Director of Public Prosecutions v Dawson (a pseudonym)

[2017] VCC 580

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

LYNDON DAWSON (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2017
DATE OF SENTENCE:	12 May 2017
CASE MAY BE CITED AS:	DPP v Dawson (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 580

REASONS FOR SENTENCE
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Subject:   Persistent sexual abuse of a child under 16
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Loughman	Office of Public Prosecutions
For the Accused	Mr T. Cooper	Randles Cooper Lawyers

Pages 1 - 9

 

 

HER HONOUR: 

1Lyndon Dawson,[1] you have pleaded guilty to one charge of persistent sexual abuse of a child under the age of 16.  This offence is constituted by proof that during a particular period, you committed a sexual offence with a child on at least three occasions.  The prosecution alleged and, by your plea of guilty, you accept that you committed a sexual offence with your grandson on four occasions and two sexual offences on a fifth occasion.  The maximum penalty for this offence is 25 years.  Recent amendments to the Sentencing Act relating to mandatory terms of imprisonment for this offence do not apply to you given the date of your offending.

[1] Lyndon Dawson is a pseudonym.

2Wayne Dawson[2] is your paternal grandchild and this offending took place when he was aged between nine and 11 years of age.  He is now aged almost 13.  The circumstances of your offending are fully set out in the summary of prosecution opening, Exhibit A. 

[2] Wayne Dawson is a pseudonym.

3In summary, in May 2014, when Wayne was aged nine and you were aged 79, he was at your house watching TV in the lounge.  Wayne needed to use the toilet so he went to your en suite.  You followed him and waited for him in your bedroom, closing the door.  You then stopped him leaving the bedroom, got down on your knees, pulled down Wayne's pants and underpants and performed fellatio on him.  When you finished, you said to Wayne, "Thank you."  He pulled his pants up and walked out of the bedroom.

4In around June 2015, Wayne was again visiting your home and was watching TV with you in the lounge.  Your wife was in the kitchen.  You patted Wayne on the thigh and said, "You're a good boy, you're a smart boy."  As the conversation continued, you moved your hand closer to Wayne's groin before placing your hand down his pants and fondling his genitals.  You stopped when your wife walked in from the kitchen.

5In about October 2015, Wayne was at your house and asked if you if you could go to the basement.  You agreed and followed him into the basement.  He knelt down and pulled Wayne's pants and underwear down and performed fellatio on him.  Wayne tried unsuccessfully to distract you.  When you stopped, Wayne pulled up his pants and left the basement. 

6Shortly after this incident, Wayne was at your house alone with you and you asked him to watch the news with you on the TV in your bedroom.  He agreed and when he went into the bedroom, you were lying on the bed naked.  Wayne sat on the end of the bed and began watching television.  Shortly afterwards, you stood Wayne up, removed his clothes and whilst standing behind Wayne, you placed your penis between his buttocks.  You then performed fellatio on him.

7In November 2015, you were alone with Wayne at his house.  You asked to look at his new desk, which was in his bedroom.  When you were both in Wayne's bedroom, you pulled down Wayne's pants and performed fellatio on him.

8Those are the five different occasions on which you have pleaded in relation to the commission of this offence.

9These matters were revealed when a friend of Wayne's mother rang her, your daughter in law, and told her Wayne has been sexually abused by you.  On 8 March 2016, Wayne participated in a VARE interview with police and disclosed this offending. 

10Later that day, you were arrested and interviewed.  You made admissions to the conduct disclosed in Wayne's initial VARE and also additional offending.  You said that Wayne had piqued your interest by showing you pornographic material on computers and an iPad.  You said you had no idea how it started and you felt disgusted.  You also revealed for the first time that you yourself had been abused as a young man.  You said you were not going to throw it back on or blame Wayne and hold him responsible.

11I received a victim impact statement from your son, Stuart Dawson,[3] Wayne's father, Exhibit B, which he read in court. I also received victim impact statements from Wayne's mother, Abigail Dawson,[4] and from Wayne. I take all this material into account.

[3] Stuart Dawson is a pseudonym.

[4] Abigail Dawson is a pseudonym.

12The material from Wayne's parents eloquently reveals their own pain as personal feelings of guilty as a consequence of being unable to protect their boy.  It also reveals anger at your betrayal of their trust and the effect your offending has had on their once normal family life.  Both expressed deep concern at the effect of your offending on Wayne and the impact of this kind of abuse on a young boy dealing with the transition to teenager and young male adulthood, recognising the significant challenges he faces with peers and other relationships.

