Director of Public Prosecutions v Clendinnen (a pseudonym)

[2019] VCC 2122

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

WILLIAM CLENDINNEN (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2019
DATE OF SENTENCE:	16 December 2019
CASE MAY BE CITED AS:	DPP v Clendinnen (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 2122

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. Albert
For the Accused	Mr T. Battersby

HIS HONOUR:

Introduction

1William Clendinnen[1], you have pleaded guilty to two charges of committing an indecent act with or in the presence of a child under 16 and two charges of sexual penetration of a child under 16.

[1] ‘William Clendinnen’ is a pseudonym.

2In relation to the charges of committing an indecent act with or in the presence of a child, there are two complainants.  The first of these charges represents three occasions of the same conduct.  This charge and the two charges of sexual penetration of a child under 16 relate to the same complainant, the daughter of your brother, Noah[2].  Each occurred between 1 January 2010 and 31 December 2012.

[2] ‘Noah’ is a pseudonym.

3The maximum penalty for an indecent act with or in the presence of a child under 16 is 10 years' imprisonment.  The maximum penalty for sexual penetration of a child under 16 is 25 years' imprisonment where the child is under 12 at the time of the offence[3].  I must be satisfied beyond reasonable doubt of her age and I am so satisfied through your counsel's acceptance of the facts asserted in the prosecution opening including the applicable maximum penalty.

[3] S 45(2)(a).

4Because I will sentence you to imprisonment on charges 1 and 2, on charges 3 and 4, I must sentence you as a serious sex offender.  Later, I will explain how that works. 

Circumstances

5As I said, the first three charges concern your niece. Between 2009 and 2012, she would visit your home in Armadale either as part of family gatherings or to be babysat.  The home was that of your mother and you lived there with her until her death in 2014.

6The first charge specifies an offence occurring between 1 January 2010 and
31 December 2012.  What happened was your niece visited your home with other members of her family.  Your niece was then three and a half to four years old.  She went to the toilet.  You entered the toilet while she was sitting and urinating.  You massaged her vagina around the area of the clitoris with your fingers while she urinated.  You stopped when she said she had finished and wanted to get off the toilet.  This was the first of three occasions.

7On the second occasion your niece was again in the toilet at your home.  She had just finished and wiped herself when you entered, told her to stay seated and you massaged around her vagina with your fingers.

8On the third occasion you and your mother visited your niece's home.  During the visit you and her were in a bedroom.  After telling her to keep quiet, you touched her vagina on the outside of her pants.

9The second charge occurred when your niece was four and a half to five years old and at your home.  You took her into your bedroom. You showed her pornographic magazines. You asked if you could put your penis into her vagina.  You did not use the word, vagina, instead saying “butthole”.  She told you to put your penis in her anus as you had hurt her vagina on a previous occasion.  You put your penis into her anus, which she found painful.  She let it happen as she thought this was normal.  You then inserted your penis into her vagina.  When her parents collected her, she told them her vagina was sore.  This is a rolled up charge.

10With the third charge, your niece was with you in the kitchen of your home.  You were making a pavlova.  You exposed your penis in front of her.  You put your penis in her mouth.  You ejaculated in her mouth.  Despite telling her to swallow, she did not because of the taste and spat out the ejaculate.

11The father of the second complainant was your friend and she was a school friend of your niece. 

12On 26 December 2014, the second complainant was eight years old.  On that day, you were at her home with her father and others, watching the cricket on television.  She and her brother, aged 11, wanted to go to a nearby park and you offered to take them.  The three of you went to this park. The children played at the park and afterwards you walked with them to your home. You then called for a taxi and told her brother to wait for the taxi outside the house.  He did so while you and the second complainant waited inside.  While in the house you put your hand down her pants and massaged her vagina beneath her underwear.  Despite being asked to stop you continued for another five minutes.  Although again asked to stop you only did so when a taxi arrived.  You told her to say nothing to anyone. 

13The prosecutor in his opening went into some detail about how these offences came to the attention of police. My initial reaction was not to summarise what happened.  However, I will do so for they have some relevance. 

