Director of Public Prosecutions v Deenan (a pseudonym)

[2018] VCC 1487

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK DEENAN (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	14 September 2018
CASE MAY BE CITED AS:	DPP v Deenan (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1487

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 R. Hammill	Office of Public Prosecutions
For the Accused	Mr T. Fitzgerald (Plea) Mr J. Sutton (Sentence)	Nicholas Rolfe

HIS HONOUR: 

1Mark Deenan[1], on 22 August of this year, you were convicted by a jury of one charge of indecent act and one charge of sexual penetration of a child under the age of 16 years.  Each of those crimes carries a maximum penalty of ten years' imprisonment.  You are 44 years of age at the present time, you were 19 years of age at the time of the offending.

[1]  This is a pseudonym.

2You have no prior convictions and you have no subsequent findings of guilt.  You pleaded not guilty and ran a trial whereby the victim was called a liar and various attempts were made to challenge what she had to say.

3In those circumstances, there is obviously no remorse whatsoever and you persist with your assertions of innocence.  That does not aggravate the situation, it simply removes what would have been a very significant matter in mitigation of your offending. 

4Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  With that order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you.

5I also advise you that because of the nature of the offending, you will be placed on the Sex Offender's Register and the reporting on that register will be for a period of 15 years.  Can you go with my associate please, Mr Sutton, to sign this? 

6A summary of the offending can be done in very short compass:

7In July of 1993, you were 19 years of age and your victim was your niece,
12 years of age and very nearly 13.  This all occurred in Echuca at your mother's house on a trip that she went up there with her father and her stepmother.

8Upstairs on the evening of Saturday 10 July 1993, she was in a room with you and your brother.  Whether you were looking at the television or listening to the stereo or whatever it was, it does not really matter in these circumstances.  Your brother was asleep on his bed.

9You started "mucking around" and tickling under the arms of your niece. 
You then started to massage and grope her on the breast, at first over her clothing and then under her clothing; that is Charge 1 of indecent act.

10Your hand then went towards her genital region.  She tried to push it away and tried to say stop but no words would come out of her mouth.  You then put your hands or hand under her leggings but over underpants and so the touching of her vagina which is an uncharged act. 

11You then penetrated her vagina with your finger, either through her underpants or under them, it does not matter much which in this particular situation. 
She managed to get your hands away from her and basically you rolled over and went to sleep.

12She did not tell anybody about this but she wrote it out in her diary.  Her mother discovered the diary and at that point the victim destroyed the diary.  She told her step-mother sometime afterwards what happened.  The victim's father, your brother obviously, had been told what had occurred and he then approached you.  He accused you of having sexually assaulted her and you, on his evidence, replied that you "might have touched her in some places that you shouldn’t have touched her".

13He told you to go and see a professional to get the problem sorted - that is counselling - otherwise he would have you charged.  You agreed to have counselling.  You claim that you did have counselling but now claim, as
I understand it, you do not know who with or anything along those lines.

14It has been put in this material that you do not remember much about what happened.  You certainly remember the conversation with your brother and you certainly remember going to counselling so all the lack of memory and the denials I treat with a very large grain of salt.

15Tendered on your behalf were references which essentially seem to assert that you did not do it, and a psychologist report which seems to assert that you have no memory of it occurring.  Your counsel was able to provide very sensible submissions despite the materials that he has been provided with. 

16You have a depression or depressive condition.  You have had that since you were young.  You have always worked and you have been a good member of your community for a long period of time.  It was of interest to me to see that when you were younger, you went to 12 different primary schools.  That is often a sign of impending repetitive offending and you have not done that which is to your credit.

17You clearly had a very dysfunctional upbringing.  You, I accept on the material before me, were sexually assaulted as a child.  It would appear from the material that so were other members of your family.  Whether that be by the same person or not, I do not know. 

18But it is in that background that I then fall to sentence you.  I take into account the matters that are contained in the repot.  I do not think it gets to the stage or the level of the principles of Verdins being attracted because if I were to give you an active custodial sentence, you do it in Ararat in any event.

19Normally, this would call for active custody; that is, a penetrative offence.  But the circumstances here are such that I think it is in the interest of justice that not occur.  A suspended sentence was a disposition open at the time and because of the timing of the offending obviously is still open now.

20Firstly, this offending occurred a long time ago.  You were 19 years of age and had I sentenced you at the time, I certainly would not have given you adult imprisonment.  Were you to have been incarcerated, you would have been given a youth justice training centre. 

21Secondly, I accept that the offending was situational.  It was a circumstance not brought about you, you have no priors and no subsequents and I am prepared to sentence on the basis that whilst it clearly happened, and I obviously do not accept your denials of it, it was in a situation which is unlikely to be repeated and clearly has not been repeated. 

22I take into account whatever effect, it would be guesswork on my part, sexual offending against you may have had and I also take into account your good conduct, insofar as the community is concerned, since.  Also, you have raised a seven year old child who has his own difficulties. 

23I accept that he is now in Year 12 and for you to be incarcerated it would provide serious difficulties for him.  Exceptional circumstances do not arise but I feel that if were to actively incarcerate you, the effect upon you of what would occur with your son in this very important part of his life would add an element to that imprisonment which I do not think the circumstances would justify.

24Prospects of your rehabilitation should be good, in fact you should have been rehabilitated already.  The risk of you reoffending I assess as being low in these circumstances and I am confident in saying that.  Your counsel's submissions go through your family history; I do not think there is any need to go into - the actual detail of that.  I have described it in short compass. 

25But in any event, I am satisfied that it is in the interest of justice that a wholly suspended sentence be imposed.  Accordingly, on Charge 1, three months and on Charge 2, 15 months.  I direct that they be served concurrently.  That gives an effective sentence of 15 months and I direct that that sentence be wholly suspended for a period of two years.

26That sentence has been wholly suspended, I must advise you that should you breach that suspended by the commission of any criminal offence carrying imprisonment and certainly, and obviously, anything of a sexual nature, you would have to should it would be not in the interest of justice, or it would be unjust, for it not to be imposed.  In other words, if you offended again in this way you would be locked up for sure.  I do not think I can be any blunter than that.

27All right, that is the end result of the matter and that is that.  No other orders
I need to make, gentlemen?

28COUNSEL:  No, Your Honour.

29HIS HONOUR:  No?  All right.  Yes, thank you Mr Hammill, thank you Mr Sutton.

30COUNSEL:  If Your Honour pleases.

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