Director of Public Prosecutions v Conolly (a pseudonym)
[2018] VCC 1917
•30 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| LIAM CONOLLY (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE O'CONNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 October 2018 | |
DATE OF SENTENCE: | 30 October 2018 | |
CASE MAY BE CITED AS: | DPP v Conolly (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1917 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Indecent assault of girl under age of 16; Incest; Gross Indecency; Offence occurred when complainant under offender’s care, supervision and authority; Delay; Deteriorating mental health of offender; Imprisonment likely to exacerbate offender’s underlying cognitive vulnerabilities; General deterrence and denunciation; Lower non-parole period to account for age and neuropsychological issues.
Cases Cited: Stalio v R (2012) 46 VR 426; Carter v R [2018] VSCA 88.
Legislation Cited: Crimes Act 1958 (Vic), Sex Offenders Registration Act 2004 (Vic);
Sentencing Act 1991 (Vic).
Sentence:Total effective sentence of 3 years and 5 months imprisonment. Non-parole period of 15 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Ms S. MacDougall | Office of Public Prosecutions |
| For the Accused | Mr A. Malik | Victoria Legal Aid |
HIS HONOUR:
1 Liam Conolly[1], you were indicted in this court on four charges of indecent assault, one charge of assault with intent to commit incest, two charges of incest and one charge of gross indecency. You pleaded not guilty to each of those charges.
[1] Liam Conolly is a pseudonym.
2 Your trial commenced on 12 June 2018. On 21 June 2018 you were found guilty by majority of four of those charges, being three charges of indecent assault, Charges 2, 3 and 7, and one charge of gross indecency, Charge 6. The jury also found that the act constituting the charge of gross indecency, occurred in aggravating circumstances because at that time the complainant was under your care, supervision or authority.
3 You were found not guilty of the remaining charges.
4 The complainant in this matter, who I will describe for the purposes of these remarks as AB, was born in July 1970. At the relevant time she was your stepdaughter and you were her stepfather. You married her mother, XY, on 8 November 1979. Before the marriage XY had three children from a previous relationship, AB, DC and EF.
Background to Offending
5 At the time of the marriage, XY and her children moved in to live with you at Richmond. Thereafter, you and XY had five children, two of those children died, in one case ten days after birth, and in the other case, two years after birth. At the start of 1981 you and the family moved from Richmond to Thornbury and remained there until 1986.
Summary of Offending
6 In respect of Charge 2, AB gave evidence that at the time her mother was in hospital having given birth to her brother on or about 6 April 1979, she was asleep when woken by you and offered a glass of sarsaparilla which she regarded as a treat. After giving her the drink you then led her into the bathroom where you made her stand with one foot on the toilet and one foot on the edge of the bath. You removed her underpants and licked her on the inside of her vagina. AB said that it felt like it went on for about an hour or so, but in reality would have only been about ten or fifteen minutes. She was told by you not to upset her mother by telling her about what had happened.
7 At the time of that offending the maximum penalty for that offence was five years imprisonment.
8 In respect of Charge 3, AB gave evidence that there was an evening where you had gone across the road to have some drinks with the neighbours. She described you coming back home and going to bed. She said that you then asked her to come into the room and made her stand to the side of the bed whilst you rubbed her on the vagina. AB appeared to suggest in her evidence-in-chief that you touched her vagina on the inside of her clothing, however, the matter was ultimately put to the jury on the basis that you rubbed her vagina on the outside of her clothing. You will therefore be sentenced on that factual basis. It was alleged that this assault occurred between 1 December 1979 and 28 February 1981.
9 At that time the maximum penalty for that offence was five years imprisonment.
10 Charge 6 related to an incident that occurred on 6 April 1984 which occurred at Clyde Street in Thornbury. At that time AB was about 13 years of age. You told her to follow you out to the rear shed. You required her to stand in the area of the clothesline and watch you masturbate to ejaculation when you were inside the shed. At the time, AB was under your care, supervision or authority and you will therefore be dealt with on the basis that you committed this offence of gross indecency in that aggravating circumstance.
11 At that time the maximum penalty for that offences in that aggravating circumstance was three years imprisonment.
12 Charge 7 involved an indecent assault which you committed against AB in mid 1984 when she was 13 or 14 years of age. XY was not at home at the time and AB gave evidence that you grabbed her, pinned her to the ground and rubbed her vagina over her clothing. At the time this incident occurred the complainant recalled that her sister and her cousin were watching through a window.
13 At that time the maximum penalty for that offence was five years imprisonment.
Impact on AB
14 AB made a victim impact statement on 29 August 2018 which was tendered on the plea. In that statement she describes the intrusive memories of these assaults which continue to haunt her, and which she struggles to manage. She recalls trying to speak up at the time she was assaulted but instead being punished for being an "attention seeking liar".
15 Over the last 40 years she says that she has been plagued by feelings of guilt and fear because of what happened. She missed out on being part of a nurturing and protective family, and she feels that what you did to her has blunted her potential to advance her education and achieve financial security.
