Director of Public Prosecutions v Bullen, David Graham
[2017] VCC 186
•28 February 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| SEXUAL OFFENCES LIST |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID GRAHAM BULLEN |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 15 December 2016 |
| DATE OF SENTENCE: | 28 February 2017 |
| CASE MAY BE CITED AS: | DPP v BULLEN, David Graham |
| MEDIUM NEUTRAL CITATION: | [2017] VCC 186 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – indecent act with or in the presence of a child under 16 – sexual penetration of a child under the age of 16 – plea of guilty – accused was a scout leader – accused was in a position of trust – victim impact statement details ongoing impact on victim – sentenced as a serious sexual offender
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004
Sentence:Total effective sentence of six years and three months’ imprisonment with a non-parole period of four years and three months.
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APPEARANCES: | Counsel | Solicitors |
| For the Office of Public Prosecutions | Ms C Parkes | Solicitors for the Office of Public Prosecution |
| For the Accused | Mr G J Barnes | Rainer Martini & Associates |
HIS HONOUR:
Introduction
1David Graham Bullen, you pleaded guilty to:
·Two counts of wilfully committing an indecent act with Jacquelyn Lindsay[1] between 31 March 1995 and 31 March 1997, who was a child under 16 years of age to whom you were not married contrary to s47(1) of the Crimes Act 1958.
·Two counts of sexual penetration of Ms Lindsay between
31 March 1995 and 31 March 1997, who was a child under 16 years of age and under your care, supervision or authority, contrary to s 45(1) of the Crimes Act 1958.[1] Jacquelyn Lindsay is a pseudonym.
2The objective seriousness of committing an indecent act with a child under 16 years of age is demonstrated by the fact that it carries a maximum penalty of ten years’ imprisonment. Similarly, the objective seriousness of sexual penetration of a child under 16 years of age is demonstrated by the fact that it carries a maximum penalty of 15 years’ imprisonment.
The facts
3The Prosecution Opening on the plea is moderately lengthy, and for that reason, I do not propose to summarise it, except to the extent that it is necessary for my sentencing remarks and sentencing disposition to be understood.
4You were a scout leader of a scout group which Ms Lindsay joined in 1993. She first met you when she was 11 years of age and you were about 41 years of age.
5The first physical contact which you had with Ms Lindsay was at a ceremony when you pinned a scout badge on her shirt pocket. You did that by placing one hand inside her shirt, with the other hand on the outside. It was conduct which made her feel uncomfortable.
6On trips undertaken by the scout group, you were in the habit of providing beer and green ginger wine to the scouts, including Ms Lindsay.
7You have not been charged with any offences relating to the initial physical conduct, nor providing under-aged children with alcohol.
8Sometime between the end of 1995 or the commencement of 1996, and at a scout camp, you witnessed an argument between Ms Lindsay and another scout. You directed Ms Lindsay to sleep in your tent, which is described as a “hutchie”. It is a one-man tent. Ms Lindsay was lying beside you in her sleeping bag when you touched her breasts under her clothing. You have not been charged of any offence for doing that. You then placed your hand down her pants and touched her on the vagina, which constitutes Count 1, of wilfully committing an indecent act.
9The following morning when Ms Lindsay was in the kitchen at the camp, you locked the kitchen door and came up from behind her. You pulled her pants down, knelt in front of her and licked her vagina. This constitutes Count 2 of wilfully committing an indecent act. You enquired of her whether she had commenced having her menstrual periods. She appeared to have no knowledge of what you were talking about.
10On a scout camp in the Victorian Alpine Region, you insisted that Ms Lindsay sleep in your tent with you, despite there being a lodge with an open fire where she wanted to sleep. During the night, you inserted your penis in and out of her mouth, causing her to gag. She was unaware whether you ejaculated. This constitutes Count 3, sexual penetration.
11There were two occasions when you penetrated Ms Lindsay’s mouth with your penis. You have been charged with one offence said to be a representative charge.
12On another scout trip in a country area, Ms Lindsay again shared your tent. During the night, you put a condom over your penis and inserted your penis into her vagina, moving it in and out of her vagina. She tried to push you away, telling you that what you were doing was hurting her. She is unaware whether you ejaculated.
