Director of Public Prosecutions v Chaney (a pseudonym)

[2024] VCC 1124

F

IN THE COUNTY COURT OF VICTORIA

AT MILDURA

CRIMINAL DIVISION

Revised
Not Restricted
 Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

BROCK CHANEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE MOGLIA
WHERE HELD:	Mildura
DATE OF HEARING:	25 July 2024
DATE OF SENTENCE:	25 July 2024
CASE MAY BE CITED AS:	DPP v Chaney (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1124

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of Guilty – Two charges of incest – Grand-daughter – Victim 8 years old and 12 years old at the time of offending – Penile penetration of vagina – Gross breach of Trust – Remorse – Major depressive disorder – Chronic adjustment disorder – Drug addiction – Standard sentence – Just punishment – Deterrence – Imprisonment and non-parole period.

Cases Cited:Carter (a pseudonym) v The Queen [2018] VSCA 88; Porter (a pseudonym) v The Queen [2022] VSCA 177; DPP v Walsh (a pseudonym) [2018] VSCA 172; Pickford (a pseudonym) v The Queen [2019] VSCA 195; DPP v Tewksbury (a pseudonym) [2018] VSCA 38; McIntosh (a pseudonym) v The Queen [2018] VSCA 321; Nelson v The Queen [2020] VSCA 36.

Sentence:Total effective sentence is 7 years and 3 months with a minimum non-parole period of 4 years and 5 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	D. O’Doherty	Office of Public Prosecutions
For Accused	G. Cooper	Victoria Legal Aid

HIS HONOUR:

1Brock Chaney,[1] you have pleaded guilty to two charges of incest involving your granddaughter between 31 August 2018 and 31 August 2019 and on 25 June 2023.

[1] A pseudonym.

Summary of offending

2Your offending is set out in the prosecution opening dated 7 December 2023.

3In summary, you are the biological grandfather of the victim, who I will call Anitra Malloy,[2] who was eight and then 12 years old at the time of the offences.

[2] A pseudonym.

4When she was eight years old, by agreement, you drove her from Bendigo where she lived to Swan Hill to stay with you.

5On the way, you pulled over at a truck stop, asked her to get in the back of the car and take off her pants.  You then joined her and penetrated her vagina with your penis.  Ms Malloy said it only went in a tiny bit, that it hurt, and she told you to stop, and you did.  You told her not to tell anyone (Charge 1).

6By 2023, you were living in the shed at the back of the Swan Hill address, while your daughter and her children, including Ms Malloy, lived in the house.

7On 25 June 2023, when she was 12 years old, you arrived home at around 7 pm that night to find her playing games on your TV in the shed.  You told her she would have to come back later to watch the TV, but then took her pants off and sexually penetrated her vagina with your penis.  She said it went all the way in and for about 5 to 10 minutes (Charge 2).

8Ms Malloy disclosed your offending to police on 4 July 2023 about a week later.

9Exhibit A is your granddaughter’s victim impact statement.  In it she described moving from the home after the offence and therefore having to leave her friends.  At school, she had told a friend about what happened and that person told others, which led to bullying and what can only be described as nasty behaviour by other students.  Tellingly, while she properly identified what you did as not being normal, she in fact describes how the effect of that was that she and the rest of the family were treated as if they were not normal.  This is an abhorrent consequence and your granddaughter should not have experienced any of that.

10Exhibit B is your daughter’s victim impact statement.  In it she describes becoming homeless with the children having left your home in Swan Hill.  She expressed feelings of guilt and shame for not knowing about what you were doing and therefore not stopping it.  She has broken down emotionally and has nightmares.  Understandably, she feels betrayed by you – a person she had previously held in high regard and had entrusted with her children.  She describes your offending and its consequences as having disrupted the entire extended family and that it is like falling into a pit.

11I was told that you had no role in excluding your daughter and the children from the Swan Hill house and I will not sentence you on the basis that you did.

12But none of this should have occurred.  While I expect the sentence I impose will do little to change any of those consequences, it will reflect the nature and extent of your offending in law.

Procedural history

13Police arrested you on 6 July 2023 and interviewed you.  Based on legal advice you had received, you made no comment in response to their questions.

