Director of Public Prosecutions v Delaney

[2015] VCC 880

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

AT MELBOURNE

CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRIAN DELANEY (a pseudonym)

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JUDGE:	HER HONOUR JUDGE PULLEN
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2015
DATE OF SENTENCE:	25 June 2015
CASE MAY BE CITED AS:	DPP v Delaney
MEDIUM NEUTRAL CITATION:	[2015] VCC 880

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:    
Cases Cited:            
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr K. Doyle	Office of Public Prosecutions
For the Accused	Mr M. Phillips	Victoria Legal Aid

To ensure there is no possibility of identification, this sentence has been anonymised
by the adoption of pseudonyms in place of names of the accused and victims

HER HONOUR:

1       Brian Delaney, you have pleaded guilty to two charges of indecent assault with a girl under 16.  The maximum penalty applicable to those offences, which occurred between 1974 and 1976 (Charge 1), and between 1974 and 1978 (Charge 2), was five years’ imprisonment.

2       These crimes arise out of events which occurred between yourself and Ms Goodman; your biological daughter, then under the age of 18. 

3       It is not necessary for me to recount in great detail the facts of this matter, as they are on transcript, the matter having been opened in some detail by the learned prosecutor, consistent with the prosecution opening (Exhibit A).

4       I proceed to sentence you on the basis of the facts as summarised by the prosecutor and discussed during your plea hearing.  It is sufficient for present purposes to simply say the facts in this case, in my opinion, are most serious and disturbing. 

5       I turn to a brief summary of your offending.

6       At the time of this offending you were 28 to 32 years of age, and are 69 years of age at sentence.  The victim of your offending was 7-10 years of age at the time of your offending, and is 48 years of age.

7       You were married to Ms Goodman’s mother, Janice Shannon, with three biological daughters from the marriage, with Ms Goodman the eldest of your three daughters.  You and your then family moved from Queensland to Melbourne when Ms Goodman was about 3 years of age.  You lived at various locations before moving into the family home at Dingley.

8       On an occasion between 31 May 1974 and 30 May 1976 (the period relating to Charge 1), when Ms Goodman was 7 or 8 years of age, in Grade 4, Ms Goodman was at the family home with you when you called her into your bedroom and told her to get into bed with you for a cuddle.  She got into bed with you and you were naked.  You put your hand down her underwear and inserted your finger into her vagina.  You kept pushing your finger into her vagina until she jumped with pain.  You smiled at Ms Goodman and told her it was your “special secret”.  Ms Goodman recalled you said that in a menacing tone.  She was confused and frightened by your actions.

9       Charge 1 is a representative charge related to that offending, and also a second occasion when you inserted your finger into Ms Goodman’s vagina when she was in bed with you.  On that second occasion, Ms Goodman’s mother entered the room shortly after it occurred.

10      Turning to Charge 2, this offending occurred between 31 May 1974 and 30 May 1978, when Ms Goodman was between 7 and 10 years of age.  You called her into your bedroom.  When she entered the bedroom you told her to get into bed with you, and she complied.  You held her down and removed her underwear.  You were holding a mustard-coloured object.  You turned it on and put it on the top of her vagina, and the disc vibrated.  You said it was your job to do this to her as you were her father.  Ms Goodman was shocked and knew what you were doing was wrong.  You told her she was the “special one”.

11      On or about September 2006, Ms Goodman made arrangements to meet you.  Ms Goodman confronted you regarding your sexual abuse of her.  You told her you were sorry about what you did, and told her to be quiet as people were looking at both of you as you then spoke.

12      Ms Goodman reported your offending to the police.  You were arrested on 5 December 2012 and were taken to the Richmond Police Station and interviewed.  You did not make any admissions, rather told police when the allegation of incest was put to you, that the definition of incest “had changed, and that you might be old-fashioned but incest to you meant penis into vagina if a biological father had it with his daughter, or a mother with her son, and so forth".

13      You told police you were feeling light-headed in the interview because you were in shock.  You said the only memory you had of the children jumping into bed with you was when your wife went to the shops on a Saturday morning.  Regarding the allegations, you did not “have any memory of it whatsoever”.  You denied any coercion and denied having any vibrators.

14      An aggravating feature of your offending against your daughter was the gross breach of trust.  Not only breach of trust in relation to Ms Goodman, but also to your wife, who trusted her daughter in your care.  The age difference between yourself and Ms Goodman is also an aggravating feature of your offending.

15      You have pleaded guilty to these charges and are entitled to have that fact taken into account in your favour, and I do so.

