Director of Public Prosecutions v Donaldson, Stephen Michael (a pseudonym)
[2010] VCC 1708
•23 April 2010
| IN THE COUNTY COURT OF VICTORIA | Revised |
AT SHEPPARTON
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| STEPHEN MICHAEL DONALDSON (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE LECKIE | |
WHERE HELD: | Shepparton | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 April 2010 | |
CASE MAY BE CITED AS: | DPP v Donaldson, Stephen Michael (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2010] VCC 1708 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr T. Lynch | |
| For the Accused | Mr I. Alger |
HIS HONOUR:
1 Stephen Michael Donaldson[1], you have pleaded guilty to 15 charges of indecent act with a child under the age of 16 years, four charges of incest and one charge of taking part in an act of sexual penetration with a child under 16 years. The maximum penalties for these offences are 10 years, 25 years and 15 years respectively. I am satisfied, beyond reasonable doubt, that the last offence, being sexual penetration of a child under 16, was committed whilst the child was between the ages of 10 and 16 years and was under your care, supervision and authority at the time, thus attracting a 15 year maximum penalty.
[1] A pseudonym
2 The circumstances of your offending are set out in the summary of prosecution opening which was tendered by consent (Exhibit A). Consequently, I will not repeat all the details in this Sentence. In brief, your offending was as follows.
3 During 1995 you commenced offending against your daughter, Aleeza Donaldson[2], who was attending your house during access visits. This offending continued until 1997 and included touching your daughter’s breasts and vagina and placing your finger in her vagina. Each of these offences (Charges 1-3) were pleaded as representative charges. Aleeza was aged between 11 and 13 at this time whilst you were around 37 years of age.
[2] A pseudonym
4 During 1996 you also sexually assaulted your daughter, Mirren Donaldson[3], who was aged 13 years. This incident occurred when Mirren was visiting you at your home in Cobram. On this occasion you rubbed your daughter’s vagina then inserted your finger in her vagina and placed her hand on your penis. (Counts 4-6). According to the summary of facts, there is then a gap in your pattern of offending, but in 1999 you commenced offending against your step-daughter, Carmen[4]. This offending continued until 2002. Carmen was aged between seven and 11 years during this period and you were around 41 years of age. You had earlier married Carmen’s mother and the child was living in your household as your daughter. Your offending included rubbing your step-daughter’s breasts and vagina and placing your finger in her vagina. (Counts 7-9). These were pleaded as representative charges, apart from two incidents; one where you tried to put her hand down your pants, Charge 10, and another where you rubbed your erect penis against her lower back, Charge 11. Your offending against Carmen appears to have ended in early 2002.
[3] A pseudonym
[4] A pseudonym
5 Between 2001 and 2002 you also offended against another child, Esther Morrison[5]. Esther was 11 or 12 years old at the time and she also suffered an intellectual disability and functioned with a mental age of a child approximately six or seven years of age. Esther’s mother had become a close friend of you and your wife and consequently entrusted you with the care of her child on various occasions. It was during these times that you sexually assaulted this child by rubbing her breasts (Charge 12), getting her to touch your penis, Charge 13, rubbing your penis against the child, (Charge 14) and putting your finger in her vagina, (Charge 15). These incidents were pleaded as representative charges except one occasion when you placed your penis against her buttocks (Count 14).
[5] A pseudonym
6 According to the prosecution opening, there was another period of time when you abstained from offending between 2002 and 2009. However, in 2009 you commenced offending against your daughter, Ailey[6], who was aged 12 years at this time. You were then 51 years of age. Your offending included rubbing her breasts, (Charge 16) and her vagina, (Charge 17) and putting your finger in her vagina, (Charge 19). It also involved you making her rub her own breasts and her vagina, (Charges 18 and 20). Charges 16, 17, 19 and 20 were pleaded as representative charges.
[6] A pseudonym
7 These of course are very serious charges, as was conceded by your counsel, and reflected by the maximum penalties that are attached to these offences. Over 14 years you have offended against five different young children, three of these children were your natural children and one was your step-daughter and the other was an intellectually disabled child who was in your care, supervision or authority. In each instance there is an appalling breach of trust involved.