16 The impact of your offending on AB has been profound. Clearly, throughout the years since you assaulted her, AB's quality of life has been significantly diminished.
17 As such the impact of what you did to AB is an important matter that I must take into account in formulating the sentence to be imposed.
Personal circumstances
18 You were born on 3 March 1938. During the time frame of the offending that is between April 1979 and August 1984 you were approximately 41 to 46 years of age. You are now 80 years of age.
19 You were born in Melbourne and placed in an orphanage when you were just six months old. You lived in various orphanages in Victoria until you were 14 years of age. During that time you were sexually abused on three occasions. In addition, you suffered very harsh treatment such as, for example, being regularly locked or effectively imprisoned in a basement as a form of punishment. To this day you have flashbacks of the abuse that you were subjected to at that time which still causes you distress.
20 You were educated to about Grade 6 level and at the age of 14 you left the orphanage and commenced your working life. You worked initially in a fruit shop, as a farmhand and then as a cleaner. When you lost that job you became homeless, living on the streets, sometimes surviving by committing minor dishonesty offences. One prior conviction was alleged against you relating to an appearance at what was then the Dandenong Petty Sessions Court on 25 October 1957 for larceny of petrol from a motor car for which you were sentenced to three months' imprisonment. I do not regard that matter as at all relevant for the purposes of imposing sentence in respect of this offending
21 You served that three month sentence at Pentridge and when released found work initially as a truck driver, and then began working as a labourer on the wharves. You continued in that line of work until your retirement when you were approximately 55 years of age.
22 I was told that you had only had one long term relationship and that was with the mother of the complainant, XY. As I mentioned earlier there were five children born of that relationship, two, however, passed away. You separated from XY in around 2000 and ultimately you were divorced.
23 I note however that XY was present in court on your plea and that she now suffers from some difficult health problems. You have remained on good terms with her and once you have served the sentence that I must impose in respect of this matter, it is envisaged that you will live with XY at her home where you will both be able to assist and support each other.
24 For the purposes of the plea two personal references were tendered by Mr Malik who appeared on your behalf, both at trial and on the plea. The first reference is from your biological daughter YZ who was born in September of 1982. YZ was also present at your plea hearing to support you. In her reference she describes you as a kind and compassionate man that was always willing to help anyone. She described you as a very generous man who has always supported his children and been there for them no matter what. She referred to the fact that this proceeding has been ongoing for many years and to her observation it has taken a heavy financial and emotional toll on you. You are also said to be a popular member of the Wynyard community, being active in the bowls club and in volunteer work more generally in the community. I take the view that your daughter's support and your former wife's support enhances your prospects for rehabilitation.
25
A further reference was also provided by Carol and William Denman.
Ms Denman has known you for 59 years through your friendship with her brothers that have since passed away. She describes you as a very hardworking man and a valuable friend to her and her family. To her observation you always appeared to be a kind and considerate father to your children, and they always appeared well looked after. She also described you as someone always prepared to help whenever you could.
26 On the plea your counsel relied upon your otherwise good character as described in the personal references as well as your very strong work history. Importantly in the 35 to 40 or so years since the commission of these offences, you have not been convicted or dealt with for any subsequent criminal offending.
27
Mr Malik also pointed out that AB first made a statement in respect of this matter to police in July 2007. You were interviewed with respect to it in March 2011. You were charged in March 2015 and the trial took place in June 2018.
Mr Malik submitted that the delay was relevant in a number of ways. First he submitted consistent with what was said in decisions of Stalio v R (2012) 46 VR 426 and in Carter v R [2018] VSCA 88, that I should have regard to sentencing practices at the time the offence was committed to the extent that that could be discerned. There was no material put forward to assist on that question other than reference to the relevant maximum penalty.
28 Legislative change since the time of the commission of this offence would punish the sort of conduct constituting Charge 2 much more severely now than was the case in 1979. As Mr Malik pointed out in imposing sentence in your case, I am constrained by the much lower maximum penalty of five years that was then applicable.
29 Mr Malik also submitted that because you had not offended since the time of these matters, it was not necessary to emphasise specific deterrence and your prospects for rehabilitation should be seen as being very positive.
30 Finally in this respect it was submitted that the length of time since you were first interviewed in respect of these matters to their conclusion has understandably weighed heavily upon you. Your daughter's reference confirms as much. In my view that delay should significantly mitigate your sentence.
Mental Health
31 In addition to those matters your deteriorating mental health is a matter of some significance in the formulation of an appropriate sentence in your case. These charges came on for trial in the latter part of 2017 but could not proceed because of concerns raised by your counsel at that time as to your fitness to undergo trial. Your trial was adjourned to enable you to undergo a neuropsychological assessment.
32 On your plea Mr Malik relied on that assessment which was documented in a report provided by Dr Linda Borg of 16 December 2017. Although you were found to be fit to stand trial, Dr Borg held the opinion that your history was indicative of a cognitive profile that likely reflects "an underlying neurodegenerative process, most likely, atypical onset of Alzheimer's disease or vascular dementia."