13Wayne's father states, "The man who I spent my entire life loving and caring for, the man who we all loved going to see every week deceitfully and opportunistically betrayed us and violated the innocence of my son, his grandson.  You broke our family's trust as well as our hearts."

14Wayne's statement expresses the impact of your offending in language typical of a child or 13 year old.  He is angry and struggling to understand why you offended against him.  Issues of trust, thoughts of self-harm and nightmares are all matters that he has been forced to confront and he continues to deal with or tries to cope with in his daily life.

15I received the following reports from relevant professionals, some of which were more directed at the issue of your fitness to plead.  Forensicare report dated
13 December 2016 from Dr Ann Davidson, clinical and forensic psychologist, obtained by the prosecution Exhibit D.  Report from Pamela Matthews, forensic psychologist, Victorian Forensic and Clinical Consulting Services dated
15 September 2016, Exhibit 1.  Report from neuropsychologist, Dr Cheryl Monteith, 9 March 2017, Exhibit 2.  Information from these and written submissions from your counsel set out your personal circumstances.

16You are currently aged 83 and live at a supported residential service in Heidelberg.  You have been there since February 2016 when these matters came to light.  You grew up in Orange, New South Wales, and both your parents worked in the area of mental health.  You have a twin brother, a younger brother who's recently deceased, and a sister.  You have disclosed in your record of interview and to some of the other health professionals that you yourself were abused as a young boy when growing up in a rural town.

17You completed school until Year 10 when you worked in the newspaper or printers industry for many years until your retirement.  You've worked as a volunteer with the Salvation Army, including at Broadmeadows Court.  You married your second wife in New Guinea and lived there for different periods.  You have three adult children, though I understand you are estranged from your wife and or family members as a consequence of these matters.

18In moving out of the family home, the Salvation Army have assisted you with the transition.  You have an allocated case manager who assists with your attendance at appointments regarding your health and other personal needs.

19You have no prior convictions or subsequent matters.  I accept that you are previously of good character.  I received a character reference from Peter Randall solicitor who worked with you at Broadmeadows Court.  I take that material into account.  I accept that apart from this matter, you have led a blameless life and made a significant contribution to the community.

20The focus of the plea by counsel on your behalf was on your current health and advanced age, particularly your mental health.  It is apparent on the material that your cognitive state first began deteriorating over the last six years.  Your counsel did not rely on Verdins in respect of your mental state at the time of this offending.

21A neuropsychological assessment was recommended by Dr Davidson from Forensicare late last year.  The neuropsychological assessment conducted by Dr Cheryl Monteith reveals your significant deterioration over the last
12 months.  Dr Monteith, in her report, outlines multiple medical problems and related medications that you have for treatment for your variety of conditions.  I take these matters regarding your reduced physical health and wellbeing into account.

22Dr Monteith also conducted formal neuropsychological testing and the results revealed your performance fell well below expected levels for your age and demonstrated measurable and pronounced impairment in several cognitive domains.  This presentation was accompanied with a relatively recent history of cogitative decline.  Her findings were consistent with both Dr Davidson and Dr Matthews' assessments, all clinical observations who all agree that your functioning is likely to deteriorate over time.

23In Dr Monteith's opinion, the findings of current neurological testing together with the available history are consistent with the diagnosis of dementia.  This means that your cognition and functional skills will continue to deteriorate over time.  Your level of frailty and vulnerability will also increase over time.  She is of the opinion that you require a care environment that offers a high degree of structure, routine, prompting and support.  The environment should be dementia informed and be able to respond to your increasing care needs over time.

24Concern is also expressed by Dr Monteith regarding your current level of psychological distress with you experiencing pronounced symptoms of depression, anxiety and stress together with thoughts of self-harm and suicide.

25Your counsel submitted and the prosecution conceded that the material regarding your mental health was such that the principles of general deterrence should be moderated.  I accept that there is an established evidentiary basis to find that you condition makes the full application of principles of general deterrence repugnant to the underlying sense of humanity which guides proper sentencing.  See O'Neill [2015] VSCA 325.

26I accept that your condition is such that any sentence imposed will weigh more heavily on you than a person of normal health.  Additionally, given your current health, advanced age and prior good character, I accept, as was submitted on your behalf that specific deterrence has no application to you.

27I take into account your plea of guilty.  Your plea was at the earliest opportunity, at the committal mention on 31 May 2016.  There was some delay in this matter being dealt with relating to a legitimate question of your fitness to plead.  Once that issue was resolved, proceedings commenced before me on 1 February 2017.  The matter then adjourned part heard in order for you to obtain the neuropsychological assessment.

