Director of Public Prosecutions v Bolton (a pseudonym)
[2019] VCC 1247
•9 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CLYDE BOLTON (a pseudonym) |
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JUDGE: | HER HONOUR JUDGE GAYNOR | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 9 August 2019 | |
CASE MAY BE CITED AS: | DPP v Bolton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1247 | |
REASONS FOR SENTENCE
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Legislation Cited:
Cases Cited:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pathmaraj | |
| For the Accused | Ms N. Karapanagiotidis |
HER HONOUR:
1 Clyde Bolton[1], a jury has found you guilty of one charge of gross indecency, six charges of incest, and one charge of committing an indecent act with a child under 16. The facts underlying this offending are as follows.
[1] Clyde Bolton is a pseudonym.
2 The victims are your daughter, NA[2], and her two daughters (your granddaughters), AT[3] and GT[4]. When NA, your only child, was 13 or 14 years, she and you were in your room when you made her put Vaseline on your penis. These acts underlie Charge 1, gross indecency. She was naked and you made her kneel on the bed and tried to insert your penis into her anus, but stopped because she told you it hurt. Those actions underlie Charge 2 on the indictment, incest. Charge 3, incest, is based on a course of conduct which occurred over a three-year period between 1 January 1984 and 31 December 1987, when you regularly required NA to masturbate your penis (an uncharged act), and suck your penis until your ejaculated into her mouth. This oral sex happened frequently in whatever room was convenient to you. During this time, the evidence of NA her mother was working long hours as a teacher, and after school NA was often in the house alone with you. You told her that her mother did not want to have sex with you.
[2] NA is a pseudonym.
[3] AT is a pseudonym.
[4] GT is a pseudonym.
3 Charges 8, 9, 10 and 12 related to your granddaughter, AT. Charge 8, a charge of incest, relates to an occasion when AT was five or six and you tricked her into sucking your penis after you gave her sweets and told her not to tell anyone. This occurred a few months after your wife had died. It was AT’s evidence that after your wife died, you visited NA and her family each Friday at her home, and she said this activity of oral sex occurred about once a month.
4 Charge 9, incest, related to an occasion when AT was about six or seven, and took place at her family home where you and she were in the back garden near the fence, the view to the house being obscured by a bush. You penetrated AT’s mouth with your penis, which she sucked until you ejaculated, making her swallow the semen and giving her sweets afterwards.
5 Charge 10, incest, relates to another discrete incident when AT was in Grade 2 and at your house with her mother and sister who were helping you clean up your backyard. The two of you were in the garage, you lying on your back, and AT sitting on your knees. She sucked your penis, the incident finishing abruptly when GT came looking for you and knocked on the garage door.
6 Charge 12, incest, relates to the last specific act involving you and AT, which occurred at her family home in her mother’s bedroom. You sat on NA’s bed while AT was on her knees positioned between your legs, and you got her to suck your penis until you ejaculated, she swallowing the ejaculate and you rewarding her with mixed lollies.
7 Charge 11 relates to GT, your youngest granddaughter. When GT was in Grade 2 or 3, she was at your home you told her that she was going to feel your “private parts”. GT thereafter avoided you but the following week while you were visiting her home and smoking on the veranda, GT went out to you because she was concerned that you were alone. You asked her if she remembered what you had told her the week before, then took her to a shed at the back of the house where the girls’ toys were kept. Inside the shed you unbuckled your pants and told GT to put her hand down them and grab your “private part”, which she did. These actions underlie Charge 11, which is a charge of committing an indecent act with a child under 16. You told GT that this was a special way that you and your late wife “used to do it”. You told her it was a secret and not to tell anyone.
8 In her final year at school, NA wrote a personal piece for an English essay, making indirect references to your sexual abuse of her. After reading it, her English teacher took her to see a school counsellor, Jennifer Osler, and arrangements were made for her to have counselling with Doncare. Ms Osler gave evidence at the trial that she was adamant she did not want the matter reported to police.
