Director of Public Prosecutions v Dease (a pseudonym)

[2019] VCC 1883

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEORGE DEASE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:	14 November 2019
DATE OF SENTENCE:	14 November 2019
CASE MAY BE CITED AS:	DPP v Dease (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2019] VCC 1883

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	Mr A. McKenry	Office of Public Prosecution
For the Accused	Mr R. Thyssen	Kylie Moloney Legal

HIS HONOUR:

1George Dease[1], you have pleaded guilty to two charges of sexual penetration and one charge of sexual assault of your granddaughter.  She was aged 13 in December 2017.  At the time that you sexually abused her you were 66.  The victim was living with you at the time in a small unit, flat or apartment in Ballarat.  She was with her mother at that time, living at that flat.

[1] A pseudonym

2At around 11 pm on 20 December 2017 the victim was in the kitchen, simply getting a drink.  You had been drinking alcohol yourself.  The date of 20 December is one that is important to you.  It is the birthday of your deceased wife.  I will refer to that fact later.

3You started to molest your granddaughter in the kitchen, touching and kissing her, touching her breasts, forcing her hand on to your penis.  You then touched her vagina, asking her if she liked it and that you wanted to be her first sexual partner.  She was telling you, 'No'.  Later, after she had gone to bed you came to where she was sleeping and started touching her breasts.  She yelled out and you ran out of her room.  This conduct was charged as a rolled up charge of sexual assault.  This was dreadful molestation of a young child.  She is entitled to feel safe where she was living and safe in the bed where she was sleeping.

4A little while later you again were drunk.  You took the victim back to your house from where you had been with others.  You again molested the victim, touching her and saying you wanted to be her first sexual partner.  She resisted.  You then took her to the bedroom, put her on the bed, you held her while you penetrated her vagina with your penis.  After you stopped she went to the kitchen, only to be further groped by you.  Ultimately she went to bed.  You came in and touched her again, ultimately penetrating her vagina with your finger.

5A few months later in March 2018 the victim went to the police.  You were arrested and interviewed and made some admissions.  You made other admissions on a pretext telephone call.  You ultimately pleaded guilty to the three charges that I have outlined.  As your trial was about to start in Ballarat.  Plainly this is very serious offending.  Your breach of trust as the victim's grandfather obviously makes the offending worse.  Her mother expected you would look after her child, not violate her.  The victim, the child herself, also trusted you as an adult and to that point a respected member of the family.  The community also trusts adults within a family that they will nurture children and foster proper values, not sexually abuse a vulnerable child.  Your breach of trust is very serious.

6Further, you knew what you were doing was deeply wrong but you went ahead anyway.  Your sexual gratification was put above the dignity of your granddaughter.  She told you more than once, no, or to stop.  She did her best to resist but you persisted over more than one episode.  Her young age, that is 13 years old, adds to the gravity of this crime.  Also this sexual offending, that is with your granddaughter, attacks important values inherent in the family.  Proper family relations are at the foundation of our community.  You have degraded and thus diminished these important values.  Those values must be reasserted by proper, stern punishment.  As I said, on any assessment, this is offending at a very serious level.

7Our Court of Appeal has noted on a number of occasions the seriousness of the offence of incest.  The court also indicated that sentences of the court should express the community's denunciation of the conduct involved.  The Court of Appeal noted in the case of Dalgleish that sentencing courts must give effect to the seriousness of the offence as evidenced by the maximum term of 25 years' imprisonment.  It also found at that time that current sentencing practices have been inadequate in reflecting the inherent seriousness of the offence.  The High Court in that case of Dalgleish reiterated the seriousness of the crime of incest and the need for current sentences to properly reflect the community's denunciation.

8Expressions of the community's abhorrence have been articulated earlier than in recent times.  In the 1990s in the case of Ware, a well-known case.
Hedigan J said the following:

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

9In 2018 in the Court of Appeal matter of Wilson v The Queen the President of the Court of Appeal noted:

'Incest involving a child is by definition an offence of very high culpability since it is so obviously contrary to every tenet of parental care for children and since every parent is taken to understand that sexual activity is absolutely prohibited.'

10There is no reason why those remarks made recently in a judgment from this court ought not apply equally to grandparents, which is the case here.  You,
Mr Dease, do have prior convictions in Queensland from your early 20s but you did not offend from then until your late 30s.  These prior offences were for dishonesty and public disorder.  In Victoria from your mid-40s you were in trouble for drinking and driving offences and being drunk in a public place.  Plainly, these offences are by far the most serious you have ever committed.  You had no prior criminal convictions for sexual offending.

