Director of Public Prosecutions v Darden (a pseudonym)
[2023] VCC 2257
•30 November 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LYNNE DARDEN (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE DOYLE |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 October 2023 & 23 November 2023 |
DATE OF SENTENCE: | 30 November 2023 |
CASE MAY BE CITED AS: | DPP v Darden (A pseudonym) |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2257 |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Guilty plea - indecent act with a child under the age of 16 - substantial and enduring impact– some utilitarian value - no prior or subsequent convictions - poor physical health - mental health issues - mother offending against her two boys - complete abdication of parental responsibility - objective gravity of the offending - very substantial impact on victims.
Legislation Cited: Sex Offenders Registration Act (2004)
Cases Cited:Worboyes v The Queen [2021] VSCA 169; R v Verdins & Ors [2007] VSCA.
Sentence: 1 year and 10 months imprisonment, 16 months to be suspended.
Sex offenders registration with life reporting.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Moore | Office of Public Prosecutions |
For the Accused | Ms J. Clark | HBH Legal |
HIS HONOUR:
1Lynne Darden[1], you have pleaded guilty to three charges of an indecent act with a child under the age of 16, for which the maximum penalty is 10 years' imprisonment.
[1] A pseudonym.
2You were born in 1958. At the time of the offending, you were aged between 39 to 48 years old. You were living in Country Victoria. The victims in this matter are your sons, Jordan Jennings,[2] born in 1991, and Adam Jennings,[3] born in 1984.
[2] A pseudonym.
[3]A presudoym
3You have one other child, Lisa,[4] who was born in 1986.
[4] A pseudonym.
4You separated from their father, Robert,[5] in 1994. You and the children moved to live in Country Victoria.
Charge 1
[5] A presudoym.
5In 1998, when Adam was in Year 8 in high school, he was 14 years old. In that school year, he developed a 'crush' on a female student at school. When he asked her out on a date, she declined.
6He told you about this when you collected him from school. At the time, he was upset. You suggested that he have a bath when he got home.
7After dinner, he went to have a bath. You entered the bathroom. There was no lock on the bathroom door. You said you wanted to use the toilet. However, you stopped in the middle of the bathroom and said, 'Wow, you are so big now, you are so grown up, I can't believe how big you are now'. You then leant over and touched the top of the victim's penis with your finger under the water. You moved your finger in a circular motion. This incident lasted for just a few moments. You then moved to grab the victim's penis with your hand, but then stopped and pulled your hand away. This is the basis of Charge 1.
8You apologised for what you had done. You then urinated in the toilet and left the bathroom. The victim cried after this incident. He never spoke to you about it again.
9After that incident, you spoke in a sexualised manner to him.
Charge 2
10In 1998, after the bath incident occurred, you began asking Adam to perform massages on you. You would invite him into your bedroom and direct him to give you a massage.
11On the first occasion, you were only wearing underwear and a t-shirt. You rubbed his back and neck. You both talked about what had happened during the day. You asked him to massage your back, as it was sore. You asked him to undo your bra and showed him how to perform a massage. This incident lasted about 20 minutes and afterwards you told him how helpful the massage was to you.
12This happened on regular occasions, the massages continued when the family moved but became overtly sexual. In 2000, the victim was aged 15, and he was in Year 10. Around February 2000, the victim first performed a massage on you while you were completely naked. The weather was quite warm. The family had just moved to the new house, and you had separated from your boyfriend, Stuart. The victim was surprised when he saw you naked, and he said something like, 'Do you want me to cover you up?' You replied that nudity should be accepted in the family.
13The massages continued through the period where Adam was in Year 10 and Year 11, but the charged period is limited to that part of 2000 covered by the dates in Charge 2. The victim describes the massages as occurring often. You would be naked, and your legs would be apart, exposing your vagina. You encouraged the victim to sit between your legs. The massaging also extended to your legs and feet. During the massages, Adam would generally be wearing pants but no top.
14You said that it was to be normal to be naked in families, and you encouraged him to be naked. He felt conflicted because he realised it was not normal to engage in such massages with a parent.
Charge 3
15Turning, then, to Charge 3, which is an indecent act charge relating to Jordan Jennings which covers some six years from 26 March 2000 to 25 March 2006. So that is the time frame of that charge.
