Director of Public Prosecutions v Dickins

[2018] VCC 1338

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00085

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRADLEY DICKINS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Melbourne
DATE OF HEARING:	16 July 2018
DATE OF SENTENCE:	23 August 2018
CASE MAY BE CITED AS:	DPP v Dickins
MEDIUM NEUTRAL CITATION:	[2018] VCC 1338

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Goodenough (Plea) Mr T. McCullogh (Sentence)	Office of Public Prosecutions
For the Accused	Dr M. Fitzgerald	Dr Marich & Associates

HIS HONOUR:

1Bradley Dickins, on 24 May 2018, a jury found you guilty of one charge of an indecent act in the presence of the victim, a child under the age of 16 and one charge of sexual penetration with a child under the age of 16.  In respect of the charge of sexual penetration the jury also found that at the time of the commission of the offence, the victim was under the age of 12.  There is no dispute in this case that at the time the victim was ten years old.

2The circumstances that gave rise to the charges were that the victim was the son of family friends of yours.  He would come around to your house regularly.  It would seem that he came often to get respite from all the conflict and fighting in his family home.  Also, he would enjoy going with you to various shopping malls where you had a job of repairing the children's rides at those places.  The victim was intellectually disabled attending a special school.

3On the day of the alleged offending said to be 31 July 2012, it seems that the victim found a condom in a bedside table in your bedroom.  He enquired about it.  You then put the condom on your penis.  This is the conduct that amounts to the indecent act in the presence of a child under the age of 16.

4Thereafter the victim said that you asked him, the victim, to put his penis in your anus.  He did not want to do this.  You then put your penis in his anus.  Those sexual offences were relatively brief in duration.

5What makes this a serious example of the offence, in particular the sexual penetration, was the very young age of the victim and his particular vulnerability as a child with an intellectual disability.  Although you did not have any formal role in looking after the victim, given his age and your family friendship, you were in a position of trust when he came around to visit.  Plainly, you breached that trust by sexually assaulting him in your home where he had come to play and enjoy himself.

6However, as submitted by your counsel, the sexual offending arose opportunistically, upon the victim finding the condom.  There were no threats or any gratuitous physical violence apart from the dreadful violation of the child by your penetration of his anus.

7The blight of sexual abuse of children must be condemned.  The community is bewildered that men like yourself put their perverse sexual gratifications above decent values.  It is necessary that my sentence reasserts proper values and expresses the community's abhorrence of such conduct.

8In addition, my sentence must also make crystal clear to others who may be tempted to enter the dark realm of sexual abuse of children that stern punishment involving years of imprisonment awaits those who commit these crimes.

9As required by the Sentencing Act, I must take into account the effect of your crimes upon your victim.  The victim, his mother and father prepared victim impact statements.  What was said in those victim impact statements was the following.  The young victim expressed himself as being confused at the time.  He goes on in his own words, expresses himself this way.

"I hate talking about it and I find my life is different than it should be.  I'm always mad at myself and everyone else.  I don't like talking to anyone and I find it hard to trust or love anyone.  I feel like I am bad and going down the wrong road and it's a bad road that I cannot get off."

10He concludes,

"I'm very lost and scared all the time.  My life is full of sadness and not doing what I should do."

11His father wrote, as many parents do in their victim impact statement that he considers that somehow he, as a parent, was at fault.  Of course, he should not be made to feel like that as the only person at fault was you, Mr Dickins.  He says that,

"What happened to my son was my fault [that is what he feels] as this person [being you] was like family.  I always thought he was like an uncle to me.  This made me blame myself and feel like I let my son down."

12In a way, his mother expresses the same feelings.  She says,

"Since this has happened, I will not leave my kids with anyone because now I cannot trust anyone anymore.  I trusted Brad as he was like an uncle to [the victim’s father].  He was like an uncle to the victim."

13She goes on,

"Now, I cry a lot and I can't sleep.  I have to have tablets to put me to sleep."