14You have remained in custody since then.

15You pleaded guilty to the charges at a very early stage in the proceeding called a committal mention on 6 December 2023.  I accept that this plea was entered at the earliest opportunity.

16Your plea shows, amongst other things, that you accept responsibility for what you did and that you have facilitated the course of justice.  Your settling of the case has a real benefit, both to the child witnesses involved and other family members, but also the wider community, all of whom have been spared the burden and cost, both personal and otherwise, of a trial.

Personal circumstances

17You were 55 to 59 years old at the time of the offending.  You are now 60.  Growing up, both your parents were alcohol dependent.  Your parents lost three sons, which had a very negative impact on your family.  You remembered that your mother was severely traumatised by these events and there were psychiatric admissions. 

18You are now only close to one of your siblings and while in prison, you have had phone contact with him and a friend but you have not had any in-person visits or contact with any other family.

19In your early years at school, you were diagnosed with a learning difficulty.  You were also bullied because of how you looked and after leaving school at age 15, you worked with your father in his construction-related business.

20In 1982, when you were 19, you were involved in a serious accident in which you suffered serious injuries requiring significant reconstructive surgery.  You describe having felt like a different person after this, having lost a chance to live a normal life.  You were off work and on painkillers for months and you became dependent on them.  This led you to misusing other drugs.  You report drinking up to 24 cans of beer at times and smoking up to 7 grams of cannabis daily to manage the pain.

21From 1990 to 2003, you were married to the mother of your now adult children.  When you separated in 2003, you drank heavily until about 2015 when you were using methamphetamine and cannabis daily, which continued until your arrest last year.

22Soon after your remand, you made a serious attempt on your own life.  You told staff who assessed you that the things you did makes you feel sick.  You were treated for your injuries and placed under observation.  You spoke with a Psychiatric Registrar about being overwhelmed by guilt, which led you feeling suicidal. 

23You are now in a protection unit at another prison and medicated appropriately on Valium.  You have completed several programs in custody, including programs about ‘Ice’ (methamphetamine) and alcohol (Exhibit 1) and have expressed your willingness to engage in a sex offender’s program.

24Psychologist, Jeffrey Cummins, assessed you and provided a report dated 5 July 2024 and a short addendum email (Exhibit 2).  He diagnosed you with a Major Depressive Disorder, as well as chronic adjustment disorder with Mixed Disturbance of Emotions and Conduct.  You also suffer from a chronic pain disorder.  The primary contributor to your trauma, both physical and psychological, he said, is the motor vehicle accident.

25When you first entered custody at the Metropolitan Remand Centre, prison staff reported that you expressed delusional thoughts and engaged in related behaviour, however, you have not been diagnosed with a psychotic illness. Mr Cummins observed that this type of behaviour is not uncommon in those withdrawing from long term problematic methamphetamine, alcohol and cannabis use.

26He said your withdrawal symptoms were likely exacerbated by the shock of facing serious criminal consequences for the first time.  He stated that you did not present with any psychotic symptoms during your interview.  He did not diagnose you also with any personality disorders, which absence bodes well for your treatment and rehabilitation.

27During your detailed assessment, you were unable to provide a specific explanation for how or why you became sexually attracted to your granddaughter and offended against her.  You expressed a suspicion that your use of methamphetamine caused you to be disinhibited.  You accepted that you must have known at the time that what you were doing was wrong and unacceptable.

28You expressed to Mr Cummins guilt, revulsion, regret and remorse regarding your conduct.  You told him that you were glad you were caught, and that you regret what you did.

29You have also written a letter of apology to your granddaughter, your daughter and other members of the family, acknowledging that your words will be inadequate (Exhibit 3).

30You expressed your profound sorrow to your granddaughter for the ‘disgusting’ things you did and while you will be sorry for the rest of your life, you only hope that she might be able to find happiness and fulfilment.

31You apologised to your daughter for destroying her trust in you and that you will never forgive yourself.  You also apologised to the rest of your family and vowed never to touch what you describe as the devil’s drug again.

32Although you cannot communicate with your daughter or her children because of an intervention order, and that they might quite justifiably not want to hear anything from you, I accept that your letter is evidence of genuine remorse.

