Director of Public Prosecutions v Clifton (a pseudonym)

[2019] VCC 1219

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALTON CLIFTON (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MURPHY
WHERE HELD:	Melbourne
DATE OF HEARING:	Trial: 18 March 2019 – 29 March 2019 Plea: 10 April 2019, 13 May 2019 Further Plea: 29 July 2019
DATE OF SENTENCE:	6 August 2019
CASE MAY BE CITED AS:	DPP v Clifton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1219

REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE

Catchwords: Child sexual offences – Course of conduct – Sexual penetration of a child under 16 – Indecent act with a child under 16 – Common law assault – Breach of trust – De-facto context - Serious offending – Profound victim impact – No relevant prior convictions – Serious medical history – Delay - significant disability – burden of imprisonment – Principle of denunciation – Serious Sex Offender

Legislation Cited: Crimes Act 1958 – Sentencing Act 1991 – Sex Offenders Registration Act 2004

Cases Cited: DPP v Dalgliesh (a pseudonym) (2017) 349 ALR 37; Grantley (a pseudonym) v The Queen [2018] VSCA 112; Harris Crawford (a pseudonym) v The Queen [2018] VSCA 113; McCray, Dennis (a Pseudonym) v The Queen [2017] VSCA 340; David Tones v The Queen [2017] VSCA 118;

Sentence: Total Effective State Sentence: 6 years imprisonment, Non-Parole Period: 4 years imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy	Office of Public Prosecutions
For the Accused	Mr A. Marshall (Trial & Plea) Mr J. Siggins (Sentence)	Vaccaro's Lawyers & Solicitors

To ensure there is no possibility of identification, this sentence has been anonymised by the adoption of pseudonyms in place of names of the victims and family or witnesses

HIS HONOUR: 

1Dalton Clifton[1], after a short trial in the Bendigo circuit, you were found guilty of one charge of sexual penetration of child under 16; one charge of indecent act with a child under 16, course of conduct, touching her breasts; one charge of indecent act with a child under 16, course of conduct, touching her vagina; and one charge of common law assault. 

[1] A pseudonym

2Save as to the first conviction, the other convictions were by majority verdict. 

3The first three charges carry a maximum penalty of 10 years' imprisonment, while the final charge carries a maximum penalty of five years' imprisonment. 

4You were acquitted of three other charges of indecent act with a child under the age of 16.

5I am required to sentence you in accordance with the jury verdicts. 

6The background to the offending, is that you were living in a house in a suburb of Bendigo.  The complainant's mother had two other daughters.  In late-2009 and early-2010, she was escaping an abusive relationship and formed a relationship with you.  At the time, the complainant herself was living with her father elsewhere in northern Victoria. 

7In 2011, the complainant's mother was living with you, along with her two other children.  The complainant moved back to Bendigo and the complainant and her mother and her sisters moved back to their own house, also in Bendigo.  There were times, however, when the complainant's mother and the complainant and the other children stayed over at your house throughout the week and at weekends.  You also had children of your own and the two lots of children got on well together.  You had become a father figure for the children during the time that the complainant stayed there.

8The events giving rise to the first charge, were that the complainant was aged 12 or 13 and she was in Year 6 and thus, still at primary school.  She was asleep on the couch.  Her mother and other sisters were also in the house.  She woke to find that you had put her legs on your lap and you were sitting there and kissing her and touching her breasts, and then you inserted your finger into her vagina.  She protested and said it hurt and asked you to stop, but you continued for 10 to 15 minutes before eventually stopping.

9The complainant moved from the couch and slept with her younger sisters for an hour and then returned later to the couch.  At the time or soon after, you told the complainant that if she ever told anybody about what happened, no one would believe her because she was a child and also you would go to gaol and her mother would hate her.  You repeated these comments numerous times throughout your abusive conduct when the complainant threatened that if you did not stop, she would go to her mother. 

10The complainant gave evidence that while she and her mother were staying at your house three to four to five times a week, you would touch her breasts and touch her vagina.  Her evidence was that it was, 'Every night that I was there'.  That conduct constitutes the course of conduct charges of indecent act with a child under 16, being Count 2, touching the breasts, and Count 3, touching her vagina. 

