Director of Public Prosecutions v Bradford (a pseudonym)

[2017] VCC 1308

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DARRELL GRAHAM BRADFORD
(a pseudonym)

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	8 September 2017
CASE MAY BE CITED AS:	DPP v Bradford (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1308

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Ms T. Bolton
For the Accused	Mr C. Mylonas

HER HONOUR:

1Darrell Graham Bradford,[1] you have pleaded guilty before me to one charge - have a seat Mr Bradford, I will tell you when to stand.  Thank you. 

[1] Darrell Graham Bradford is a pseudonym.

2You have pleaded guilty before me to one charge attempted incest and four charges of indecent and unlawful assault of a girl.  The facts underlying your offending are as follows.  The victims of your offending were your two daughters, Evaline Jakeman[2] and Tricia Sinclair.[3]  At the time of your sexual assaults upon Evaline, she was aged between 13 and 16 years.  Your daughter Tricia Sinclair was aged between 12 and 13 years of age, at the time of your offending against her.  Each of the charges of indecent assault are representative counts.

[2] Evaline Jakeman is a pseudonym.

[3] Tricia Sinclair is a pseudonym.

3I annex the very full prosecution opening summary as an exhibit to my sentencing remarks.  But in brief terms, your offending against your daughter Evaline, began on an occasion when she went with her family to a swimming hole when she was dressed in one piece bathers.  She was a poor swimmer and scared of entering deep water.  You coaxed her in, began teaching her how to hold her breath and at one stage, lifted her out of the water, by picking her up under the crutch. 

4As you did this, you pulled her bathers aside and touched her on the vagina.  You kept rubbing her vagina with your fingers.  You pulled her close to your chest and said "Stay still", which the complainant did.  You then carried her to shallower water and released her.  This incident is part of representative
Charge 1, indecent and unlawful assault. 

5Several days later, on either Christmas or Boxing Day, Mrs Jakeman accompanied her family to a camping holiday to the Fitzroy River.  During that holiday, she was asleep on a low canvass stretcher in the caravan annex.  She woke up when she felt your hands touching the outside of her vagina.  You knelt down beside her and stroked the outside of her vagina with your hands and apparently continued to watch your daughter with a threatening look on your face and she froze.  That incident is the second incident covered by the representative Charge 1.

6Charge 2 related to an incident between 1 and 30 April 1970, when you went into your daughter's bedroom carrying a jar of Vaseline.  All other children in the house were asleep in bed.  You knelt down by her bed, put your hand under the covers and stroke the outside of your daughter's vagina.  She could feel that you had Vaseline on your fingers.  You inserted one finger into her vagina, followed by a second.  Mrs Jakeman tried to kick you away, but you angrily told her to stop resisting.  This assault only ceased because you were surprised by your wife who came into the room and asked what you were doing, you saying "Just tucking in the girls" and walked out of the room.  That incident is one of two incidents attached representative Charge 2 on the indictment.

7The second incident attaching to Charge 2 occurred between 1 January 1970 and 15 November 1971, when your daughter sought permission to attend a youth group night out at the cinema.  Later that night, you went into her bedroom, knelt by her bed, put a hand up the bedsheets and began rubbing her clitoris.  You then inserted a finger into your daughter's vagina, even though she started saying things such as "Stop it" and "Don't".  You grabbed her hand and forced it onto your penis and moved it up and down.  Your daughter pulled her hand away and made a lot of noise which alerted her mother in a nearby bedroom.  Your wife walked in, disturbed you and you quickly left the room.

8A third incident underlying Charge 2 occurred in 1972, when Mrs Jakeman returned home from school and asked permission from you to make her debutante ball.  Late in the evening, when she was in bed, you came into the bedroom, lifted her nightie and exposed her breasts and then knelt beside the bed and commenced licking her breasts.  Your daughter wiggled and squirmed, but you kept going and repeated to her as she resisted, "You want to be a woman".  Again, you were only interrupted in this assault by the appearance of your wife coming to the door.  You got up and pretended to be tucking in your daughter's blankets.

9Over the years, you told your daughter "This is our secret.  If you tell anyone, there will be trouble" and "No one will believe you".  You apparently once told your daughter, while you were fondling her breasts, "It is your fault, you should not have grown them".  Charge 3, also relating to your daughter Evaline occurred in 1971, when she went with you and two brothers to a trip to the Brooklyn Speedway in Melbourne.

