Director of Public Prosecutions v Dempsey (a pseudonym)
[2017] VCC 1923
•11 December 2017
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PAUL ANTHONY DEMPSEY (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2017 | |
DATE OF SENTENCE: | 11 December 2017 | |
CASE MAY BE CITED AS: | DPP v Dempsey (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1923 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW – SENTENCE
Catchwords: Indecent act with a child under 16 (2 charges) – attempted rape – 37 year old step-father offending against 15 year old step-daughter – very serious offending – early plea of guilty – gross breach of trust – particularly vulnerable victim – resistance by victim – accused alcohol affected – accused attempting suicide in aftermath of offending – initial denials to police – remorse – acceptance of responsibility – profound and lasting victim impact – good prospects of rehabilitation
Legislation Cited: ss 38, 47(1) and 321M Crimes Act 1958; ss 6D and 6E Sentencing Act 1991; Sex Offenders Registration Act 2004 ss 11, 34(1)(b)(i) and 34(3).
Cases Cited:Talbot (a Pseudonym) v R [2016] VSCA 218; DPP v Toomey [2006] VSCA 90; DPP v VH (2004) 10 VR 234; DPP v CPD (2009) 22 VR 533; DPP v DDJ (2009) 22 VR 444; DPP v TDJ [2009] VSCA 317; Reid (a Pseudonym) v The Queen (2014) 42 VR 295; Sutton (a Pseudonym) v The Queen(2015) 47 VR 496; DPP v Fucile (2013) 229 A Crim R 427; DPP v Dalgliesh (a Pseudonym (2017) 91 ALJR 1063
Sentence:Total effective sentence 4½ years’ imprisonment, non-parole period of 32 months
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms R Champion | Mr J Cain, Solicitor for Public Prosecutions |
| For the Accused | Mr P A Dunn QC | Doogue & George |
1 Paul Anthony Dempsey,[1] you have pleaded guilty to an indictment containing three charges — one charge of attempted rape[2] and two charges of indecent act with a child under 16 years.[3]
[1] A pseudonym used in order to protect the complainant’s identity
[2] Contrary to ss 38(1) and 321M Crimes Act 1958
[3] Contrary to s 47(1) Crimes Act 1958 as in force at the relevant time
2 The maximum penalty for attempted rape is 20 years’ imprisonment[4] and the maximum penalty for indecent act with a child under 16 years is 10 years’ imprisonment.[5]
[4] Pursuant to ss 38(2) and 321P(1)(a) Crimes Act 1958
[5] Pursuant to s 47(1) Crimes Act 1958 as in force at the relevant time
3 The prosecution has filed a summary of prosecution opening dated 5 September 2017, which I am told by your counsel I can treat as a statement of agreed facts.[6]
The facts
[6] Exhibit “P1”
4 At the time of the offending, you were 37 years old[7] and you are now aged 38 years. The victim Patricia Mary Tait[8] was 15 years old. You are her step-father. You are also the father of Patricia’s younger half-sister Catherine,[9] who was 7 years’ old at the relevant time. The offences occurred at your home. Patricia was living with you, her mother Jane Dempsey,[10] Catherine, and her brother Tyler,[11] who was 13 years’ old.
[7] Date of birth is 16 September 1979
[8] A pseudonym used in order to protect the complainant’s identity
[9] A pseudonym used in order to protect the complainant’s identity
[10] A pseudonym used in order to protect the complainant’s identity
[11] A pseudonym used in order to protect the complainant’s identity
5 On an occasion in early to middle 2016, Patricia was on the couch in the lounge room with you watching a movie. You asked her to give you a cuddle. She lay down and put her head on your lap and you played with her hair. You then put your hand on her hip. You moved your hand down and placed it underneath her leggings and her underwear and left it there.[12] Patricia kept wriggling away so your hand would come out, but you kept moving your hand to keep it there. Patricia was too scared to tell her mother and did not think she would believe her.
[12] This is an uncharged act relied on by the Crown as part of the context leading to the charged offences
6 On the evening of 3 February 2017, Patricia was at home with her mother, Tyler and you. Also present was her friend Jordan McArthur[13] who was staying over at her house.