8 I do take into account in your favour the fact that there is no evidence of inducements or threats involved nor violence beyond that which was involved in the actual commission of the offences. However, I also take into account that Charges 1, 2, 3, 7, 8, 9, 12, 13, 15, 16, 17, 19 and 20 are representative charges. This has been done with your agreement. The laying of representative charges does not increase the maximum sentence to which you are liable nor does it justify the imposition of a sentence that is disproportionate to the offence or offences charged. In respect of a representative charge, however, it cannot be said in mitigation that the offences were isolated acts. The court is permitted to pay regard to all the relevant circumstances. I also note that when sentencing in respect to representative charges, any sentence imposed must be still proportionate and the principles of totality are still applicable.
9 The consequences of your conduct against these three victims has obviously been profound, as is evidenced in the Victim Impact Statements of Aleeza, Carmen, Ailey, Bethany Morrison[7] (on behalf of her daughter, Esther), Kirsten Donaldson[8] (the mother of Carmen and Ailey) and Jaden Young[9] (the father of Carmen), being Exhibit B. The details of the psychological trauma that your conduct caused and continues to cause was graphically set out in these statements. There are, however, some mitigating factors, as your counsel pointed out. You have pleaded guilty and I take that into account in your favour. Your plea has saved the community the time and cost of a trial and, most importantly, the children involved were spared what would otherwise have been a terrible ordeal in giving evidence. I also note that when confronted by police with these allegations in October 2009 you largely admitted what you had done and no tested committal proceeding was involved.
[7] A pseudonym
[8] A pseudonym
[9] A pseudonym
10 In these circumstances, together with some observations in the report of Mr Joblin, forensic psychologist (Exhibit 1), that you have strong remorse, I am prepared to accept that you do have genuine remorse for your actions.
11 Your personal history and circumstances are set out in detail in the report of Mr Joblin and I will not recount all of them in this Sentence, although I have taken them into account.
12 You are now 51 years of age, your offending having occurred between the ages of 37 and 51 years of age. You grew up in a dysfunctional family where you experienced little love or affection. Your mother was a difficult person who was unstable and drank excessively, often being antagonistic and violent towards you. Your relationship with your father was such that you had little contact with him. The sad result was that you left home when you were only about 13 years of age and you have had little contact with any of your family since. Your education was disrupted as a consequence of your family life and you only achieved Year 7 at school and you are now virtually illiterate.
13 You have had a number of relationships and fathered a number of children, three of whom were victims of your offending. I do not understand that you have any ongoing relationship with any of your children or family members at this time.
14 Although you have no particular skills or training, you have been largely employed over the years in various labouring jobs, and for the last 12 years you have worked on an orchard doing tractor work and also mechanical repairing of machinery.
15 In the report of Mr Joblin dated 25 March 2010, he stated as follows, “I have no doubt however that there were paedophilic aspects to the offending given the ages of the girls and the ongoing nature of the offending. However, whether that amounts to a diagnosis of paedophilia is a vexed issue in my opinion. The interesting aspect overall is Mr Donaldson’s attitude to the offending. At all times during my interviews with him Mr Donaldson accepted the offending as outlined. He did not try to minimise the offences. He acknowledged that even when he was committing the offences from the first to the last victim he knew what he was doing was wrong and he should not have been doing it. It is my opinion, given the ongoing nature of the offending from consideration of the first offences with Aleeza, the reason he continued to offend related to gratification he was receiving. This is an issue to which he disagreed with me. Mr Donaldson is not a particularly sophisticated or complex man. He is in my opinion not to be considered average in intellect although I am also of the opinion that he is not to be considered retarded. His intellect however appears to be below average and he is virtually illiterate. He has however been able to secure and maintain employment at times with positions of responsibility. As indicated, the interesting aspect of the interviews I had with Mr Donaldson was his total acknowledgment of the offending and the seriousness of it. In my experience with many others there are attempts to minimise the seriousness of the offending but that was simply not the case with Mr Donaldson and that is to his credit.”
16 Later in the report Mr Joblin stated, “As indicated, the most important aspect of the assessment of Mr Donaldson in terms of the current presentation is his strong acknowledgment of the offending and his strong remorse seen in his self deprecation and his awareness of the damage his offending may have occasioned the victims. Mr Donaldson did not seek to resile from the impact of the offending, the impact the offending may have had on the girls and on the families generally. Within the limitations of his presentation I felt this expression of remorse was genuine and appropriate. Thus, there is evidence of contrition. At a more cognitive level, his understanding of the wrongness of his behaviour is also appropriate.”
