Director of Public Prosecutions v Bradford (pseudonym)
[2016] VCC 2018
•21 December 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DALE BRADFORD (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 13 & 16 September and 11 November 2016 |
| DATE OF SENTENCE: | 21 December 2016 |
| CASE MAY BE CITED AS: | DPP v Bradford (pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 2018 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Persistent sexual abuse of child under the age of 16 - possession of child pornography
Legislation Cited: Sentencing Act 1991
Sex Offenders Registration Act 2004Cases Cited:Director of Public Prosecutions v DDJ (2009) VSCA 115
Wallace Cummins v The Queen [2013] VSCA 352
Talbot v The Queen [2016] VSCA 218Sentence:Total effective sentence 9 years' imprisonment,
non-parole period 6 years---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions at hearings For the Director of Public Prosecutions at sentence | Mr D. O’Doherty Ms S. Gray | Office of Public Prosecutions |
| For the Accused | Mr T. Hoare | Luke Slater Lawyers |
Pages 1 - 12
HIS HONOUR:
1Dale Bradford[1], you have pleaded guilty to three charges of persistent sexual abuse of a child under the age of 16 and one charge of possession of child pornography.
[1]Dale Bradford is a pseudonym
2The maximum penalty for the offence of persistent sexual abuse of a child under the age of 16 is 25 years' imprisonment and the maximum penalty for possession of child pornography is 5 years' imprisonment.
3You are presently 42 years of age, having been born on 3 August 1974, and you were aged from 38 to 40 when this offending occurred. You are the biological father of eight children and were the sole parent for your four youngest children prior to the reporting of these incidents.
4At the time of these incidents you were in a relationship with your then partner and had a child with her during this time.
5You have no prior criminal history.
6The three victims in this matter were sexually assaulted by you between
1 November 2012 and 5 February 2015. You are the biological father of one of the victims and two of the victims are your defacto partner's children.7These incidents occurred at various locations: in residential premises and at a camp site in rural Victoria.
8The first victim in this matter was aged between 10 and 12 years at the time of the offences.
9The second and third victims in this matter were each aged between 8 and 10 years at the time of the offences.
10At the time of these offences ten children were residing with you and your then partner: five were your biological children, four were the children of your then partner and her former partner and one was the biological child of both of you.
11As to the facts, details of the circumstances of these matters are set out in the prosecution case summary. I do not intend to repeat the details here. Those facts were accepted by you as an accurate summary for sentencing purposes.
12In essence, your offending as to the first victim involved 34 indecent acts (including 5 acts of showing the victim a pornographic video) and two acts of sexual penetration, as to the second victim 11 indecent acts (including 2 acts of showing the victim a pornographic video) and three acts of sexual penetration and as to the third victim 5 indecent acts.
13You have also been charged with knowingly possessing child pornography, represented by Charge 4.
14On 9 February 2015, police executed a search warrant of your home pursuant to s.465 of the Crimes Act 1958. Various items, including a box of sex toys, penis pumps and computers, were located in the rear shed of the property and seized by police.
15On 28 and 29 September 2015, examination of all computer and phone devices seized as a result of the search warrant was completed. Your laptop computer was examined with 385 images located on it which depicted adult pornography, including male to male sexual activity, male to female sexual activity and other sexual activity involving animals. It involved personally-made videos of you and your partner engaged in sexual activity.
16Further personally-made videos were located showing you engaging in behaviour in public toilets, exposing yourself and covertly recording unidentified males urinating in toilets and masturbating in toilets.
17Child exploitation material images were located on this computer also, giving rise to Charge 4 on the indictment. The following images were located:
· Category 2 - two images of a child but non-penetrative
· Category 4 - a child or adult penetrating - two images.
18You were interviewed by police on 9 February 2015. You denied having any sexual contact with any of the victims at any time.
19I turn now to your personal circumstances.
20As I noted earlier, you are presently 42 years of age, having been born on 3 August 1974, you were aged from 38 to 40 when this offending occurred and you have no prior criminal history.
21You report a difficult childhood involving a father who was both sexually and violently abusive. The family home burnt down and all your pets were subsequently destroyed.
22You did quite well at school academically, and ultimately studied mechanical engineering at Echuca TAFE for a time. You later joined the army and suffered injury to your spine in 1993. This injury has never resolved and you were medically discharged from the army in 1996.
23Whilst in the army and posted in Canberra, you experienced a home invasion where a man armed with a large knife entered your home and threatened to kill you and your children and rape your wife. You subsequently developed symptoms of post-traumatic stress disorder. Your marriage then failed and you moved to Victoria where you subsequently met and commenced living with a new partner.