9 NA gave evidence that she told her mother about the abuse when she was about 25, and later her partner, ST[5], who also gave evidence on the trial.
[5] ST is a pseudonym.
10 AT and GT had an argument in mid-2016, as a result of which AT told GT in broad terms that you made her perform oral sex upon you. GT told her sister what you had done to her. AT also confided in a friend, ZF[6], who gave evidence on the plea. Eventually, in December 2016, GT told her mother, NA, that you had been inappropriate with her and AT. NA then spoke to AT, who told her she had sucked your penis when she was in Grade 3.
[6] ZF is a pseudonym.
11 You were arrested on 23 June 2017. In your record of interview you admitted to making your daughter perform oral sex upon you more than 20 years before, but gave no further details. You denied trying to penetrate her anus or also putting your penis between her breasts which NA detailed as part of the activity involving the course of conduct, underlying charge 3 which actions were led as an uncharged acts. You denied any sexual activity with your granddaughters.
12 Following a 15-day trial which commenced on 27 May 2019, you were acquitted of three charges of gross indecency arising from allegations in relation to the family dog, and one charge of making a threat to kill NA.
13 You were charged in relation to Charge 1, gross indecency, pursuant to s.51 of the Crimes Act 1958, for which the maximum penalty was then two years. In relation to the charges of incest involving your daughter, they being Charges 2 and 3, those charges were laid pursuant to s.52(1) of the Crimes Act, for which the maximum penalty was 20 years’ imprisonment. The four charges of incest involving your granddaughter, AT – that is, Charges 8, 9, 10 and 12, were laid pursuant to s.44(1) of the Crimes Act, for which the maximum penalty is 25 years’ imprisonment. The charge of indecent act with a child under 16, in relation to your granddaughter, GT, was laid pursuant to s.47(1) of the Crimes Act – that is Charge 11, for which the maximum penalty is 10 years’ imprisonment.
14 I now turn to your personal circumstances.
15 You are now 69 years old. You have no prior convictions. You were the youngest of three children. Your father was of Ukrainian descent and your mother was Russian. You were born and raised around the Seymour area. You told psychologist, Dr Matthew Barth, whose report dated 23 July 2019 was tendered on the plea, that you had a very close relationship with your parents in particular, your mother, whom you described as the main source of emotional support in your life and closest confidante.
16 You had a problematic relationship with your older siblings, saying your brother was competitive with you and often bullied you. You described a distant relationship with your older sister and said that, ultimately, the three of you had minimal involvement in each other’s lives as adults. You had serious arguments with your brother in the lead-up to the death of your parents. Your father died in the early 2000s and your mother died in 2004. On each occasion, the argument revolved around the placement of one or other parent in an aged care facility which you vehemently opposed. You have not spoken to your brother since your mother’s death in 2004 and told Dr Barth you had no desire to re-establish contact.
17 Your family moved from Seymour to Croydon, where you undertook secondary education, but had trouble adjusting, and described yourself to Dr Barth as an isolated student with few friends, leaving after completing Year 11. You have a sound work history, working for four years for a cable joining company on leaving school, then for three years worked for the Australian Federal Police as a security guard, and supplemented this income by doing various delivery work. You then worked on your wife’s farm which she had inherited, and you managed this property until it was sold. You also regularly did odd jobs for people, predominantly building sheds and fences, which work you enjoyed until you retired about 10 years ago.
18 You told Dr Barth your only sexual relationship was with your wife, to whom you were married for almost 40 years until her death in 2009. You told Dr Barth that your wife was the matriarch who made the major decisions, that she had a range of medical issues after the birth of NA, so that no more children were born and also physical intimacy declined, which you found frustrating. You told Dr Barth you were purportedly happy to abide by your wife’s wishes. You claimed that your libido died with your wife’s death and have continued to deny your offending in relation to your granddaughters. You have no problems with alcohol.