14She says she just finds it hard to put into words the way she feels.  She concludes,

"All I want is my son to be happy and don't have to think about what happened to him and have a fun and happy life.  This should never have happened to anyone.  It has changed all of us.  His life will never be the same."

15These courts have learned that abuse of children is often enduring.  Your counsel made submissions in respect of to what weight I should attach to the victim impact statements.  As I hope I made clear during the plea, I have ensured that the victim impact statements do not overwhelm or swamp other mitigatory considerations.  I have taken a measured approach to all aspects of the impact on the victim.

16However, I consider the victim impact statements of the victim and his parents to be authentic accounts of the impact of what you did.  I make clear that in the measured way that I have approached the matter, I have not considered any adverse impact beyond what is alleged you did on the single occasions involving the two offences that are set out on the indictments to which the jury returned verdicts of guilty.

17In respect of the overall impact on the victims, I do not accept your counsel's submission that the victim was blithe in giving his evidence.  He was an intellectually disabled child with what seemed an accommodating nature doing his best to deal with the difficulties of a court hearing facing, and I emphasise, appropriately framed questions in cross-examination.  It is clear to me in what he says that he had struggled with confusion as to why you did what you did to him.

18As to the other victim impact statements of his parents as I have set out in short that they are factored into the broad matrix but again in a measured way and only in respect of the offences that you have been found guilty of.

19As to your personal circumstances, you are now 48 years old.  You reside in Geelong.  Your parents are particularly close to you.  Your siblings are now interstate but they keep in contact with you and that has continued since you have been on remand.  Your schooling was difficult and you had to endure significant bullying.  There was as a consequence an undermining of your self-esteem as you matured.  This did not abate as you grew into adulthood.

20After completing Year 11 at school, you commenced a four-year apprenticeship as an electrician at Shell.  What occurred there was a repeat of the bullying and social exclusion that you suffered at school but you persevered.  After your apprenticeship, however, you were not kept on at Shell and you became unemployed and you returned back to living with your parent.  Ultimately found work in electrical appliance repairs.

21In the early 2000, you were able to get subcontract work as a factory electrician and you remained in full-time work until April 2017.  Accordingly, despite many social difficulties, you have a good work history which is to your credit.

22There are other matters that establish your previous good character.  The foremost is that you have no prior convictions or involvement with the criminal justice system.  Testimonials provided by your family and other acquaintances make it clear that you are considered to be a person of good character and decency in their eyes.  You are entitled to call upon your previous good character in seeking a merciful sentence.

23I need to deal in more detail with your psychological health.  You have a long-standing diagnosis of a bipolar disorder.  The depressive symptoms were very significantly exacerbated when your offending was disclosed in 2015.  You were admitted to the Geelong Clinic and treated with serious antipsychotic and antidepressant medications.

24You have remained under the treatment of the consultant psychiatrist, Dr Steven McConnell, since that time.  He wrote of your progress in these terms,

"I've been providing ongoing in-patient and predominantly out-patient psychiatric treatment to Mr Dickins for a previously established diagnosis of bipolar disorder.  Mr Dickins also had the comorbid diagnosis of cannabis dependency.  Mr Dickins has a history of recurrent depression, anxiety, unstable mood patterns which date back to his early teenage years.  He continues on ongoing psychiatric medications of paroxetine and olanzapine at night.

"In the last approximately 2.5 years that I've been providing care for Mr Dickins, his progress and associated mental health could be best summarised as following; a fluctuating course.  Due to the background legal issues that Mr Dickins is facing, he has never been completely free of anxiety and at times recurrent depressive symptoms throughout these last couple of years.

"When I first met Mr Dickins for his admission to the Geelong Clinic, he was experiencing severe major depressing episode at the time but which has at least significantly improved in severity in the last two years.  Mr Dickins had also made a significant reduction to his long-term cannabis use with periods of complete abstinence."