24You are currently receiving social welfare benefits through the Department of Veteran Affairs. The entitlement is continually reviewed. Your conditions are described as being degenerative disease of the lumbar spine with disc protrusions at L4 and L5, chronic soft-tissue injury of the lumbar spine with secondary severe depression. Your disc injury has caused you to live in significant pain over many years and has resulted also in depression. Medical evidence from 2006, 2007 and 2008 confirms this diagnosis and treatment.
25A report from Dr Janine Mahoney dated 18 June 2007 confirms also a diagnosis of post-traumatic stress disorder resulting from the home invasion incident. It was noted that psychological treatment had resulted in your symptoms improving markedly.
26Dr Mahoney had been treating you since 2003. In a further report dated 22 October 2008, Dr Mahoney had noted that your depressive symptoms intensified in July that year when your wife left and you were left with the care of four small children and part-time care of your four older children to your previous wife. You were at that time at considerable risk of more serious depression.
27For the purposes of a current assessment your solicitors requested a psychological report from Ms Carla Lechner, consultant psychologist.
Ms Lechner reported that you have at times supplemented your prescription drugs with illicit drugs such as ice, ecstasy and occasionally, LSD and OxyContin.28You acknowledged your role in the offending as “abhorrent” and “disgusting” and were not able to explain your actions. You stated that "I think it was something to do with PTSD … got into an environment ..[that is, the shed] … in which I felt protected and it turned into an evolving situation."
29Ms Lechner noted that you were abusing a range of painkillers at the time, were depressed and anxious in mood and unhappy and resentful in your relationship with your partner.
30In summary, Ms Lechner opined that you fulfil criteria for paedophilic disorder DSM-5, post-traumatic stress disorder, depression, anxiety and substance abuse, which is now in remission on account of you now being in a controlled environment.
31In Ms Lechner's opinion, it is likely that your parlous mental health, coupled with substance abuse, adversely affected your judgment, decision-making and impulse inhibition. The link between being a victim of childhood sexual assault and becoming a perpetrator is identified as a risk factor. At the time of assessment by Ms Lechner you were exhibiting clinical levels of depression and anxiety, with scores in the “extreme” and “severe” ranges.
32Sexual assaults against children are unfortunately not uncommon and are to be deplored. The courts are expected to protect the rights of children. The victims in this case were vulnerable young boys who, despite their apparent willingness at times to engage with you in sexual activity, have to be understood as needing to be protected also from themselves at a time of emerging emotions and understanding of sexual activity and its consequences, both physical and, in particular, emotional.
33These are grave examples of breach of trust. Your acts were committed when you were either in the role of father or step-father. You were the one who was supposed to set an example and create a protected environment. In essence, your conduct was predatory and grossly exploitative, and was protracted over a number years involving multiple victims. Whilst there is no evidence of coercion by threats or violence, your approach remained sinister by force of its subtle seduction and abuse of power imbalance.
34The Victim Impact Statements tendered provide telling testimony of the emotional damage that can be suffered.
35In mitigation, I take into account the matters urged on your behalf by your counsel, including:
· your pleas of guilty and the time they were entered, both for the practical effect and as an expression of remorse. In this respect it must be acknowledged that defended trails with child complainants can be especially harrowing for the victims, lead to complicated directions to juries and often lead to inconsistencies in evidence which may fall to the advantage of an accused. It is very much to your credit that you have acknowledged the victims in full and have not sought to take advantage of their vulnerabilities.
· your long history of chronic pain and post-traumatic stress disorder, the resultant depression and consequent redress to strong drugs, both prescription and illicit.
· your insight into your offending and reflected understanding of the effects and consequences of your behaviour on your victims. With guidance from the Sexual Offenders Program and addressing your psychological difficulties, I consider your prospects for rehabilitation to be reasonable.
· your own difficult childhood which was less than positively nurturing and included the risk factor of sexual deviancy.
· and finally, that you have no previous conviction for any other offending.
36I accept that your mental health was such that you were quite emotionally vulnerable during the period of offending, and that it is likely that your condition, together with its resultant substance abuse, adversely affected your judgement, decision-making and impulse inhibition. I accept that your moral culpability for the offending in these circumstances is moderated to some extent.
37I also accept that your current mental health involving depression and anxiety and your debilitating physical condition will mean that your sentence will weigh more heavily on you than it would on a person in normal health.
38The basic purposes for which a court may impose a sentence are punishment, deterrence, being both specific to you and general, rehabilitation, denunciation and the protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victims. I am required to balance the interests of the community in denouncing criminal conduct with the interest of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
39On balance, in the particular circumstances of this case, the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve your immediate confinement in prison and for a significant period.
