Director of Public Prosecutions v [Dalgleish]

[2015] VCC 1352

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

CR-15-01014

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLIE DALGLEISH[1]

[1] This sentence has been anonymised by the adoption of a pseudonym in place of the name of the accused

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Warrnambool
DATE OF HEARING:	11 September 2015
DATE OF SENTENCE:	11 September 2015
CASE MAY BE CITED AS:	DPP v [Dalgleish]
MEDIUM NEUTRAL CITATION:	[2015] VCC 1352

REASONS FOR SENTENCE
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Subject:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Bourke	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	Joseph Burke Law

HIS HONOUR:

1You have pleaded guilty to the following charges - 

2Two charges of incest contrary to s.44(2) of the Crimes Act 1958. The maximum penalty for that offence is 25 years imprisonment;

3One charge of indecent assault contrary to s.39(1) of the Crimes Act 1958. The maximum penalty for that offence is ten years imprisonment; and

4One charge of sexual penetration of a child under 16 contrary to s.45(1) of the Crimes Act 1958. The maximum penalty in the circumstances in this case for that offence is ten years imprisonment.

5You pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence. 

6You have no prior convictions and there are no outstanding charges in your case. 

7A Prosecution Opening was read to the court and tendered in evidence and your offending may be summarised as follows -

8

In 2009 you commenced a relationship with the mother of the victims, and after some time, began residing with her in Healesville.  Between

1 September 2009 and 13 April 2013 the victim the subject of Charge 4 entered the bedroom that you shared with her mother.  You were in the bedroom, having recently had a shower.  The victim climbed into the bed.  You approached her and took your towel off and then inserted your penis into her mouth.  The child was shocked and did not know what was happening, and you grabbed her head and moved it back and forth.  Shortly afterwards you stopped this conduct and the victim returned to her own bedroom.

9Following the offending the subject of Charge 4, the victim in relation to that charge was again in your bedroom.  She climbed into the bed that you shared with her mother, who was, at that time, having a shower.  You were present in the bed, and after she got in you moved yourself towards her and inserted your penis into her vagina.  You ejaculated inside her vagina and as a result of this she fell pregnant.  A termination of the pregnancy was conducted in Warrnambool on 17 April 2013.  This conduct constitutes the offending relied upon by the prosecution in support of Charge 1 on the Indictment.  Plainly, the fact that the victim fell pregnant as a result of your offending aggregates it on this occasion.

10Charges 2 and 3 on the Indictment concern the older sister of the victim in relation to Charges 1 and 4.  She suffers from a mild intellectual disability, and also from attention deficit hyperactivity disorder.  After the termination of the pregnancy in relation to the victim in respect of Charges 1 and 4 the family left Healesville and moved to Terang.

11

Between 1 January 2014 and 28 November 2014 you engaged in an act of sexual penetration by placing your penis into the vagina of the victim the subject of that charge, and further, between 28 November 2014 and

30 November 2014 you engaged in sexual activity with her, wherein you approached her and begged her for sex.  The victim sat on a couch in the lounge area and lifted up her dress.  You then placed your penis in the area of her vagina.  The act of sexual penetration performed by you is relied upon by the prosecution in support of Charge 2 on the Indictment, and the act of you placing your penis near her vagina is relied upon by the prosecution in support of Charge 3 on the Indictment.

12Your offending was observed by the victim's mother in relation to Charge 3, which subsequently resulted in the end of your relationship with her.  Clearly your offending is serious, and the sentence that I impose must be calculated to deter you and others from offending in this manner.  You must also be punished for what you have done and your selfish and destructive conduct denounced by this court.

13I have received in evidence a Victim Impact Statement of the mother of the two victims attesting to the fact that your offending has had a profoundly traumatic effect upon her children and upon her. 

14I now turn to your personal circumstances.  You were born in New Zealand on 3 December 1971, and you are now aged 43 years.  As I have already observed, you have no criminal history.  You have two brothers and two sisters.  I accept that your childhood and developmental years were difficult and disrupted, and you grew up in poverty in New Zealand.  Your father worked in forestry but he and your mother were both problem gamblers.  The family suffered from constant financial problems and frequently relocated, resulting in you being educated at five different primary schools.

15The family moved to Australia in 1989 and took up a lease on a property in Toolangi, near Healesville, and built up a saw-milling business, which you worked in.  You began to manage this business with your sister but it was completely destroyed in the Black Saturday bushfires in February 2009.  The home that you resided in with your mother and all the business equipment and stock was completely destroyed.  You were, at that time, uninsured, and you suffered catastrophic financial losses.  I also accept that this event resulted in you suffering from post-traumatic stress disorder and acute depression.

16

I have received in evidence the psychological report of Pamela Matthews, a consulting and forensic psychologist, detailing your developmental history and psychological profile.  In her opinion you were suffering from

post-traumatic stress disorder and depression when you offended on this occasion, and further, that you fall at the lower end of the autism spectrum, which in turn has impaired your impulse control and judgment.  I also accept that you were abusing alcohol and cannabis during the period of your offending, which was the lifestyle which was in part encouraged by the mother of your two victims.  These factors do not, however, in any way excuse your serious offending, but it is in this context that the offences took place.

17When interviewed by investigating police you made a number of admissions against interest, and I accept that you have demonstrated genuine remorse for what you have done.  You have the ongoing support of your family and your two sisters supported you in court today.  In my opinion your prospects for rehabilitation may properly be described as good.

18As I will be imposing terms of imprisonment in relation to Charges 1 and 2 on the Indictment you will be sentenced as a serious sexual offender by operation of Part 2A of the Sentencing Act 1991 in relation to Charges 3 and 4 on the Indictment. This means that the principal purpose for which the sentence is to be imposed on those charges is the protection of the community, but the prosecution did not submit that I should impose a disproportionate sentence to achieve that purpose, and I have not done so. In the result, the sentence of the court is as follows -

19In relation to Charge 1 on the Indictment you are convicted and sentenced to three years and six months imprisonment.

20In relation to Charge 2 on the Indictment you are convicted and sentenced to three years imprisonment.

21In relation to Charge 3 on the Indictment you are convicted and sentenced to 18 months imprisonment.

22In relation to Charge 4 on the Indictment you are convicted and sentenced to three years imprisonment.

23The sentence imposed on Charge 1 is the base sentence.  I order that nine months of the sentence on Charge 2, six months of the sentence on Charge 3 and nine months of the sentence on Charge 4 be served cumulatively on one another, and cumulatively on the base sentence. 

24This makes for a total effective term of imprisonment of five years and six months. 

25I order that you serve three years imprisonment before becoming eligible for release on parole.

26But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of eight years and imposed a non-parole period of five years.

27I have made the forensic sample order sought by the prosecution.

28You will be placed on the Sex Offenders Register for life and my associate will provide to you the relevant information in respect of that register.  I should also advise you that the police or Corrections authorities may use reasonable force to obtain the forensic sample order that I have directed be obtained in your case. 

29We'll adjourn now until 10.30 on Monday.

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