25Dr McConnell addressed the question of whether your condition would deteriorate in prison or your condition generally make prison more onerous for you.  He expressed his opinion in these terms,

"Regarding Mr Dickins' current custodial sentence, it is very important that he continues the above medications of olanzapine and paroxetine.  If he is not maintained on these regular medications, then he is at significant risk of severe deterioration of his mental health such as being prone to episodes of severe depression, mania and psychosis.

"I am concerned that even on medication due to the potential stressful nature of being in prison that he could be at risk of deterioration in his mental health including being a suicide risk if he becomes mentally unwell.  It is important that he has timely access to visiting mental health clinicians."

26He says,

"If there are any concerns expressed by [you] Mr Dickins for his mental health or equally if there are observations that he appears to be exhibiting signs or symptoms of deterioration of his mental health, then he must be seen by appropriate medical practitioners."

27I have taken into account the opinion of Dr McConnell who has been treating you in respect of whether prison would be onerous for you or whether your mental health may deteriorate.  In my view, this does factor into the matrix in mitigatory terms meaning that your sentence is less than it would otherwise be had you not had these difficulties.

28You have also been seen by the medical legal psychologist, Ms Matthews, at the request of your lawyer subsequent to your remand.  She helpfully summarised your mental health history in these terms and again I will quote at length.

"Regarding his mental health, Mr Dickins reports his first contact with a psychiatrist was in 2000 at Barwon Health for depression and suicidal ideation.  Mr Dickins commenced on paroxetine and has been on this medication since except for a period in 2011 when he was admitted to the Swanston Centre and treated for a manic episode.

"He was managed his general practitioner between 2000 and 2011.  He's been treated by the psychiatrist, Dr Steven McConnell, since 2011.  Mr Dickins' medical records indicate approximately six-week hospital admission beginning in October 2015 for the treatment of depression and addiction and a further admission approximately a fortnight in December 2015 for depression.

"He has a history of bipolar effective disorder and prior attendance at an addictive behaviours program.  He reports in his 30s as well, as in 2015, that in 2011, a manic episode was his most severe episode of mania and he had suffered at least another four or five episodes over his adult life periods during which he overspends and is increasingly goal directive.

"But unlike the 2011 period of admission, they were not psychotic.  He reports multiple episodes for depression and suicidal ideation lasting two weeks or more with onset in his late teens.  These episodes are also additional to those episodes for which he has been admitted to hospital."

29She goes on to quote that you said,

"Paroxetine lifted me to another plane.  I lost my inhibitions and I lost my shyness.  I loved the world and I did not feel the peak of depression like before.  Normally I felt a high that I had not been there before normal but on a high state I guess."

30Since 2015, the mood stabiliser, olanzapine, has been added to your medication regime.  This has limited the feeling of a high, I continue my quoting you when you said to Ms Lechner,

"This has limited the feeling of 'high' I could consider myself in the situation."

31What can be deduced from Ms Matthews' account is that there was a period in late 2011 that you were admitted to the Swanston Centre in a manic episode.  This was a period that was not completely unconnected with the events that arose in July 2012.

32However, considering all the medical material, psychological and psychiatric, and the material relating to your medication, I do not consider that your mental health was such that it was causally connected to the events of 31 July 2012.  However, I do take into account the fact that you have had a significant mental illness for a long period of time.

33Ms Matthews also conducted an analysis of your risk of further like offending.  She noted the difficulties of this process given that you pleaded not guilty and maintained your innocence.  The testing involved a static actuarial analysis and also an assessment of your particular circumstances including the protective aspects of your family support, your work history and the absence of any criminal history.

34Ms Matthews concluded that you were a low-medium risk which in all the circumstances seems as accurate as these predictions can be.  In respect of your ongoing family support, it is important.  It is a strong basis for your rehabilitation once released from prison.  I consider that your prospects are very solid to remain offence-free once released.

35Your counsel made a detailed and considered submission relating to the mitigatory value of delay in this case.  What was pointed out was that it is now over six years since the offending in July 2012.  The offending was not disclosed until September 2015.