16      It was not until 18 September 2013 that you were charged with these offences.  There was a contested committal hearing on 11 March 2014, at which time Ms Goodman was required to give evidence.  Following a final directions hearing on 16 February 2015, there was an offer made by you on 12 March 2015 to plead to the charges, which was accepted by the prosecution, and you were arraigned on 18 March 2015.

17      The fact that you have pleaded guilty to these charges is taken into account in your favour when sentencing.  The community has, by your plea, been spared the time and cost of a trial, and Ms Goodman has not been required to give evidence at trial, however, I note there was a contested committal hearing and Ms Goodman was cross-examined.

18      Your offer to plead guilty to these charges was late in the piece, you having been charged in September 2013, but not offering to plead guilty until March 2015.  I take into account the stage at which your plea was entered, which, whilst not at the earliest opportunity, nevertheless, saved the victim from giving evidence at your trial.

19      Regarding your remorse, I accept your plea of guilty indicates some remorse for your actions.  I accept you also now accept responsibility for your offending.  I discussed with Mr Phillips the extent of your remorse.

20      You come to court without any prior convictions, and I also note there is nothing subsequent or pending.  You therefore come to the court as a person of otherwise good character.

21      There was a victim impact statement prepared by Ms Goodman, and there is no doubt your offending has impacted adversely upon her, and I shall return to the victim impact statement shortly.

22      Your counsel, Mr Phillips, filed an outline of submissions (Exhibit 1), and also addressed them during the course of your plea hearing.  Mr Phillips referred to your lack of prior convictions, or subsequent convictions for any kind of offending to which I have previously referred.  Mr Phillips also referred to your plea of guilty and its relevance in mitigation of sentence.

23      This offending, he submitted, had occurred many years ago when you were between 28 and 32 years of age, and since then you had not come to the attention of the authorities.  You were one of five children, with three brothers and a sister, although you had not had any involvement with your siblings for about eight years, as a result of your offending becoming known.

24      Your father had a severe accident and was an alcoholic, and you reported he was violent towards your mother and siblings.  Your parents were now deceased.  You said you ran away from home at 14 years of age and lived in Queensland, then New South Wales, before returning home.  You reported your father was then more violent towards you, and so you left home permanently when you were 16 or 17.

25      You married Janice Shannon in 1965.  Since the breakdown of your marriage in 1991 or 1992, you had not had any significant relationships.  You remain legally married to Ms Shannon.

26      You were born in Melbourne and have lived in Australia all your life.  You have limited formal education.  In the 1980s you had a particularly successful business in forestry and managed investments, however that company ultimately failed.  You then started up other companies in the early 1990s.  Unfortunately, after brief periods of success, those businesses also failed.  By 1999 you were without any capital to start any meaningful business enterprise.  You have had limited employment over the last decade and are currently in receipt of social security payments.

27      You were diagnosed with emphysema approximately five years ago.  You started smoking when you were 14, and smoked for approximately 55 years.  By the age of 17 you were an alcoholic.  At the time of this offending you were an alcoholic, however that was not being relied upon in mitigation of sentence, and correctly so.  You now only drink occasionally.  There are no drug-related issues or mental health problems.

28      Turning to your rehabilitation prospects, Mr Phillips relied heavily on your lack of prior or subsequent convictions, and the years since your offending occurred.  You had ultimately accepted full responsibility for your offending and entered a plea of guilty, indicative of your remorse.  You are 69 years of age at sentence, and your absence of offending since, he submitted, was significant when assessing your rehabilitation prospects.  I agree.

29      Mr Phillips conceded, quite correctly, that general deterrence is an important sentencing consideration for your offending.  Mr Phillips also conceded specific deterrence was of some significance, albeit limited.  I accept that whilst there is an absence of prior, or subsequent offending, and that a significant amount of time has elapsed since your offending, your offending nevertheless occurred over a significant period of time, and on the occasions as alleged in the prosecution opening - that is, by that I mean more than one time.

30      Mr Phillips submitted given the nature of your offending (family), and your lack of offending subsequently, there was not the need to protect the community from you.  In referring to your offending involving family, that of course, does not mean it is not serious offending, it is.  I simply note there is, perhaps, not the need to protect the wider community, as you have not re-offended since.

31      Mr Phillips submitted the delay between your offending and prosecution, and your absence of subsequent of criminal convictions, was relevant in determining the appropriate sentence, and it is.

