Director of Public Prosecutions v Clunie (a pseudonym)

[2016] VCC 1633

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

ETHAN CLUNIE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	7 November 2016
CASE MAY BE CITED AS:	DPP v Clunie (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1633

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	Ms A. Hassan	Office of Public Prosecutions
For the Accused	Mr M. Perry	Dwyer Robinson Pty Ltd

Pages 1 - 8

 

 

HIS HONOUR: 

1Ethan Clunie,[1] you have pleaded guilty to two charges of indecent assault of a female, two charges of indecent assault and one charge of incest.  Those crimes carry maximum penalties of five years, five years and 20 years respectively.

[1] A pseudonym.

2You pleaded guilty at the earliest reasonable opportunity and you must get the benefit of that.  I will give you the benefit of the doubt insofar as remorse is concerned and, importantly, you have no prior convictions.  You must also get the utilitarian benefit of that plea of guilty and furthering the course of justice.  Of course there was therefore no cross-examination of your victims. 

3On 16 September 2015 you were sentenced in the County Court in Melbourne to six years' imprisonment with a minimum term of four years.  That matter was appealed by the Crown and on 14 September 2016 you were re-sentenced by the Court of Appeal to eight years with a minimum term of five and a half years.  I have the benefit of having read both the judgment of the trial judge who sentenced you and also the Court of Appeal judgment.  Accordingly as it stands at the present time you are undergoing a sentence of eight years with a minimum term of five and a half years and have now done some 418 days.

4Firstly you are to be sentenced on the matters that I sentence you for as a serious sex offender.  I am aware that sentences are to be cumulative unless otherwise ordered, and for reasons of totality I have no choice but to do that.  I am aware that community protection becomes the principal sentencing purpose and I am aware that the Crown does not seek a disproportionate sentence and I do not make one.  Your particular situation, as has become clear when I go through the summary, is now one of totality.  I will be making part of the sentence I impose cumulative and will then set a new minimum term.

5The offending can be described in fairly short compass, though the consequences of it could hardly be so described.  You are now 70.  The complainants in the matter are Imogen Boake[2] and Amelia Clunie.[3] Ms Boake is the younger sister of your then wife and Amelia was and is your biological daughter.

[2] A pseudonym.

[3] A pseudonym.

6On a date between 19 October 1968 and 7 June 1969 when Ms Boake was around 11 years of age you were at the family home.  It was prior to you marrying her sister.  You were at the kitchen table, watching television.  You were seated next to her, put your hand under the table and into her underpants and began to fondle the outside of her vagina with your finger.  That gives rise to Charge 1.

7On a date between 19 October 1970 and 18 October 1972, when she was around 13 to 14 years of age, she was staying with you and her sister at a house in the country.  You came into the bedroom where she was sleeping and rubbed your penis up and down over her vaginal area, over her pyjamas.  That gives rise to Charge 2.

8Your daughter says when she was around 11 years of age you hopped into bed with her and touched her on the vagina with your fingers.  Sometime later when she was still 11 years of age her mother was out of the house and the other children were watching television.  You came into the bedroom and put your penis into her mouth.  She says there was liquid coming out of your penis into her mouth before you withdrew your penis and ejaculated onto her stomach.  You said to her, "If you get this stuff into you, it will make you pregnant".  That gives rise to Charge 4 of incest.

9When she was around 11 to 12 years of age after renovations had been done on the family home, she was in the shower when you entered the bathroom.  You got into the shower with her.  You were naked and your penis was erect.  The offending for which the Court of Appeal ultimately re-sentenced you is not dissimilar.  It seems fairly clear from the material here that there is some sort of paedophilic disorder.  Dr Walton has seen you and does not take the matter a lot further, in my view. 

10I do not think I need to go into all the detail of what you were sentenced for previously.  The Court of Appeal judgment and the judgment of Judge Dean speak for themselves.  What I do need to do in this scenario, though, is make it very, very clear what the consequences of your offending have been for your young victims.

11One of them said, and I am obviously just summarising these in fairly short compass:

"I led a fairly sheltered life and sexual matters were simply not discussed, so I had very little knowledge of sexual things.  I found his behaviour very disturbing and I was totally unprepared to protect myself.”

"He was more than twice my age and was engaged, then married, to my sister.”

"I felt ashamed and scared that I could not stop him and the assaults continued.” 

"During my earlier years I found it difficult to make friends.  I was a quiet and very reserved person.  I was aware that people could hurt me emotionally, so I avoided getting to know anyone well.  I had very little self-confidence.  This makes it very hard for me to relate to anyone.  My fear of forming close friendships has continued through my life and I have always been afraid of getting close to anyone and confiding in them in case they found out and judged me and thought badly of me.”

"I cringed away from all relationships and did not - - -"

12VOICE (from the body of the court):  A tissue, mate.  Don't worry about it.  Sorry about that.  I just need a tissue.

13HIS HONOUR: 

"- - - have a real adolescence, no experience with dating, very little socialising, no enjoyable romantic times.”

"I have been treated for depression".

14Your daughter said in her victim impact statement:

"For most of my life I have been living with a dirty little secret and was made to feel like it was my fault and suffering a mixture of feelings:  guilt, dirty, violated, ashamed, at times a liar.  I was made to feel that I was worth nothing.  As a person I have low self-confidence, I don't believe in myself.”