[13] A pseudonym used in order to protect the complainant’s identity
7 You were drinking bourbon and had been since at least 7 pm. You asked Patricia and Jordan if they wanted a bottle each of a pre-mix type alcoholic drink. Patricia asked if they could share one. You then gave them a bottle to share, which they did. Not long prior to this, that same evening, you had also offered Patricia and Jordan a shot of whiskey, which they had both declined. You had never given alcohol to Patricia before.
8 At about 10:00pm, Patricia’s mother went to bed.
9 At about 10:30pm to 11:00pm, you, Patricia and Jordan were watching television in the lounge room. You observed fresh self-inflicted cuts on Patricia’s arms. Patricia observed that you were a little bit drunk. She was sitting next to you on the couch. You asked her to sit on your lap and she did so. Jordan got up and left the room. You began stroking Patricia’s buttocks.[14] You hugged her and kept asking if she was alright. You told her that you cared about her and saw her as one of your own children. You then lay together on the couch hugging. Despite feeling uncomfortable about your feeling her buttocks, Patricia felt that this was a “real father-daughter moment”. To your knowledge, Patricia had a history of self-harming and had done so several times. On these occasions you had been supportive of her.
[14] This is an uncharged act relied on by the Crown to give general context to the charged offences
10 Patricia then went to her bedroom and started watching a movie with Jordan. Whilst they were doing this, you came into the room and retrieved the empty bottle that they had shared. You then offered them another bottle of a pre-mix type of alcoholic drink which you had with you. Patricia and Jordan declined and you left. Shortly afterwards they decided to go to bed. Jordan left Patricia’s bedroom to sleep in his bed in the room next door.
11 As Patricia was lying in her bed drifting off to sleep, you entered her room, turned on the light and asked why she was not watching the movie anymore. Patricia was lying on her stomach on top of her bed sheets because it was hot. She was uncovered and only wearing underwear, a short top and a bra. You then lay on the bed next to Patricia. You began poking her, trying to tickle her and playing with her hair. She kept telling you to go away and that she wanted to sleep. You then left. She fell asleep. You had been in her room for about 5 minutes. This was unusual, as normally you would not have entered her room if she was in her underwear.
12 Later in the evening, while Patricia was still asleep, you entered her room again and shut the door. You had a flashlight. You shook her, trying to wake her up. Patricia was still only wearing her underwear and a short top. You then used the flashlight to look up and down her body. You were grinning as you did this. This made Patricia feel very uncomfortable. You asked her if she had your phone charger. She told you she did not have it and to go away and leave her alone. You then lay across her and over the top of her so that your groin area was on her back. You were feeling around the bed as if looking for your phone charger. You asked her what was wrong and she told you to get off her, to go away and that she wanted to sleep. You got off her and started looking at her again, so she pulled the blanket over her. She told you again to leave. You then walked out of the room. You had been in the room for about 10 minutes. Patricia then fell asleep again.[15]
[15]These are uncharged acts relied on by the Crown as part of the context leading to the charged offences
13 Later in the evening, at about 2 am on 4 February 2017, Patricia awoke to find that you were getting into her bed. The door to the room was closed. You began cuddling her. She could smell alcohol on your breath. She said “can you not?”! You asked what she meant. She told you that you stank and to get out of her bed and go away. She rolled over and faced the opposite way from you. You were both lying on your sides and you were behind her. You continued to hug her for about two minutes. You had one arm underneath her and the other over the top of her. You had pulled her in close to you.
14 You then began to rub her stomach. You put your hand under her top and rubbed the side of her body underneath her underarm. You then rubbed her vagina over the top of her underwear (Charge 2:Indecent act with a child under 16 ).
15 You then put your hand underneath Patricia‘s underwear and started feeling her buttocks (Charge 3: Indecent act with a child under 16).
16 You then removed her underwear. You moved your hand to the front of her body. Patricia put her arm down and pressed it against your arm to try and stop your hand going any further. You removed your penis from your pants. You pressed your penis against Patricia, and slid it around her buttocks. Patricia felt that she could not do anything. She kept on moving forwards in the bed to get away from you, but you kept moving forwards to keep close to her. She ended up on the very edge of the bed. You rubbed your penis against her vagina and tried to push it in (Charge 3:Attempted rape ). You continued trying to insert you penis into her vagina, by trying to push it in, for about two minutes. You did not say anything to her while you were doing this. The prosecution case is that Patricia was not consenting and you did not reasonably believe that she was consenting at this time.