14Immediately after these incidents, your niece complained to no one.  Although feeling what you did was wrong, she could not say why.  Her relationship with you then was loving because you were her uncle even though she was a bit scared of you and unsure.  In any event, after most of these incidents you told her what was done was normal, not to tell anyone, and even if she did no one would believe her.

15During 2012, her mother was putting her to sleep.  Your niece said she hurt down there.  Her mother asked if you had touched her.  She said, 'Yes', and smiled.  Her mother was concerned she had put words into your niece's mouth.  Nevertheless, her mother accused you of touching your niece in the presence of your mother.  You did not respond. 

16Later, her mother asked your niece if she had seen your penis.  She told her about the white stuff she spat from her mouth.  Her mother and your brother discussed what should be done.  They were concerned about the effect on your mother and were uncertain whether you had abused your niece.  They resolved not to allow your niece to be alone with you.

17As I said, your mother died in 2014.  The following year your niece told her mother that you had put your penis in her vagina and you had told her to practice hugging you.  A few days later her mother told you not to touch or hug your niece.  You denied that you had.

18The second complainant told no one also.  However, in 2015, your niece told her you had been touching her vagina and the second complainant said the same thing had happened to her. 

19Later, the second complainant's brother told her that you were coming to their house and she became upset.  When asked why, she told him you had touched her.  He told his parents and they spoke to her and she said you had touched her private parts.

20The second complainant's parents obtained expert psychological advice about how to handle the situation. 

21Shortly after receiving this advice, your brother and the second complainant's father met you at a hotel.  They said they knew what you had done to the two children and you should get help.  You replied, 'This is what happens with alcohol and me'.

22The last step is an unusual one.  Your niece told another school friend.  She told her mother who told the Department of Human Services, which in turn told the police. The police spoke to your niece and the second complainant's father.  Your niece told her father she wanted to report the matter to the police.  During 2017 and 2018, the children, including the second complainant's brother, were interviewed in a manner appropriate for young children.

23In March 2018, your brother met you in a hotel.  The police had fitted him with sound recording equipment.  During the conversation, you acknowledged your wrongdoing with both complainants.

24On 5 July 2018, you were arrested.  When interviewed you made what is described as a “no comment” interview. 

25You were charged. Subsequently, there was a filing hearing on 1 March 2019.  There were two committal mention hearings.  There was a committal hearing where four adults gave evidence.  You pleaded not guilty to the charges and were committed for trial. There was an initial directions hearing on 17 July 2019 where the charges were listed for a trial on 28 October 2019.  However, at your request, you were arraigned on 7 August and pleaded guilty and the charges were adjourned to 4 December for a plea.

Victim Impact Statements

26Your niece and her father made victim impact statements.  The second complainant did not. 

27Your niece is now 12.  When these offences occurred she was uncomfortable, not knowing whether they were good or bad.  Later she became angry and sad.  Angry that you had taken her childhood away.  Sad because she did not feel normal. 

28She feared what you might do to her.  She did not sleep well.  She had nightmares.  She feared having contact with you. 

29Once she believed what had happened was her fault alone.  She still thinks she caused the offences in some way by somehow provoking you.

30She feared if others knew what had happened they would be angry with her.  She even feared her parents would disown her.  It affected her schooling because she found it hard to concentrate. 

31She lost trust in others, and this has affected her friendships. 

32Her relationship with her parents has changed, especially her mother.  She does not want them to pity or feel sorry for her.  She believes her mother blames herself for what happened.  She has seen her mother crying. 

33The offences have affected her relationship with her brother and with others.

34The prospect of giving evidence was in her thoughts constantly.  It affected whatever she was doing.

35Her father spoke of the effect upon her in more startling terms than she did.  He spoke of her suffering from anxiety, sleeping problems, eating disorder, a panic attack, lack of self-esteem, self-harm and suicidal thoughts. 

36It has damaged his relationship with the child's mother because the offences were committed by a member of his family. 

37He now finds it difficult to trust others. 

38There has been a large financial cost to his family through a need to use psychologists.

Personal background

39You are 56.  You are single, living alone.  At the time of your offences you were between 46 and 51. 

40You have no previous convictions or findings of guilt. 

