Director of Public Prosecutions v Bonner
[2014] VCC 91
•14 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-01894
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW BONNER (A PSEUDONYM) |
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JUDGE: | Chief Judge Rozenes | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2014 | |
DATE OF SENTENCE: | 14 February 2014 | |
CASE MAY BE CITED AS: | DPP v BONNER | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 91 | |
REASONS FOR SENTENCE
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Catchwords: Persistent sexual abuse of a child under the age of 16 – abuse of daughter – lack of violence – delay – protective custody in prison
Sentence: Five years and three months imprisonment with a non parole period of three years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. O’Halloran | Office of Public Prosecutions |
| For the Accused | Ms S. Spowart | Victoria Legal Aid |
HIS HONOUR:
1 Andrew Bonner, you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16. The maximum penalty for that offence is 25 years imprisonment. The offending occurred between 5 October 2010 and 1 April 2012. You have no prior convictions.
2 The facts were opened in detail by Mr O’Halloran, who appeared to prosecute, and are contained in the Summary of Prosecution Opening, Exhibit A.
3 In brief summary, over a period of eighteen months from 5 October 2010, you perpetrated a large number of sexual acts against your daughter, including touching and digital penetration. The charge of persistent sexual abuse comprises incidents of both indecent acts with a child under 16 and sexual penetration of a child under 16 years. During the 18 months you fondled her breasts, masturbated her vaginal area and penetrated her vagina with your fingers. On one occasion you pushed your erect penis against her whilst you were naked. These acts often occurred under the guise of teaching. On April 24 2012 your daughter told her mother about your offending and the matter was subsequently reported to police. You were arrested on 26 August 2012 and participated in an interview. You made no comment when asked about touching your daughter’s vagina and a number of specific allegations, but did admit to showing her how to put on a condom whilst you were naked and had an erection. You entered a plea of guilty at committal mention on 4 October 2013.
1 I received into evidence two Victim Impact Statements. The statement from your daughter, the victim of this offending, Exhibit B, clearly demonstrates that she is an intelligent, articulate and insightful young person. She speaks warmly about the strong bond you shared and the good memories that she has of the years before the offending occurred. She describes your flaws and likens you to a child, and asks that I take that into consideration in determining the appropriate sentence. It is clear that your offending has had a profound impact on her yet she wishes to see you rehabilitated and treated humanely. The statement from your third wife, Exhibit C, speaks of the financial burden she carries as a result of your offending. She also describes the significant emotional impact on both her and your daughter, and the decision not to allow you back into their lives.
2 By way of personal background, you are now aged 59 years. Your childhood was uneventful, having been raised in a stable home with both parents and your two siblings. You lived at home until you were 24 years old, when you left to be married to your first wife. Your work history includes fourteen years in the police force and work as a massage therapist and bus driver. Your first marriage, from which you have two children, ended in 1988. You maintained a good friendship with your first wife, and relationships with your children and grandchildren, until your offending was revealed. You have since been barred from contact with your grandchildren. Your second marriage did not result in children and ended after seven years. Your third marriage resulted in the birth of your daughter, the victim of this offending, and you separated from your wife in 2011 following your daughter’s disclosure. You currently live with and care for your father, who is 84 years old.
3 A psychological report of Ms Elizabeth Warren, dated 3 February 2014, Exhibit 2, was tendered on your behalf by Ms Spowart, who appeared for you. Ms Warren stated that you are of significantly above average intellectual ability but that your emotional and relationship functioning does not match your intellect. She said you have personality features that explain your sexual offending, such as your passivity and inability to maintain your core identity when partnered with an assertive woman. However, she was of the opinion that this does not warrant a formal diagnosis of a personality disorder. The report stated that you do not have the major risk factors for re-offending, other than some relationship difficulties given that you have been married three times and are now estranged from your children and grandchildren. Ms Warren did, however, recommend you complete a sex-offender program to give you insight into your offending and that you be supervised in the event that you are allowed to resume contact with your grandchildren.
4 I received in evidence a report of Dr Marcus Squirrell, your treating clinical psychologist, dated 10 February 2014, Exhibit 3. Dr Squirrell stated that you have participated in twelve consultations with him since May 2012. He said you attended treatment to understand why you had offended against your daughter, in addition to the impact your third marriage had in the offending and your life generally. Dr Squirrell said you expressed shame and regret for your offending and noted an overall improvement in insight regarding the factors that contributed to it. He also noted your concern for the welfare of your father should you serve a term of imprisonment.
5 A letter from Dr Vishnu Sharma, dated 28 January 2014, Exhibit 4, details the range of medical conditions currently affecting your elderly father but indicates that he remains fully independent for his personal and domestic activities of daily living.