17 Patricia was very scared and did not know what to do. She was too scared to tell you to go away, because she thought you would hurt her. She pretended to be asleep. She decided to roll over and pretend that she was waking up. She got up, put her clothes on and ran to her mother’s bedroom. She was scared that you were going to chase her.
18 When she arrived at her mother’s bedroom, she fell on her mother’s bed, crying, and told her mother that you had tried to rape her. Her mother observed that she was hysterical and could not stop shaking. Patricia had curled up in a ball next to her mother and was hugging her tightly. Her mother then left the room to confront you.
19 Patricia’s mother went to the lounge room, where she found you sitting on the couch watching television. You looked at each other for about half a minute and neither said anything. Patricia‘s mother then left the room briefly and returned. She asked you what happened. You did not say anything, but gestured that you did not know what she was talking about. She then sat on the couch near you and again asked what happened. You asked her what she meant. She told you that Patricia said you had been in her bed doing things. You replied by saying “What?” She told you that Patricia was crying and had said you tried to rape her. You gave her a look, which suggested to Patricia’s mother that you were denying the allegation.
20 You then approached Patricia who was still in her mother’s bedroom. Patricia was yelling at you, calling you a paedophile and a rapist, and telling you to stay away. Her mother thought Patricia looked panic stricken.
21 Patricia then ran down to Jordan in his room. Whilst there, she phoned two friends. She then told Jordan, and the two friends, that you had tried to rape her.
22 Meanwhile, you and Patricia’s mother stayed in your bedroom. You pulled her onto your lap and cuddled her. She asked you whether you went into Patricia’s room. You said you went in there to get your phone charger. You then told her that you had laid down next to Patricia. Patricia’s mother asked you why you did that. You said it was because you were lonely. Patricia’s mother then got up and went to Patricia.
23 Meanwhile Patricia had gone back to her own bedroom. Her mother came in shortly afterwards. She asked Patricia if she was sure about what happened and whether you had just been hugging her. Patricia told her mother that you had tried to pull her underwear off and she had felt your penis touch her. Her mother then left the room leaving Patricia by herself. Patricia could not stay in the room by herself for fear she would try and commit suicide, so she went back to Jordan’s room.
24 Patricia’s mother went back to the lounge room and saw that you were writing. She repeatedly asked what you had done. You did not respond. You tore up what you had been writing. She then told you that you had to leave.
25 Whilst in Jordan’s room, Patricia told him more details about the offending. Jordan observed that Patricia was shaking. Patricia’s mother then came into the room and hugged and comforted her. Patricia was crying a lot. Her mother then suggested Patricia and Jordan both go back to bed and they would deal with what happened in the morning.
26 Patricia’s mother then tried looking for you. She could not find you in the house, so she went outside. She found you at the back of the house sitting on the ground. She saw that you were holding a knife and you were in the process of cutting your arm. She saw that you had two deep wounds and there was blood on your hands and up your arms. She grabbed the knife and ran into the house.
27 Patricia and Jordan tried to go back to sleep in Jordan’s bed. Patricia was about to fall asleep, when her mother ran into the room holding the knife, turned on the light and said that she had found you outside, you had cut yourself and you were trying to kill yourself.
28 Patricia ran as fast as she could to where you were. Jordan went too. Despite what had happened, Patricia still cared very much for you. When she saw you she vomited. She saw that you had cut yourself twice on your wrist in a downwards direction. Jordan could see your bone through the cuts. Given the type of wound that she saw, Patricia believed that you had tried to kill yourself.
29 Patricia’s mother also ran back to you outside. She saw that you were now lying on the ground and she believed you were dying. She ran over to you and shook you. You said: “If I did that, I don’t want to live”.
30 Patricia’s mother was confused. Patricia explained to her that because you had “cut-down” your wrists, you had attempted to kill yourself. Her mother asked her what they should do. Patricia said they needed to call an ambulance. Patricia called emergency services on a speaker phone and told them what had happened. Patricia’s mother was yelling at them over the phone, repeatedly asking what to do. Her mother got down on the ground, held a towel against your wounds and tried to keep you awake, all the time on the phone to the emergency services.
31 Catherine, who had been sleeping, then appeared around the corner. Patricia and Jordan ran to her and took her back inside where Patricia looked after her.