16From a young age, Jordan Jennings would give you 'foot rubs and other non-sexual massages'. As he got older, from age 10 onwards, the massages became sexual. When he was 10 years old, you suggested he read sexually explicit books.
17He recalls from about the age of 10 until he was 16, you would light candles in the bathroom and have a bath with him. You told him it was to save water. He found the baths awkward.
18When he was about 10 years old, you would request massages in your bedroom. You would light candles in your room, and you would be naked while he massaged you with oils and creams. During the massages, the bedroom door would be closed.
19These massages made him feel uncomfortable, but over time he got used to it. They would occur regularly with him between the ages 10 to16, varying from once a week to every night of the week. On these occasions, you would either be naked or wearing underwear. This is the basis of Charge 3. The massages continued until he moved out of the home when he turned 18.
Subsequent events
20Adam Jennings moved out of the family home in November 2002. Prior to that, he had not been in your bedroom for the previous 18 months.
21In 2013, he ceased all contact with you.
22In 2013, he told his then-wife Alison[6] about the sexual abuse. In 2015, he told his brother, Jordan Jennings, about the sexual abuse. In late 2015 or early 2016, he told his sister, Lisa. In December 2019, he told his aunt, Hellen Darden.[7] In 2019, he also told his father, Robert, or around that time.
[6] A pseudonym.
[7] A pseudonym.
23On 30 May 2019, he reported the matter to police.
24He made a statement to police on 11 September 2019.
– Complaint Jordan Jennings
25Jordan Jennings became a witness for the prosecution in relation to the charges concerning Adam and, just before the trial for the charges relating to Adam was due to commence in October 2021, he made a statement to police relating to the offending against him. This caused the trial to be adjourned. The additional charges relating to Jordan were initiated in May 2022, and there was delay, as the charges relating to Jordan proceeded through the Magistrates' Court and then through various procedural steps in the County Court. Both of your sons were cross-examined briefly at s198B hearings in this court in November 2022. There was a trial listing in July of this year which was vacated. The matter was due to be heard in January 2024 but was brought forward and listed in my September Warrnambool circuit this year.
Record of interview
26In relation to Adam you were arrested and interviewed at a Country Victoria police station on 19 May 2020. You answered all the questions, but you denied the allegations. You denied engaging in full-body naked massages with him.
27On 14 October 2021, you were interviewed in relation to the allegations made by Jordan Jennings. You answered all questions but denied the allegations. You said that when he massaged you, you wore a dressing gown and underwear and were always covered appropriately.
Victim impact statement
28There were victim impact statements provided in this matter.
29Adam Jennings said in his victim impact statement that he suffers from major depressive disorder, generalised anxiety, post-traumatic stress disorder, insomnia, emotional eating and that he drinks excessively when depressed or anxious. He undertakes psychological counselling, which has cost him quite a lot of money, and he has had psychiatric treatment, which has also been expensive.
30He says his trauma, depression and anxiety, which he attributes to your offending, have led him to take many days off work sick.
31He says the offending has affected his sexual relationship with his wife. He goes on to describe how your offending has affected his relationships generally and led to two abusive relationships where he failed to spot red flags.
32He believes his own parenting has been affected. He feared being labelled a paedophile and did not engage in public play with his own children.
33Adam Jennings’s wife, Brenda Davis[8], describes the impact of the offending on her relationship with Adam. She said it has affected his mental health, his parenting, their sex life and she also refers to the cost of counselling and psychiatric treatment.
[8] A pseudonym.
34Your younger sister, Hellen Darden, in her victim impact statement, says she is angry at you for denying Adam and Jordan their childhood and sad that her nephews did not have a safe and loving upbring. She feels guilt for not realising what you were doing and intervening. She says you have changed Adam and Jordan’s lives forever.
35Jordan Jennings did not provide a victim impact statement, but I am told and accept that he also has suffered significantly psychologically as a result of your offending.
36Your offending has had significant ramifications for both victims and others associated with them over many years. The impact has been substantial and enduring. The impact of your offences is a significant matter in deciding the appropriate sentences in this case.
Guilty plea
37This matter was listed for trial on 20 September this year. On that day, the trial was adjourned for further negotiations to take place. You pleaded guilty to the charges on the plea indictment on 21 September this year. The most serious charge did not proceed. In assessing the time at which you pleaded guilty, I must take that into account. However, there were no negotiations to resolve the matter before it was listed for trial, and therefore I regard the plea as a late plea. Your sons had to wait a long time to hear you acknowledge responsibility and for a final resolution in this matter.