36Ordinarily not much if any mitigation attaches to delay in disclosure especially in sex offences involving children.  However, even before disclosure, you were subject to harassment and threats from a relative of the victim.  Following the disclosure, the threats escalated involving the victim's parents.  They came around to your house in very frightening circumstances to intimidate you.

37This has a serious effect on your mental health.  You admitted yourself to the psychiatric clinic the next day and again in December 2015, when you were weighed down with thoughts of self-harm.  These very stressful circumstances continued after you were interviewed by the police as you were again left in a continuing state of uncertainty as no charges were laid for another eight months or so after your interview.

38The committal was not held until 23 January 2017 outside the statutory time of the holding of committals in cases involving young victims and beyond 12 months after your police interview.  Thereafter the case was managed in the County Court Circuit Lists.  Unfortunately, the trial was not reached in its first listing.  It was rescheduled and given priority but again it was not reached on two further occasions.

39Lengthy explanations could be given as to why the case was not reached in the Geelong Circuit which confronted unique circumstances at that time but the real point is that the long delay from the committal until the trial in May 2018 was highly stressful to you.  You were made redundant in April 2017 and because of the uncertainty of the trial date, you found it too difficult to look for further work.  I accept that during the whole period of this delay, your mental health suffered.

40Notwithstanding all that was occurring and the stresses to you, you remained offence-free and up until April 2017, you were engaged in employment.  I accept the submissions of your counsel that significant weight ought be given to the delays and accordingly your sentence is lower than it would otherwise have been.

41The jury found you guilty of both offences.  The conduct was closely connected.  Though the crime of committing an indecent act in the presence of a child is serious offending, this was not a particularly grave example of that crime.

42In my view, by applying the principles of totality in the overall scheme of instinctive synthesis, this is a case where complete concurrency is justified.  That is as much to do with what must be a significant term of imprisonment for the sexual penetration charge.

43I have already endeavoured to make clear that the principle sentencing purposes are denunciation and deterrence to others.  Penetration of the anus of a vulnerable ten-year old child only has to be said for its horrific gravity to be exposed.  You as the adult knew what you were doing was wrong.  You should have resisted but you did not.  Your moral culpability is high.  As I have indicated, I do not accept that your moral culpability is to be moderated by any aspect of your mental health including the medication you were taking.  The evidence was not nearly sufficient to establish the necessary causal connections with what you did.

44Given the gravity of the penetration offence and your moral culpability, my sentence must be a stern one that is in practical proportionate terms expressive of denunciation and operates as a real deterrent.  You proceeded to trial which is your fundamental right however you cannot rely on the significant mitigatory benefit of remorse or of a plea of guilty.

45As it has been made clear, the community and perhaps especially those who do plead guilty and express remorse to their crimes, they must be able to see a palpable benefit in the sentence imposed to others.  That said, I reassure you that you have not been punished for the fact of running your trial.  Simply it means you do not have the significant mitigatory matters of a plea of guilty and remorse in your favour.

46I have considered other sentences imposed for like crimes and the statistics distilled by the Sentencing Advisory Council.  I cannot ignore the guidance given by the Court of Appeal and the High Court cases in particular Dalgliesh in relation to penetrative offences committed by adults upon young children.

47I must take into account the long maximum term of 25 years' imprisonment that Parliament has set for this offence.  However, rest assured that those matters perhaps under the rubric of current sentencing practices are but one factor in the overall matrix.  What I have endeavoured to do is to ensure that your sentence fits proportionately and justly to the circumstances of the dreadful offending committed by you as the offender.

48In respect of charge of sexual penetration of a child under the age of 16 that the jury found that the child was under the age of 12, you are sentenced to seven years and nine months' imprisonment.

49On the charge of an indecent act in the presence of a child, you are sentenced to nine months' imprisonment.

50The total effective sentence is seven years and nine months and I order that you serve five years and nine months before being eligible for parole.