32 The police arrived shortly afterwards at about 4:00 am. Police observed that Patricia looked emotionally distressed and shocked. One police officer took her into a room and she told him in detail what you had done to her, including that you had tried to put your penis in her.
33 Police attended to you in the backyard. They observed you lying face down and that you appeared unresponsive. An ambulance then arrived and transported you to the Northern Hospital. You were arrested at the hospital at about 5:45 am.
34 Sexual Offences and Child Abuse Investigation Team police members then arrived and transported Patricia and her mother to the Royal Children’s Hospital. Whilst at the hospital, Patricia underwent a 2½ hour medical examination. During this she provided a detailed account of what happened to her to the examining doctor.
35 Prior to going with her daughter to the hospital, Patricia’s mother had found on a desk a suicide note written by you and addressed to Catherine. Police also found another two suicide notes addressed to Catherine in other rooms.
36 After leaving the Royal Children’s Hospital, Patricia was taken to the Epping police station where she participated in a Video Audio Recorded Evidence statement at about 1:30 pm.
37 As a result of this offending, Patricia felt “completely lost because you were her dad”.
38 You were interviewed by police at the Mill Park police station on 4 February 2017 following your release from hospital. During the record of interview you said you started drinking heavily at around 8:00 pm the night before and continued to drink for a long time, and that you had been struggling with alcohol use for the past four months. You needed your phone charger and you thought Patricia had taken it. You ended up lying in a bed, someone got up, who turned out to be Patricia, and you realised this when she opened the door and light entered the room. You then grabbed the charger and left the room. You told police that you did not realise, and still do not know, what had happened or why you were in Patricia’s bed. The only conclusion you could think of was that because you were drunk, you thought you were in your own bed.
39 You were confronted by your wife and Patricia and you then went out and attempted to commit suicide. You told police that at that time you thought “if that’s what I have done, I don’t deserve to be here ‘cause I’m absolutely against it all … it goes against everything (sic) moral fibre of me.”
40 You told police you had raised Patricia since she was five years old, that she has anxiety and you suspect she has an eating disorder. You have helped Patricia through the breakdown of the relationship between her and her biological father and you had supported her through her latest health issues. You said you would never deliberately set out to do “that” to Patricia.
41 Whilst some of your statements to police may be viewed as traversing your pleas of guilty, when Patricia’s allegations were put to you in detail, you said you would not argue against Patricia’s version of events. I was told by your senior counsel that you accept full responsibility for your offending conduct and I will sentence you on this basis.
42 You also told police that you are deeply remorseful and sorry and that you have failed your whole family. I accept this and will sentence you on the basis that your relatively early pleas[16] are indicative of remorse, as well as an acceptance of responsibility and a willingness to facilitate the course of justice. Of course, your pleas of guilty also have utilitarian benefit which I also take into account in your favour.
Victim Impact
[16] Entered on 26 May 2017 at a contested committal hearing, but prior to any witnesses being called
43 I received a Victim Impact Statement from Patricia Mary Tait dated 27 September 2017.[17] In it she describes the profound and lasting effects of your crimes upon her. It is no overstatement to record that your crimes have been completely devastating to her emotional and psychological health and to her educational and employment prospects. It also has adversely affected her relationship with her natural father. She has also lost your love and support as a father figure. She says: “There will never be a day where I don’t think about [Paul]. He was the one hugging me when I cried[,] now he’s the reason I cry.” Patricia, as I understand it, is still undergoing psychiatric treatment on an irregular basis as a result of your crimes. It is irregular because her mother cannot afford more frequent consultations.
[17] Exhibit P2
44 I also note the immediate effects of your crimes on Patricia. She was, according to her mother, hysterical and demonstrably shaking. Patricia feared that if she was left alone she would commit suicide.
45 I also received a Victim Impact Statement from your wife, Jane Dempsey, dated 26 September 2017.[18] In it she eloquently testifies to the disastrous effect offences of this kind have on family life and relationships. These crimes strike at the very foundations of our community cohesion. Ms Dempsey states that: “The terrible truth of the matter is that … you broke our marriage, you broke the trust between us, you broke the relationships between your step children and you broke up our family. A family that we built for over 10 years, we had plans for our future together and you broke it. You destroyed our family, the betrayal I feel can not be express[ed] in words, the pain I feel inside is indescribable.”