10On the way home, you made her sit in the front seat while her older brothers travelled in the back.  She fell asleep, lying across the front bench seat, then at one stage of the journey, you woke her and told her to put her head in your lap.  She did this, you spat on your fingers and you put your hand under her top and rubbed her breasts, fondling her nipples for a long period of time.  This caused your daughter great fear that her brothers would wake up in the backseats and see what was happening, so she lay motionless.

11Charge 4, a charge of attempted incest occurred between December 1972 and February 1973.  Your daughter was asleep in her room, when she heard the door opening and she was alone that night, as her sister Tricia, with whom she shared the bedroom, was at a sleepover.  She saw you come into the room naked.  She could see your erect penis.  You got into bed with her.

12Evaline was wearing no nightie and no underwear.  You pushed her nightie up, climbed on top of her and used your knees to prise her legs apart.  Your daughter realised what was happening and she snapped, raised her knee and kneed you in the groin.  At the same time, she screamed "Get off, get off" and then said she was going to tell her mother.  You raised two fingers in the shape of a gun, pointed them in her direction and said "If you tell your mother, I will kill you".  Your daughter believed what you were saying, as you owned guns.  You never touched that daughter again. 

13I now turn to the charges in relation to your daughter Tricia.  That is Charge 5, also a representative count.  This offending, the first incident, occurred in between January 1971 and December 1972.  At this time, that daughter Tricia was between 12 and 13 and shared a double bed with her sister Evaline.

14She woke up feeling someone touching her between the legs and saw that it was you kneeling by the bed, with your hand beneath her sheets.  Your fingers were playing and tickling the outside of her vagina and then you slowly placed one finger, followed by another, into her vagina.  She was too frightened to move and lay motionless pretending to be asleep.

15The second incident comprising Charge 5, occurred between January 1971 and December 1972, when Tricia came home from school, asked for permission to go to a school social, but was told by her mother to ask you.  She asked for your permission to attend the school social and later that night, when she was in her bedroom asleep, was awoken by you touching her vagina.

16You put Vaseline on your fingers and inserted several of them into her vagina for a period of time, pushing them in and out, before getting up and leaving the room.  A third incident occurred on the same dates.  When your daughter Tricia was in bed asleep, she was awoken again by you kneeling by the bed, putting your hand up beneath the sheet and touching her vagina.  You moistened her vagina with Vaseline and then inserted your fingers into her vagina.  Your daughter a number of times said to you, "Don't" and after a period of time, you left the bedroom at which time Tricia used her underpants to wipe the Vaseline away from her vagina.

17There was a history of complaint, particularly by your daughter Evaline.  In 1971, she spoke to her brother, soon after the incident in the car, but believed that he did not quite understand what she was saying.  In 1971, she also wrote to a catholic priest, it was an anonymous letter and was unanswered.  During confession in 1972, Evaline told the priest Monsignor Fiscalini about being molested by her father, but was met with the response by that priest who opened up the confessional curtain, to the effect of "I know your father, he wouldn't do that.  For telling lies, you can say three decades of the rosary".

18Around the time of your brother Graham's 21st birthday in 1975, Evaline returned from Geelong for the party and told her mother about what you had been doing to her.  Her mother slapped her across the face and told her to get out.  Evaline was understandably upset and went to her Aunt Lorna's house close by and disclosed to her details of the sexual abuse.  She also, that year, told her roommate at Geelong Teachers College.  In 1975, disclosed details of the sexual abuse to her husband.

19Accordingly, this complaint continued, Evaline speaking openly about being a victim of sexual abuse at your hands to relatives and friends.  I do apologise about using their first names, I hope that is all right.  Insofar as Tricia is concerned, she discussed the abuse with her sister Evaline.  The actual details of the abuse were not discussed, merely that it had occurred.  Tricia also revealed, when she was 34, the details of her sexual abuse when attending on a medical practitioner as she had a range of illnesses. 

20Your wife died in April 2015.  Soon after, while making arrangements for the funeral, Tricia and Evaline told the priest who was the celebrant at the funeral, that they had both been sexually abused by you and asked not to be seated near you at the funeral, which request was taken care of.  Tricia again visited the GP she had seen many years before and brought up the topic of sexual abuse.  That complaint being clearly remembered by that doctor. 