33Mr Cummins used well-recognised risk assessment tools and determined that you are a low-moderate risk for further sexual offending.  I accept this, especially in the context of you having no relevant criminal history, and Mr Cummins’ opinions that your offending was more probably situationally motivated and opportunistic in type, his finding that your primary risk factor was your use of cannabis and methamphetamines and what I accept to be your willingness to actively participate in sex offender programs.

Sentencing issues

34The maximum penalty for each charge of incest is 25 years' imprisonment.  This indicates how serious the law regards this kind of conduct.

35Further, the law sets a standard sentence for incest at 10 years.  I must take account of this, alongside the maximum and all other sentencing factors, noting that the 10 years is not intended to take into account personal matters, how you have conducted your case, remorse or the guilty plea. 

36It is also a Category 1 offence under the Sentencing Act, requiring me to impose a term of imprisonment unless certain exceptions apply.  It was not suggested that any do.

37Your offending involves what can only be described as a gross breach of trust – of your granddaughter’s, her mother your daughter’s and of your family as a whole.  As has been expressed, it has had a disastrous set of consequences.

38In the first incident, by way of establishing the gravity of what you did, your granddaughter was only about eight years old.  The age difference between you was of course large, she was entrusted to your care to take her to Swan Hill away from her home and you used a form of psychological coercion when you told her, as her grandfather, not to tell anyone.

39The second charge represents a repeat of your earlier offending, it was therefore not isolated, it occurred when your granddaughter was still only 12, it happened in your shed and so away from the rest of the family who lived in the house, but it happened within the overall confines of where she lived and where she was entitled to feel and be safe from any kind of offending.

40By way of comparison with worse examples of this crime, I accept that each incident was short lived, again, against a single victim, not multiple.  Whilst each act was inherently sexually violent, it did not involve any further physical violence, you did not threaten further violence to obtain her cooperation with you, there were no separate acts of humiliation or degradation other then the acts alleged, apart from her age and relationship to you she was not said to be additionally vulnerable as unfortunately is seen in other cases, there was no pregnancy or sexually transmitted infection caused.

41I accept the contents of the victim impact statements that spell out the harmful consequences of what you did and I am satisfied that the harm you caused will continue in the long term.

42Your addiction about which you have spoken candidly to the use of cannabis and methamphetamine does not make what you did less serious.  I want to make that clear.  But I accept that it helps to explain how it is that you came to do such a things.  Since 2015, you were using ice consistently and sometimes injecting it.  You also smoked up to a large amount of cannabis daily.  I accept that these were significant habits but you had never undergone any drug detox or treatment program.

43I accept that your drug use was indirectly related to your offending.  I note that when you were not affected by that drug, you had no history of offending. 

44I note Mr Cummins’ opinion that in the context of a long-term dependency your offending was in fact situational and opportunistic.  I accept that this places you in a different category to other offenders who might be described as classic predators. 

45I find your drug use to be treatable, but the chronic nature of your use means that abstinence will be hard to achieve over the longer term.  This is relevant to my assessment of your risk and considerations of specific deterrence and community protection.

46I accept the explanation you have given about how you came to use amphetamine and then methamphetamine during your recovery from the very serious incident in the 1980s.  I accept that this was a highly traumatic experience and that the reason for commencing the drug use that later became an addiction is less blameworthy and is to be distinguished from those who take those drugs for pleasure or for anti-social purposes.

47I accept that you were very likely depressed during the aftermath of the accident and during your recovery from the extensive injuries.  I accept the finding of Mr Cummins, an experienced forensic psychologist, that this depression was long term albeit intermittent and of mild to moderate levels at different times.  I find that depression likely had an indirect effect on you at the time of the offences but it was not suggested that it meaningfully lessened your responsibility for what you did.

48Charge 1 did not occur in other aggravating circumstances such as while you were on bail or the subject of other orders.  The second of the two charges occurred in aggravating circumstances in breach of a CCO.

49In all the circumstances, I find the gravity of your offending again on the spectrum of all incidents of incest to be moderate when compared to other such cases.

50Of course, general deterrence attracts significant weight in sentencing for offending of this kind.  As does expressing the community’s denunciation for what was done to a child who must be protected.  Just punishment ordinarily involves a substantial term of imprisonment, as it will in this case.