32      Mr Phillips addressed his written submissions during the course of the plea hearing, conceding your offending was serious and that there had been a significant adverse impact upon Ms Goodman.  Mr Phillips relied heavily on the period of time since your offending that has been offence free.  I discussed with Mr Phillips the decision of R v Kovac[1], and Mr Phillips acknowledged that for offending such as yours, delay may be of less significance.

[1] [2006] VSCA 229

33      In Kovac, Neave JA stated (allowing, of course, for factual differences in that case from yours):

“Some account must be taken of the 27 year delay between the commission of these offences and the prosecution of the offender. This delay was not due to undue delay by the prosecuting authorities, but arises because of the nature of the offending against young boys.  It has been recognised that the delay that is common in sentencing sexual offenders "does not give an automatic right for a reduction or discount of sentence" (R v Nikodjevic [2004] VSCA 222). It seems to me that this must be because delay in such cases cuts both ways. Although it may seem harsh to punish an offender for offences committed many years ago, the long delay has also affected the three victims of these offences, who have had to wait for many years for the offender’s wrongdoing to be recognised and punished. It is common for child victims of sexual offences to have difficulty in telling others about the offences which have been committed against them. Often offenders tell victims to keep the offences a secret, as occurred with JL. While delay is therefore a mitigating factor, it should not be given undue weight.” [Paragraph 28].

34      Mr Phillips submitted that since Ms Goodman’s allegations were made in 2006 it had caused trauma within the family, and you were now estranged from your family.  You had lost all your family and friends, and had become what Mr Phillips described as a “lonely man” as a result of your offending.

35      Mr Phillips also elaborated upon his written submissions regarding your previous employment, and your successful businesses in the 1980s and into the 1990s, however by late 1990 and into 2000, you were left without anything to show for your hard work, and since then have been on limited employment, and currently, social security benefits.

36      Mr Phillips referred to your health, and conceded that your excessive alcohol use at the time of this offending was not mitigatory of your offending, rather providing part of your background.  Mr Phillips submitted your rehabilitation prospects were good, and I agree.

37      The relevance of age when sentencing was also discussed with Mr Phillips, with reference to a number of authorities, including R v Whyte[2], R v Iles[3] and R v Cumberbatch[4].  I am aware you are 69 years of age at sentence and have not previously been incarcerated, and of course, that imprisonment must always be the last resort of the court.

[2] (2004) 7 VR 397

[3] (2009) VSCA 197

[4] (2004) 8 VR 9

38      Mr Phillips was not relying upon any of the principles in Verdins & Ors[5], and that concession was appropriate.  I do, however, note you will be serving your first term of imprisonment at age 69, and with health issues including emphysema.

[5] (2007) 16 VR 269

39      Mr Phillips, as I previously stated, conceded general deterrence was a relevant sentencing consideration, and it is.  As I said, I discussed with Mr Phillips that there is an element of specific deterrence required when sentencing you, given the three separate occasions your offending occurred over a significant period of time.  However, having said that, I again note you do not have any prior court appearances, or anything subsequent or pending.

40      Mr Phillips confirmed his primary submission that a community correction order would appropriately reflect all sentencing considerations.  Mr Phillips' secondary submission, without abandoning his primary submission, was that should I consider a community correction order did not appropriately address all relevant sentencing considerations, a short term of imprisonment be combined with a community correction order.

41      I discussed with counsel the decisions of Boulton v The Queen[6], DPP v Maxfield[7] and Alum v The Queen[8].  I did not, however, understand Boulton to be authority for the proposition that s5 Sentencing Act 1991 was no longer relevant, nor that established sentencing principles regarding sexual offending by a parent with their child to amount to nought, nor did I understand Boulton to replace the instinctive synthesis when sentencing.

[6] [2014] VSCA 342

[7] [2015] VSCA 95 [paras 31-35]

[8] [2015] VSCA 48 [para 20]

42      Mr Doyle, who appeared on behalf of the prosecution, submitted that the objective seriousness of your offending required the imposition of an immediate custodial sentence, that for this offending, at the time it was committed, there was a five year maximum period of imprisonment applicable to each charge, and that your offending was as at the “top end” of offences for indecent assault of a child.

43      Mr Doyle referred to Ms Goodman being your daughter, and that use of the vibrator, relevant to Charge 2, had had a particularly significant impact upon Ms Goodman, corrupting her innocence.  Mr Doyle also referred to Charge 1 as being representative of two occasions.

44      Even taking into account your age at the time of sentence, and any burden of imprisonment upon you, it would not, in Mr Doyle’s submission, lead me to impose a community correction order alone.