41You are the youngest of three.  You grew up with your parents in Orbost. 

42Your parents separated when you were 13.   You went to Melbourne to live with your mother and siblings.  You visited your father during holidays. 

43You completed Year 12.  You hoped to obtain a degree and enter business or politics.  Despite seven attempts you did not finish your arts degree.  You were unable to do the work required by the course. 

44You have worked in various unskilled jobs, a number of which ended because of you not attending work due to alcohol abuse. 

45Since 2011, you have received a disability support pension because of depression and an alcohol-use disorder. 

46Your father died when he was 56.  You spent most of your life with your mother.  Towards the end of her life, you cared for her.  Since her death, you have lived alone in a boarding house.

47Your sister lives in the United States of America.  Your brother lives in Melbourne.  Neither has much to do with you.  You are truly isolated.

48You have drunk alcohol daily since you were 18.  You have tried to stop but have been unsuccessful.  You are an alcoholic.  You have used cannabis most of your adult life although you significantly reduced your usage six years ago. 

49You suffer from agoraphobia and prefer not to leave your room.  You struggle with depression.  You do not seek treatment for mental health issues.  You suffer from asthma and arthritis.  Your teeth are in poor condition because you cannot afford dental treatment.

Gravity of the offending

50Your counsel submits your offending is within the mid-range of seriousness.  He points to certain features:  limited duration; opportunistic, not planned; lack of involvement of others; and no child exploitation material created.

51The first complainant is your niece.  She trusted you as did her parents.  The second complainant was entrusted into your care to take her and her brother to a park to play.  You were a friend of her father.  You had been invited to the parents' home that day. 

52Your niece was very young. Although the charges describe the offences as occurring within a two year period, the first occasion of the first charge occurred when she was about three and a half to four years old.  The second charge concerns a single event when she was about four and a half to five years old.  It is unclear how old she was when you committed the sexual penetration, the subject of Charge 3. The second complainant was also very young.  At the time of the offence against her, she was eight years old.  Both girls were highly vulnerable. 

53Despite being accused by your niece's mother in about 2012, you still reoffended in 2014 with the second complainant.

54Each of the offences is a very serious instance of that kind of offending.  The first charge represents three occasions of similar conduct.  The second charge is a charge bringing together two forms of sexual penetration, anal and vaginal.  The third charge is oral penetration.  The fourth charge occurred over a period of at least five minutes and did not stop until the taxi arrived despite two requests by the second complainant to stop.

55The effect upon your niece is profound.  I have already summarised the effect upon her, as seen by her father, for a child who is even now only 12 years old.  The consequence of your criminal behaviour towards her is very important.  I expect the effect of your criminality upon her to last for the foreseeable future.  The extent of the effect upon the second complainant cannot be gauged, except one expects she was affected and that is continuing. 

56I do not agree with your counsel's categorisation of the gravity of your offending.  It is more serious than that.

Serious sexual offender

57Because I will sentence you to imprisonment on charges 1 and 2, for the purposes of sentencing you on charges 3 and 4, you are a serious sexual offender.  The law creates a different regime for sentencing serious sexual offenders. 

58First, it says I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. 

59Second, it says that to achieve the purpose of protecting the community I may impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.  The prosecution does not seek a disproportionate sentence and I agree that it would be inappropriate in your case.

60Third, every term of imprisonment imposed by me on you as a serious sexual offender for charges 3 and 4 must, unless I direct otherwise, be served cumulatively upon the sentences that I impose on charges 1 and 2.

61There is a further consideration.  Notwithstanding the first three considerations, the principle of totality has a part to play in the overall sentence.  As the Court of Appeal said in the Director of Public Prosecutions v Dalgliesh[4]:

“While RH McL constrains the application of the principle of totality where the serious sexual offender provisions apply, totality remains an important consideration in sentencing.”

[4] [2016] VSCA 148 at [59].

Representative charge

62Charge 1 is a representative charge.  A representative charge is a charge for an offence which is representative of other instances of the same offence being committed by the offender in the same manner on other occasions.  How I deal with such a charge is set out in the recent case of Crouch (a pseudonym) v The Queen[5].  In particular, it represents the absence of a mitigating factor since you cannot claim the offence was an isolated offence.  It requires me to look at the conduct represented by the charge in order to judge your offending in its full context. 