[18] Exhibit P3
46 Your crimes have caused your wife to greatly reduce her study load for a teaching qualification she is pursuing, so she can take on the financial burden of being a single parent supporting three children. She also requires psychiatric assistance and she can’t sleep at night without taking medication. All this because of your depraved sexual appetite. Whilst you and Jane remain married, you accept that divorce is inevitable.
47 The Victorian Court of Appeal has recently affirmed the important role of restorative justice in the criminal justice system. In Talbot (a Pseudonym) v R[19] the Court said:
The matters personal to the applicant must be balanced against the interests of the community and the victims. In DPP v DDJ,[20] Maxwell P, Vincent and Neave JJA quoted with approval the earlier statement of Vincent JA in DPP v Toomey[21] concerning the notion of social rehabilitation. [Justice Vincent there said:]
It is well to bear in mind that the rehabilitation of the victim of sexual abuse may often be more difficult to achieve than that of the perpetrator. Frequently the damage will be profound and a long time will pass before it can be addressed at all. In the meantime, childhood will be destroyed, self esteem damaged, educational and career opportunities lost and the capacity to form and maintain relationships seriously impaired. The notion to which I have adverted underpins, I believe, such concepts as restorative justice, just punishment, the vindication of rights and the attribution of responsibility based on moral culpability. The vindication of the victim in cases of this kind, in particular, is profoundly important if the criminal justice system is to perform its role properly.[22]
[19] [2016] VSCA 218 [39] (Weinberg and Osborn JJA)
[20] (2009) 22 VR 444
[21] [2006] VSCA 90
[22] DPP v Toomey [2006] VSCA 90 [22] cited in DPP v DDJ (2009) 22 VR 444, 454 [40].
48 It is clear from the heartfelt expressions of great emotional suffering and grief contained in both Victim Impact Statements that your victims have had their lives destroyed, and their educational and career opportunities reduced. Accordingly, there is a component of the sentence I impose on you which vindicates the victims in this case, and should, in some measure, help them to achieve some closure.
Offence seriousness
49 Sexual offending by adults against vulnerable children is a scourge on our society. Offending of this nature is regarded by the courts as extremely serious and usually calls for the imposition of condign punishment. The Victorian Court of Appeal, and its predecessor, have emphasised, on numerous occasions, the harm that sexual offending against children causes to the innocent victims and the community at large, and that such offending calls for condign punishment.[23]
[23]See eg R v Wayland (unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 14 September 1992) 3–4 (Crockett J, Southwell and Hampel JJ agreeing); R v Sposito (unreported, Court of Criminal Appeal, Marks, Hampel and McDonald JJ, 8 June 1993) 4–5 (Marks J, Hampel and McDonald JJ agreeing); R v Ware [1997] 1 VR 647, 653 (Hedigan AJA, Winneke P and Hayne JA agreeing); R v Wakime [1997] 1 VR 242, 244 (Winneke P, Hayne JA and Hedigan AJA agreeing); R v WEF [1998] 2 VR 385, 387 (Winneke P, Charles JA and Hedigan AJA); DPP v VH (2004) 10 VR 234, 237–238 [11], (Callaway JA, Buchanan JA agreeing), 241 [23] (Eames JA); DPP v CPD (2009) 22 VR 533, 546–547[54]–[56] (Maxwell P, Redlich JA and Robson AJA); DPP v DDJ (2009) 22 VR 444, 453–454 [36]–[40] (Maxwell P, Vincent and Neave JJA); DPP v TDJ [2009] VSCA 317, [14]–[19] (Maxwell P and Neave JA); Reid (a Pseudonym) v The Queen (2014) 42 VR 295, 310 [83]; Sutton (a Pseudonym) v The Queen [2015] VSCA 251, [25]–[28] Maxwell P and Redlich JA.
50 The prosecution submitted that this was “very serious offending”.[24] I accept this characterisation. Senior counsel, who appeared on your behalf, in written submissions said:[25] “The serious nature of the offending is accepted”.
