Director of Public Prosecutions v Buckley (a pseudonym)
[2019] VCC 1705
•18 October 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT LATROBE VALLEY
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| EDWARD BUCKLEY (a pseudonym) |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Latrobe Valley |
| DATE OF HEARING: | 16 October 2019 |
| DATE OF SENTENCE: | 18 October 2019 |
| CASE MAY BE CITED AS: | DPP v Buckley (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1705 |
REASONS FOR SENTENCE
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Subject: Plea - sentencing
Catchwords: Attempted sexual penetration of child under 16 – indecent act with child under 16 – incest
Legislation Cited: Sentencing Act 1991, Sex Offenders' Registration Act 2004
Cases Cited:
Sentence: 6 months' imprisonment, wholly suspended for 12 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Ms A. Burt Mr C. Liaskos | Office of Public Prosecutions |
| For the Accused | Ms F. Banihali | Victoria Legal Aid |
HIS HONOUR:
1Edward Buckley[1], you have pleaded guilty to one charge of attempted sexual penetration of a child under 16, one charge of indecent act with a child under 16 and one charge of incest.
- Attempted sexual penetration of a child under 16 carries a maximum penalty of 20 years' imprisonment.
- Indecent act with a child under 16 carries a maximum penalty of 10 years' imprisonment
- Incest carries a maximum penalty of 5 years' imprisonment.
[1]Edward Buckley is a pseudonym
By way of background to this matter:
2You were born in 1988, so you are now aged 31. You were aged 14 to 15 when this offending occurred and you were 30 when the offending was reported last year.
3You have no prior criminal history.
4The first victim in this matter was born in 1994 and was between seven and eight years old at the time of the offending. He is the nephew of your stepfather.
5The second victim in this matter was born in 1995 and was eight years old at the time of offending. He is your half-brother.
6The more detailed circumstances of the offending are set out in the prosecution summary exhibited on the plea. I accept those facts for the purposes of sentencing. In basic summary the circumstances are as follows.
As to the offending against the first victim:
7Between 1999 and 2002 members of your family would congregate on occasion at the grandparents' residence in a rural town in Victoria. Party to these gatherings were aunts, uncles, brothers, sisters and cousins. The first victim was present with you on a number of occasions.
8On an occasion between 1 January 2002 and 31 December 2002 when this victim and you were alone together in the rural town, you said to him that you wanted to try something with him. You began referring to this activity as “care bears”.
9You led him into the bathroom and you tried to put your penis into his anus. This conduct is represented by Charge 1, attempted sexual penetration of a child under 16 years.
10He was hurt and told you. Nevertheless you tried again. He again told you, “I don't want to do it any more”. You stopped, you both dressed and left the room.
11You told this victim not to tell anyone and that it was, “our little secret”. You threatened him that if he told anyone you would hurt him. He agreed not to tell anyone.
12You would talk with this victim when you were alone, if he wanted to try it again. He would tell you that he, “remembered, and I didn't want to try it again”. He was 12 years of age on the last occasion when you mentioned the activity, making you 19 years of age at that time.
As to the offending against the second victim:
13In 2002 you resided with your father in another rural town in Victoria. Your father's other son, the second victim, would stay with him every second weekend.
14One day around midday whilst your father was out, the second victim was playing with his toys. You were in the lounge room and you called to him.
15He went to the lounge room. You told him to play with and massage your face. He told you that he did not want to and tried to go back to your father's room to play with the toys. You ran ahead of him and blocked the door, telling him that you would not let him play with toys until he massaged your face. He did this for about 10 minutes.
16Twenty to 30 minutes later your father arrived home. This victim was allowed to play with the toys to make it look like nothing happened. You threatened him, saying not to tell your father or anyone else or you would, “bash the fuck out of him”.
17A couple of weeks later the second victim was back at your father's house. Your father went out and he was left with you.
18He was playing with the toys again. You called out to him to come and see you. You started to masturbate and ejaculated, showing him your sperm.
19You again threatened to bash him if he told anyone. This conduct is represented by Charge 2, indecent act with a child under 16 years.