45      I was referred by Mr Doyle to Duncan v R[9], and discussed that with both Mr Phillips and Mr Doyle.  It is very difficult comparing cases factually, as facts vary enormously case to case, as do all matters in mitigation of sentence and personal to an offender.

[9] (2014) VSCA 215

46      Mr Doyle conceded, appropriately, that your plea of guilty showed some level of remorse, however he referred to cross-examination of Ms Goodman at the committal hearing.  He conceded there was, however, utilitarian benefit in your plea, and that such should be taken into account when sentencing you.  I agree, and I have.

47      Mr Doyle submitted a non-immediate term of imprisonment would not adequately address the objective seriousness of your offending.  Your offending, he submitted, was “too serious” for the imposition of a community correction order.

48      I have carefully considered the submissions by both counsel relevant to disposition, and I have also noted all the factual matters in this case, as well as those in mitigation.

49      Charge 1 is a representative charge, and, as such, the decision of R v SBL[10] is relevant and applicable.  That decision was referred to in DPP v HPW[11]:

[10] [1997] VR 706

[11] [2011] VSCA 88

“His Honour appeared to recognise the significance of the fact that Charges 1, 2 and 8 were representative charges.  He noted the observation made by Nettle JA in DPP (Vic) v EB, where his Honour said:

As the judge said, Counts 1 to 5 were representative counts, which made it appropriate to impose a higher sentence in relation to those counts than would be the case in relation to an isolated count.  Admittedly, that notion is not without its conceptual difficulties, because of the principle that a prisoner is not to be punished for uncharged acts.  But as Batt JA explained in R v SBL, the fact that a count is a representative count serves to preclude it being said in mitigation of penalty that it was but an isolated offence, and additionally, it enables the offence to be seen in its full circumstantial context.  Thus a representative offence is likely to attract a greater sentence than an isolated offence."

In R v SBL, Batt JA said:

"Not only does the fact that a count is agreed to be representative preclude its being said in mitigation the offence was isolated, it affirmatively enables the offence to be seen in its full circumstantial context.  The offender is not, by a loading of the sentence, to be punished for the represented offences, but the sentence for the representative offence may reflect the fact that it, the offence counted, occurred in the wider context.  Consistently with the view which I have expressed about agreed representative counts, regard may, in the present case, be had to the adverse effect upon the victims of the whole of the conduct, which effect might not have been produced, or produced to the same extent by the offences counted alone.”

50      I turn to the Sex Offenders Registration Act.  On the two charges before me, the elements of the offences that existed at that time are comparable to the elements of the present day offence of indecent act with a child under 16.  Charges 1 and 2 before me are therefore Class 2 offences, and you are required, pursuant to the Act, to report for a period of 15 years.  Such reporting is mandatory, and your counsel, Mr Phillips, conceded such applied to you.

51      There was a victim impact statement from Ms Goodman.  It is eloquent, and it is difficult to do justice to that statement in these brief sentencing remarks, but I have read Ms Goodman’s statement.

52      Ms Goodman described your offending as degrading her as a person, and that it had stunted her overall emotional, mental and spiritual growth.  You said it was a “special secret”, which caused her confusion and embarrassment.  She felt isolated and alone when growing up, especially from her sisters.  As a child she was withdrawn and with little confidence.  You were controlling, domineering and aggressive.  She described not feeling safe in her own home, and being relieved if she came home from school and found you were not there.

53      She described favouritism towards her and that she hated it, as did her sisters, which led to resentment and jealousy by her sisters towards her.  Ms Goodman was terrified to tell her mother what was happening to her for fear of what you would do.  She feared the family would be torn apart and it would be her fault.  She berated herself for not having spoken up, as the family had been torn apart anyway because of your offending.  She felt responsible for that, and felt she could have prevented it by telling her mother.

54      There had been a ripple effect from your offending on many people in her life, changing their lives forever.  Family members did not know how to deal with the subject.  Her mother had been severely affected by your offending, crippled with guilt, asking how could she not see it?  Ms Goodman was often overcome with feelings of sadness, frustration, anger and betrayal.  When she saw someone of your description it reminded her of you, and caused her to feel anxious.  She had received counselling for a few years from the Centre Against Sexual Assault (CASA).

55      Also relevant is the notion of social rehabilitation, and a number of authorities have referred to the effects upon a victim of sexual offending, including DPP v Toomey[12], in which his Honour Justice Vincent referred to social rehabilitation, citing DPP v DJK[13].

