Director of Public Prosecutions v Dodd (a pseudonym)
[2016] VCC 1711
•18 November 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| OWEN DODD (a pseudonym) |
---
| JUDGE: | HIS HONOUR JUDGE LACAVA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 November 2016 |
| DATE OF SENTENCE: | 18 November 2016 |
| CASE MAY BE CITED AS: | DPP v Dodd (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 1711 |
REASONS FOR SENTENCE
---Subject: Indecent Assault Serious Sexual Offender
Sentence: 2 years with 9 months immediate.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Jankovic | |
| For the Accused | Ms C. Genovese |
Pages 1 - 11
HIS HONOUR
1In these sentencing remarks I will refer to you by the pseudonym Owen Dodd. That name has been applied to you under the pseudonym protocols. This is done to protect your identity and that of your daughter who is the victim of your crimes. Owen Dodd, you have pleaded guilty to 7 charges of indecent assault for which offence the maximum penalty for each offence was five years imprisonment and, one charge of committing an act of gross indecency (Charge 4) for which the maximum penalty was three years imprisonment.
2The charges that you have pleaded guilty to allege offending between the 6 November 1986 and 5 November 1987 (Charges 1 to 5) and between 6 November 1987 and 5 November 1988 (Charges 6 to 8). There is an issue as to the period of time during which you offended. I am satisfied that your offending progressed initially over some months commencing in about November of 1986 and extended into 1987 when you desisted for some time before recommencing during 1987. Your offending ceased altogether in about January 1988 after your daughter had alerted your wife and a minister at the Baptist Church where you then worshipped by telling them what you had been doing to her.
3The circumstances of your offending are contained in a summary of prosecution opening which was tendered in evidence and read in open court by the learned prosecutor Mr Stefanovic. Your counsel Mr Hammill accepted that the summary was accurate and forms a proper basis upon which I can proceed to pass sentence upon you. It is not necessary that I again set out in detail what is contained in the prosecution summary except in a very limited way. These sentencing remarks need to be read in conjunction with what is contained in the agreed prosecution summary.
4In each of the charges the victim was your daughter. At the time that you commenced offending against her she was aged 14. You went to her bedroom where you kissed her on the lips and inserted your tongue into her mouth. That can only convey a sexual connotation. (Charge). Having crossed the line by the offending in Charge 1 you progressed to tongue-kissing your daughter in her bedroom whilst at the same time stroking her breasts, sides and stomach with your hands (Charge 2). From there you further progressed to kneeling beside your daughter's bed and whilst stroking her breasts with one hand you masturbated yourself with the other (Charges 3 and 4). You then moved your offending up a level by assaulting your daughter in a way that involved you placing your penis into the palm of her hand so that she masturbated you (Charges 5 and 6). In Charge 7 you grabbed her breasts with one hand and in Charge 8 you placed your hand down her underwear touching her buttocks.
5At no time did you penetrate your daughter and you do not face charges of incest. None was ever alleged, a point which you made in your record of interview. But this offending involving as it does touching, is nonetheless serious and cannot be dismissed as mere touching and your counsel properly did not seek to do so. Everything you did to your daughter in this offending was sexual. You started off by tongue-kissing and advanced to touching her breasts, then to masturbating yourself and then to having her masturbate you. At each step you sought to push the boundary of your activities with your daughter becoming more and more sexual as you went along. For a father to do this to a daughter is serious offending and your offending was serious. You were the adult in total control of the situation you created on each occasion that you offended. You put your own sexual gratification ahead of your duty to your daughter and the trust she and her mother had placed in you. You admitted as much when you explained to the police at interview that by the time of the offending comprising Charges 5 and 6 you were "on fire". Your offending involved a gross breach of trust and a gross breach of duty that every father owes to protect his children (male or female) from sexual abuse. It is for these reasons that in sentencing in cases such as this the sentence imposed needs to appropriately reflect application of general deterrence (to discourage parents who might seek to offend in this way where their own children are the victim) and to properly reflect denunciation of this kind of offending.