11As to your other personal circumstances, you are about to turn 67.  You were born and raised in Bowen, Queensland, as one of a very large family of 16.  You described your upbringing as impoverished but happy.  Notwithstanding this, you were very young when you took to drink.  As an indigenous man, to fall into drinking and ultimately alcoholism is a relevant matter, as has been set out in important appellate decisions such as Fernando and the cases that have followed that case, but this is not the dire circumstances, or not circumstances as dire as set out in the High Court case of Bugmy, but your upbringing and drinking remain relevant.

12You went to school until Year 10.  Thereafter you got work in seasonal jobs, mostly fruit picking.  You met your partner and wife in Swan Hill in the 1980s and remained living in Victoria with her.  You raised a family of seven children.  But both of you, your wife and yourself, had serious problems with alcohol.  Your partner died 22 years ago.  Her birthday was 20 December and you have grieved on that day since her death.  This involves grieving by heavy binge drinking.  You were doing just that at the time of this offending.  Your offending is surrounded by the drinking that you had indulged in, in the days around
20 December 2017.  You have been a heavy drinker since your early teens.

13In the report of Ms Carla Lechner, which I have taken into account, she sets out at the bottom of p.3 of that report that you have reported to her that you twice attended a rehabilitation centre and remained sober for up to four years, but you state that you have relapses because, 'Little things get to me.  Birthdays, anniversaries, and I see others drinking and I join in'.  She said that you stated that you binge once a fortnight:  'I drink up to 20 litres of cheap wine in three days and then be off it until the next pay day'.  You experience blackouts and shakes.  You stated that you always make sure there is a bit, 'for the morning'.  'Mr Dease does not regard himself as an alcoholic as he does not drink every day'.

14Plainly, you are a chronic alcoholic.  The fact that your offending occurred while you were affected by alcohol is no excuse, that your chronic problems with alcohol create real problems for your rehabilitation.  It is part of your life that you need to deal with, hard as that may be.  The forced abstinence since you have been in prison on remand is a start.  You reported to your counsel that you are already feeling the benefits of abstinence without any detrimental withdrawal symptoms.  That is something positive.

15According to your general practitioner you have high blood pressure, high cholesterol, anxiety and depression and chronic airways disease as you have smoked heavily all your life.  The assessment of your risk of sexual reoffending undertaken by Ms Lechner led her to conclude that you were a low risk.  Given your lack of prior sexual offending and the limited period of your offending, this assessment is probably accurate, but given the fact that you were in the midst of yet another bout of binge drinking and your chronic alcoholism, you will remain a risk if on your release you resume drinking.  However, another factor in this assessment is your age now and how old you will be upon your release.  The older you get into your 70s the more diminished is your risk.

16Ms Lechner reported that since your remand you have significant depression.  You have never been on medication for depression and are not now on medication in prison.  No doubt your isolation and resort to drinking in Ballarat was due to a level of depression.  I do not question this aspect but what is most prominent is the fact that you turned to alcohol because you are an alcoholic.

17The sentencing purposes are protection of the community, especially as you will be a serious sexual offender for the third offence once I impose imprisonment for the first two offences.  I will return back to this matter shortly.  Another important sentencing consideration which I have referred to already by reference to the Court of Appeal decisions, is denunciation of your abhorrent, appalling crimes.  This denunciation must be expressed in words but also in a practical sense by the imposition of years of imprisonment.  Deterrence to others who may be minded to sexually abuse children must be expressed by stern punishment.  All right minded members of our community would be bewildered at how you could do what you did to your 13 year old granddaughter.  She was entitled to grow up and come to sexual experiences in her own time.

18There are no victim impact statements.  However, the adverse impact on her and her family is a matter inherent in this type of crime.  Such impact is often deep and has long effect.

19Your rehabilitation is not overlooked but I cannot see your prospects as any better than reasonable.  You are making connections with indigenous men and indigenous activities in the prison and attending when elders visit.  This is encouraging.  You do have some ongoing support from some members of your family.  Your plea of guilty was an important matter and your sentence will be less than it otherwise would have been.  While your plea was late you did save the victim from actually giving evidence in a trial.  You saved the resources that would have gone into running a trial.  You acknowledge what you have done and there are some signs of remorse but inside is still emerging.

