Director of Public Prosecutions v Denton (a Pseudonym)
[2019] VCC 1436
•4 September 2019
a
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BARNEY DENTON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE SMALLWOOD | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 3 September 2019 | |
DATE OF SENTENCE: | 4 September 2019 | |
CASE MAY BE CITED AS: | DPP v Denton (A Pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1436 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr L. Cameron | Office of Public Prosecutions |
| For the Accused | Mr K. McDonald | Docherty Legal |
HIS HONOUR:
1 Barney Keith Denton,[1] you have pleaded guilty to one charge of cultivation of a narcotic plant, four charges of supply drug of dependence to a child and six charges of incest. The charges in this situation carry maximum penalties of one year, 15 years and 25 years respectively. I am satisfied that the narcotic plant is not for trafficking purposes.
[1] A pseudonym.
2 You have pleaded guilty at a committal after some hesitation and you obviously get the benefit of that. You have in a limited way expressed remorse, I take that into account. Obviously you have avoided a trial which would have been a very distressing set of circumstances for a number of people. There must be a significant discount for that utilitarian benefit.
3 Firstly pursuant to 464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. 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.
4
Secondly, because of the nature of the offending, I advise you that you will be placed on the Sex Offenders Register and I advise that the reporting conditions will be for life. And I will just ask you to sign this acknowledgement.
Mr McDonald if you wouldn't mind accompanying my associate to the Dock to get this signed.
5 You do have a significant criminal history though I note that none of your criminal history relates to sexual offending. You have been incarcerated on other occasions, subsequent to this offending. And I note that there are approximately four months to be regarded as Renzella time. Again I point out that that offending does not include sexual offending of the type described here.
6 On Charges 8, 9, 10 and 11, because of the sentences I impose you will be sentenced as a serious sex offender. I am aware that the legislation provides that those sentences are to be cumulative unless otherwise ordered. And I will be so otherwise ordering for reasons of totality amongst others. I am also aware that community protection becomes the principal sentencing purpose. I think in your situation the community is not really in danger from this sort of offending. But nevertheless I am aware of those provisions and the Crown here do not seek a disproportionate sentence.
7
The summary of the offending is that you were 49 years of age at the time and around the age of 50 at the moment. You are the biological father of the complainant. She was a result of a short relationship some years before when her mother had fallen pregnant to you at the age of 15. She was born in
mid-1990. You were not involved with her in her formative years as you and the mother were not together. She believed that her step-father was her father until she was approximately 12 or 13 years old. Her mother told her about you. At that stage there were difficulties within the house and she, the complainant wanted to see you. And I indicate to counsel I have read all the materials now but she began acting out and having difficulties at home with her mother. She then moved in with you at your property when she was 13. That was a result of the difficulties that she was having with her mother. She says that she was initially reluctant to live with you, in fact, really not knowing you but did the best that she could.
8 It is a situation here that the sexual offending that follows is serious, incest is always a serious crime. I am not going to start reading screeds of Sposito and cases like that. It has got to be regarded as serious and the decision of Dalgliesh certainly makes that clear.
9 In your set of circumstances she was (1) your biological daughter and you were aware of that; (2) she was very young; (3) the offending was not isolated, it went on for over a period of six years or so. Yours is a set of circumstances which one sometimes see where there has been no emotional connection between the parent or grandparent for that matter and the child. That can lead to situations where, whilst there is an instinctive attraction it is not accompanied by the normal emotional response that a father has for his natural daughter. That can be the circumstances which give rise to offending such as this. However you did know that she was your biological daughter and you knew that throughout the entire period of time. It is clear from the materials that you knew what you were doing was wrong. You clearly persisted with it. The nature of the offending becomes very clear during the course of the opening.
10 Whilst the complainant lived with you, she did not go to school and drinking became a daily habit for her. You introduced her to drugs and I will go into that in a moment. She was essentially left to her own purposes during the day. She saw a cannabis crop in the house which you conceded to her, was in fact cannabis. There is no evidence before me as to the size of that crop or anything else about it. You do have prior conviction for cultivate cannabis as I recall. In this set of circumstances I simply am going to give you a sentence for that crop and make it totally concurrent.
11 Around a month after moving in with you, she attended a party with you. Went to a friends' house and alcohol was consumed throughout the night and she used cannabis for the first time which was supplied by someone at the party. The following day the two of you travelled to Melbourne. You booked into the Victoria Hotel in Lt Collins Street and you bought heroin in the CBD. You and her were in the motel room, where you removed the heroin from the foil and you then injected it in yourself. After injecting yourself, you went through the process again and injected the complainant.
12 Her statement says that she was naïve to drugs at that point of time and it being heroin, had what would have appeared to her to be a very good effect. Indeed you injected her again on two more occasions during that night. For someone to do that to someone who was that young and naïve to heroin was a very dangerous thing indeed in my view. But the fact of the matter is that you are charged with providing it to her and that is what you are sentenced for.