38However, your plea has some utilitarian value. You were willing to have this matter listed in the September circuit even though it was not due to be heard until January next year. Your plea allowed the court to proceed with other matters that would not have been heard otherwise. I therefore give you credit for the utilitarian value of your plea. You have contributed to the reduction of the backlog of trials that the court faces as a result of the pandemic. I apply the principles in Worboyes[9] but of course take into account the time at which you pleaded guilty.
[9]Worboyes v The Queen [2021] VSCA 169.
39I accept your plea indicates a willingness to facilitate the course of justice, but there is no evidence of remorse in this case. Your plea was a pragmatic one, as indicated by what you said to the corrections officer who assessed your suitability for a community correction order. You still deny the offending.
Personal circumstances
40You are 65 years old. You have no prior or subsequent convictions. You have a history of major depressive illness and a panic disorder. You are also in poor physical health. I have received material in respect of your health issues.
41You were born in Country Victoria. Your mother, Pamela Darden,[10] is still alive. She is 85 years old. She is now living in a Nursing Home. She has been there for six to seven years. You visit her regularly and you also speak to her on the telephone. You help her with her shopping. Your father, Patrick Darden, died some time ago. He was a cleaner at a college until he retired after a heart attack.
[10] A pseudonym.
42You are the eldest of four children. You have two brothers, Murray and Andrew, and a sister, Helen, who provided a victim impact statement and who lives in Geelong.
43You went to school in Country Victoria, finishing at the end of Form 4 at High School. You obtained work as a typist/receptionist/clerk. You worked there for three years. You left when you got married in 1976 to James Garrison.[11] You and Mr Garrison moved together to Melbourne. He worked as a fireman in the railways and then later as a train driver. The marriage ended inside three years. You report that you left due to domestic violence. You had no children with Mr Garrison. After the relationship finished, you remained in Melbourne. You obtained employment at the Department of Social Security.
[11] A pseudonym.
44You left that employment to commence training as a state enrolled nurse at. You completed your training, which took 12 months.
45You then married Robert Jennings and became pregnant with Adam.
46With Mr Jennings, you lived in West Brunswick, Wantirna South and then Mitcham. You had three children with him: Adam, Lisa and Jordan.
47You separated in the 1990s, initially remaining in the same residence, but then you moved back to Country Victoria in 1994 with the three children. Mr Jennings stayed in Melbourne.
48On your return to Country Victoria, you were full-time at home. Your health issues have prevented any return to work in more recent times.
49You are currently relying on a disability pension, which you were placed on due to osteoarthritis.
50When you first moved back to Country Victoria, you lived in rented accommodation. In December 1999, you purchased your home. You still live there.
51You have had two short relationships since splitting up with Mr Jennings. Your most recent relationship was with a man named Michael Nelson,[12] which I am told continued until his death in 2019. You had been with him since 2010.
[12]A pseudonym.
52You have made contributions to the community through assisting as a volunteer at Community House where you have performed a variety of roles. You have also been a volunteer with the Fire Brigade, and in the aftermath of the Bali bombings, you co-ordinated the collection of quilts donated locally for the survivors and families of the victims.
53I take these contributions to the community into account.
54You have a range of health problems which are set out in detail in material tendered on the plea.
55Dr Leesa Walker, your general practitioner, summarises your health issues as follows:
Lynne has a large burden of chronic disease, much more than you would expect at the age of 65 years. Her musculoskeletal disease (arthritis and fibromyalgia) has a large impact on her causing disability and pain. She has multiple medical conditions that require ongoing follow up and specialist care. Her arthritis, diabetes and anaemia are not optimally managed and require further medical care to reduce the impact of these and prevent complications. Her psychiatric conditions (depression and panic disorder) have been worse recently and will likely deteriorate if incarcerated. Many of her conditions are exacerbated by stress and she requires ongoing psychological support.
56In respect of your mental health, Dr Walker says this: you have a long history of major depressive and panic disorder, and you have been on citalopram for many years.
57She also says:
Her symptoms are worse in situational crisis, and she has previously needed the intervention of specialist psychiatric services. The stress of the trial has severely affected her mental health and I expect will get worse if incarcerated. Currently she is very distressed, not sleeping and is terrified she will die. She will require ongoing medication and psychological support.