20A month or two later the second victim was at your father's home. On this occasion your father went out again. You called out to this victim and said you wanted to show him something. He went to the lounge room and you were lying on your side on the floor between the lounge and the kitchen. You had your pants and underwear down and penis exposed. You produced a shiny, golden-coloured condom wrapper. The wrapper was torn, exposing some of the yellow rubber of the condom inside.
21You put the condom on and instructed this victim to perform oral sex on you. He crawled over and had a look at your penis with the condom on. As his face drew close you took him by the chin and held his mouth, causing it to open. You placed another hand behind his head and, pulling forwards, forced your penis into his mouth.
22You shifted the hand, placing both hands on the victim's head and manipulated his head, causing his mouth to move up and down on your penis. This went on for a minute or two until you removed your hands, presumably thinking he would keep going.
23He pulled away and told you that he did not want to do this anymore. You then threatened him, saying, “if you don't do this with me I will bash you”. He started crying. You took the condom off and threw it away. He went to get away but you pulled him back, grabbing his head and forcing his face onto your penis. He was crying and screaming as you pushed your penis into his mouth. This conduct is represented by Charge 3, incest.
24You then pulled his pants and underwear down, exposing his backside. You looked at his backside and said, “better not”.
25You then pushed him away and started masturbating. Soon after, you ejaculated, stood up, went to your room and slammed the door.
26In early 2017, after having nightmares, the second victim disclosed the allegations to his mother and his mother then told your father. Your father confronted you. Without admitting the incident, you did not deny it. Your father had a further conversation with you via text message during which you made veiled concessions to the allegations.
27On becoming aware of the allegations made by the second victim in early 2018, the first victim disclosed the allegations to his mother.
28On 24 July 2018 a recorded interview took place between you and the police. You made full and frank admissions. You were remorseful and stated that you were messed up in the head at the time.
29A victim impact statement has been provided by the first victim in this matter, and at his request the statement was read by the prosecutor aloud in court. In his statement the victim speaks eloquently and comprehensively about the effects on him, both emotional and physical, and which often do follow instances of sexual abuse.
30I will now turn to your personal circumstances.
31As I noted earlier, you were born in 1988 and are now aged 31. You were aged from 14 to 15 when this offending occurred and you were 30 when the offending was reported.
32You have had a troubled youth, you yourself having experienced an instance of forced oral sex with an extended family member before you commenced school, and an episode of violent sexual abuse involving you being anally raped at the point of a knife the year before committing the earliest of the present charged events.
33Your mother recalls you as a happy child until around 13 when you began to change, expressing more anger and turning to alcohol.
34You experimented with drugs, including cannabis and ecstasy at approximately age 14. By age 16 or 17 you were heavily abusing alcohol, drinking up to a slab a night. You felt it was a good excuse to forget things.
35You commenced but did not complete a bricklaying apprenticeship and have worked at power stations and fly in/out mining companies in Western Australia.
36You have had two significant personal relationships. The first lasted for about seven years, and the two of you had two children, now aged 10 and 8. You separated, and contact with your children gradually ceased.
37Your second relationship produced a son. Tragically, you were responsible for assaulting your son when he was a little over six weeks old, causing him to be hospitalised with injuries including a fractured skull and ribs. You maintain that you were drunk at the time. You were subsequently charged and in June 2018, following an appeal, you were sentenced to 24 months' imprisonment with nine months to serve before being eligible for parole. You are currently in custody serving that sentence.
38You have no record of any court appearance before the offending on the present indictment but, in addition to the offending involving your son, you received a good behaviour bond in the Children's Court in 2005 for charges including injury and property damage, and in 2018 you received a sentence of two months' imprisonment - concurrent with the sentence imposed for the assault on your son - for breaching an intervention order which had been imposed for the protection of your son and his mother.
39From the material exhibited on your plea it appears that your mental health has been fragile for many years and that it had deteriorated markedly in the aftermath of the incident involving your son. You have stated that you had tried to kill yourself on two occasions by overdose and recalled requesting police to shoot you.