20As to the serious offender provisions, once I have imposed penalties for the sentences, Charge 1 and 2 being terms of imprisonment, I must consider the provisions of the serious offender sections of the Sentencing Act.  What is required is that I give protection of the community the status as the primary sentencing purpose.  Also I must consider whether I will impose fully cumulative imprisonment upon you.  Why that is so is because parliament has made it clear that sentencing serious sexual offenders requires them to be considered differently to other offenders.  What is required is that I would impose cumulative sentences unless I otherwise order.  I do not ignore parliament's intent but, in my view, I must otherwise order than full cumulation.

21This is because these events did occur in proximity to each other.  They were close enough in time and certainly through the single binge drinking that was connected with your wife's birth date.  If I imposed also the sentence with full cumulation the sentence would simply be an outlier of a sentence compared to all others.  In particular, those where the incidents are properly described as one confined episode as opposed to years and years of sexual abuse which, sadly, are cases that come before this court.  However, I will impose some cumulation for the crimes that you committed, which was separate and would have had its impact on the victim.  Doing the best I can, can you please stand, Mr Dease?

22For committing the crime of sexual assault you are sentenced to two years' imprisonment.  For committing the crime of sexual penetration of a child, being penile penetration, you are sentenced to six years' imprisonment.  For committing the crime of sexual penetration, the digital penetration of the child, you are sentenced to six years' imprisonment.  Charge 2 will be the base sentence and I order that six months of Charge 1 and two years and six months of Charge 3 be cumulative upon each other and upon the sentence that I imposed on Charge 2.  This gives a total sentence of nine years.

23I have considered what your counsel said as to the length of the parole period.  I fix a non-parole period of six years.  This is a period of three years.  In my view, this is a period of time of potential parole.  It is always for others, not me as to whether you are granted parole and when you are granted parole but this will provide you with years of support in the community as you age.  In my view, it is the minimum that justice requires as incarceration for the crimes that you committed.

24You have already served 69 days in prison and this figure having been reckoned I declare it as part of the sentence that I have just imposed to ensure that this declaration is entered into the records of the court so the prison authorities know that you have done 69 days of the sentence I have just imposed.

25Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of 11 years with a minimum of eight.  Because of the crimes that you have committed you must register on the sex offenders register.  That is mandatory.  So too is the term that is a term of life.  What needs to happen about your registration is that shortly I will give a document or my staff will give a document to your barrister, Mr Thyssen.  I will have signed it, saying that I have given you a document.  You then sign another document saying that you have received that document, but you take that document with you and it is what it says that is important.  It sets out your responsibilities to register once you are released and the serious consequences that will follow if you do not abide by all the requirements of the sex offenders regiser.  Do you understand?  Thank you.  That document will be produced shortly.  You can be seated now, Mr Dease.  The mathematics add up, I take it?

26MR McKENRY:  They do, yes.

27HIS HONOUR:  Yes.  Is there anything else required?

28MR McKENRY:  Forensic sample, Your Honour.

29HIS HONOUR:  There has been a request for a forensic sample.  That is a scraping of your mouth so your DNA can be extracted.  I intend to grant that application due to the seriousness of the circumstances.  They warrant the making of this order, and because the making of the order is in the public interest.

30MR McKENRY:  If Your Honour pleases.

31HIS HONOUR:  What you have to understand, Mr Dease, is at the time the authorities come to get that sample from you, a scraping of your mouth, that they are authorised to use reasonable force if you do not cooperate with them.  Just cooperate.  Mr Thyssen, just take that sex offenders register document to your client.  That document has been signed by you.  It acknowledges that you have been provided with the notification of reporting obligations and your notification of the reporting period.  My associate will sign that and forward it to the chief commissioner of police.  Is there anything further?

32COUNSEL:  No, Your Honour.

33HIS HONOUR:  Thank you.  Mr Dease, you have to head downstairs.  Mr Thyssen will see you if he is able to shortly.  Thank you.  We will just end the link to the Ballarat court or what court it is.  Thank you very much.  If you would pass on thanks to the informant for arranging all of that a little earlier than it had previously been thought.

34MR McKENRY:  I will do that, Your Honour.

35HIS HONOUR:  Thank you.  Thank you very much for your assistance,
Mr Thyssen, in settling this case and putting together a concise plea.

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