40I have taken into account the submissions from counsel and current sentencing practices by the courts in cases of this kind. I have been particularly assisted by the Sentencing Snapshot 179 of June 2015 and Sentencing Overviews publications for the guidance they provide, limited though they may be to their particular circumstances. I have also been assisted by a revision of various decisions of the Court of Appeal, in particular the further decisions of the Director of Public Prosecutions v DDJ [2009] VSCA 115 and Wallace Cummins v The Queen [2013] VSCA 352 for the guidance they provide as to range and the more recent decision of Talbot v The Queen [2016] VSCA 218.
41Within the context of other cases, ultimately each case must be decided on its own particular circumstances. Here there is a need to balance very serious sexual offending committed upon vulnerable young boys in the care of their stepfather and father in the context that the perpetrator of these offences was himself the victim of a difficult childhood, included having been himself a victim of sexual abuse, and who was at the time of offending suffering serious physical and psychological illness.
42Under the Serious Offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment on one sexual offence charge when that charge is persistent sexual abuse of a child under the age of 16, I am required on the sexual offence charges thereafter to regard the protection of the community from you as the principal purpose for which the sentence is imposed. If necessary, in order the achieve the purpose of protecting the community I am empowered by s.6D of the Sentencing Act to impose a sentence greater than is proportionate to the gravity of the offence.
43This means that the sentencing task in respect of Charges 2, 3 and 4 on the indictment is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentences are imposed, and to achieve that purpose sentences may be imposed longer than that which are proportionate to the gravity of the offences considered in the light of their objective circumstances. However, because of the circumstances and mitigating factors in your case, I do not propose to do so.
44Section 6E of the Sentencing Act also requires that, unless I otherwise direct, with respect to Charges 2, 3, and 4 the sentences I impose are to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation other than that ordered.
45I note here that the Crown did not call for a disproportionate sentence or for the cumulation contemplated by either s.6D or 6E of the Sentencing Act.
46On Charge 1 of persistent sexual abuse of a child under the age of 16 with respect to the first victim, you are convicted and sentenced to six years' imprisonment.
47On Charge 2 of persistent sexual abuse of a child under the age of 16 with respect to the second victim, you are convicted and sentenced to five years' imprisonment.
48On Charge 3 of persistent sexual abuse of a child under the age of 16 with respect to the third victim, you are convicted and sentenced to two years and six months' imprisonment.
49On Charge 4 of possession of child pornography, you are convicted and sentenced to 12 months' imprisonment.
50Charge 1 is the base sentence.
51I direct that two years of the sentence imposed on Charge 2, nine months of the sentence imposed on Charge 3 and three months of the sentence imposed on Charge 4 be served cumulatively on the sentence imposed on Charge 1 and upon each other.
52The total effective sentence is nine years' imprisonment.
53I direct that you serve a minimum period of six years' imprisonment before being eligible for parole.
54I also direct, pursuant to s.6F of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of Charges 2, 3 and 4 as a serious sexual offender within the meaning of that Act.
55Pursuant to s.18(4) of the Sentencing Act, I declare that the period of 324 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
56Pursuant to s.6AAA of the Sentencing Act 1991, but for your pleas of guilty, the sentence that would have been imposed is a total effective sentence over all charges of 13 and a half years' imprisonment with nine years to be served before being eligible for parole.
57There is a further matter to which I need to attend at the moment - you may take a seat.
58I need to speak to you about the provisions of the Sex Offenders Registration Act. The offences to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act, and by reason of you being sentenced for these offences you are a registrable offender obliged to comply with the reporting obligations imposed by that Act.
59As required by s.5(2BC) of the Sentencing Act, in sentencing you I have ignored any consequences that may arise, and in this case do arise, under that Act from the imposition of the sentence today. In other words, the reporting burden that you carry as a registered offender is not a matter that can objectively influence the imposition of a just sentence.
60Further, pursuant to s.50 of the Sex Offenders Registration Act, I am required to give you a written notice of your reporting obligations and the consequences that may arise if you do fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which is for life.
61My associate will, in a moment, hand to you the Notification Of Reporting Obligations form, which I have already signed. Your representative in court will ensure that you understand the requirements set out in this form and I ask you, once it is given to you, to sign the Acknowledgement that you have received the Notification form and to return the Acknowledgement to my associate.
62At the plea hearing the Crown sought an order to which you consented for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the circumstances of the offending warrants the making of the order, the order is by consent and the granting of the order is in the public interest. I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scaping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Bradford?
63OFFENDER: Yes, Your Honour.
64HIS HONOUR: The Crown also sought a disposal order to which you consented and I have also made that order today.
65The sex offenders registration material can now be passed to the offender via his representative, Mr Hoare.
66MR HOARE: Thank you, Your Honour.
67HIS HONOUR: All done? All right, unless there is anything further from either counsel, that concludes proceedings. Anything, Ms Gray?
68MS GRAY: Nothing, Your Honour.
69MR HOARE: Nothing further, Your Honour.
70HIS HONOUR: Thank you.
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