19 It was Dr Barth’s view that you have longstanding issues with self-esteem, which appear to have arisen from your experiences of social ostracism during your school years. It was his opinion that your feelings of social alienation intensified during your adult years, leading to an intrinsic sense of inadequacy.
20 You experienced intense grief after the death of your parents and your wife, became socially withdrawn, and excessively focused on solitary pursuits, such as reading and building various model kits. You described increasingly intrusive suicidal ideation just before your mother’s death in 2004 and, on one occasion, put a gun to your head and pulled the trigger, but the cartridge was dead. You were prescribed antidepressant medication by your general practitioner in 2009.
21 It was Dr Barth’s view that you presented with significant depressive symptoms when he saw you, which were sufficiently severe to warrant the diagnosis of a persisting depressive disorder according to the DSM-V. Dr Barth described you as an introverted and socially awkward man with poorly developed general social skills, such that you have had few friends or close associates throughout your life. It was Dr Barth’s view that you idealised your wife and displayed an intense dependence on her to assume responsibility for major decisions in your marriage.
22 Dr Barth said that your poor social skills limited your opportunities for social contact with others, leading in turn to few opportunities to overcome these deficits or develop the social skills you needed, resulting in a vicious cycle that has become more intense with time. He believed you were acutely aware of these difficulties and felt resentful that you had not had more meaningful relationships with others, resultantly placing considerable weight on the very few close relationships you have had in your life, being largely dependent on your wife for your self-esteem. He said you have become more progressively withdrawn since her death.
23 Dr Barth described your interpersonal difficulties as maladaptive and problematic and representative of prominent features of avoidant and dependent personality disorder, again according to the DSM-V. Dr Barth said you were only partially cooperative when reviewing your sexual adjustment. It was Dr Barth’s view that you have felt a strong desire for sexual connection but lacked the skills even in your marriage to establish or maintain this intimacy. It would appear that you were reluctant to express those needs for sexual intimacy in your marriage and it was Dr Barth’s view that you experienced ongoing feelings of frustration regarding the lack of sexual intimacy in your marriage.
24 Although you denied having any sexual interest towards any female child, Dr Barth described this as implausible given the nature of the offending. He stated:
“The nature and duration of Mr Bolton’s offending clearly indicates the presence of a deviant sexual cognitions and distorted fantasies regarding his daughter and granddaughters. This in turn led to the deviant arousal patterns and sexual behaviour which culminated in his extended offending.”
25 Importantly, he stated:
“Mr Bolton’s offending is indicative of a severe psychosexual pathology and a grossly distorted concept of sexual boundaries on his part.”
26 He said you seemed to have very little understanding of the effect of sexual offending upon child victims. It was his view you required participation in a comprehensive sex offender treatment program as a matter of urgency. Dr Barth had you assessed you for the risk of recidivism for sexual offending using both the Static-99 and the RSVP tools. The Static-99 indicated a low risk of sexual re-offending based on your age, the fact that you had lived in a long-term marriage, had no prior criminal history, and that you offended against female relatives. According to the RSVP, your overall risk of sexual recidivism was found to likely fall in the moderate/high category, that risk of re-offending being most prevalent within an intrafamilial context.
27 It was Dr Barth’s view that you required treatment for your depression and that you would benefit from such intervention and support whilst in custody. It was his view that your antidepressant medication should continue to be monitored by an appropriately qualified professional. He said your depressive symptoms, social deficits and age would make you a particularly vulnerable prisoner, and that you would present an elevated risk of further deterioration in your mood immediately after sentencing and should be closely monitored by prison mental health staff.
28 He concluded:
“Beyond his likely difficulties during the initial phase of adjusting to the custodial environment he would be at risk of episodes of significant mood disturbance throughout his time in prison. To that extent he is likely to find the process of living in the custodial environment to be particularly onerous.”