13 The next day you provided her, again by injection with amphetamine. The amphetamine, I am not going to delineate between drugs, but it is clear that the amphetamine that she was introduced to became an addiction. It has been a problem for her ever since. You yourself had been a drug user for a long period of time and to introduce a 13 year old daughter to such substances, knowing what the effects of them are and the ruination of life they cause is nothing short of disgraceful.
14 In any event, after the amphetamine had been used, you were giving her a massage and she was naked. You then started to touch her vagina with your hand and said, 'I need to loosen you up.'
15 Shortly after that you used your fingers and put them inside her vagina which gives rise to Charge 4. 'That hurt.' But she did not say anything as she was embarrassed. That went on for a few minutes. You then removed your fingers and put your penis inside her vagina, that caused her a lot of pain. She said she had never had sex before. You were on her for a short time before you said, 'You were about to come.' She said, 'Won't I get pregnant?' And you replied, 'No I've had the snip.' You ejaculated inside her, she noticed blood and you said to her, 'It's normal, your cherry has popped.' She went to the toilet to clean herself. The following day she had a sore vagina and was confused about what had occurred. She was around about 13 years of age when that happened.
16 In March 2004 when she was 13 she attended River River Health where she had a contraceptive rod placed in her arm. She said at the committal that, 'This was because she was also sexually active with other males.'
17 The drug use and sex with you became so regular in 2004 and 2005 but she couldn't further particularise separate incidents.
18 Charge 5 is described in the Crown's submissions as representative. And I do not think it makes much difference here. Clearly from materials, penile/vaginal intercourse took place between the two of you on numerous occasions. In no way shape or form could it be said to be one-off. You are realistically being sentenced despite being single charges for a course of conduct over an extended period of time.
19 During your interview you admitted providing her with cannabis that gives rise to Charge 6. Charge 8 is a further charge of incest. Again after the consumption of alcohol and amphetamine occurring in 2005. Again, it is not described as representative but the same principles basically apply that is to Charge 5.
20 You ended up in your bedroom, you put your penis into her vagina and had sex with her. After that she returned to her bedroom to go to sleep. She recalls that night specifically I suspect because you were, at that stage, working at the abattoirs and you were walking around the house with knives that you used for work. She was scared and called police but did not tell the full story.
21 On another night, it is a different form of incest. Whilst at home, you asked her if you want to have sex in her anus and she consented. You then inserted your penis into her anus and started to thrust gently but then used more force. At that time it hurt, so she pushed you away and it stopped. Not long after that she moved to Moe with another male partner. And by that time she was addicted to amphetamines, cannabis and alcohol.
22 Charges 10 and 11 are, as I have indicated during the course of the plea, of some concern to me. And I have now read all the circumstances surrounding it. I simply detail what occurred first. In around 2009 the complainant fell pregnant with her first child. Then not long before that, she called you and arranged to meet you in Echuca. You picked her up in the Ute and drove off to the bushland on the Bendigo side of the Echuca. The vehicle was parked, amphetamine was used she climbed over to your seat and performed oral sex on you. She then sat on top of your lap and the penile/vaginal sex took place. A short time after that you ejaculated and again shortly after that you drove her back to Shepparton. That was the last time that you and her had sex.
23 As I understand it from the materials she, subsequent to that, did either reside with you or reside at premises provided by you for a period of time. Clearly at the time that that offending took place, the complainant was 18 years of age.
24 In these sets of circumstances, it is very difficult because you have pleaded guilty to, these are clearly serious offence. Any set of circumstances such as this, it is clear you were the dominant force in all this and the cause of it. But the fact remains that no other charges were laid in relation to it. And I think that operates essentially as an unfairness. It does not change the seriousness of it and it does not mean that you will not get a gaol sentence for it.
25 It is my view and has been for some time that where the circumstances are that you have got numerous other charges of incest that can be laid without this problem. That in these circumstances either both should be charged or neither. That is simply a comment from me and I make it very clear that there will be a gaol sentence imposed for it. There will be a limited amount of cumulation because of the difficulties I have just outlined.
26 In any event, when you were ultimately arrested and interviewed by police you denied having sex with her. You agreed that you provided her with drugs and in a general sense, admitted to the relationship whilst denying the incest.
27 A victim impact statement was courageously read out by the complainant in this matter. She described the dreadful consequences of this offending over a significant period of time has had upon her. It affects her very existence, her sense of herself. And as is so unfortunately often the case in these circumstances she is left with, psychological difficulties are ongoing, difficulties with drugs and massive problems of self-esteem.
28 As is indicated in the authorities and certainly in their any sentencing remarks I have ever done. That is classic consequence for the crime of incest. And whilst that may not be perceived by the perpetrator at the time that that will be the ultimate consequence, general deterrence in these circumstances has to play a massive role. Decisions such as Dalgliesh make that very clear. Obviously it is very serious offending, I am not going to put it in a range other than what I have already done that it went on over an extended period of time. From the time when she was very young though I accept for these purposes, post-pubescent. And you clearly were aware what you were doing was wrong.