11On one particular occasion, the complainant was at home, as she was sick and was playing on her computer.  You proceeded to come from the kitchen and proceeded to touch her breasts and were running your hands up and down her thighs.  She told you that she would go to her mother and you then proceeded to slap her on the face, causing a red mark and said that her mother would never believe her.  The complainant left the room through a window and went outside crying.  The slap constitutes Charge 6, common assault, which you were found guilty of.

12At issue on the plea was the frequency with which you indecently touched the complainant's breasts and vagina.  She gave evidence that it was three to four to five times a week and, 'It was every night I was there.'  There was conflicting evidence as to how frequently the complainant was at your house, given that your daughter would be staying at weekends and the evidence was that the offending did not take place when she was there and other people were also staying in the house during 2013. 

13In addition, in August 2013, there was a major dispute between you and the complainant's mother and she left the house, although she was invited back in early-2014, before finally leaving in about March 2014.  Notwithstanding this, there were also occasions when the complainant would attend there, even though her mother was not staying. 

14Your counsel put that the period of offending would have been from May or June 2013 to August 2013 and then some occasions in early-2014. 

15Having considered the competing submissions, the jury must have accepted the complainant's credibility beyond reasonable doubt relating to Charges 1 to 3.  And on that basis, I am satisfied beyond reasonable doubt that the course of conduct alleged in Counts 2 and 3 occurred on at least a score of occasions.  Although you were acquitted on Counts 4, 5 and 7, which related to specific incidents said to have constituted an indecent act and where no supporting evidence was located in relation to Counts 4 and 5, the complainant was unmoving in her evidence as to the repetitious nature of your touching of her, which was the basis of Charges 2 and 3 as a course of conduct.

Seriousness of the offending

16Sexual activity with children by mature adults is inherently damaging and exploitative.  You were aged in your early 50’s at the time of the offending.  Here the first charge involved a significant duration, notwithstanding the resistance by the complainant.  Further, the following day it was accompanied by threats or psychological coercion to avoid her taking the matter to her mother.  Thereafter, the offending involved in Charges 2 and 3 continued for a protracted period, notwithstanding that the complainant was seeking to resist your actions.  An example of her resistance gave rise to the event that involved you slapping her, as she sought to resist your touching of her, leading to your conviction for assault.

17The offending was also serious by reason that it involved a breach of trust.  The complainant was in your home with her mother and she was entitled to the protection of you within that home.  You were treated as something of a father figure by her, on her evidence, and also as evidenced by her returning to the home, notwithstanding the prior abuse.  You abused that trust and thus the offending involves a breach of trust which goes to increase its seriousness.  Thus overall, the offending was very serious, due to its protracted nature, the power inequality, and the psychological coercion by you, by telling her that you would go to gaol and that her mother would hate her.  This allowed the offending to continue.

18In addition, the seriousness of the offending is evidenced by the impact on the complainant and her mother, her close school friend and the school friend's mother in the victim impact statements to which I am about to refer. 

19In her victim impact statement, the complainant says that she felt violated, scared and frightened.  She felt everything around her was crashing down.  Her life changed dramatically and she was running away from home and self-harming.  She was also required to be prescribed anti-depressants and undertake counselling.  Some days she finds it a struggle to be able to cope.  She says that she has now turned 18 and is thriving, but it took a great deal of strength to go through what she went through.  Things have settled down at home, but she is still very close to her friend and what happened to her upset her significantly. 

20The complainant's mother filed a victim impact statement, noting that she doubted her parenting.  She is cautious about who she lets into her life.  She felt betrayed, hurt and angry.  Many relationships have been impacted.  She barely slept as a result of the impact of your offending on her daughter.  She now knows that the behaviour of her daughter was related to your conduct.  That has made her anxiety and depression worse.  There will always be questions as to her ability to protect her children.  It impacted on a course she was undertaking and she has tried to move her family from the Bendigo area.

21The complainant's school friend, to whom she reported your conduct, filed a victim impact statement, stating that she felt angry.  It made her physically sick and she missed school as a result of her anxiety and had trouble sleeping and nightmares.  She had to speak to a lot of people, including police officers and that was scary for her. 