[12] [2006] VSCA 90

[13] (2003) VSCA 109 [paras 17 & 18]

56 The effects upon a victim are a relevant sentencing consideration (see s.5 of the Sentencing Act 1991). I am conscious, however, I must not allow the effects upon a victim to swamp the sentencing process.

57      As well as matters personal to you, including your rehabilitation prospects, which I find to be very good, I must also take into account matters such as general deterrence, which is of particular importance in a case such as this.  The courts have repeatedly referred to the need for general deterrence when sentencing for sexual offending involving children.  The courts have a special duty to protect children, they are vulnerable, and especially vulnerable to abuse of trust.  They are immature in their understanding of right or wrong, and are dependent upon adults responsible for their care not to abuse that immaturity.

58      A number of authorities have referred to the seriousness of sexual offending against children (see Roosmalen[14], Wayland[15], Parente[16], DPP v DJK[17], Di Nardo[18]).  This list is by no means exhaustive.

[14] (1989) 43 A Crim R 358

[15] 19/9/1992 CCA Vic

[16] 20/2/1966 CCA Vic

[17] [2003] VSCA 109

[18] [1998] 2 VR 493

59      There is also a need for specific deterrence when sentencing you.  As I have said, I again note you do not have any prior court appearances, however, your offending occurred on three separate occasions represented in the two charges, and over a significant period of time.  You had the opportunity to desist, but did not do so.

60      I am also called upon by the Sentencing Act 1991 to manifest the community’s denunciation of your conduct, and generally to impose a just punishment. I must also consider the question of the protection of members of the community from you, and bear in mind the likelihood of your re-offending. I am comforted in that regard by your lack of prior and subsequent offending.

61      Your counsel, as I have said, urged I consider the imposition of a community correction order for your offending.  In my opinion, to impose a community correction order, either on its own, or in combination with a term of imprisonment, would not appropriately address all relevant sentencing considerations, which includes the gravity of your offending as well as all matters in mitigation.  To impose such dispositions would, in my opinion, be manifestly inadequate.  I therefore turn to sentence.

62      On Charge 1, you are convicted and sentenced to 2 years and 6 months’ imprisonment.

63      On Charge 2, you are convicted and sentenced to 15 months’ imprisonment.

64      Charge 1 is the base sentence, and I direct that 8 months of Charge 2 be served cumulatively upon Charge 1. 

65      That results in a total effective sentence of 3 years and 2 months’ imprisonment, and I direct that you serve a period of 1 year and 10 months’ imprisonment before you are eligible for parole.

66 Pursuant to s6AAA Sentencing Act 1991, had you been found guilty of these charges following a jury verdict, in other words, if you had pleaded not guilty but been found guilty, I would have sentenced you to a term of imprisonment of 5 years, and set a non-parole period of 3 years and 6 months.

67 Pursuant to s18(4) Sentencing Act 1991, I declare you have spent 6 days in custody up to and including yesterday (24 June 2015), by way of pre-sentence detention, and I direct that that be entered into the records of the court.

68      In a moment my Associate, Ms Jackson, will approach you to sign documents acknowledging receipt of the documents that tell you about the Sex OffenderRegistration Act.  You are not being asked if you consent to the order, I have made the order, and it is mandatory, but you can sign for it.  If you do not want to sign for it, well, you do not.  I have made the order, it is for a period of 15 years, as I have said.

69 The prosecution made application for a forensic sample pursuant to s464ZF Crimes Act 1958. Counsel who appeared on your behalf opposed the order in the terms sought. Mr Phillips submitted I should not make the order, given the many years since this offending, your age and your lack of subsequent, pending and prior matters, and submitted it was not in the interests of justice that a forensic sample be obtained from you. In all the circumstances I do not order a forensic sample be obtained. No other orders were sought. Now, how did we go with the days? PSD? It's right, isn't it?

70      MR DOYLE:  Yes, it is.

71      HER HONOUR:  Yes, you agree with that?

72      MR DE YOUNG:  Yes, Your Honour.

73      HER HONOUR:  Yes, all right.  Miss Jackson's now coming down to the back of the room to give you some documentation that tells you all about the Sex Offenders Registration Act.  All you are being asked to do is sign, acknowledging she has handed them to you, that is all that is about.  Mr De Young will wander back to you and explain it all, I assume.

74      MR DE YOUNG:  Thank you, Your Honour.

75      HER HONOUR:  If you want to, Mr De Young?

76      MR DE YOUNG:  Yes, Your Honour.

77      HER HONOUR:  All right, thank you.  Can you remove Mr Delaney please?  Thank you.  Thank you both.

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