Director of Public Prosecutions v Dennis McCray (a pseudonym)
[2019] VCC 1215
•2 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENNIS MCCRAY[1] |
[1] Dennis McCray is a pseudonym.
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 July 2019 | |
DATE OF SENTENCE: | 2 August 2019 | |
CASE MAY BE CITED AS: | DPP v Dennis McCray (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1215 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Trial – Sentence – Indecent assault – Gross indecency with a child under 16 years
Legislation Cited: Sex Offenders Registration Act 2004; Sentencing Act 1991
Sentence: 2 years and 6 months imprisonment; 18 months imprisonment to be served cumulatively upon sentence being served; New non-parole period of 24 month’s imprisonment; Sentenced as a serious sexual offender; Reporting pursuant to the Sex Offenders RegistrationAct 2004 for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Grant (Trial) Mr B. Nibbs (Plea) | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr D. Cronin | Cinque Oakley Senior |
HIS HONOUR:
1 Dennis McCray[2], on 14 May 2019, you came before me to stand your trial. On 15 May a jury was empanelled and you pleaded not guilty to an indictment containing four charges; being three charges of indecent assault (Charges 1, 2 and 4) and one charge of gross indecency with a child under 16 years, being a course of conduct charge (Charge 3). On 23 May a jury convicted you on Charges 1, 2 and 3 and acquitted you on Charge 4.
[2] Dennis McCray is a pseudonym.
2 You were remanded in custody on 23 May with your plea hearing listed for 28 July 2019.
3 Your offending can be described in summary form. Your child victim was your niece by marriage. One evening, between 1 January 1983 and 31 December 1983, your victim, who was then aged between seven and eight years, stayed overnight at your home with you and your wife. Your victim slept in the lounge room of your home. While the victim was asleep on the lounge room floor, dressed in pyjamas and covered by a doona you entered the lounge room and lay down under the doona behind her. You lowered your victim's pyjama pants and placed your penis between her thighs and thrust in and out until you ejaculated. After ejaculation you got up and left the room (Charge 1). The following evening, while your victim was lying under a doona and on the floor in the lounge room watching television, you went into the lounge room and committed an act similar to that committed by you on the previous evening. However, on this occasion, you removed your penis from between your victim's thighs and inserted your left hand - I beg your pardon, your fingers of your left hand into her vagina, while at the same time with your right hand you grabbed your victim's right hand and with your hand covering hers, masturbated to ejaculation (Charge 2). Whilst these acts occurred you told your victim to 'shoosh'.
4 Charge 3 occurred between 1 January 1986 and 31 December 1987 when the victim was aged between 11 and 12 years. At this time you worked for a battery manufacturer and delivered batteries between Ballarat and Donald. Your victim, at this stage of her young life experienced difficulties with her mother, and spent increasing amounts of time at your family home. Your victim was encouraged by your wife, to whom the victim felt a close attachment, to travel with you from time to time on your work trips. While travelling on these trips, you had your victim masturbate you to ejaculation. You maintained the victim's silence in respect to your misconduct by telling her, 'It's our secret, don't tell anyone' and by telling your victim that she was your 'favourite'. You also bought her silence by bribing her by buying her lollies, McDonald's fast food, and giving her money and cigarettes.
5 In or about May 2014, having become aware of an allegation made against you by one of your daughters, your victim contacted police and complained about your conduct towards her. On 24 June 2014, you were interviewed under caution and denied in vehement terms your victim's allegations. You asserted that the allegations were a setup.
6 You are and have been since September 2016 undergoing a sentence of 6 years' imprisonment with a non-parole period of 4 years for similar conduct in respect of one of your daughters [See the sentencing remarks of his Honour Judge Wischusen in DPP v Denis McCray (a pseudonym)]. In respect to that matter, you pleaded guilty to two charges, being one charge of indecent assault (Charge 1) and one charge of incest as a course of conduct charge (Charge 2). Charge 1 occurred when your daughter was aged between four and six years (between 1988 and 1990) and was committed by you placing your erect penis between her legs near her vagina and moving your penis in and out. Charge 2 was committed between 26 July 1992 and mid-May 1994 and was constituted by you inserting your fingers into your daughter's vagina on at least a monthly basis.