28There is a significant utilitarian benefit in your plea, saving the community the cost and inconvenience of a trial and avoiding the need for witnesses, most particularly Wayne, to give evidence.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.  I accept your plea is also indicative of remorse by you and is consistent with your co-operation and provision of additional information to police when you were interviewed.

29You have also provided a written apology expressing your remorse to Wayne and the family, though this was described by your counsel as somewhat belated.

30Given the medical material tendered on your behalf on the plea, particularly as to your current level of functioning and your advanced years, I accept you are unlikely to reoffend and thus you have good rehabilitation prospects.

31There were some aggravating features in relation to this offending.  Wayne was aged nine when your offending commenced.  The nature of this offence, which in your case, involves offending on five different occasions.  The maximum penalty for this offence, namely 25 years.  The breach of trust in your family role as paternal and once adored grandfather.  The significant effect on the victim and other family members.

32The Court of Appeal recently in Dalgliesh [2016] VSCA 148 at 126 considered the nature of the crime of incest. Similar considerations apply to this offending, namely sentencing must reflect society's denunciation of sexual abuse of children and the profound harm which it causes. The very high maximum penalty underlies the seriousness with which that offence is regarded. The same maximum penalty exists for this offence. As previously noted, both general and specific deterrence have limited or no application to you.

33Your counsel provided me with a New South Wales Court of Appeal decision of Flaherty (2016) 92 NSWLR 290 where the court had under consideration similar sentencing issues that arise in your case. That case involved a plea after a trial of a 73 year of offender who was found guilty of historical sex abuse perpetrated on three different victims in the 1970s and 80s. I note the highest maximum in that case was five years. The offender suffered dementia and the undisputed medical opinion was that he had a life expectancy of six to 12 months and was a certain risk of suicide or sudden death if imprisoned.

34As noted in that case, it is a difficult sentencing task where the court is confronted with a sentencing exercise where it is necessary to balance the appropriate recognition of the objective gravity of the offence against powerful evidence pointing to a merciful outcome, see Paragraph 105.

35Your counsel submitted given your plea, remorse your health and age and the consequences that flows in respect of those latter matters to relevant sentencing principles, that I should impose a penalty that does not involve a term of imprisonment.  The prosecution submitted that the only appropriate disposition was a term of imprisonment though conceded that it could be in combination with a community corrections order.

36Given the recent amendments to the Sentencing Act which came into effect in March this year, inherent in that submission was a recognition that the prosecution viewed a sentence of 12 months or less with a community corrections order at its completion was within the range of sentencing options available to me.  I had you assessed as to your suitability for such an order and received a favourable report.

37This is a very difficult sentencing exercise.  The objective serious nature of this offending, together with the significant impact on the victim and the maximum penalty all need to be considered with the competing strong mitigatory material particularly regarding your age and health pointing to a more merciful disposition.  As is apparent in these reasons, your situation is unusual and the sentence I impose should not be seen as a guide to others who offend in a similar manner.

38After careful consideration of all relevant sentencing matters, I propose to sentence you as follows.  I sentence you to a term of imprisonment of 12 months with a community corrections order to be served at the completion of that time for a period of two years.  I include in the community corrections order a condition for supervision and also for treatment as directed by Office of Corrections.  Ordinarily with this kind of offending, I would have included a condition that you participate in a sex offenders program however, I will leave that to the discretion of Corrections having regard to the medical material regarding your capacities and cognitive functions and your capacity to participate in such programs.

39I note in respect of this matter the remarks made by they neuropsychologist in respect of the level of care that you require and have custody officials be made aware of those remarks.

40Now, Ms Loughman, s.464, have I already done that?

41MS LOUGHMAN:  They were handed up at the last hearing, Your Honour.

42HER HONOUR:  Thank you.  I am sorry, I have not signed those yet. 

43Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a period of five years' imprisonment with a non-parole period of three years. 

44In respect of the Sex Offenders Registration Act, Charge 1 is a Class 1 offence and under the Sex Offenders Registration Act, the reporting period in relation to your offending is for the remainder of your life.  I will have my associate now provide to you the relevant paperwork in respect of the Sex Offender Registration provisions and I will sign this other order while this is being done.  If you would not mind accompanying my associate, thank you.

45MR COOPER:  Yes, Your Honour.

46HER HONOUR:  All right, thank you.

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