"I don't think I'm worthy, I'm not happy and I don't believe I deserve to be happy.  I also believe it's okay to be treated badly by people and be bullied because I don't deserve any better.”

"I'm hyper vigilant.”

"I feel confused about who I am and all I know is there is a little girl who wants to come out.  I don't want to be an adult.  I find myself wanting to be a little kid again.  I feel like the trust of a little child was taken and broken and, because of this, I missed out on innocence in my childhood.  I find it hard to be intimate with men because it reminds me of what happened to me as a child.  It makes me feel dirty and ashamed and uncomfortable, so I avoid relationships.”

15She also has suffered from depression.

16They are the distressingly common consequences of the sort of offending that you indulged yourself in. The effects are often very long-term and very profound.  The Court of Appeal in your particular matter when they dealt with it simply confirmed what the sentencing judge in that matter had said: 

"In my opinion your offending is plainly very serious and the sentence I impose must be calculated to deter you and others from offending in this manner.  The depraved exploitation of children for sexual gratification by men like you is an all-too-prevalent occurrence in our society and it must be denounced by this court.  You must also be punished for what you have done.  You have breached the trust two little girls had placed in you."

17The Court of Appeal confirmed that they regarded it as "depraved exploitation of children for sexual gratification.

18In the decision of R v Sposito [1993] His Honour Justice Marks as he then was said:

"A society which fails to protect its children from sexual abuse by adults, particularly by those entrusted within their care, is degenerate.  The offence of incest is particularly erosive of human relations and casts doubt upon the assumption that parents are the natural trustees of the welfare of their children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult to the weaker will of the child; the physical and psychological subordination of the child to the perverted indulgence of the adult; the gross breach of trust placed in the offender by the victim and the community; and the irreparable fundamental damage to the victim".

19For obvious reasons offending such as this has to be regarded as serious indeed and your counsel did not demur from the position that a significant sentence of imprisonment is inevitable.

20As I said, the main difficulty, if I could put it that way, with the sentencing of you is the question of totality.  The Court of Appeal in the recent decision of Dalgliesh has made comment insofar as current sentencing practices for incest are concerned and I made reference to that the other day.

21A significant gaol sentence, it must be.  I have read the report of Dr Walton.  To be brutally frank, it does not assist you a great deal.  What the Court of Appeal said when sentencing you previously I think are the matters that I do take into account.  That is plea of guilty - as I have indicated, spared the victims the trauma of a trial.  The plea of guilty in the sense of in that situation you obviously had made admissions.  It is not the case here that two charges could not otherwise have been laid. 

22As it was pointed out here, prior good character through adult life, employment history and community engagement in a variety of roles; loss of family relationships; loss of reputation within the community in which you have lived for many years.  You are now 70 years of age at sentence and I accept that the probable burden of imprisonment upon you may be greater than that on others, but there are a significant number of people your age and older in custody for this very sort of offending at the present time.

23I also took into account Dr Walton's opinion, but Dr Walton was not aware of what I am.  So as I said, I do not know that it assists you a great deal.  There is some debate then, as there would be now, as to the level of insight you had into the offending.  I take all those matters into account on your behalf as best I can.  General deterrence obviously played a massive part in such a sentencing process, denunciation and appropriate punishment.  Community protection I think is not as necessary as is sometimes the case, principally because of your age and because you will not be released from custody for a very significant period of time. 

24Your prospects upon your ultimate release are really up to you and it I would be basically guessing if I tried to ascertain what they might be.  I would say it is unlikely that you will offend again, but there is other reasons for that.

25In any event, taking all those matters into account and making sure that there is a sentence for each of the victims, and doing the best I can insofar as current sentencing practices are concerned, I make it clear that had one or two of these charges been in isolation I may well have not imposed a custodial sentence.  But in this situation to be imposing other dispositions would be ridiculous.  What I propose to do is make sentences wholly concurrent to avoid any prospect of a disproportionate or a crushing sentence, if that is achievable.

26In any event on Charge 1, six months; on Charge 2, six months; on Charge 3, six months; on Charge 4, five years; on Charge 5, six months.  I direct that three months of the sentence imposed upon Charge 2 be served cumulatively upon the sentence imposed upon Charge 4 and the balance of the sentences be served concurrently.  That gives a total effective sentence of five years and three months.

27I direct that four years of that is served cumulatively upon any sentence which you are currently undergoing.  Pursuant to section - I am sorry, I have forgotten.  It is 16, is it not?  The new minimum term?  Pursuant to the appropriate section - I will fill it in later - I direct that you have a new minimum term of eight years and I direct that 418 days be reckoned as having been served under that minimum term and also the overall sentence, obviously.

28Pursuant to s.6AAA I say that but for your plea of guilty you would have been sentenced to a period of imprisonment of seven and a half years with a minimum of five.  You are to be placed on the sex offenders register, the reporting period will be for life and that will be now given to you.  If you can just approach the dock with my associate, please, Mr Perry.  I direct that the fact that he has been sentenced as a serious sex offender be entered in the court records.

29MR PERRY:  Thank you, Your Honour.

30HIS HONOUR:  Are there any other orders I need to make?

31MS HASSAN:  No, Your Honour.

32MR PERRY:  No, Your Honour.

33HIS HONOUR:  All right.  We will see what central records say about that.  I think it is right, but I may have to reword it if they do not agree.  All right, remove the prisoner.  Yes, thanks, Ms Hassan.  Thanks, Mr Perry.

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