7 As properly conceded by your counsel the only appropriate penalty in the present circumstances is one of immediate imprisonment, accordingly you fall to be sentenced as a serious sexual offender in respect to all of the instant offences and you will be the subject of the provisions of the Sex Offender Registration Act 2004 for life. There is no pre‑sentence detention in respect to the sentence I am obliged to impose on you and, further, as the non-parole period set by his Honour Judge Wischusen has not expired, I am obliged to set a new global non-parole period in respect of you.
8 Mr McCray, you were born on 25 January 1962 and are 57 years of age. You were aged 21 at the time you committed Charges 1 and 2 and 24 at the time that you committed Charge 3, the offences for which I must sentence you. You were aged between 25 and 31 when you offended against your daughter.
9 The maximum penalty for indecent assault is 3 years' imprisonment, whilst the maximum penalty for gross indecency with a child under 16 years is 2 years' imprisonment. As you fall to be sentenced as a serious sexual offender, the principle purpose for sentencing you is the protection of the community (see s.6D of the Sentencing Act 1991).
10 Much of the plea presented on your behalf by Mr Cronin of Counsel was directed to demonstrating that you have rehabilitated over the last 25 years and that this ameliorates the need for protecting the community from you.
11 Tendered as part of Exhibit 1 were 11 references principally from members of your extended family being:
(1)Edward McCray[3], your older brother and former employer;
(2)Alyssa Clucas[4], a daughter from your first marriage and sister to the victim of your subsequent offending;
(3)Hannah Gascoigne[5], a daughter from your first marriage and sister to the victim of your subsequent offending;
(4)Kaitlyn Fernandez[6], your second wife, of some 25 years; and
(5)Your two sons from your second marriage, being Harrison[7] and Zac McCray[8], aged 22 and 20 years respectively.
[3] Edward McCray is a pseudonym.
[4] Alyssa Clucas is a pseudonym.
[5] Hannah Gascoigne is a pseudonym.
[6] Kaitlyn Fernandez is a pseudonym.
[7] Harrison McCray is a pseudonym.
[8] Zac McCray is a pseudonym.
12 Additionally, there were references from your family friends, your current parents-in-law and your brother's business partner, Sean Flower[9], and from a former sister-in-law.
[9] Sean Flower is a pseudonym.
13 Additionally, your brother Edward, your daughter Hannah and your wife Kaitlyn, gave evidence on your behalf.
14 Each of your referees and the witnesses wrote and/or swore as to you being a loving and supportive father, grandfather, brother, husband and friend. Additionally, your employer wrote as to your work ethic and commitment to your employment demonstrated by you over many years of employment. I accept the contents of the references and the evidence called on your behalf unreservedly. You are both loving and supportive to your family and friends and they reciprocate in kind. However, what is missing in respect of each reference and the evidence called on your behalf was any reference to an acknowledgment of your offending or any insight into your offending behaviour and its consequence on your victim by you or your referees.
15 As to your personal details, you were raised in Avoca. You are the second of four sons born to your parents, Belinda[10] and Thomas[11]. Your mother is retired and lives in Mildura, whilst your father was killed in a motor vehicle collision when he was aged but 36 years and you were only 14 years old. Your brother, Edward, swore that your family was well supported by your extended family after your father's untimely death. However, you left school in Year 10 to work full time to assist your family's finances in the face of your father's death. You married your first wife in 1980 and there are four children of that marriage. Your first marriage ended in 1988 and you remarried in 1994. There are two children of your current marriage to whom I have already referred.
[10] Belinda is a pseudonym.
[11] Thomas is a pseudonym.
16 You have endured the fear of the potential loss of both your son, Zac, and your wife, your son Zac when he contracted meningitis immediately after his birth and who spent many weeks in the Royal Children's Hospital recovering. Later, in 2008, your wife suffered a brain aneurism and was air lifted to the Royal Melbourne Hospital and underwent emergency surgery and after spending some three months in Melbourne she returned to Bendigo for a further three months' rehabilitation.
17 You have always worked in the car/truck battery industry and upon release from prison, you will return to the bosom of your family and employment in your brother's battery business.