22The school friend’s mother, also filed a victim impact statement, stating that as a result of the offending, she had experienced panic attacks and other physical consequences.  Things have been difficult between her daughter and herself.  It was a dark cloud over her house and she has not been able to properly protect her daughter in a way a mother should.  The court process has been very stressful and she has felt a number of strong emotions.  She has had to engage in counselling to address her anxiety and depression and insomnia.  It is going to take time for her to trust people again.  She is fearful of going out in public. 

23Overall, the victim impact statements indicate the profound impact that your offending has had on the complainant, her mother, her school friend and her school friend's mother.  The serious impact of your offending is a matter that I must take into account in sentencing, as the sentence of the court must also vindicate your victims. 

Prior convictions

24You admitted a 2006 conviction for criminal damage, for which you were ordered to pay compensation.  I regard it as having no relevance in this matter. 

25I now turn to matters personal to you that were put in mitigation.  Your personal circumstances were set out in the plea outline and also in the report of Leanne Morris psychologist.  You are aged in your late 50’s and the second youngest of five children, raised in the Bendigo area.  Your father worked for the SEC and your mother cared for the children and did charity work.  You came from a Jehovah's Witness family. 

26You attended local schools and left at the age of 15.  You were able to complete Year 11 at TAFE.  You then were involved in various occupations, until around 18, you joined the army to work as a cook and you were in that occupation for a period of five years.  During that time, you were married and your first wife had two children, two sons.  That marriage failed.  You also worked for the Australian Volunteer Foundation and then moved to Sydney to work as a care assistant for three years. 

27You returned to Bendigo, successfully running a hotel in partnership.  You remarried and have two grown-up daughters from that relationship.  Your involvement in the hotel ceased after you were the subject of a serious assault in 2000, which left you with plates in your skull and untreated PTSD.  You have another daughter from a de facto relationship. 

28You were involved in a de facto relationship with the mother of the complainant.  You re-engaged with your current wife in 2012 and married her in 2014.  She has bipolar disorder and a 15 year old child who suffers from autism. 

29On the plea I have had regard to supportive testimonials from your wife and from two other friends.  They speak of your good and caring nature and the impact of the allegations against you and the decline in your mental health since the allegations were made.  They do not accept the truth of the allegations, given their knowledge of you.  You thus, on the basis of those testimonials, have good family support. 

30A significant matter on the plea was your own health condition.  You suffer from unresolved PTSD as a result of the 2000 assault.  You have suffered ischemic attacks in 2014 requiring hospitalisation and during the trial, you were admitted to hospital for a day, after an anxiety attack.  You also have had some sort of breakdown in the last week or so.  You suffer significant mobility problems.  You have also been seeing a doctor for a heel spur and you also have osteoporosis and osteoarthritis in your hips and knees.  You have a detached retina in your left eye. 

31The report of Leanne Morris, psychologist, notes that you are in a state of denial regarding your offending.  You deny any guilt and you do not show any symptoms of any obvious psychiatric disorder.  She found it difficult to determine if you would be likely to reoffend.  She is of the view that it would be beneficial for you to undertake specific offender focussed therapy.  She notes that, as you maintain the denial of the offending, you would cope reasonably well in prison. 

32You were referred to a neuropsychologist to assess whether you had an ABI.  The report of Mr Staios indicates that on a range of neuropsychological tests, you fell into the high-average and average range of function.  He indicates in the report that this does not indicate the presence of cognitive impairment following traumatic brain injury, nor support that your offending may be associated with symptoms of organic brain damage.  He is of the view that you would benefit from a referral to a psychiatrist to manage your PTSD symptoms. 

33Given that you have been on a DSP for some 19 years, this indicates that overall you have significant disability and I am satisfied would find prison more burdensome than a younger man with good overall health.

Purposes of sentencing

34The basic purposes for which a court may impose a sentence are punishment, deterrence, both specific and general, rehabilitation, denunciation and protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of the offences, your culpability for them, your personal circumstances and those of the victim, if any.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society. 

35In cases such as this, general deterrence and denunciation are very important sentencing considerations.  The sentence of the court must signify community denunciation of your conduct in exploiting, for your own purposes, a young girl who was effectively placed in your trust.  Premature sexual activity in children is presumptively assumed to cause psychological damage. 