21In July 2016, Dortha Davison[4] who was your niece, and a cousin of your daughters', called you in a pretext call which was recorded.  During that phone call, you admitted "Fingering" Evaline, "Fondling her breasts".  You admitted that the abuse happened regularly over a two year period.  You said you might have touched Tricia once.  You said you never gave it a thought whether your daughter Evaline was frightened during the sexual abuse you inflicted upon her.

[4] Dortha Davison is a pseudonym.

22You were arrested on 9 August 2016 and in a record of interview with police, admitted to fondling Evaline’s breasts and digitally penetrating her vagina almost nightly, for a period of several years between 1969 and 1972.  You admitted sneaking into her bedroom at night, kneeling beside her bed and fondling her breasts and vagina.  You also admitted to putting Vaseline on your fingers to assist you in penetrating her vagina.  You said you had attempted once to insert your penis in her vagina.  She said "It hurt" and so you stopped.

23You agreed that your daughter Evaline’s accusations were true, but could not recall everything you had done.  You clearly recall the incident described on the trip to Brooklyn Speedway and a swimming trip in the Hopkins River.  You were able to give little explanation for your actions, aside from saying that your daughter Evaline had sizable breasts and did not resist your advances.  You admitted to kneeling beside your daughter Tricia’s bed and trying to place your fingers in her vagina, but said she resisted, so you left the room and never tried again.  You said other allegations by your daughter Tricia were a lie, that she was an attention seeker and that this was the reason for the accusations.  You said you had told your wife eventually of the sexual abuse that you perpetrated on your daughters and admitted it in confession. 

24The maximum penalty for attempted incest is ten years imprisonment.  The maximum penalty for indecent and unlawful assault of a girl is five years imprisonment.  Those maximum penalties are the penalties that applied at the time of this offending.  Obviously they have increased, so that they are not reflective of the available maximum penalties for this offending at the current time.  This matter was eventually resolved at a committal hearing on 31 March 2017, before any witnesses were called or cross-examined. 

25I now turn to your personal circumstances.  You are 85 years of age.  You have no prior convictions.  In brief terms, you have led a life which from all external appearances, was an entirely productive and law abiding one.  You were always gainfully employed as a motor mechanic.  You described to psychologist Pamela Matthews, whose report was tendered on the plea, a happy childhood.

26You were married for more than 60 years.  You had eight children.  These are matters which were put to me by your counsel as matters that I should take into account in sentencing you, that is, that you were a person of no prior or subsequent criminal history, that to all intent and purposes, you had led a blameless life, apart from this offending against your daughters.  I also received a number of references from friends and from a former daughter in law, all attesting to your good character and what they described as a loving attitude towards your family.  There were comments about this matter being forty years old, with what is in my view, amounted to some sort of disbelief that this offending would be pursued, after all this period of time.

27When one looks at the victim impact statements which were compiled by Evaline, by Tricia and by their cousin Dortha, one sees very clearly why matters as old as this still remain live for attention by a court.  It is quite clear that your actions in relation to the sexual abuse you meted out to your daughters, caused them immense and continuing suffering, which has been unrelenting over four decades and which still continues to plague them.  The victim impact statements of both your daughters were long and eloquent and the after effects that they described, as a result of your offending, were not only severe, but were typical of the long term effects this court sees with most victims of a sexual abuse of the kind described by them.

28As a result of your offending, your daughter Evaline has had lifelong deeply distressing self-esteem issues.  She continues to have feelings of shame.  She suffered humiliation, feelings of worthlessness, and a long term feeling of being tainted and unworthy of love.  She suffers the severe effects of a complete loss of trust, a sense of betrayal.  She has described extreme defensiveness, periods of great sorrow and extreme emotional distress, a sense of emptiness, a feeling of loss of family and continuing feelings of guilt towards her sister Tricia, because she did not complain or take action at the time.  It hardly needs to be said, that a teenage girl, particularly in those days, was in no sort of position to do other than she did and it is quite clear that what attempts were made, resulted in rejection and hurt.

29Your daughter Evaline continues to suffer flashbacks of the offending.  She has nightmares, continual poor sleep, ongoing depression and has twice suffered severe emotional breakdowns and the need for psychiatric attention.  That summary of the aftermaths, effects of your offending hardly does justice to the victim impact statement.  But was indicative overall, of profoundly negative, enduring ongoing suffering that as I have said, continues to this day.

30Likewise, your daughter Tricia described a feeling of isolation in her teens.  She engaged in emotion blocking, in order to cope which has been very distressing and which continues to interfere with her to this very day.  She too suffers a lack of trust, a sense of shame.  She has suffered with a difficulty at times in enjoying normal sexual relations with her husband, as has your daughter Evaline.