Rolled-up charge

[5] [2019] VSCA 30 at [36].

63While the representative charge alleges only one offence, the rolled-up charge is a collection of offences bundled together into a single charge.  Charge 2 is a rolled up charge.

Current sentencing practice

64As to current sentencing practice, your counsel referred me to three judgments in the Court of Appeal:  Roper v The Queen [2016] VSCA 52; Director of Public Prosecutions v CPD [2009] VSCA 114; and The Queen v JMA [2007] VSCA 105, which I have read.

65The prosecutor did not refer me to any such cases.  However, he did refer me to paragraph 57 from The Queen v Shawcross [2018] VSCA 295, which says in part:

'Moreover, the observations of this court in Dalgliesh, endorsed by the High Court, as to the seriousness of sexual offending against children and community values in that context are directly relevant to sentencing for all offences of that nature'.

Baseline sentencing

66When you committed the offences in charges 2 and 3, s.45 (2A) of the Crimes Act provided the baseline sentence was imprisonment for 10 years. The operation of sentencing for a baseline offence was described in s.5A of the Sentencing Act 1991. I raised this issue and both the prosecutor and your counsel submitted I should ignore it in your case. They were correct for two reasons.

67First, the offences under s.45(1) were baseline offences only between 2 November 2014 and 29 November 2017.  The offences in charges 2 and 3 occur outside that period. 

68Second, the Court of Appeal in The Queen v Walters (a pseudonym) [2015] 49 VR 356 held that baseline sentencing provisions are incapable of being given any practicable operation. As a result, in this court, several judges sentenced without regard to the baseline sentencing provisions.

Discussion

69Both complainants were very young at the time of the offending.  Both were highly vulnerable.  You were a family member to your niece and therefore trusted.  The second complainant's father was your friend and she was a friend of your niece.  There was trust involved. 

70What you did to both children was truly shocking. 

71Plainly, four of the purposes for which sentences are imposed were engaged in your case.  There is a need to punish you to the extent and in a manner which is just in all of the circumstances.  I must deter you and others from committing offences of the same or of similar character.  I must denounce the type of conduct you have done.  I must protect the community from you.

72Since 2015, you have consciously avoided being in situations where there would be a risk of reoffending in a similar manner.  To that extent you have reformed yourself.  However, you reoffended with the second complainant after being warned about your offending with your niece.  Specific deterrence is lessened to a moderate degree only.

73Based on his instructions from you, your counsel submitted you are remorseful for your offending and, in addition, relied on your pleas of guilty.  The prosecutor submitted I should not accept the submission absent any evidence to support it.  Despite the opportunity to do so, none was provided.  Nevertheless, I accept you are to a degree remorseful for what you have done, principally through your pleas of guilty.

74Despite being charged with these offences on 5 July 2018 the filing hearing occurred on 1 March 2019, which is a long delay.  There were two committal mention hearings followed by a committal hearing on 2 July 2019.  Following your committal, a trial date was set.  However, these pleas were offered on
23 July 2019 and subsequently accepted.

75In terms of process, not time, if one looks at your proceeding in this Court and the Magistrates' Court, your pleas of guilty came after the effective mid-point between the first appearance in a court and the proposed trials.  These pleas have saved two complainants from giving evidence and another seven witnesses from the same task.  As your niece says in her victim impact statement, the thought of giving evidence was on her mind constantly and adversely affected other things she was doing.  Your pleas of guilty to the charges relating to her must be an enormous relief.

76Moreover, your pleas of guilty have saved the time and cost of the conduct of a trial.  It brings these charges to an end quicker than if there had been a trial and likely enables other cases to be heard and determined earlier[6]. 

[6] DPP v CPD [2009] VSCA 114 at [34].

77You are entitled to a significant discount on the sentences I would have imposed after a trial following pleas of not guilty.

78As I said earlier, the maximum penalty for your offence of sexual penetration is 25 years' imprisonment, while for the charge of indecent act, 10 years' imprisonment. 

79I have already referred to the principle of totality.