[24] Exhibit P4
[25] Exhibit D1
51 The prosecution relied on the following circumstances, which I accept, as increasing the gravity of your offending conduct:[26]
[26] Exhibit P4
a.The relatively young age of the victim of 15 years.
b.The age differential between you and the victim; being some 22 years.
c.There was here a clear lack of consent — the victim told you to go away and get out of her bed.
d.The victim was under your care, supervision and authority at the time and you abused the position of power you had as her de facto father.
e.The offending involved a gross breach of trust owed by you to both the victim and her mother.
f.The victim was, to your knowledge, particularly vulnerable and emotionally dependant on you. You knew Patricia had self-harmed recently and in the past and she had sought your support in her time of need and you had given it. You were also aware of her eating disorder and that she was suffering from anxiety. You took advantage of her vulnerability in a most deplorable fashion.
g.The offending was not spontaneous. You plied Patricia with alcohol, touched her buttocks earlier in the evening, and you made two inappropriate entries into the victim’s bedroom prior to the offending giving rise to the charges. Nonetheless, I accept you senior counsel’s submission that the offending “was not characteristic of significant planning or grooming”.[27]
[27] Exhibit D1
52 You grossly abused your power over Patricia and your conduct escalated in the context of her clear resistance to your sexual advances. The lead up to the offending conduct giving rise to the charges is not to be punished, but it indicates the persistence with which you acted on this occasion. It also demonstrates that you had time to reconsider your conduct and desist from the course you were determined on. It hardly needs stating that in all these circumstances denunciation and general deterrence must loom large in any sentence I impose on you.
53 The fact that you were affected by alcohol at the time of committing these offences does not in any way excuse or mitigate the offending conduct. I did not understand your senior counsel to suggest otherwise. Moreover, you told Dr Rachel MacKenzie, a clinical psychologist who assessed you on 30 August 2017, that “a long-term lack of intimacy in [your] relationship with [Jane]” was a partial explanation for your offending conduct.[28] In all the circumstances, I consider your moral culpability is very high.
Personal circumstances
[28]Dr Rachel MacKenzie, Psychological Risk Assessment Report, 11 September 2017 (“MacKenzie Report”) p 8 (Exhibit D2)
54 You are 38 years of age. You were born in Greensborough and raised in Diamond Creek. You are the first child of Elizabeth and Guy Dempsey.[29] You have a younger brother. Your father is a maintenance engineer and your mother is an executive assistant. Since committing these offences, you have left your marital home and moved in with your parents. You enjoy a close relationship with your parents, which augers well for your future prospects of rehabilitation.
[29] Pseudonyms used in order to protect the complainant’s identity
55 You completed year 12 and first met your future wife, Jane, at high school. You completed a Bachelor of Applied Science (IT) at Swinburne University and then obtained employment in the IT field. You have been continuously employed in the IT sector since graduating from university; initially in software development, but more recently in sales and marketing. Prior to your arrest, you occupied the position of national sales manager for a computing company which develops computer software for schools and hospitals. Your employment was terminated as a result of being charged with the present offences. I take this circumstance into account in mitigation of penalty as a form of additional punishment arising from your offending.[30]
[30]See eg DPP v Fucile (2013) 229 A Crim R 427, 444 [110]–[111] (Maxwell P and Weinberg JA, Tate JA agreeing)
56 By 2009, you commenced an intimate relationship with your now wife Jane and you married in 2010. There is one child of this marriage, a daughter, Catherine, who is aged 7 years. As a consequence of the offending, you have destroyed your marriage, and the good relationship you had previously enjoyed with Patricia. Moreover, by operation of a family violence intervention order,[31] your access to your natural daughter, Catherine, has been more limited than it would otherwise be.
[31] The final order was made in the Heidelberg Magistrates’ court on 17 February 2017
57 You have no prior or subsequent criminal history and you thereby fall to be sentenced as a person of prior good character. I have taken into account the contents of the eight testimonials from your family members and friends attesting to your prior good character.[32] I accept the present offences are out of character.
[32] Exhibit D8
58 You enjoy good physical health, but your mental health had suffered in the 12 months preceding the offending, and you commenced consuming alcohol on a regular and excessive basis. Often this drinking would occur not in a social context, but rather you would drink by yourself, often late at night while watching the television.[33]
[33] See statement of Jane Dempsey dated 4 February 2017, paragraphs 9–11 (deposition pages 90–91)
59 Your senior counsel submitted that on the night you committed these offences “[your] excessive drinking was masking an underlying anxiety and depression brought about by a number of personal issues”.