13What I have just summarised are not the only occasions when you sexually interfered with Ms Lindsay. She recalls you engaging in sexual assaults on her on numerous occasions. Your offending conduct ceased when Ms Lindsay left the scouts when she was 12 years of age.
14Ms Lindsay’s mother discovered blood in the crotch of her underwear. Ms Lindsay did not inform her mother that the blood was, or could have been, related to your sexual penetration of her. It was only after her mother started to piece together bits and pieces of information that she concluded that what you may have done, needed to be reported to the police.
15On 17 July 2014, Ms Lindsay had the courage to report what you had done to the police. Her mother had previously reported what you had done to the scouting movement, after which you resigned as a scout leader.
16You attended a police station on 14 January 2015. Paragraph 33 of the Prosecution Opening contains a summary of relevant parts of a record of interview. You attempted to blame Ms Lindsay for the sexual conduct you had with her, when you said she asked you about sex. You admitted that you had engaged in oral sex with her, but otherwise you did not admit any other sexual assault on her. When specific allegations were put to you, you either said that you could not remember whether certain events occurred or not, or you denied that they had occurred.
Your plea
17Your counsel commenced the plea on your behalf by conceding that your offending conduct is very serious and that you are deserving of a sentence of immediate imprisonment.
18Your counsel referred to aspects of your background which are relevant. Those aspects include:
·You are now 61 years of age.
·After completing your secondary schooling at 16 years of age, you engaged in and completed a carpentry apprenticeship.
·You worked in Western Australia for up to 18 months and then in Victoria for a further 18 months before joining the army. You served in the army for 10 years between 1980 and 1990. You were part of a peacekeeping force, but, in fact, had provided security rather than peacekeeping in Malaysia between late 1982 and early 1983.
·You suffered a number of injuries while serving in the army. Among those injuries was an injury to your back and ankle. You now receive a part pension from the army of $400 per fortnight.
·After leaving the army in 1990, and until September 2016, you worked as a truck driver. You retired in order to draw down on your superannuation to pay for your legal expenses relevant to your defence of the charges brought against you for this offending conduct.
·You now undertake work two days a week on a casual basis.
·Your first wife passed away in 2000. You have two sons of that relationship who are 25 and 22 years of age. You enjoy a good relationship with them. You remarried in 2007. Your wife has two children, 27 and 25 years of age. You enjoy a good relationship with your wife and her children.
·Your wife had back surgery some time ago with a complication resulting from a golden staph infection. She also suffers from a mental illness. You are her principal carer. Your wife was treated by a counsellor and a psychotherapist who provided a report dated 6 October 2016, in which you set out your wife’s unfortunate predicament and that of her daughter, and how that plays out in the circumstances of your family circle.
·Your wife’s daughter suffers from a significant mental illness. You and your wife assist her by caring for her two children. This is mentioned briefly in a report of your general practitioner dated 6 October 2016.
·You also suffer from ill health. Your oncologist, who provided a report dated 7 September 2016, has diagnosed you with metastatic prostate cancer for which you have had surgery. It is a disease process which is progressive and terminal, although, your oncologist has not been able to provide an opinion on your life expectancy. You are under active treatment by medication being injected into your abdomen. Additionally, a health summary sheet which was tendered, demonstrates that you take a raft of tablet medication which I assume is directed to treatment of your cancer, and other medication for what appears to be treatment of a respiratory disorder.
·You have been a community minded person. You have been a football coach and a football umpire in AFL circles. An assistant director of umpiring provided a reference dated 7 December 2016, describing you as an outstanding servant of the local league and respected by your umpiring peers. For that service, you were granted life membership of a local league
19Your counsel submitted:
·that you suffer a significant ill health which is demonstrated by the opinion of your oncologist and the raft of the medication you consume.
·Your wife is in need of your care, both for herself and with respect to her daughter, and the need to assist her by caring for her children.
·You have some prior convictions which I do not consider to be relevant. You have not engaged in any offending conduct of any kind since your contact with Ms Lindsay ceased.
·Mr Cummins, clinical and forensic psychologist, who examined you on 2 November 2016, has diagnosed you as suffering from a Depressive Disorder, which has resulted from the onset of your cancer. You reported to him associated feelings of anxiety, disturbed sleep, feelings of hopelessness, low self-esteem and variable concentration. Mr Cummins undertook a risk assessment and personality testing and concluded that the risk of you re-offending in this way is low.