6 On your behalf, Ms Spowart conceded that the offending was serious and that a term of imprisonment to be served immediately is warranted in this case. She submitted that I take into account the following matters by way of mitigation:
1) That you are the carer of your father, whom is 84 years of age and suffers from a range of medical problems, and imprisonment will cause you great distress in not being able to care for him;
2) That you are aged 59 and this will be your fist time in prison;
3) That you have no prior convictions and nothing pending;
4) That you pleaded guilty at the committal mention. Your plea evidences remorse, an acceptance of responsibility and a willingness to advance the course of justice. You have spared the victim from having to give evidence and have saved the state cost in running a trial;
5) That you have expressed both shame and regret for your offending;
6) That there was delay between your being interviewed by police in August 2012 and charges being laid in July 2013;
7) That you have taken steps toward rehabilitation by engaging in counselling to understand your offending and prevent re-offending;
8) That you have very good prospects for rehabilitation demonstrated by the insight you have gained into your offending, your lack of risk factors for reoffending, as noted by Ms Warren in her report, and that you have the support of your current partner and a number of family members and friends;
9) That you have, and will, suffer extra curial punishment as a result of the estrangement from your children and grandchildren and the separation from your father upon entering prison; and
10) That you will be required to serve any custodial sentence in protection due to the nature of the offending and the fact that you were a police officer for 14 years.
7 Ms Spowart conceded that specific deterrence is a significant sentencing consideration however that I should moderate the weight given to it in light of the steps you have taken to rehabilitate yourself. She noted that your risk of reoffending will be reduced as a result of your reporting requirements under the Sex Offender Registration Act 2004, which I will come to shortly.
8 Mr O’Halloran submitted that there is a degree of speculation as to the practical arrangements that would be made for you in custody and how onerous they will be.
9 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim, if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society.
10 Protracted sexual offending against children and in particularly by parents or others in loco parentis is an insidious crime, which has the potential to erode the decency of family life and the potential destruction of trust and confidence of young people. The maximum penalty of this offence is 25 years imprisonment. General deterrence, denunciation and protection of young persons are at the forefront of sentencing purposes. Your offending occurred over a substantial period of time and was an extreme breach of trust, in what appeared to have been a previously loving and supportive relationship. I consider the breach of trust and the fact that there was vaginal penetration as aggravating features. As Ms Spowart pointed out, other features which often aggravate this kind of offence were absent.
11 Your daughter’s impact statement, which she read aloud in court, highlights the tension between her love for her father and the seriousness of your offending. Just as a victim impact statement evidencing adverse effects upon a victim may be given weight in the sentencing process, a victim impact statement which positively expresses support for the accused, and argues for a more lenient sentence, can also be given appropriate weight. I note that your daughter’s statement does not express significant mental trauma or impact as many others do. That is not to say that no harm has been done. Victims are not always best placed to accurately predict the future impact of offending against them. And, as I have already observed, the primary principles of sentencing in cases such as these are denunciatory in nature.
12 I take into account that there was some delay between the complaint and you being charged. It was not substantial but not explained. The effect of delay in your case is that this matter, which you must have appreciated would lead to a prison sentence, has been hanging over your head and causing anxiety. On a positive side, delay did give you an opportunity to commence your rehabilitation and I am satisfied that you commenced that process before you were charged. I also take into account that you will serve some or all of your sentence of imprisonment in a specialist protective unit and your time in custody will be more onerous as a result. As I have said, I take into account your early plea of guilty, your lack of prior offending and that you are genuinely remorseful. I accept that your detention in custody will be more onerous because of the concern you have about the wellbeing of your elderly father and the fact that you now have no contact with your grandchildren. I am reasonably satisfied about your prospects of rehabilitation and, accordingly, specific deterrence need not play a prominent role in the sentencing process. It equally calls for a shorter non-parole period.
13 Mr Bonner, would you please stand. On the charge of persistent sexual abuse of a child under the age of 16, you are convicted and sentenced to be imprisoned for five years and three months and I direct that you serve a minimum of three years before being eligible for parole.
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15 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to seven years imprisonment with a non parole period of five years.
16 By virtue of my sentencing you today, you become a registrable offender under the Sex Offenders Registration Act 2004. Charge 1 is a Class 1 offence and you are required to comply with the provisions of the Sex Offenders Registration Act for life.
17 I will now have my associate hand you a form which notifies you of your reporting obligations. Would you please sign where indicated to acknowledge that you have received this form.
18 Finally, I make an order pursuant to s.464ZF of the Crimes Act 1958. I do so because of the seriousness of the circumstance of the offending, and because the application is by consent.
19 I am obliged to tell you though that notwithstanding your consent you do not ultimately co-operate in the taking of a sample, reasonable force may be used. Do you understand that?
20 OFFENDER: Yes
21 HIS HONOUR: Very well, are there any other orders that are required?
22 COUNSEL: No, your honour.
23 HIS HONOUR: Remove the prisoner.
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