6I admitted into evidence as Exhibit B a victim impact statement prepared by your daughter. She read that statement in open court in what can only be described as a powerful and impressive display from a victim who has been profoundly effected as a result of your offending against her. It is fair to say I think that you ruined her life. In passing sentence I have taken the contents of the victim impact statement into account as I must.
7Your offending first came to light in around January 1988 although your daughter made no complaint to the police until early 2014, about 26 years later. In early 1988 your daughter went to the Minister at the local Baptist Church where you and your family worshipped. Instead of telling her to go to the police, as he ought to have done, he told her to write a letter to you, which she did. After that you and the family engaged in counselling provided by the church. From the time that your offending was revealed to the church and to your wife you have not re-offended. Your secret offending with your daughter having been revealed you sensibly stopped. I accept that at the time of counselling you apologised to your wife and your daughter for your offending. I accept that in 1988 and now you regret what you did and that you are remorseful. In this court your counsel publicly apologised to your daughter on your behalf. In passing sentence I have taken the fact of your remorse and you apologies into account.
8Your offending was entirely situational. You will not reoffend again in this way. You and your wife remain living together but you are estranged from your daughter. That is perfectly understandable and, in the circumstances, to be expected.
9You have been living with the fact your offending had been complained of and revealed for some 28 years and whilst the threat of possible charges has not been hanging over your head you have lived with the fact your offending conduct has been exposed. Importantly, you have used the period of time between your offending and now well. You have not offended in any other way and this offending aside you have led an unblemished life. You are well regarded in your community, as demonstrated by the three character references that were tended on your behalf. You have worked hard and well and you have contributed to the community in a number of ways. In passing sentence I have taken all of this into account including the delay between the time of your offending and now.
10Your daughter reported your crimes to the police in early 2014. Investigators set up a pretext phone call made to you by your daughter's now partner. You made some admissions of your conduct in that pre-text call. You were later interviewed by investigators. Whilst you questioned the period of time during which you offended and some other matters, you did make full admissions and you conveyed appropriate remorse. You were arrested and charged in May 2014 and instructed your solicitors that you would plead guilty. The matter formally resolved into a plea at committal.
11I treat you as having pleaded guilty at the earliest opportunity. For that you are entitled to a reduction in sentence. Not only have you saved the time and costs of a trial, but importantly, you have saved your daughter from having to be cross-examined by your counsel, thereby forcing her to re-live your conduct towards her. I also treat your pleas of guilty as an indication of genuine remorse by you for your conduct. In passing sentence I have taken all of this into account and the reduction in sentence that I have afforded to you will be set out in my sentence.
12I turn to some other matters relevant to your background and current circumstances. You were born in May 1946 and you are 70 years of age. You attended primary school in the western suburbs completing the intermediate certificate at Tottenham Technical School after Year 10. You completed three years of a steel workers apprenticeship but did not complete the apprenticeship. You worked for a short time as a furniture maker and after that you began a career with the overseas telecommunications commission. You were retrenched from that position around the time of this offending and that fact, together with the death of your mother in late 1986, are said to have changed your personality. I do not accept that these events explain your offending albeit that they each occurred a short time before your offending commenced.
13You have been a long-term participant and worshipper in the Baptist Church where you enjoy a good reputation. You met your wife through the church and you married her in 1968. Your daughter was born in 1972 and a son followed a few short years later. You and your wife established a home for your family in the western suburbs and the whole family was actively involved with the Baptist Church. You were also actively involved with the pursuits of your children as they developed.
14As a child you suffered from rheumatic fever and that has had some ongoing effects for you, one of which was that it apparently caused some coronary disease which required open-heart surgery some years ago.