31She described an over protectiveness with her own children, which is often a feature of parents who had been sexually abused as children themselves.  Again, there are issues of sleeplessness and intrusive memories of the offending committed upon her.  Again, that summary perhaps does not do justice to the long term effects.  It is a summary only, but it is certainly accepted by this court, that those effects have been grave and had a long lasting emotional impact.  As I have said, both your daughters have suffered these deeply distressing emotional aftermaths for four decades.

32Likewise, their cousin Dortha also suffered.  On their behalf, she conducted the pretext conversation with you, which she found horrifying.  Your actions in relation to your daughters have shattered her sense of safety, a sense of the world that she lived in, the morales and the structure that she grew up in.  I am sure it is probably not realised just how far the ripple effect can be of this sort of offending, but it is quite clear, that your actions have had that effect.

33In sentencing you, there are matters mitigatory to your situation.  That is, there are factors surrounding your life which I must take into account as being on what you would call the credit side and which will affect the sentence I impose.  They are 1)  Your age.  You are 84 years old.  2)  You suffer from a number of serious conditions.  Testing by Ms Matthews, found to reveal the early stages of dementia, you suffer from a serious pulmonary disease and have a mass in one lung which is yet to be further examined, although it has increased in size.  It has not been determined whether this mass is malignant.

34You suffer from ischaemic heart disease for which you receive medication.  You have a 90 per cent blockage to one artery and an 80 per cent blockage to another.  Your condition is chronic and static.  You suffer from a hiatus hernia and from a painful right sided hernia.  You have also suffered from depression since the death of your wife, for which you receive medication.

35I must accept that service of a term of imprisonment by you will be more difficult for you than for other normal prisoners.  This is a matter which accordingly to the case of Verdins, is a matter that I must take into account in sentencing you.  I must also take into account that neither of your daughters have had to endure participation in contested proceedings, either at committal or trial stage.

36As I commented during the plea, this is a significant matter.  It is a significant matter because so many persons who offend as you have, consistently deny that offending.  It is not common for the sorts of confessional statements you made about your offending to be made, and all too often, the court sees, even in the strongest cases, victims of sexual abuse dragged through distressing proceedings where they must not only relive the distress which has already been enlivened by the fact of making a police statement in the first place, but by giving evidence again and enduring cross-examination.  It is quite clear at law that this is a matter that I must take into account, in sentencing you and which goes to your benefit. 

37I was referred to the case of TRG v R, a decision of Their Honours, Justices of Appeal Ashley and Weinberg, [2011], VSCA 337, where the principles surrounding sentencing an elderly offender, who is suffering from ill health, in relation to sexual offending against children is concerned.  Firstly, the court stated at paragraph 35 that:

"In cases involving sexual offences against children, this court has often said that the primary sentencing considerations are general and specific deterrence, denunciation of the horrific nature of the crime and protection of the community.  That is so, even where the offences were committed many years ago".

38Insofar as protection of the community is concerned, I do not regard it as a relevant feature in this sentencing exercise.  That is because, given your age, ill health and the fact that you appear not to have offended since the offending against your daughters ceased, you do not present as any danger of reoffending.

39Again, specific deterrence, that is, punishment designed to deter an offender from behaving that way again is not, for similar reasons, relevant in my view in your case.  I turn back to TRG v R, for there, a list of matters to be taken into account in sentencing an offender such as yourself, which was set out in the case R v RLP, [2009] VSCA 271, were approved. In a case of this kind, I think it is important that I list those particular matters.

40Essentially, there are seven matters that Their Honours said were propositions to be taken into account in sentencing someone such as yourself.  The first is:

1.  That the age and the health of offender are relevant to the exercise of     the sentencing discretion. 

2.  Old age or ill health are not determinative of the quantum of the       sentence.  That is, the length of the sentence is not simply to be      determined by old age or ill health.

3.  However, depending upon the circumstances, it may be appropriate to   impose a minimum term which will have the effect that the offender may      well spend the whole of his remaining life in custody. 

4.  It is a weighty consideration that the offender is likely to spend the    whole, or a very substantial portion of the remainder of their life in      custody.

5.  Other sentencing considerations may be required to surrender some     ground to the need to exercise compassion.  To take account of the real      prospect that the offender may not live to be released and that the      offender's ill health will make his or her period of incarceration particularly onerous.