60 I received in evidence a report from Dr Rachel MacKenzie, clinical psychologist, dated 11 September 2017.[34] Dr MacKenzie administered the Paulhus Deception Scale and found that this indicated that you “attempt to portray [yourself] in an overtly positive manner and [you have] restricted insight into [your] own shortcomings”. Her administration of the Depression Anxiety Stress Scale indicated that you have “not recently been experiencing symptoms at a severity to indicate problems with depression, anxiety or stress”. Her administration of the Personality Assessment Inventory revealed that your clinical profile is marked by a significant elevation on the alcohol scale and Dr MacKenzie opined that you appear motivated for treatment and have a “reasonably good prognosis”. In all other respects your Personality Assessment Inventory was unremarkable.
[34] Exhibit D2
61 So far as your mental health is concerned, Dr MacKenzie concluded that your mental condition did not meet the severity for a diagnosis Major Depressive Episode, however she opined there is no doubt that you meet the full criteria for Alcohol Use Disorder as stipulated in the DSM 5 (2013). She was also of the opinion that you meet the criteria for Adjustment Disorder. So far as the present incident is concerned, Dr MacKenzie concluded: “The information available would suggest that [you] likely fall under the classification of a “regressed child molester” … In [your] case, the ongoing domestic stressors, the lack of intimacy with [your] wife and [your] alcohol abuse combining as contributory factors to [your] offending.”
62 So far as the question of custodial hardship is concerned, Dr MacKenzie concluded, on the basis of your self-report and the results of her assessment, you do not have “a mental illness of such severity that would mean that [you] would experience greater hardship than would be expected for the average prisoner”
63 Dr MacKenzie conducted a Formal Risk Assessment using Static-99 and the Risk for Sexual Violence Protocol (RSVP) as tools. Using the Static-99 tool you were assessed to be “in the category of low-risk for sexual recidivism”. Using the RSVP tool a number of risk factors were identified however, Dr MacKenzie’s ultimate assessment was that you pose a low risk of sexual recidivism.
64 I also received a report from Dr Joel Godfredson, clinical and forensic psychologist, who is your treating psychologist, dated 18 September 2017.[35] This report was restricted to detailing your progress in therapy since the offending, but he did comment that upon referral to his practice you “likely met the criteria for an adjustment disorder”. You were referred to Dr Godfredson by your general medical practitioner and a mental health care plan was prepared on 6 February 2017. You first consulted Dr Godfredson on 15 February and have attended 14 or 15 sessions with him. You have been an active participant in the therapeutic process. Dr Godfredson observed that you appear to have “taken some responsibility for addressing personal problems which had come to overwhelm [you] at the time of the offending”. In particular you have apparently “addressed [your] abuse of alcohol and increased [your] insight regarding relationship problems”. Dr Godfredson concluded: “At the current time, he is experiencing relative mental health stability. Furthermore, his apparent dependence on alcohol is now in early remission. In any case, if he receives a custodial sentence, he may benefit from a suicide risk assessment and monitoring of his mental health.” At the time of the plea hearing you were prescribed the antidepressant medication Mirtazapine 30mg daily.[36]
[35] Exhibit D3
[36] See report of Dr Robert Chu, dated 10 September 2017 (Exhibit D5)
65 Understandably, in all the circumstances, given the contents of these psychological reports, senior counsel who appeared on your behalf did not submit that any Verdins principles were engaged in your case.[37]
[37] R v Verdins (2007) 16 VR 269
Prospects of Rehabilitation
66 Your prospects of rehabilitation very much depend on your ability to deal with your alcohol addiction. Your mother gave evidence on the plea to the effect that, so far as she has observed, you have consumed no alcohol since the offences were committed. On your arrival to reside at her home, all alcohol was removed from the house. You purchased a breathalyser instrument and you have kept a log of your recordings, which shows no positive readings.[38] It has been a condition of your bail that you not consume alcohol.
[38] Exhibit D
67 Immediately following your release from custody in relation to these offences, on 5 February 2017, you attended your local GP for management of alcoholism and depression.[39] Dr Chu is of the opinion that you have not consumed alcohol since 5 February 2017 and he noted that you attend weekly alcohol counselling sessions, more recently as a co-facilitator. He expressed the opinion that you are progressing well with treatment and you remain abstinent of alcohol.
[39] See report of Dr Robert Chu, dated 10 September 2017 (Exhibit D5)
68 I have taken into account the contents of the engagement letter from Uniting Care ReGen, dated 19 June 2017.[40] You have completed a complex episode (thirteen sessions) of alcohol and other drug (AOD) counselling. According to the author you “present as very motivated to engage in treatment and work towards [your] articulated goals and aspirations”.