17 You have no prior convictions and no matters outstanding. After considering the contents of Mr Joblin’s report and these other aspects of your background, and how you have conducted yourself within these proceedings, I am satisfied that your chances of rehabilitation are reasonably good. However, as well as those matters personal to you to which I have referred, including your prospects of rehabilitation, I must also take into account such matters as deterrence, especially general deterrence, which is of considerable importance in a case such as this. I must also consider the question of the protection of members of the community from you and bear in mind the likelihood of you re-offending. I am called upon by the Sentencing Act to manifest the community’s denunciation of your conduct and generally impose a just punishment.
18 As conceded by your counsel, the seriousness of your offending calls for an immediate period of imprisonment.
19 In considering the appropriate length of imprisonment in your case on charges 3–20 I am required to take into account s.6D of the Sentencing Act. That states that when the court is sentencing a serious offender for a relevant offence, if the court considers that a sentence of imprisonment is justified, in determining the length of that sentence a court:
(a) must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and
(b) may, in order to achieve that purpose, impose a sentence longer than that which is proportionate to the gravity of the offence considered in the light of its objective circumstances.
20 In my view, s.6D(b) is not applicable in this case nor do I understand the prosecution to urge this course in the circumstances of this case.
21 Section 6E is also relevant to my task, and it states that the sentences must be served cumulatively unless otherwise directed. However, in considering the principles of proportionality and totality and the need to moderate the head sentence, I propose to order some concurrency to avoid what would otherwise be a crushing sentence.
22 I should note that the requirement for me to consider s.6D and the following sections was brought about as a consequence of your conviction on Charges 1 and 2. Following conviction on those matters you fall to be sentenced as a serious sexual offender on Charges 3-20. This was the submission made by the Crown and was agreed was correct by your Counsel. Consequently I direct the fact that you are sentenced as a serious sexual offender on Charges 3–20 be entered in the records of the Court pursuant to s.6F.
23 A further consequence of your offending is that you are now a registrable sex offender and the mandatory reporting provisions apply for the remainder of your life. I will now ask you to sign a document acknowledging that you have received a notice relating to the reporting conditions.
24 The sentence of the court is as follows:
Charge 1, indecent act, 18 months imprisonment.
Charge 2, indecent act, 12 months imprisonment.
Charge 3, incest, five years imprisonment.
Charge 4, indecent act, 16 months imprisonment.
Charge 5, incest, four years imprisonment.
Charge 6, indecent act, 14 months imprisonment.
Charge 7, indecent act, 12 months imprisonment.
Charge 8, indecent act, 18 months imprisonment.
Charge 9, incest, five years imprisonment.
Charge 10, indecent act, five months imprisonment.
Charge 11, indecent act, 16 months imprisonment.
Charge 12, indecent act, 12 months imprisonment.
Charge 13, indecent act, 18 months imprisonment.
Charge 14, indecent act, 16 months imprisonment.
Charge 15, sexual penetration of a child under 16, three years imprisonment.
Charge 16, indecent act, 12 months imprisonment.
Charge 17, indecent act, 18 months imprisonment.
Charge 18, indecent act, 10 months imprisonment.
Charge 19, incest, five years imprisonment.
Charge 20, indecent act, 12 months imprisonment.
25 The head sentence is Charge 3, five years imprisonment. I order that one year of the sentence on Charges 5, 9, 15 and 19 and three months of the sentence on Charges 1, 4, 8, 13 and 17 be served cumulatively on Charge 3 and on each other. I order that the balance of those other sentences be served concurrently.
26 The total effective sentence is 10 years and three months imprisonment. I order that you serve a minimum of seven years imprisonment before being eligible for parole. I declare that 193 days, not including today, that you were held in custody in relation to these matters be reckoned as a period of imprisonment already served under this Sentence. I direct that this declaration and its details be entered in the records of the court.
27 Application was made by the Crown for forensic sample. The application is granted. I inform you that a member of the police force may use reasonable force to enable the forensic procedure to be conducted if you do not co-operate.
28 Pursuant to s.6AAA of the Sentencing Act, I state that but for your pleas of guilty I would have imposed a period of imprisonment of 12½ years with a minimum of nine years' imprisonment.
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