40A report from Dr Julianne Read, forensic psychologist, was tendered on your plea. Dr Read explored your clinical history and referred to earlier reports indicating a history of generalised anxiety and chronic suicide ideation and a diagnosis of post-traumatic stress disorder, “particularly arising from being sexually assaulted as a teenager”. Two mental health units of Monash Health were engaged in your treatment in 2017 and 2018. Several diagnoses were posited at the time, including Major Depressive Disorder and Alcohol Dependence with a query about the possibility of Borderline Personality Disorder.
41In the period following the incident with your son you reportedly presented as experiencing intense shame and remorse about having caused the harm. You were shocked about your actions, which were incongruent with how you viewed yourself as a person and a father.
42It has been reported that whilst in custody there have been no significant concerns raised about your mental health. You have sensibly sought assistance when you have had feelings of intense anger and there have been no incident reports about your behaviour. You have applied yourself to several programs including drug and alcohol and emotion regulation. You present with good insight into your difficulties and experience significant remorse concerning the offences for which you are currently incarcerated. You have emphasised strongly your sense of shame and disdain for your behaviour towards the two victims in this matter, and expressed empathy for their suffering.
43In Dr Read's opinion your overall risk for violence is low to moderate and your risk of future sexual offending is low. There is no evidence of deviant or unhealthy sexual interests, the concept of sexual violence is abhorrent to you and you have struggled to reconcile this fact with the knowledge and memory of your childhood sexual behaviour.
44Ordinarily, the kind of behaviour in which you engaged would attract a sentence of immediate imprisonment for an adult offender, notwithstanding your otherwise good character and the fact that the offending took place many years ago. The mere fact of delay cannot alter what needs to be applied to reflect the serious nature of sexual offending against children. The offending is serious, including episodes of penetration and attempted penetration, with two young victims in the context of rough behaviour and threats of violence. The harm to the first victim was protracted by your references to the behaviour to him years later when you were aged 19. This type of offending can be extremely traumatic and have longlasting effects upon the victim. There is evidence of this in the circumstances of your offending. However, you were yourself an immature child at the time of the offending, having then been 14.
45The law relating to the sentencing of children makes specific allowance for their emotional and intellectual immaturity and lack of life experience. Had these matters been reported proximate to the time of offending you would have fallen to be sentenced in the Children's Court, which exercises a very different sentencing regime to that which applies to adult offenders.
46It remains, however, that the facts for which you now fall to be sentenced were unmistakably violent acts committed against very vulnerable victims. In more recent times you have also committed a very violent assault on your particularly vulnerable and helpless infant son. Whilst this incident cannot be regarded as a previous conviction, it nonetheless remains relevant to your prospects of rehabilitation. Principles of general and specific deterrence, although moderated, remain relevant.
47In mitigation, I take into account the matters urged on your behalf by your counsel, including:
· your age at the time of the offending
the period of time that has elapsed since this offending·
that you have not committed any sexual offence since this offending·
that you have had no record of previous of offending (that is, prior to the acts for which you fall to be sentenced today) ·
that your prospects of re-offending for sexual offences is low·
the insight, shame and remorse that you developed over the years into your offending and its effect upon these victims·
your recognition of your vulnerability to emotional outbursts and substance abuse, particularly alcohol, and your willingness to seek treatment·
the commitment you have shown to rehabilitation whilst you have been in custody for the other offences·
the character references from your mother and father·
your difficult childhood circumstances, in particular, the sexual abuse you suffered at a time relevant to the instant offending·
the emotional anguish and self-loathing you have carried through the shame you developed at what you had done in your youth once you had matured into adulthood.·
48In all the circumstances, primarily because of your very young age at the time of offending, I am satisfied that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your immediate confinement.
49Under the serious offender provisions of the Sentencing Act 1991, on your conviction and sentence to a term of imprisonment, whether suspended or not, on two sexual offence charges, 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 to 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.
50This means that the sentencing task in respect of Charge 3 is to be undertaken on the basis that the protection of the community from you is the principal purpose for which the sentence is imposed, and to achieve that purpose a sentence may be imposed longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances. However, because of the circumstances and mitigating circumstances in your case, I do not propose to do so.