[40] Exhibit D4
69 Relationships Australia – Victoria, in a letter dated 7 September 2017, report that you have attended three counselling sessions with that organisation.[41] Moreover, according to an “attendance and participation sheet” from SMART Recovery Australia, you have attended five of their meetings and you have become a “Certified SMART Facilitator”.[42]
[41] Exhibit D6
[42] Exhibit D7
70 You have an excellent employment history and good family support. You have remained abstinent from alcohol since the offending and have sought to address your alcohol addiction through counselling and treatment. You are assessed as having a low risk of reoffending. I accept that you appear to lack some insight into the reasons for your offending behaviour and apparently do not wish to identify with that behaviour.[43] Nonetheless, I am prepared to find that you have good prospects of rehabilitation.
[43] See Dr MacKenzie’s report [31 & [60] (exhibit D2) and Dr Godfredson’s report p 3 [2].
Current Sentencing Practices
71 I have given consideration to current sentencing practice for these offences in light of the recent decision of the High Court in DPP v Dalgliesh (a Pseudonym).[44] As is so often the case, the circumstances of the offending conduct and the personal circumstances of the offenders are so varied that the assistance provided by sentencing statistics and the sentences imposed in other cases for offences of a similar character is necessarily limited. Nonetheless, I have tried to garner some understanding of sentencing patterns in this State for these offences.
[44] (2017) 91 ALJR 1063
Application of Sentencing Principles
72 On charge 3 (indecent act with a child under 16) you fall to be sentenced as a serious sexual offender. As a result the Court must regard protection of the community as the principal purpose for which the sentence on that charge is imposed.[45] The prosecution does not submit that the Court should impose a sentence longer than that which is proportionate to the gravity of the current offence considered in the light of its objective circumstances.[46] Moreover, the term of imprisonment I impose on you for that offence must be served cumulatively on the other sentences of imprisonment I impose in this case, unless I otherwise direct.[47] I will be directing otherwise, in order to give effect to the totality principle, which in this case requires careful consideration given the risk of imposing double punishment in a case involving related offences committed during the one episode of offending.
[45] See s 6D(a) Sentencing Act 1991
[46] See s 6D(b) Sentencing Act 1991
[47]See s 6E Sentencing Act 1991
73 Clearly, denunciation, general deterrence and just punishment need to be given considerable weight. This was grave offending and your moral culpability is very high. Nothing other than sentences of imprisonment are necessary to achieve the purposes for which these sentences are imposed.[48] Senior counsel who appeared on your behalf did not submit otherwise.
[48] See s 5(3) Sentencing Act 1991
74 Stand up Mr Dempsey.
75 On charge 1 (attempted rape) you are convicted and sentenced to be imprisoned for 3½ years.
76 On charge 2 (indecent act with a child under 16) you are convicted and sentenced to be imprisoned for 15 months.
77 On charge 3 (indecent act with a child under 16) you are convicted and sentenced to be imprisoned for 15 months.
78 The sentence of 3½ years on charge 1 will be the base sentence and I order that 5 months of the sentence imposed on charge 2 and 7 months of the sentence imposed on charge 3 be served cumulatively on the sentence imposed on charge 1 and on each other making a total effective sentence of 4½ years’ imprisonment and I fix a minimum non-parole period of 32 months.
79 I declare pursuant to s18 of the Sentencing Act 1991 that the period you have served in custody in relation to these offences is 70 days (not including this day) which is to be reckoned as a period of imprisonment already served under the sentences I have just imposed and I direct that that declaration be entered in the records of the Court.
80 I direct that the fact I have sentenced you as a serious sexual offender on charge 3 (indecent act with a child under 16) be entered in the records of the Court.
81 I declare pursuant to s6AAA of the Sentencing Act 1991 that but for your pleas of guilty, I would have sentenced you to a total effective sentence of 5½ years’ imprisonment with a non-parole period of 45 months’ imprisonment.
82 Pursuant to the Sex Offender Registration Act 2004, I order that your reporting obligation under that Act is 15 years.[49]
[49] Sex Offenders Registration Act 2004 ss 11, 34(1)(b)(i) and 34(3).
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