58Mr Phil Wilson, a psychologist who is currently treating you, says you have consistently demonstrated a reactive psychological response and prolonged low mood in response to times of high stress. He says that you would find a prison sentence challenging.
59Your counsel, Ms Clark, relied on both your physical and mental health issues as increasing the burden of your imprisonment. She also said there is a real prospect of decline in both your physical and mental health if you are imprisoned.
60I asked for some information as to how your health issues would be treated within the prison system and I received a letter from Justice Health dated 17 November 2023. That letter sets out in general terms the health services provided at the Dame Phyllis Frost Centre. More specifically, the letter focuses on your health issues.
61Clearly, there are services available within the prison system to address your health needs, and I accept your issues will be addressed in custody. However, I also accept the submission of Ms Clark that there will be a disruption to the established treatment you have in place at the moment, and there is a degree of uncertainty as to how the treatment of your multifaceted health problems will unfold within the prison system. I also accept that as you are currently being treated by a psychologist, Mr Wilson, that treatment would cease for any time you are required to serve in prison, and the transition to mental health assistance within the prison is unlikely to be seamless.
62In essence, as regards your mental health, Ms Clark was relying on principles 5 and 6 of Verdins.[13] Mr Moore for the prosecution accepted that those principles have some application in this case. I accept that your physical and mental health will increase the burden of your imprisonment and that there is a genuine risk of a decline in your mental health in the event of imprisonment. I have moderated the sentence I will impose in accordance with those mitigating factors.
[13]R v Verdins & Ors [2007] VSCA.
63Ms Clark also said that you maintain a close relationship with your daughter, Lisa, who is due to have brain surgery very soon. She is divorced from her husband who lives in Mildura. You hope to provide support to her after her surgery and during her rehabilitation, and if you are not able to do so, this would also weigh heavily on you. I accept this is another matter increasing the burden of a period in prison.
Delay
64There has been delay finalising this matter, as set out in the procedural history. I take into account the stress you have experienced, having serious charges hanging over your head for a lengthy period, and the psychological impact that has had on you.
65Additionally, you have no further convictions since these offences occurred, which allows me to take an optimistic view of your prospects of rehabilitation.
Prospects of rehabilitation
66Given your age, the period over which you have not offended, your health issues and, in my view, the unlikelihood that you will have much contact with male children, I think it is unlikely you will reoffend.
Seriousness
67Your counsel, Ms Clark, submitted that your offending falls at the lower end of the range. She submitted that Charge 1 is the only charge where you touched one of your sons, and the touch was fleeting, taking place over a few moments. She submitted that the balance of the offending is massaging in circumstances with sexual connotations. She characterised your role in the offending as passive and pointed out that the massages did not extend to your genital area and submitted the pursuit of sexual gratification was therefore limited. She submitted the requests to your sons were not accompanied by threats or force or coercion. She also submitted that the requests were made in the context of chronic pain.
68The prosecutor, Mr Moore, submitted that the offending in this case was far above the lower end of the range. He submitted this was a mother offending against her two boys and the offending was a serious abdication of parental duty. He submitted that the offending was for sexual gratification. Your sons were young at the time, in their pre-adolescence and adolescence. The offending has had serious consequences on them. He submitted your offending demonstrated skewed moral standards.
69You have pleaded guilty to these massages taking place in circumstances involving sexual connotations. I accept, therefore, that sexual gratification was the primary reason for these massages even if pain relief played some role. The circumstances of Charge 1 and subsequent events serve as context to Charge 2, relating to Adam , and as regards Charge 3, contextually, you had encouraged Jordan to read sexually explicit books and you routinely shared baths with him, which also provides context to the massages and points towards some type of sexual gratification or sexual intent as the main reason for the charged acts in Charges 2 and 3.
70I accept, though, that the massages are an example of this offence occurring in 'passive' circumstances, to use Ms Clark's expression. These are unusual offences.