29 You are not receiving double punishment because of the drugs. That is a separate sentence. But all in all it is a pretty unfortunate set of circumstances. The breach of trust is obviously massive. A very significant gaol sentence is the only option here. But I am well aware of the principles of totality. I am well aware of the need, wherever possible, to avoid the imposition of a crushing sentence.
30 Put on your behalf were very helpful, if I might say so, submissions from your counsel Mr McDonald and also a report from Mr Cummins. The circumstances are that you are going to be in gaol for a considerable period of time and you obviously would know that. Your background is not of great assistance to you here, other than you left school at a relatively early age. You commenced working on your parents' farm. And then after that you worked as a fencing contractor, upholsterer and labourer. Up until the time of your arrest for this offending, you had been unemployed for round about five years. I note at the time of the offending you appeared to have been working on an assistant basis in abattoirs.
31
You had a relatively normal childhood, you used cannabis since the age of 18. You were introduced to speed at parties around 21 to 25 years of age. And used at first, weekly then twice weekly and then, near daily use. You said to
Mr Cummins, and I accept, that around about the time of this offending you were using it on a daily basis unfortunately. So was, it would seem, your victim.
32 I am not going to go into the matters that you have been gaoled for subsequently they are of no real concern to me. Clearly in gaol you are doing the best that you can. It is probably the first time you have been drug free for a very long period of time and you are endeavouring to deal with that. The report of Mr Cummins says that you will in all probability, be a model prisoner throughout that sentence. He points out that you are currently on methadone. You are working in the goal in woodwork industry.
33 You will do the sentence in protection, I have no doubt about that. And have already done a significant period of time in protection. I take that into account. Your presentation to Mr Cummins can realistically be summed up from that material.
'At interview he readily acknowledged that the time of having sexual contact with his daughter he knew he was doing the wrong thing. He said it was he who ceased having sexual contact with his daughter under circumstances where he was feeling guilty, shame and upset with himself. He acknowledged in hindsight it was opinion, it was his opinion that his daughter had fallen in love with him and it was against his background he exploited her sexually. He emphasised it was his perception his daughter consented to him having sexual contact with her, although he simultaneously acknowledged he was the adult in the situation and he was the victim's biological father. He then goes on to describe how at the time he was drug dependent and it was against that background that he introduced the victim to illicit drug use. He acknowledged there was no excuse for his offending behaviour.'
34 The odds are that you will not see your parents while you are at liberty again as they are not well. It is a real concern to you and it is a matter I take into account that will be playing on your mind as you undergo your sentence. You again, as I indicated, said to Mr Cummins that you are endeavouring to rehabilitate in gaol. And that you do still have the ongoing support of your parents for as long as that can last.
35 There are symptoms of depression and again, I take that into account. It is not put that the principles of Verdins in any way shape or form are enlivened. Realistically what it comes down to is that a man in his 30s who took on the responsibility of his 13 year old biological daughter, essentially sexually abused her for a period of six years and introduced her to narcotics.
36 Rehabilitation is up to you Mr Denton. The risk of you reoffending is, as I indicated I think in this particular type of scenario is, I would have thought, low. It is situational, there is a referral to it being opportunistic which I find ridiculous when it went on for six years, but be that as it may.
37 Accordingly the sentence to be imposed is as follows.
38 I am aware of the provisions relating to cumulation for a serious sex offender and I am expressing this sentence in terms that make it clear what I am actually saying. Clearly totality demands it for some of these matters because in the same incident there will be total concurrency. And I do not think I need to go any further than that it would seem to me to be fairly obvious.
39
Charge 1, nine months. Charge 2, introduction to heroin, 24 months.
Charge 3, introduction to ice, 24 months. Charge 4, incest, 48 months.
Charge 5, incest 60 months. Charge 6, introduction to cannabis, 12 months. Charge 7, ice again, 24 months. Charge 8, incest, 60 months. Charge 9, incest, 60 months. Charge 10, 36 months. Charge 11, 36 months.
40 I direct that six months of the sentence imposed on Charge 2, nine months of the sentence imposed on Charge 3, 18 months of the sentence imposed on Charge 8, 18 months of the sentence imposed on Charge 9, and nine months of the sentence imposed on Charge 11 be served cumulatively upon each other and upon the sentence imposed on Charge 5. That gives a total effective sentence of 10 years.
41 In these circumstances, to give you an opportunity to have the prospects of rehabilitation, the potential determination to rehabilitate if you possibly can, I am going to give you a minimum term which will come earlier that what otherwise have been the case. So I set a minimum term of six years before becoming eligible for parole.
42 I direct that 325 days be reckoned as having been served under this sentence.
43 Whilst in these situations, 6AAA is a little unrealistic because, had it proceeded to a trial, there may have been a significant more number of charges other than the ones that have actually been pleaded to. But in the overall sentence I say you understand the benefit of your plea of guilty albeit coming at a committal, but for that plea of guilty I would have sentenced you to be imprisoned for a period of 14 years with a minimum term of 10.
44 HIS HONOUR: Are there any other orders as to that?
45 MR CAMERON: No Your Honour.
46 MR McDONALD: No Your Honour.
47 HIS HONOUR: No all right. You can take him now thank you.
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