Sentence

80On charge 1, an indecent act with or in the presence of a child under 16, which is a representative charge representing three occasions of the same offending, I sentence you to two years' imprisonment.

81On charge 2, sexual penetration of a child under 16, which is a rolled-up charge of two instances of sexual penetration, I sentence you to six years' imprisonment.

82On Charge 3, sexual penetration of a child under 16, where you are to be sentenced as a serious sexual offender, I sentence you to six years' imprisonment.  This is the base sentence.

83On charge 4, indecent act with a child under 16, where you are to be sentenced as a serious sexual offender, I sentence you to 18 months' imprisonment.

84On the base sentence of six years, I will cumulate nine months on Charge 1; three years on Charge 2; and nine months on Charge 4, giving a total effective sentence of 10 years and six months.  I will fix a non-parole period of six years and three months.

Pre-sentence detention

85I declare you have served 12 days of pre-sentence detention, not including today.

S 6AAA

86For the purposes of s.6AAA of the Sentencing Act 1991, but for your pleas of guilty I would have sentenced you to a total effective sentence of 12 years' imprisonment, with a non-parole period of seven years and two months' imprisonment.

Sex Offenders Registration Act 2004

87Under the Sex Offenders Registration Act of 2004, once sentenced you automatically become a registrable offender and must comply with reporting obligations under Part 3 of that Act.  You must report for the rest of your life, and there is a document that needs to be signed by your client, Mr Battersby, in that regard.

88MR BATTERSBY:  Yes.

89HIS HONOUR:  In that regard,  I will have my associate take the document down and you can accompany him for your client to sign it.

90MR BATTERSBY:  Thank you, Your Honour.  As Your Honour pleases.

91HIS HONOUR:  Is there any other application, Mr Prosecutor?

92MR ALBERT:  No, that's all, Your Honour.

93HIS HONOUR:  All right.

94MR ALBERT:  Sorry.  There is one forensic sample order, Your Honour.

95MR BATTERSBY:  Unopposed, Your Honour.  Apparently the order has been e-lodged, Your Honour.

96HIS HONOUR:  Has it?

97MR BATTERSBY:  Yes, as my instructor tells me.  Yes.

98HIS HONOUR:  Do you have a copy of it?  Mr Clendinnen, what is being sought in relation to a forensic sample is either taking a scraping from your mouth and/or a blood sample so that they can be analysed and your DNA placed on a database.  I am required by law to tell you that the police can use reasonable force in order to obtain a forensic sample.  Do you understand that?  All right.  I will make the order.

99Do you want me to repeat what I sentenced?  I can hear these whispered conversations.

100MR ALBERT:  Sorry, Your Honour.  I just wanted to make sure I have got it down right.  What I have got is Charge 1, two years; Charge 2, six years;
Charge 3, six years; Charge 4, one and a half years; cumulation on Charge 1, nine months; cumulation on Charge 2, three years; and Charge 3 is the base sentence.  What I have not got is the fourth charge cumulation.

101HIS HONOUR:  Nine months.

102MR ALBERT:  Is nine months.

103HIS HONOUR:  Nine months.

104MR ALBERT:  Yes, thank you.  Got it, good.

105HIS HONOUR:  Apparently it will take the system 10 minutes to generate the document in relation to the Sex Offenders Registration Act.  So it cannot be done immediately.

106MR BATTERSBY:  That is all right, Your Honour.  I will assist Mr Clendinnen once it is produced.

107HIS HONOUR:  Where would that occur?  I would imagine once I adjourn the court Mr Clendinnen will be removed from the dock.  I do not suppose he would remain here.  All right, maybe my associate and you, Mr Battersby, visit your client downstairs in order for that document to be signed.

108MR BATTERSBY:  Yes.

109HIS HONOUR:  Is there anything else, gentlemen?

110MR BATTERSBY:  Nothing further.

111MR ALBERT:  No, Your Honour.

112HIS HONOUR:  And, Mr Battersby, you will be seeing your client downstairs in any event.

113MR BATTERSBY:  Yes.

114HIS HONOUR:  All right.  Well, perhaps if Mr Clendinnen could be removed and then I will adjourn the court.

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