15In the materials which I admitted into evidence there was a summary of your medical history prepared by your general practitioner. It shows that you are being treated for epilepsy and the effects of rheumatic fever, all of which appear to be controlled by a number of medications listed in the report including the drug Tegretol for epilepsy. I have concluded that whilst you do not enjoy good health, but your ailments are treated and controlled by medication. That medication will be available to you in prison and it was not submitted by your counsel that the imposition of a term of imprisonment would be more onerous for you than for other prisoners because of your health. I am mindful of the fact that you fall for sentencing in your senior years and you have a number of health issues that are otherwise controlled.
16The principles to be applied in such cases where the sentencing court is dealing with an offender of advanced years facing a lengthy sentence in circumstances of ailing health have been set out by the Court of Appeal in R v. R L P [2009] VSCA 271 at paragraphs 32 to 40. In arriving at an appropriate sentence here I have so far as possible had full regard to and applied the principles in RLP.
17I also admitted into evidence in the folder of materials handed to me a report from Dr Lester Walton, a psychiatrist who examined you for the purpose of preparing the report on 4 October 2016. Dr Walton recorded the fact of your remorse as you expressed it to him. He noted that you have no history of formal psychiatric treatment. Dr Walton also noted your past medical history and education. In his report Dr Walton said that after carrying out clinical testing there was no significant intellectual compromise and you were of normal intelligence. There was nothing indicative of psychotic disturbance and he thought that you were at a low risk of reoffending. In passing sentence I have taken the report of Dr Walton fully into account.
18In his plea on your behalf your counsel conceded that the imposition of a term of imprisonment was an appropriate disposition in view of the seriousness of your offending. However, Mr Hamill submitted that the issue for me to decide was whether or not any sentence imposed should be wholly suspended in accordance with the law which applied at the time that you committed these offences. Mr Hamill submitted that I should wholly suspend any term of imprisonment imposed. In his written outline of argument Mr Hammill set out an alternative submission which was that a community corrections order disposition be imposed. He did not pursue this in oral argument conceding, appropriately in my view, that I have to impose a term of imprisonment. As he put it, the question is whether or not the term of imprisonment imposed should be wholly suspended. He submitted a sentence that involves immediate custody should only be imposed as a last resort.
19Mr Stefanovic submitted that a term of imprisonment should be imposed. He submitted that a sentence that did not involve immediate custody was inadequate and outside the range.
20In passing sentence I am required to have regard to current sentencing practices at the time of sentencing. I can also have regard, so far it is possible to do so, to current sentencing practices at the time of your offending. There is little evidence available as to current sentencing practices at the time of your offending. In arriving at an appropriate sentence I have taken into consideration the material made available by the prosecution on the plea and my own experience from sentencing other offenders for similar historical offences. I have had regard to the fact that in sentencing for these kind of offences in the late 1980s the range of sentences imposed were generally lower than the present range of sentences for the same or similar offences. I also note that the maximum penalties for similar-type offences are now higher.
21As I said earlier, your offending was serious. Whilst I have had full regard to your age and health and the fact you have no prior convictions and you have not offended in the 28 years since this offending and the fact that you have pleaded guilty at the earliest opportunity and you are remorseful, and there has been lengthy delay, nevertheless the sentencing principles of just punishment, denunciation and general deterrence here require the imposition of a sentence of imprisonment with time to be served by you in prison. As I doubt you will re-offend in this way there is no need for the sentence to reflect specific deterrence.
22Your offending against your daughter over a period of months involved a gross breach of trust imposed upon you as her parent. It has had a profound effect upon your daughter as may be seen from the victim impact statement. There is thus a requirement for the sentence imposed on each charge to appropriately reflect the seriousness of your offending and there must be a measure of proper accumulation of some of the terms of imprisonment imposed to arrive at an appropriate sentence. I believe that the sentences that I will shortly pass will achieve this result.