71However, in my opinion there are aggravating features of these offences which take the offences well out of the lower end of the range. You were the mother of Adam and Jordan Jennings . Your duty was to protect their innocence and guide them into adulthood; instead, by your behaviour, you corrupted their sexual development when they were in their formative years. I agree with the prosecution submission that your behaviour was a complete abdication of parental responsibility. Next, Charges 2 and 3 are course of conduct charges. A course of conduct charge is a single charge that incorporates multiple incidents of the same offence over a specified period. Such a charge allows the prosecution of offending involving multiple occasion where the specific details of any particular instance are insufficient for an individual charge. Charge 2 covers seven months in the year 2000, and Charge 3 covers six years. In relation to each of those charges, they encompass multiple occasions. I must sentence within the maximum penalty for the charged offence, but my sentence must reflect the totality of your conduct. A course of conduct charge is plainly more serious than a single incident charge, and the sentence must reflect this. Finally, the impact on your sons of the offending has been profound and enduring. The law presumes enduring psychological harm will result from sexual offending against children, and in this case, that presumed harm is plain to see.
Submissions
72Ms Clark submitted that this is not case where a prison sentence is inevitable. She submitted a community correction order is an appropriate penalty. She submitted that a community correction order has obvious punitive elements and in this case such an order can adequately meet the needs of punishment and deterrence as well as rehabilitation by the imposition of conditions requiring the performance of unpaid community work and treatment programs.
73She referred to the following passage from the well-known decision of Boulton:
Axiomatically, imprisonment is a sentence of last resort. As the Sentencing Act makes clear, such a sentence must not be imposed unless the court considers that the purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender.[14]
[14]Boulton v The Queen [2014] VSCA 342 at [111].
74I did order an assessment as to your suitability for a community correction order, and you were assessed as suitable.
75The prosecution submitted that the objective gravity of the offending is such that a proper application of sentencing principles requires a head sentence with a non-parole period.
76The other sentencing option open in this case, because of when the offences occurred, is a suspended sentence either wholly or in part.
77I have given this matter careful consideration, and ultimately, having regard to the objective gravity of the offending and the very substantial impact on your sons, the sentencing purposes of just punishment, denunciation and general deterrence require a period of immediate imprisonment.
78However, there are some significant mitigating factors in this case which I have tried to outline in these reasons, and I must also have regard to your ongoing rehabilitation. I am satisfied that this sentence, your first time in custody, will weigh heavily on you for the reasons raised by Ms Clark. I will impose a period of imprisonment which reflects the seriousness of the offences but suspend a considerable part of that sentence to reflect the mitigating matters in this case.
79You will be a serious sexual offender for Charge 3 given I will impose periods of imprisonment for Charges 1 and 2. This means that in respect of Charge 3, the presumption of concurrency is displaced, and sentences are to be cumulative unless otherwise ordered. As it happens, Charge 3 will be the base sentence. Further, I am to regard community protection as the principal sentencing purpose. However, in this case, given my assessment you are unlikely to offend, the need for community protection is moderated.
80Ms Darden, if you could stand up, please.
81In respect of Charge 1, you are convicted and sentenced to three months' imprisonment; in relation to Charge 2, you are convicted and sentenced to nine months' imprisonment; in relation to Charge 3, you are convicted and sentenced to 18 months' imprisonment.
82Four months of the sentence on Charge 2 is cumulative on the base sentence of Charge 3, which makes a total effective sentence of 22 months. I order that 16 months of that sentence is suspended for 22 months, which means that the unsuspended portion of the sentence is six months.
83I indicate that but for your plea of guilty, I would have imposed a sentence of 30 months and suspended 18 months, which would have required you to serve 12 months.
84Pursuant to the Sex Offenders Registration Act, I indicate that the reporting period is life under that Act. For Charge 3, you are sentenced as a serious sexual offender, and that will be noted in the records of the court.
85Ms Clark, we need to provide Ms Darden with the sex offenders registration material, so we will do that now.
86MS CLARK: If your Honour pleases.
87HIS HONOUR: All right. Have we got that?
88MS CLARK: Thank you.
89HIS HONOUR: If you could, Ms Clark, thank you, I would be grateful, thank you.
90MS CLARK: All right, sorry.
91HIS HONOUR: Yes. Just need your signature on this.
92MS CLARK: Yes, thank you.
93HIS HONOUR: All right. Nothing to clarify, Mr Moore?
94MR MOORE: No, your Honour, perfectly clear, thank you.
95HIS HONOUR: All right, all right. Thanks to both counsel and your instructors in this matter for their assistance. Ms Darden, you can go into custody now, all right. I just thank those that are in court from the family for their calm approach to this matter, and I will now stand down until midday, thank you.
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