33 Her opinion was as follows:
"With consideration to corroborative reports of deterioration in cognitive functioning over the past two years as well as Mr Conolly's presentation at interview and cognitive deficits, which reveal predominant dysfunction in visuospatial functioning attentional systems and emerging executive difficulties, it is considered that the most likely contributor to his neuropsychological profile is an emerging neurodegenerative process. Without brain imaging, such as MRI, SPECT or PET scans, the likely aetiology is difficult to establish conclusively. However, his cognitive profile is suggestive of an atypical onset of Alzheimer's disease (potentially, with onset in the right parietal region) or vascular dementia is a potential differential diagnosis. As such, in order to provide greater diagnostic clarification, it is highly recommended that Mr Conolly undergo review with his local Cognitive Dementia and Memory Service (CDAMS), as well as being referred for the brain imaging noted above. In light of stress associated with Mr Conolly's current legal predicament, it is likely that his mood state potentially exacerbates underlying cognitive vulnerabilities from day to day."
34 Dr Borg determined that as at December 2017 you demonstrated mild moderate cognitive deficits as a consequence of your condition. She further stated that your condition may potentially be exacerbated should you be removed from the familiarity of your home environment. Dr Borg stated:
"The degree to which his mental state may be impacted by any imposed sentence is less clear and I would suggest referral to a forensic psychiatrist or psychologist's specialist opinion in this regard."
35 Although there is no evidence before me as to the extent of deterioration in your condition since the time of the neuropsychological assessment, it seems to me that I can proceed to sentence you on the basis that you likely suffer from an underlying form of dementia and that condition "may potentially exacerbate underlying cognitive vulnerabilities" which in turn would render experience of imprisonment more onerous. You also suffer from a number of physical medical problems, the most serious of which appears to be arthritis stemming from a previous hip replacement.
36 Having regard to all of these matters, Mr Malik submitted that the court should impose a term of imprisonment which was partially suspended. He submitted that the pre-sentence detention in respect of this matter which would now amount to 131 days was sufficient to make out the actual custody component of any partially suspended sentence that should be imposed.
37 Ms MacDougall who appeared on behalf of the Crown both at trial and on the plea, argued that the offending for which you have been found guilty was too serious to be dealt with by way of a partially suspended sentence. She pointed out that although the second charge is charged as an indecent assault, it involved a penetrative sexual assault and thus constituted a very serious example of that offence.
38 She reminded me that should terms of imprisonment be imposed in respect of Charges 2 and 3, then you are to be sentenced as a serious sexual offender in respect of Charges 6 and 7. Although I have not been asked to impose a disproportionate sentence, I am required to emphasise the protection of the community as the paramount sentencing purpose. Ms MacDougall additionally submitted that the sentence imposed must also seek to denounce what you have done.
Findings
39 I accept Mr Malik's submissions with respect to character, delay and the difficulties that you are likely to incur in custody by reason of your age, declining physical health and degenerative dementia. These are significant matters that mitigate the sentence that might otherwise be imposed.
40 However, I cannot accept that a partially suspended sentence would be just and appropriate in these circumstances. The reality is that the jury found you guilty of engaging insofar as Charge 2 is concerned, in a penetrative sexual assault on an eight year old girl who was in your care.
41 I accept Ms MacDougall's submissions to the effect that only a sentence of imprisonment with a non-parole period could adequately reflect the impact your offending has had on AB, and the need to emphasise protection of the community, general deterrence and denunciation of your conduct.
42 I should say that in determining the non-parole period I will be particularly mindful of your age and the degenerative nature of your mental health. Those matters in my view justify what might be regarded as an exceptional disparity between the head sentence and minimum term to be imposed in your case.
43 Turning now to sentence, would you mind standing please Mr Conolly.
44 On Charge 2, you will be convicted and sentenced to a term of imprisonment of two years and nine months.
45 On Charge 3, you will be convicted and sentenced to a term of imprisonment of nine months.
46 On Charge 6 and 7, you fall to be sentenced as a serious sexual offender.
47 On Charge 6 you will be convicted and sentenced to six months imprisonment.
48 And on Charge 7 you will be convicted and sentenced to nine months imprisonment.
49 I will direct that two months of the sentence on Charge 3, three months of the sentence on Charge 6, and three months of the sentence on Charge 7 be served cumulatively upon the sentence imposed in respect of Charge 2, making a total effective sentence of three years and five months.
50 Having regard to your age and to the findings made by Dr Borg, I will fix a non-parole period of 15 months.
51 Pursuant to s.18 of the Sentencing Act 1991 (Vic), I will declare that you have served 131 days of pre-sentence detention not including this day and that pre-sentence detention is to be reckoned as a period of imprisonment already served under this sentence, and I will direct that that declaration be entered in the records of the court.
52 I will further declare that by reason of the fact that you have been found guilty of four Class 2 offences under the Sex Offenders Registration Act 2004 (Vic), you will be registered under that Act and required to report under that Act for the rest of your life.
53 I will also order having regard to the seriousness of particularly Charge 2, pursuant to s.464ZF of the Crimes Act 1958 (Vic), that you be required to undergo a forensic procedure to provide a forensic sample.
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