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Indecent assault charge dismissed for Ballarat paedophile

A convicted Ballarat paedophile, accused of indecently assaulting an intellectually disabled woman inside a residential care home, had his case dismissed yesterday on the basis of consent.
Gary McErvale, 61, appeared in Ballarat Magistrates Court where one charge of indecent assault without consent was dismissed by the magistrate, Angela Bolger.
McErvale had pleaded not guilty to the charge.
Police had alleged McErvale, who was convicted in 2003 of molesting four girls under the age of seven, indecently assaulted a woman inside a facility.
Giving evidence to the court, Detective Senior Constable Jacinta Ford said McErvale was arrested on February 7 this year after a witness allegedly saw him with his hand up the dress of another resident.
An employee from the home giving evidence to the court said he allegedly saw McErvale indecently assaulting the woman after the first witness alerted him to what was going on.
The court heard the complainant, who cannot be named for legal reasons, is intellectually disabled and has the brain capacity of a 10-year-old.
After an almost five-hour hearing, Ms Bolger said she was left with no other option than to dismiss the charge.
“The charge simply cannot be proved beyond reasonable doubt,” Ms Bolger said.
While agreeing the act was indecent, Ms Bolger said the issue of consent from the complainant couldn’t be proved by the prosecution.
McErvale’s defence lawyer Danielle Lamovie had argued throughout the hearing that consent from the complainant was an issue.
“The court heard that the complainant can express what she likes and what she doesn’t like,” Ms Lamovie said.
“There is no evidence of non-consent.”


www.thecourier.com.au (14-7-2013)
http://www.thecourier.com.au/story/1706494/indecent-assault-charge-dismissed-for-ballarat-paedophile/?cs=62

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Paedophile given suspended jail

A paedophile who molested four girls under the age of seven escaped an immediate jail sentence yesterday.
Gary McErvale, 50, of Callow St, Ballarat, received a $1000 fine and 12 months' jail sentence suspended for two years in the Ballarat Magistrate's Court for sexual offences he committed between 1967 and 1994.
The victims expressed outrage at the sentence _ telling The Courier there was no justice.
"I thought he was at least going to get jail," one of the victims said. "Everyone's jaws were on the floor (when the magistrate issued the sentence)."
Two of the women were in Ballarat Magistrate's Court for sentencing. The other two victims were too traumatised to confront their perpetrator.
The court heard the victims were as young as three when they were molested.
One girl was four when she was assaulted.
McErvale admitted to molesting one of his victims up to 15 times.
McErvale pleaded guilty to indecent assault, unlawful assault, unlawful assault with a girl and committing an indecent act with a child under 16.
In sentencing, Magistrate Rowan McIndoe made no comments to the court. The victims - who cannot be named - were by contrast very vocal.
"I just felt like nothing on earth (when I heard the sentence), I just burst into tears, I thought he'd get something but he more or less got nothing," one victim said.
"It's like someone sticking a knife in your stomach and turning it around and around and they won't stop."
Defence counsel Scott Belcher told the court his client suffered chronic depression, partly stemming from the offences he committed on the girls. Mr Belcher said McErvale had made frank admissions to police and regretted his actions and was "relieved" the matter was being resolved.
But his victims aren't satisfied. They say the penalty equates to a $250 fine per victim for offences they will have to live with for the rest of their lives.
"It's virtually a life sentence you're dealt with and for them to put a price like $250 on that (is wrong)."
One woman lived with the memories of abuse for 20 years before she mustered the courage to press charges. She managed to find three other victims, but is concerned there may be more.
"I've got the satisfaction of knowing I've done everything I possibly can to heal. My main concern is preventing it from happening to anyone else," she said.


www.thecourier.com.au (13-3-2003)
http://www.thecourier.com.au/story/329958/paedophile-given-suspended-jail/


MAKO/Files Online.. Listing Australian Convicted Paedophiles/ Sex Offenders/ Child Killers.. FREE Public Service..






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