51Section 6E of the Sentencing Act also requires that unless I otherwise direct, with respect to Charge 3 the sentence I impose is to be served cumulatively. Allowing for the matters I have already outlined, in my view it is not appropriate to impose cumulation.
52I note here that the prosecution did not call for a disproportionate sentence as contemplated by s.6D of the Sentencing Act.
53Mr Buckley, could you please now stand?
54I propose to sentence you to a term of imprisonment which I intend to wholly suspend for a period of 12 months. The purpose and effect of the proposed suspension order is to grant you conditional freedom from its commencement, the condition being that you avoid conviction for an offence punishable by imprisonment for the next 12 months. If you commit such an offence in that period you will be liable to again attend court, and if necessary that will be under arrest, and in the absence of exceptional circumstances you will be ordered to serve that sentence. Do you understand that?
55ACCUSED: Yes, Your Honour.
56HIS HONOUR: On Charge 1 of attempted sexual penetration of a child under 16, you are convicted and sentenced to four months' imprisonment.
57On Charge 2 of indecent act with a child under 16, you are convicted and sentenced to three months' imprisonment.
58On Charge 3 of incest, you are convicted and sentenced to six months' imprisonment.
59The sentences are to be served concurrently.
60The total effective sentence is six months' imprisonment.
61Pursuant to s.27 of the Sentencing Act (as it then was), I order that the sentence be wholly suspended and I declare that the operational period of the suspended sentence is 12 months.
62The sentence starts today.
63Because you are presently serving a sentence of imprisonment for another matter, I have not declared any pre-sentence detention. I have, however, moderated the sentence that I would otherwise have imposed to reflect the fact that for the entire time that you have been on remand for the current offending, you have been serving a sentence of imprisonment on other matters.
64Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is 18 months' imprisonment with a non-parole period of 12 months.
65There is a further matter to which I need to attend. You may take a seat for a moment, Mr Buckley.
66The charges to which you have pleaded guilty are registrable offences pursuant to the provisions of the Sex Offenders Registration Act 2004, 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.
67Pursuant to s.50 of that Act I am required to give you written notice of your reporting obligations and the consequences that may arise if you fail to comply with those obligations. I am also required to inform you of the length of your reporting period, which in your case is, given that you were a child at the time of committing the offences, for seven and a half years.
68My associate will shortly hand to you the Notice Of Reporting Obligations form, which I have already signed. Your representative in court today will ensure that you understand the requirements set out in this form and I will ask you, once it is given to you, to sign the Acknowledgment that you have received the Notice and to return the Acknowledgment to my associate.
69Before that form is provided are there any other matters from either counsel?
70COUNSEL: No, Your Honour.
71HIS HONOUR: Thank you. Could you provide the form to counsel for
Mr Buckley?72MS BANIHALI: May I approach, Your Honour?
73HIS HONOUR: Yes. Could you make sure that your client understands what I have said about the suspended sentence?
74MS BANIHALI: Yes, Your Honour.
75[At this stage the court proceeded with another matter.]
76MS BANIHALI: Thank you for that time, Your Honour.
77HIS HONOUR: Yes - so he understands the circumstances. Now, that sentence is a sentence which has been suspended. So it will not operate to affect the sentence that he is currently undertaking, and it seems to me that there would be no reason why he could not apply for parole at this stage - that is something you can discuss with him. But he should realise that it applies so that if he were to commit an offence which carries with it a term of imprisonment as part of the penalty - and there are not many offences that do not - even if that is committed in a prison environment, that would be an offence that would breach the suspended sentence. So make sure he understands that.
78MS BANIHALI: Yes, Your Honour.
79HIS HONOUR: All right, thank you. I will remain here and Mr Buckley may be removed, thank you.
80MS BANIHALI: As Your Honour pleases.
81HIS HONOUR: And thank you for your assistance, Ms Banihali.
82MS BANIHALI: Thank you, Your Honour.
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