20In summary, your counsel submitted that your background, your family circumstances, the ill health which you and your wife suffer, your wife’s need for you to be her carer, the ill health of your wife’s daughter and the need to care for her children and your own psychiatric state should be weighed into consideration by me in determining a just sentence. In particular, your counsel emphasised that you are a significant part of the structure of your family, and that imprisonment will weigh very heavily, not only on you, but also your family will suffer significantly as well through your absence.
Sentencing principles
21I will next turn to the Victim Impact Statement of Ms Lindsay. She describes the horror of what you did to her. She has a belief that it seriously interfered with her relationship with her family, her ability to get on with teachers and fellow students and to pursue an education in a normal way; to enter her adult life with the prospect of work and relationships to be encountered in a normal way. She has described in graphic detail her own downward spiral of drug abuse, self-harm and an inability to engage in what most people want in life, and that is a reasonably happy contented life with a partner, in a home and with children.
22She believes that you have robbed her of what she should have had in life and now that she has a child of her own, she is frightened for what may lie ahead for her own child.
23What I have summarised does not do justice to the pain that leaps out of the pages of the Victim Impact Statement composed by Ms Lindsay. It is a dreadfully sad account of a young woman’s life turned upside down. The impact upon her has been profound.
24You were a scout leader. The parents of children who were placed in your care no doubt consider that you were a trustworthy person. They probably did not think that a person in your position would be a risk to their children and no doubt, Ms Lindsay’s mother thought the same. No doubt the children who were members of that scout group also thought the same. No doubt Ms Lindsay thought the same until you made your attack on her and made her your victim.
25Did it not occur to you that she was just 11 years of age? She was obviously pre-pubescent and utterly innocent of her own body and the development of her sexuality. That is so evident, because when you asked her whether she was having menstrual periods, she did not know what you were talking about. That is the little girl, and I stress, the little girl, you sexually interfered with. What you did was vial and repugnant and every child and parents’ nightmare.
26Dr Cummins chose to describe your offending as situational and opportunistic. If those expressions were chosen by him to try to mitigate what you did, then I reject them completely. You were in a position of trust, for reasons which I have already outlined. You breached that trust in the grossest way. You chose your victim, you planned to isolate her so that you could sexually interfere with her, without that conduct being witnessed. It was manipulative conduct and it was predatory.
27The sentencing principles of general deterrence and denunciation are paramount in sentencing you. Individuals who exploit vulnerable children under their care and control, need to understand that they will face a stern sentence, if not a severe sentence, if they engage in conduct of this kind. Additionally, the community is entitled to feel outraged, that persons who occupy a position of trust, breach that trust in such a gross way. The sentencing principles of specific deterrence is relevant, but not a dominant sentencing principle in your case.
28The sentencing principle of protection of the community is also relevant. I will deal with it later in these sentencing remarks.
29I have not ignored your personal and family circumstances. I have taken them into account, but there is an inevitability that when a person is sentenced to a term of imprisonment, that it will have an impact upon that person, as well as the family members who are left behind. Your personal circumstances cannot be allowed to overwhelm the necessity to pay proper regard to the relevant sentencing principles which apply to the construction of your sentence.
30Furthermore, I have not ignored the question of your rehabilitation. I accept that you have no relevant prior criminal history, nor any subsequent relevant criminal history. Apart from this offending conduct, you appear to have been a man of reasonable character, and one who was a significant contributor to your community, and in particular, throughout your career as a football umpire and with a local football league. I think your prospects of rehabilitation are good.
31Your counsel made an impassioned statement that you are remorseful, and indeed, that you feel some relief that this day has arrived, because your conduct has been nagging away at you. He emphasised that although your plea of guilty may be regarded as having been entered late, you have nonetheless admitted your guilt, which has a utilitarian benefit, in that you have saved Ms Lindsay the agony of a trial, and the state the cost of a trial.
32However, you appear not to have been so forthright in the record of interview. I am unsure from the material put before me whether I can conclude that you genuinely did not remember the allegations put to you, or whether you were trying to reduce your exposure to being charged. I have resolved to accept that you did make some admissions in the record of interview and that you have shown remorse.