51You have already served 91 days in prison.  That figure having been reckoned I declare that that 91 days is part of the sentence that I have just imposed.  I will ensure that that declaration is entered into the records of the court so that the authorities are left in no doubt that you have already served 91 days.

52The prosecution has made applications you provide a forensic sample so I understand it will be a swab from your mouth.  I have considered that application and intend to grant it due to the seriousness of the offences and it is, in my view, in the interest of justice that a forensic sample is obtained.

53What you have to understand is that the authorities that come to take the forensic sample are authorised to use reasonable force if you do not cooperate with them.  They are authorised to use reasonable force to obtain the sample.  The way forward of course is to cooperate.

54Is there any other orders?

55MR McCULLOCH:  No, Your Honour.

56DR FITZGERALD:  Can I just have a moment to my friend?

57HIS HONOUR:  Thank you.  Just bear with me.

58MR McCULLOCH:  Your Honour, just one matter ‑ ‑ ‑

59HIS HONOUR:  Yes.

60MR McCULLOCH:  ‑ ‑ ‑ with respect to the purporting period under the SORA legislation.

61HIS HONOUR:  Sorry, there is another matter.  I have to deal with the SORA.  Yes, what is that?

62MR McCULLOCH:  The learned prosecutor filed very brief submissions that asserted that the reporting period would be life.  I take it from my review of the materials that the jury would have been satisfied that these matters occurred within 24 hours and ‑ ‑ ‑

63HIS HONOUR:  Yes.

64MR McCULLOCH:  ‑ ‑ ‑ form part of the same incident.  I would therefore submit that Your Honour is required to make a reporting period of 15 years.

65HIS HONOUR:  Fifteen years.  Do you agree with that, Mr ‑ ‑ ‑

66DR FITZGERALD:  Yes, I do, Your Honour.

67HIS HONOUR:  Yes, I do apologise and it is not discretionary at all, is it?

68MR McCULLOCH:  No, Your Honour.

69HIS HONOUR:  No.  Mr Dickins, there is a requirement under the Sex Offenders Registration Act that you be redirected.  The period of time has been reviewed and I am grateful to the current prosecutor in respect of that review to reveal that the time period that you must be on the register is 15 years.

70So that order will be made.  What has to happen is a document is produced.  The document that is produced is quite lengthy.  It sets out all the requirements upon you upon registration and indeed what the consequences are if you do not but that will be some time off.  What you are required to do is sign a document to say that you have received the document and I have to sign a document to say that I have given you the document.  There it is but the content of the document is something you should consider and if need get assistance from a lawyer.

71As to what your responsibilities are upon being released as to registration, they are onerous and there are serious consequences if you do not abide by them.  To that end, Dr Fitzgerald, just ask you to take the documents to your client for him to sign it when they are produced.

72Just before we leave to those in Geelong who are listening at the present time, you may have noted that at no time did I refer to the victim or his family by name.  That is deliberate.  I know of course your names but it is part of the process of ensuring your privacy - it is out of greater respect, not out of disrespect so - but no one can publish anything that might tend to identify a victim of a sexual offence.  So when anything is published, nothing will identify the victim or his family.  Thank you.

73I am sorry.  I will explain things shortly.

74Mr Dickins, you have acknowledged you have received the documents in relation to the reporting conditions that have been signed by my associate and forwarded to the Chief Commissioner of Police.  Is there anything further required.

75COUNSEL:  No, Your Honour.

76HIS HONOUR:  Thank you.  Just bear with me.  Mr Dickins, as I think I explained on previous occasions, you have to go with the prison authorities now.  These are not easy times or situations but the rule we have of course is that those are to be removed to commence their prison sentences do so while I remain on the Bench.

77You and your family no doubt would behave perfectly appropriately but we have got have one rule because not everyone behaves properly.  Then it goes in different directions so Dr Fitzgerald will no doubt be able to assist you later today and your family as to continuing the contact with you once you become a classified prisoner.  Thank you.  Mr Dickins can be removed.

78I thank counsel for their assistance throughout this matter.  Thank you.

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