6.  Just punishment, proportionately and general and specific deterrence     remain primary sentencing considerations in the sentencing disposition,   notwithstanding the age and ill health of the offender.

7.  Old age and ill health do not justify the imposition of an unacceptably      inappropriate sentence".

41In sentencing you, I do take into account your age, your ill health and the confessional statements you made both to your niece and to police.  I accept that you are remorseful for your offending, fail though you may have, to have ever expressed that to your daughters.  It is, however, important that they hear that, that you did express sorrow and contrition for what you had done.

42It was submitted to me by your counsel, that because of those particular factors, I should impose a disposition which did not require you to serve a term of imprisonment.  I do not agree or accept that proposition.  In my view, your offending was too serious.  It was a very grave breach of trust.  It has had lifelong deeply disturbing, ongoing emotional effects, for both your daughters.  It has caused them enormous disruption emotionally in their own lives, as single women, then as mothers and wives.

43It isolated them from members of their own family and as I stated during the plea, it is encouraging to see so many members of their family, extended members of their family, accompanying them, so that to some extent, it can be hoped that there have been repairs which will afford a feeling of being more included in a family life that was denied to them as teenagers.

44Section 5 of the Sentencing Act states that I must take into account, amongst other things, the impact of an offence upon any victim.  I must take into account current sentencing practice.  I have to take into account the nature and gravity of the offending and the culpability and degree of responsibility for the offence by you.  I have to take into account any injury loss or damage resulting directly from the offending.  I have to take into account your previous character.  I have to take into account when a plea of guilty was entered.  I have to take into account the need of the court to impose sentence which punishes, deters others from committing the same offence and manifest denunciation of this offending.  They are all matters which in my view are live in the sentencing exercise before me and in sentencing you have been considered by me.

45As I stated, I do take into account your age and ill health and this is reflected in a sentence which would otherwise be a great deal longer, had it been imposed when you were a younger man and a man who suffered less in the way of physical illness.

46I therefore sentence you as follows sir.  On Charge 1, you are sentenced to six months imprisonment.  On Charge 2, you are sentenced to six months imprisonment.  On Charge 3, you are sentenced to six months imprisonment.  On Charge 4, you are sentenced to two years imprisonment and on Charge 5, you are sentenced to six months imprisonment.

47I order that the sentence imposed on Charge 4, that is a sentence of two years, be the base sentence.  I order that three months of each of the charges imposed on Charge 1, 2, 3 and 5, be served cumulatively or in addition to the sentence imposed on Charge 4, giving a total effective sentence of three years.  I order that you serve a minimum term of fifteen months, before becoming eligible for parole.  You will also be placed on the Sex Offenders Register for life. 

48MR MYLONAS:  Is Your Honour intending to give a 6AAA indication?

49HER HONOUR:  Thank you.  Pursuant to s.6AAA, I declare that had you not pleaded guilty, I would have sentenced you to a maximum term of five years and order you serve a minimum term of three years. 

50MS BOLTON:  And the last thing, Your Honour, there was an application by consent for a 464.

51HER HONOUR:  I actually do not see the need for it in the circumstances and I am not inclined ‑ ‑ ‑

52MS BOLTON:  I agree.  Thank you very much.

53HER HONOUR:  ‑ ‑ ‑ to grant that. 

54MS BOLTON:  Thank you, Your Honour.

55HER HONOUR:  Thank you.  Mr Bradford, the papers in relation to the Sex Offenders Register will be given to you by my associate and the contents of your obligations under it, will be explained to you by Mr Mylonas.  Yes, thank you.  We will adjourn to 2.15 on Monday.  Thank you.

56MR MYLONAS:  Your Honour, before you leave the Bench, sorry I omitted to raise - is Your Honour going to make any orders in relation to custody management issues?

57HER HONOUR:  It is not something that is normally done in this court, as I understand it, but I am certainly prepared - whilst the officer is here - I mean the reality is, it is likely, for what it is worth, that your client will spend his time in the hospital at the gaol, for most of the time.  But that he has significant illnesses with accompanying medication and requires particular attention.  Undoubtedly too, you would be able to make sure copies of all the reports that you had, go with him on the bus.  Do you have those or do you want the copies of what I have?

58MR MYLONAS:  I have copies, Your Honour.

59HER HONOUR:  Thank you very much.  Yes, thank you.

60MR MYLONAS:  Thank you, Your Honour.

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