51On remand, you have commented that what you did makes you sick.  In response to those feelings, you attempted to kill yourself, which required hospitalisation.  I accept that your mental state at the time and following made prison more onerous for you over the period of July 2023 until March 2024 during which you were undergoing intensive treatment as was described in the records.  This will be reflected in your sentence.

52Since your mental health has stabilised, I accept that you nevertheless continuingly have overwhelming feelings of guilt and shame.  Whilst uncomfortable for you, I accept that those are positive signs.

53You have willingly engaged in programs about drug use and are willing to engage in future programs about sex offending.  I accept that that reflects insight, as observed by Mr Cummins.

54I accept his opinion that you are a low to moderate risk of further offending.  This places you below the average offender and I note that it is commonly accepted that sexual offenders already re-offend at a lower rate than other offender groups.

55I find, in all the circumstances, that you have good prospects of rehabilitation and that I do not need to attach significant weight to the need to protect the community from you by way of imposing a more lengthy sentence than I already will.

56In order to reflect the totality of your offending, I will order moderate cumulation of Charge 2 upon Charge 1, particularly in circumstances where you re-offended against the same victim.

57I accept also that you have expressed real remorse for your actions.  You commented to that effect in your communication with staff in custody who you could have had no expectation would play any role in your sentencing and so I find those comments to be reliable.  Your attitude to your offending is reflected by your early guilty plea.  You also made comments to the psychologist in detailed terms that in my view demonstrates a significant degree of insight and an important degree of victim empathy.  I accept that you are truly contrite.

58I have given real weight to your guilty plea.  Those who offend in this way and deny what they have done, seeking to win perhaps at trial, including by calling the victim a liar must be seen to be dealt with very sternly.  You have done none of those things and so I have aimed to make the reduction in sentence for conducting the case in the way you have very apparent as I am required to do as a matter of significant public interest.  Of course, this does not detract from the seriousness of what you did.

59I have had regard to the comparative cases to which your counsel, Mr Cooper, in very comprehensive, indeed exemplary, written submissions, has referred.  They include Carter [2018] VSCA 88, Porter [2022] VSCA 177, Walsh [2018] VSCA 172, Pickford [2019] VSCA 195, and Tewksbury [2018] VSCA 38. I have also considered the Court of Appeal’s comments in McIntosh [2018] VSCA 321, and Nelson [2020] VSCA 36.

60As agreed by your counsel and the prosecutor, the only appropriate sentence in this case is one of substantial imprisonment that attracts a
non-parole period.

61On Charge 1, incest, you are sentenced to be imprisoned for 5 years and 4 months.

62On Charge 2, incest, the sentence is 5 years and 9 months.

63One year and 11 months of the sentence on Charge 2 is to be served cumulatively upon the sentence in Charge 1 making a total effective sentence of 7 years and 3 months.

64I fix a non-parole period at 60 per cent, or just over, of that period of 4 years and 5 months. 

65Of course, you will only be paroled by way of an order from the Adult Parole Board who will review and monitor your progress, your attitude to offending and your participation in appropriate programs and your overall risk.  Release on parole is not automatic.

66I declare that you have served 385 days' pre-sentence detention in this matter and direct that this be reckoned as a period already served under this sentence.

67In accordance with s 6AAA of the Sentencing Act 1991, if you had not had pleaded guilty I would have imposed 10 years and fixed a non-parole period of seven.

Ancillary orders

68Both charges are Class 1 offences under the Sex Offender Registration Act2004 and upon being sentenced you automatically become a registrable offender.  In accordance with s34(1)(c) of that Act, you must comply with reporting obligation for the rest of your life.

69I note that in certain circumstances, after 15 years of reporting, you may apply to the Supreme Court for the suspension of reporting.  You should speak with you lawyers about this when that time approaches.

70I will provide you, Mr Cooper, with the acknowledgement to be signed for the Sex Offenders Registration.

71You don't have to memorise or understand all of what is written there.  This is a notice provided to you so that you and your lawyers can discuss it later and that you can do what you need to do when you are released.  So keep in touch with your lawyers and before you are released, talk to them about what you must do, all right?

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