JA said in Boland, common sense and fairness dictate that your moral culpability, the need for denunciation and the need for general deterrence are lessened because you were a child when you committed these offences. Moreover, specific deterrence, it would seem, is irrelevant.

55. I accept also that you have ‘entirely rehabilitated’. The quality of the material affirming your good character and propriety is of a very high order. It is hard to imagine that if you did suffer from some sort of sexual disorder or propensity, that it would not have manifested itself through criminal offending or by coming to the attention of those close to you at some stage over the last 46 years. On the contrary, you have led a blameless life and have contributed much.
56. In those circumstances, I am persuaded that the appropriate disposition here is the imposition of a CCO.

Sentence

57. Taking all relevant matters into account you will be sentenced as follows:
58. You will be convicted and sentenced to undertake a Community Correction Order of 18 months duration. In addition to the core conditions of the Order, you will be required to comply with the following special conditions attached to the order. The first is that during the operational period of the Order, you will be subject to supervision by the Office of Corrections. The second is that you must perform 200 hours of unpaid community work during that period.
59. I will declare pursuant to s 6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to a term of imprisonment of 2 years. However, I would have suspended that sentence in all but the service of 3 months.

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^[1] Xavier McLeod is a pseudonym

^[2] Tanya Ray nee McLeod is a pseudonym

^[3] Cameron Goudie is a pseudonym

^[4] Kate Molvig is a pseudonym

^[5] Stacey Goudie is a pseudonym

^[6] Liam Goudie is a pseudonym

^[7] Rachel Loder (nee Ward) is a pseudonym

^[8] Owen Raymond is a pseudonym

^[9] Brianna Dawes is a pseudonym

^[10] Abby Antsey is a pseudonym

^[11] [2015] VSCA 1, (‘Sherritt’).

^[12] [2007] VSCA 242.

^[13] [2003] VSCA 71.

^[14] Unrep CA Vic 187/1995.

^[15] [2007] VSCA 242; (2007) 17 VR 300, (‘Boland’)

^[16] [2011] VSCA 143, (‘Miller’).

^[17] [2014] VSCA 342; (2014) 46 VR 308.