33Part 2A of the Sentencing Act 1991 applies to you. You fall into the category of a serious sexual offender. Section 6D provides that I must regard that protection of the community as the principal purpose for which the sentence is imposed; however, I have a discretion whether to impose a sentence longer than that which would be proportionate to the gravity of your offending in the light of its objective circumstances.
34I have not ignored my obligation to sentence you in accordance with that section. The prosecution does not call on me to impose a disproportionate sentence, and having considered this issue carefully, I have come to the conclusion that I should not. This is principally because you have no relevant prior or subsequent criminal history, and also because I consider your prospects of rehabilitation are good.
35The sentence I now impose on you is proportionate to the gravity of your offending in the light of the objective circumstances of your offending.
36I will now ask you to stand please:
·On Count 1, you are sentenced to six (6) months’ imprisonment, with three (3) months to be served cumulatively with the sentence on Count 4.
·On Count 2, you are sentenced to twelve (12) months’ imprisonment, with six (6) months to be served cumulatively with the sentence on Count 4.
·On Count 3, you are sentenced to three (3) years’ imprisonment with eighteen (18) months to be served cumulatively with the sentence on Count 4.
·On Count 4, you are sentenced to four (4) years’ imprisonment.
37You are therefore sentenced to a total effective term of imprisonment of six (6) years and three (3) months. I will fix four (4) years and three (3) months as the minimum term before you will become eligible for parole.
38I will reckon the time you have spent in pre-sentence detention as time served under the sentence. The calculation is 75 days, not including today. I will have that noted in the records of the Court.
39I will make an order under the Sex Offenders Registration Act 2004 for life.
40Pursuant to s6AAA of the Sentencing Act 1991, if it were not for your plea of guilty, I would have sentenced you to eight years’ imprisonment, with a minimum term of six years before you would become eligible for parole.
41You may now be seated.
42I will also make an order for the collection of a forensic sample pursuant to s464ZF2 of the Crimes Act 1958. Firstly, Ms Parkes, is there anything you want to add?
43MS PARKES: Just a formal indication, Your Honour, that Mr Bullen is sentenced as a Serious Sexual Offender from Charge 3 onwards.
44HIS HONOUR: Yes.
45MS PARKES: Yes.
46HIS HONOUR: All right, thank you.
47HIS HONOUR: Mr Barns?
48MR BARNS: My one is just a custody management issue, Your Honour, if Your Honour was going to raise it today. It’s just the depressive illness that Mr Bullen has had seems to have worsened. I do not know what Your Honour can do about that, but other than to raise it as a custody management issue.
49HIS HONOUR: Yes, well just hang on, before you resume your seat, how do I do that?
50MR BARNS: Well I don't ‑ ‑ ‑
51HIS HONOUR: Do I make some notation?
52MR BARNS: I think just a notation, Your Honour, if - I know on the last occasion, Your Honour, raised - we made some notations, I think custody management issues.
53HIS HONOUR: All right, well I’ll tell you what I will do. I will ask you to consider how that should be framed because you’re in a better and more direct position with Mr Bullen to understand that. I will consider it, but I will make a notation at least consistently with what I did previously.
54MR BARNS: I think that’s all that’s required, Your Honour.
55HIS HONOUR: All right, well that is what I will do.
56MR BARNS: Thank you, Your Honour.
57HIS HONOUR: Now, Mr Barns, sorry, before you do resume your seat finally.
58MR BARNS: Yes, Your Honour.
59HIS HONOUR: What about the order that is sought for a forensic sample?
60MR BARNS: There is no objection to that, Your Honour.
61HIS HONOUR: Yes, all right. Before I sign this Mr Bullen, you can remain seated, but I now am obliged to give you this warning. An application was made by the prosecution for the provision of a forensic sample by taking a scraping from your mouth or a blood sample.
62Having regard to the seriousness of the circumstances of the offending, I find that the granting of the order is in the public interest. I will make the order and sign it shortly.
63I am required to warn you that if at the time you are requested to supply a sample of your DNA by scraping from the inside of your mouth, under supervision by an authorised member of the police force, then the sample will be taken in that way. But if, when requested by the officer to provide the sample in that way, you either fail or refuse to provide the sample, the officer is authorised to obtain a blood sample and to use reasonable force to obtain that blood sample. Do you understand that?
64OFFENDER: Yes, Your Honour.
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