36The victim impact statements in this case indicates that it has had a significant impact on the complainant, as well as those close to her and the sentence of the Court must denounce your conduct and send a signal to all those in positions of trust that it is absolutely unacceptable to exploit children for sexual advantage. 

37Specific deterrence has less weight, but still some relevance, given your continued denial of responsibility for the offending.  Rehabilitation into the community is also a matter that must be given weight.  Given that you do not accept the verdict of the jury, your prospects of rehabilitation must be regarded as guarded, unless you are prepared to undergo offence-specific therapy, as suggested by Ms Morris. 

38In sentencing you on Charge 3, I am required to sentence you as a serious sexual offender, which means there is a presumption of cumulation and protection of the community must be the principal sentencing purpose. Given your lack of prior convictions, although you must be sentenced as a serious sexual offender on Charge 3, protection of the community is less salient. 

39The learned Crown prosecutor, Mr Cordy, accepted that the offences in Charges 2 and 3 were effectively a single course of conduct on each particular occasion and thus called for significant concurrency. 

40Overall, I have extended some leniency, on the basis that there has been some delay in this matter, due to the exigencies of circuit.  It is now nearly three and a half years since you were arrested. 

41I was referred to some cases[2] involving incest sentences in relation to course of conduct sentencing.  In sentencing, I must have regard to current sentencing practices and the maximum penalty, as well as the circumstances of the offence and your own personal circumstances. 

[2] Grantley (a pseudonym) v The Queen [2018] VSCA 112; Harris Crawford (a pseudonym) v The Queen [2018] VSCA 113; McCray, Dennis (a Pseudonym) v The Queen [2017] VSCA 340

42The case of Dalgleish[3] makes it clear that offending against children in family situations must be met with heavy punishments. 

[3]DPP v Dalgliesh (a pseudonym) [2017] 349 ALR 37

43I have taken into account that imprisonment will be a greater burden on you, due to your age, your untreated PTSD, your musculoskeletal problems and your prior head injury that has left you on the DSP for many years.  I have also taken into account that imprisonment will be more burdensome, due to your inability to support your wife and her special-needs child. 

44Could you please stand.

45I have taken into account all the submissions on your behalf by your counsel and I sentence you as follows:

46On Charge 1, sexual penetration of a child under 16, you are sentenced to four years' imprisonment.

47On Charge 2, indecent act with a child under 16, course of conduct, you are sentenced to two and a half years' imprisonment.

48On Charge 3, indecent act with a child under the age of 16, course of conduct, you are sentenced to three and a half years' imprisonment.

49On Charge 5, common assault, you are sentenced to seven days' imprisonment.

50Charge 1 is the base sentence.

51I order that 10 months of the sentence on Charge 2, be served cumulatively on the sentence on Charge 1; and 14 months of the sentence on Charge 3, be served cumulatively on the sentence on Charge 1 and on the 10 months cumulated on Charge 2. 

52The sentences are otherwise concurrent.

53The total effective sentence is six years' imprisonment. 

54I order that you serve a minimum term of four years before being eligible for parole. 

55I declare that I have sentenced you as a serious sexual offender in relation to Charge 3 and I order that that be entered into the records.

56HIS HONOUR:  I declare that you have served 85 days pre-sentence detention, excluding today and that it be deducted administratively.

57As a consequence of your convictions, you will be placed on the sex offender register with a reporting period for life.  The relevant paperwork will be forwarded to the prison and you will be required to sign it and send it back to my associate and then upon your release from prison, you will be required to report to the registrar and then report your changes in your position, your address, phone numbers, et cetera and I ask that your counsel explain the obligations under the sex offender register to you in due course. 

58The prosecution has sought a forensic sample.  Having regard to the seriousness of the offending, I will make that order that you provide a mouth sample to the authorities and I must advise you that the authorities are entitled to use reasonable force to obtain that sample. 

59HIS HONOUR: I would thank you for your assistance,
Mr Cordy and Mr Marshall and his successor, Mr Siggins and I will leave the Bench and you can just leave the link on, you can discuss the - explain the sex offender registration with Mr Clifton. 

60MR SIGGINS:  If it pleases the court.

61HIS HONOUR:  Yes, thank you.  We will stand down temporarily. 

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