18 Mr Cronin's principle submission was that in the many years that have passed since your offending against your daughter, you have demonstrated that you have rehabilitated. By your plea of not guilty in respect to the instant offences, you have demonstrated no remorse for your offending conduct against your victim despite the 25 years or so of rehabilitation that is relied upon by your counsel. You have demonstrated no insight into your offending and no insight into the consequences of your offending against your victim. This theme continues in the contents of the references upon which you rely because of the absence of any reference to your victim or the consequences of your conduct upon your victim or your attitude to her. The issue of your rehabilitation is a vexed one. You are entitled to the benefit of your many years of good behaviour subsequent to your offending. However, whether this equates to rehabilitation I am unsure.
19 While in prison you have undertaken many courses and have participated in fun runs to raise funds for the Leukaemia Foundation. Additionally, you have been tested for drugs and all urine analyses have proved negative, which is to be expected as there has never been a suggestion that you have ever abused drugs. You have spent your time in custody productively but because of your pending trial you were not able to undergo a sex offenders' course (see Exhibit 2).
20 In sentencing you I am cognizant of the need to apply the principle of totality.
21 You offended as a young man without prior conviction and whilst you cannot be punished on a second occasion for your subsequent offending, you did continue to offend for a number of years against another child victim, your own daughter. During the plea I was not assisted by a report from a forensic psychiatrist or psychologist which may have shed light on your offending conduct.
22 Your offending, though old, is serious. You offended against a child who in effect was in your care as the niece of your wife. Your victim was in your home and entitled to your protection. Your victim was in your company in your truck and equally entitled to your protection. Instead, you offended against her in the most appalling way.
23 Ultimately, because of the passage of time since you last offended and your conduct towards your family and your work ethic and history, I find that your prospects of re-offending are slight and your prospects of rehabilitation are better than average.
24 As part of Exhibit A, the supplementary prosecution opening for plea, was a chronology that set out the history of this prosecution. There has been delay in this matter that is not attributable to you. The delay comes in two forms, being the period between when you were discharged at committal because of the failure of the complainant to attend in October 2015 and the filing of a direct indictment against you in February of 2017, and a second period of delay when your matter was unable to be reached between August 2017 and May 2019. During these periods you continued to work and conducted yourself in the manner as described by your referees or were in prison. I must take these periods of delay into account when arriving at an appropriate sentence in respect of you.
25 Whilst the victim of your offending elected not to file a Victim Impact Statement, I must presume for the purpose of sentence that she was harmed by your offending and, having seen her give evidence on the trial, it is plain that this is the case. Will you please stand.
26 Taking into account the circumstances of your offending and its effects, with your personal circumstances and antecedents, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
27 On Charge 1 – 12 months' imprisonment;
28 On Charge 2 – 18 months' imprisonment;
29 On Charge 3 – 12 months' imprisonment.
30 I order that 6 months of each of the sentences imposed on Charges 1 and 3 be served cumulatively upon one another and upon the sentence imposed on Charge 2. This results in a total effective sentence of 2 years and 6 months' imprisonment.
31 I order that 18 months of this sentence be served cumulatively upon the sentence imposed by his Honour Judge Wischusen pronounced on 29 September 2016.
32 I fix a new non-parole period of 24 months' imprisonment from today's date.
33 I direct that it be caused to be entered in the records of the Court that in respect of each charges of Charges 1, 2 and 3, you have been sentenced as a serious sexual offender.
34 I declare that you are subject to the provisions of the Sex Offenders Registration Act 2004 for life.
35 The effect of my sentence Mr McCray, is to increase the head sentence imposed upon you by His Honour Judge Wischusen by 18 months, and to increase the non-parole period imposed upon you by His Honour Judge Wischusen by something under 12 months. Now, my associate will bring to you a document that relates to the provision of the Sex Offender Registration Act. The purpose of these documents are simply that you are acknowledging by your signature that you have received them. Are there any other matters arising?
36 MS WESTLAKE: No, Your Honour.
37 MR CRONIN: No, Your Honour.
38 HIS HONOUR: Remove the prisoner, please. I'll stand down until the next matter is ready.
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