29 You also have medical issues involving longstanding issues with high blood pressure for which you are medicated, deteriorating eyesight, depression and anxiety, and ongoing pain in your elbow and knee, which restricts your mobility. A 2013 CT scan raised the possibility of a mild case of bone cancer, and you take medication for moderate inflammation and pain.
30 There is no question that the only appropriate sentence in your case is one of a term of imprisonment to be immediately served. In an eloquent plea however, your counsel urged upon me the appropriate limbs of Verdins case relating to your greater difficulty of adjusting to gaol compared to the normal prisoner and the likelihood of deterioration of your mental state in gaol which submission I accept.
31 The Victim Impact Statements from your daughter and two granddaughters, and your son-in-law (their husband and father), make for distressing reading. NA wrote that she essentially survived the years of sexual abuse you meted out to her by deciding to forgive you. She grew up with a low sense of self-worth, mistrust for men, difficulty with stress, and developed anxiety and depression, as is common with victims of incest. She struggled to make friends at school due to her personal shame and humiliation.
32 What can only be described as her heroic efforts to put the past behind her and to develop a “normal” relationship with you was utterly destroyed by the discovery that you had gone on to abuse her daughters. Prior to the death of her mother she had never left her children alone with you, but when Mrs Bolton became sick with leukaemia, requiring constant medical visits for her treatment and because ST was working, NA relied on you for the first time to care for her daughters whilst she attended to her mother’s needs. She now feels entirely betrayed and devastated, and unfortunately blames herself for failing to protect her daughters. She said:
“He took advantage of my forgiveness at a time that was most harrowing when I was dealing with my mum dying and I needed to trust him the most. It made me feel like an appalling parent and has caused me to question my parental decision-making.”
33 She went on:
“Because I had forgiven him and he convinced me he loved and needed me I didn’t take precautions to protect my children. I feel betrayed and manipulated. I believed he wouldn’t hurt me again let alone my children.”
34 The toll taken by the committal hearing and the trial has been heavy upon her. NA described it as a black cloud hanging over her family. She herself was “sickened by the stress and sleepless from worry”. She found the committal hearing confronting and humiliating, being the first time she had to present what happened to her in detail and in public.
35 AT missed her Year 11 exams because of the trial, and GT missed important assessments. Her grades have dropped and this has upset her greatly.
36 In her Victim Impact Statement, AT wrote that she suppressed the memories and, indeed, it was clear on evidence during the trial that she in fact believed she was to blame for what occurred to her and somehow a fool to have been taken in by you. This is an entirely, may I say, wrong attitude for her to take. She was a little girl and was highly likely to be subject of manipulation by you. She has nothing to blame herself for. Nevertheless, she still developed anxiety and behavioural problems from an early age, for which she received psychological assistance, but she never revealed the abuse she was suffered at your hands and was instead diagnosed as suffering from ADHD.
37 AT had great trouble making friends at school. She suffered panic attacks and continuous anxiety, understandably, because of her young age during which the abuse too place. She was unable to attribute her anxiety to the ongoing sexual abuse you inflicted upon her, it would seem, for many years.
38 GT wrote that the hardest thing was the anxiety, and she wrote movingly of the need she felt as a young girl to protect the secret you asked her to keep. She felt unable to tell anyone, especially friends, and this particularly impacted on her when she began high school and friends started sharing secrets, but she felt unable to share hers. She said she became extremely needy and clingy in friendships, which resulted in rejection from her peers. It is evident that the emotional difficulties of which each of them wrote, including the effects of the trial and giving evidence, stay with them.
39 Their father, ST, in his Victim Impact Statement, wrote of the great distress he feels at his perceived failure to protect his daughters, again it would seem to me an understandable and often seen approach seen by these courts but in fact incorrect. He said feels particularly guilty because he was aware of the abuse you meted out to his wife but nevertheless believed that this would not happen to his children.