23Because I will sentence you to imprisonment on all charges you fall to be sentenced on Charges 3 to 8 as a serious sexual offender. The prosecution, appropriately in my view in the circumstances, has not asked that I impose a disproportionate sentence on these charges and I will not do so. In sentencing you on Charges 3 to 8, I am mindful that I must have regard to protection of the public as a first priority and I will sentence you on these charges as a serious sexual offender without imposing a sentence that is disproportionate. The sentences imposed on Charges 3 to 8 are deemed to accumulate upon each other unless I direct otherwise. I will impose some accumulation and some concurrency as I deem appropriate. As I said before, I think it unlikely you will again offend in this way. Your offending was entirely situational where you took advantage of your 14-year-old daughter for your own sexual gratification. You will not find yourself in that situation again.
24On Charge 1, indecent assault, you are convicted and sentenced to a term of imprisonment of six (6) months.
25On Charge 2, indecent assault, you are convicted and sentenced to a term of imprisonment of 12 months.
26On Charge 3, indecent assault, you are convicted and sentenced to a term of imprisonment of 12 months.
27On Charge 4, act of gross indecency, you are convicted and sentenced to a term of imprisonment of 12 months.
28On Charge 5, indecent assault, you are convicted and sentenced to a term of imprisonment of 18 months.
29On Charge 6, indecent assault, you are convicted and sentenced to a term of imprisonment of 18 months.
30On Charge 7, indecent assault, you are convicted and sentenced to a term of imprisonment of 12 months.
31On Charge 8, indecent assault, you are convicted and sentenced to a term of imprisonment of 12 months.
32I direct that three (3) months of the sentences imposed on each of the Charges 1, 2 and 8 and six (6) months of the sentence imposed on Charge 4 cumulate upon the sentence imposed on Charge 5 and upon each other making a total effective sentence of two years and nine months' imprisonment. Otherwise, I direct for the purposes of s.6E of the Act that there be no further cumulation of the sentences I have imposed this day.
33Pursuant to s.27 of the Sentencing Act 1981, I direct that two years of the sentence of imprisonment I have imposed be suspended for a period of two (2) years.
34The effect of this sentence is that you will serve a period of nine (9) months in prison commencing this day. When you have served the period of nine months in prison you will be released. The remaining sentence of two years will be suspended from operation for a period of two years during which you must not commit any offence punishable by a term of imprisonment. Should you do so you will find yourself being brought back to the court and, save for exceptional circumstances, the period of the sentence that I have suspended will be restored.
35Pursuant to s.6F(1) of the Sentencing Act 1991 I direct that I have sentenced you on Charges 3 to 8 inclusive as a "serious sexual offender" within s.6B of the said Act and I direct the fact of my having done so be entered into the records of this court.
36For the purposes of s.6AAA of the Act I state I have imposed sentences being terms of imprisonment on each charge and I have reduced the overall sentence I would have imposed but for your pleas of guilty. Had it not been for your pleas of guilty to the charges I would have imposed a total effective term of imprisonment of four and a half years and I would have fixed a non-parole period of three (3) years.
37I note that you have not served any pre-sentence detention.
38The prosecution seeks the making of a forensic sample order and that application was not opposed. Because of the seriousness of your offending and for the reasons stated in the order I have signed it. I am required to inform you that having made this order, once it is served upon you, then a member of the police force may use reasonable force to enable the procedure to be conducted, which in this case is the taking of a scraping from your mouth.
39The crimes of indecent assault and committing an act of gross indecency are Class 2 offences pursuant to Schedule 1 of the Sex Offenders Registration Act 2004. You have been convicted of eight such offences and pursuant to the application of ss.6 and 34 of the Sex Offenders Registration Act 2004 you are a registrable offender with reporting obligations for 15 years. I strongly advise you to take advice in prison as to your obligations under the Sex Offenders Registration Act.
40Ms Jankovic, are there any questions arising out of that?
41MS JANKOVIC: No, Your Honour.
42HIS HONOUR: Ms Genovese?
43MS GENOVESE: No, Your Honour.
44HIS HONOUR: Would you take Mr Dodd into custody, please.
AMENDEDReporting conditions for Life
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