40 Whilst it appears your daughter, son-in-law and granddaughters have, against the odds, managed to support each other and grow closer through this harrowing ordeal following the revelation of your utter betrayal of them all, there is no doubt in my mind that your actions have devastated this family, in particular, your daughter, whose trust you have utterly exploited, both as her father and then as the mother of your two granddaughters. She is left with as I have said, a deep and pervasive sense of betrayal, an emergence of distressing emotional and physical symptoms arising from your abuse of her which she thought she had successfully coped with and at the same time she must now care for two daughters themselves suffering severely in the aftermath of your abuse upon them.
41 Your offending against NA and AT was gross, protracted, and a shocking and monstrous violation of each of their trust. Against a background of unsatisfactory sexual relations with your wife I am satisfied you treated your daughter as some sort of sexual possession from whom you thought felt you had the right to replace what your marital relationship lacked. After your wife died you then repeated the exercise with AT from the time when she was only a little girl. I regard your offending, particularly in relation to NA and AT, as a serious example of this serious offending and a callous exploitation of your role as father and grandfather. You have shown no remorse for your offending bar the limited admissions you made in your record of interview in relation to NA.
42 You refuse to provide any details of this to police however, and in the end, you pleaded not guilty to all charges against you, including those relating to your daughter and subjected you and your granddaughters to the trauma of contested hearings.
43 Notwithstanding your age and ill-health, and what I accept are the difficulties that you will face in custody, as outlined by Dr Barth, it is clear that condemnation of your conduct, just punishment and general and specific deterrence dominate the sentencing exercise before me. I therefore sentence you as follows.
44 Could you stand up, please sir?
45 On Charge 1 you are sentenced to six months' imprisonment.
46 On Charge 2 you are sentenced to two years' imprisonment.
47 On Charge 3 you are sentenced to seven years' imprisonment.
48 On Charge 8 you are sentenced to two years' imprisonment.
49 On Charge 9 you are sentenced to two years' imprisonment.
50 On Charge 10 you are sentence to two years' imprisonment.
51 On Charge 11 you are sentenced to six months' imprisonment.
52 On Charge 12 you are sentenced to two years' imprisonment.
53 The base sentence will be the sentence imposed on Charge 3, seven years. I order that one year of the sentences imposed on Charges 2, 8, 9, 10 and 12 and three months of the sentence imposed on Charge 11 be served cumulatively to the sentence imposed on Charge 3 and all other sentence giving a total effective sentence of twelve years and three months. And I order that you serve nine years and six months of that sentence, before becoming eligible for parole.
54 Have a seat please sir.
55 May I ask what is the PSD, please?
56 MR PATHMARAJ: I have spoken about this with my learned friend, Your Honour, it is 49 days.
57 HER HONOUR: I declare that 49 days of the sentence have already been served by way of pre-sentence detention. Now, Mr Bolton has to be placed on the sex offenders register for life.
58 MR PATHMARAJ: That’s correct, Your Honour.
59 HER HONOUR: Thank you, we will prepare - - -.
60 Have you got the orders there as well? I will make – and I will sign them if you have.
61 MR PARTHMARAJ: Your Honour, may I just mention a couple of matters?
62 HER HONOUR: Yes.
63 MR PARTHMARAJ: Before Your Honour signs any orders, the first one was the – a serious offender declaration was required.
64 HER HONOUR: Yes.
65 MR PARTHMARAJ: On Charges 3 onwards.
66 HER HONOUR: I declare that you are a serious sexual offender in relation to Charges 3, 8 ,9, 10, 11 and 12.
67 MR PARTHMARAJ: Yes, Your Honour.
68 HER HONOUR: And I sentence on that basis. A disproportionate sentence was not sought by the prosecution.
69 MR PARTHMARAJ: That is correct Your Honour and also the prosecution did seek a forensic sample order.
70 HER HONOUR: Yes, I grant that. Do you want me to sign the orders? Thank you very much, we will stand down until 11.30. Thank you.
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