Director of Public Prosecutions v Duggan
[2015] VCC 1010
•24 July 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-15-00570
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DENIS DUGGAN |
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JUDGE: | Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 June 2015, 23 July 2015 | |
DATE OF SENTENCE: | 24 July 2015 | |
CASE MAY BE CITED AS: | DPP v Duggan | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1010 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Parkes | OPP |
| For the Accused | Mr P. Chadwick SC | Richard Davis & Associates |
HIS HONOUR:
1 Denis Duggan, you have pleaded guilty to three charges of indecent act with a child under 16 and 5 charges of sexual penetration of a child under 16. The maximum penalties for the offences are as follows:
· Charges 1 & 3, Sexual Penetration of a Child under 16 - 20 years imprisonment
· Charges 2, 4 & 5, Indecent Act of a Child under 16 - 10 years imprisonment
· Charges 6 to 8, Sexual Penetration of a Child under 16 – 10 years imprisonment
2 Briefly, the charges on the Indictment relate to two victims who were not known to one another. Charges 1 to 4 relate to the victim Livia Henderson[1]. Ms Henderson resided with you and your wife from 1994 – 2002 as part of a foster care placement. She was between 6 and 8 years of age at the time of the offending. The first 3 charges occurred on an occasion when you were driving from a greyhound race meeting to the family home in Drouin. During the journey, the victim was sitting in the front passenger seat. You leaned over, put your hand down the front of her pants and rubbed her vagina. She pretended to be asleep. This is an uncharged act. You then pulled the van over to the side of the road, went and opened the passenger door, manoeuvred her legs, pulled her underwear down, held her hips and licked her vagina. You then undid your overalls, exposed your penis and pushed it around the outside of the victim’s vagina. Throughout this, the victim was scared and pretended to be asleep. Once home, you carried the victim to her bedroom, removed her clothing and placed her on the bed. You then inserted your fingers into her vagina.
[1]Livia Henderson is a pseudonym;
3 The 4th charge relates to an occasion when the victim was asleep in your and your wife’s bed. You had a family rule that if one of the girls slept in the bed with your wife; you would sleep elsewhere. This was to occur on this night. However the victim woke to find you lying in the bed next to her. Mrs Duggan was asleep. You grabbed the victim’s hand and placed it on your penis, moving it up and down until it became erect.
4 These matters were reported to police in May 2002. The police interviewed you on 22 May 2002 and you denied the allegations. The police did not prosecute the matter. The victim made another statement to police in March 2010. Once again, the matter was not prosecuted.
5 Charges 5 to 8 relate to the victim Naomi Levitt[2]. You and the victim lived close to each other in Drouin and you had known her and her family for approximately two years prior to the offences. You were aware that the victim had mental health issues. The victim was 12 years of age at the time of offending. All the offences occurred between 13 October and 16 October when the victim went to your home. She would attend and ask you for cigarettes and then you would offend against her.
[2]Naomi Levitt is a pseudonym;
6 Charge 5 occurred on 13 October 2014. The victim attended at your home and requested cigarettes. You provided her with several packets and whilst she was sitting in the kitchen smoking, you put your hand down her top and touched and squeezed her breasts.
7 Charge 6 is a representative count of sexual penetration. A representative charge provides a context for the offending and enables me to understand that the offending was not an isolated event. However, the fact that the charge is representative may not be used to increase what would otherwise be a proper sentence. The charge is representative of your behaviour over three days when the victim attended at your home and on four separate occasions you inserted your fingers into her vagina. One incident occurred on 14 October, another on 15 October and two on 16 October.
8 Charge 7 relates to an incident where you inserted your tongue into the victim’s vagina. This occurred after you had inserted your fingers into the victim’s vagina on the 14 October.
9 Charge 8 is a representative charge and relates to two occasions on 15 October 2014 when you inserted first the handle of a hairbrush into the victim’s vagina and then the handle of head massager. The victim told you to take the massager out because it was hurting her. You said “No, no, just give it a little bit more.” You pushed the massager harder into her vagina causing her pain.
10 The matters were reported to police on 18 October 2014 and you were arrested by police on the same day.
11 When the police interviewed you about the offending against Ms Levitt, you admitted the sexual activity but suggested the victim encouraged the contact. Dr Adam Deacon, a consultant psychiatrist says this about your response to the offending against Ms Levitt – “Mr Duggan clearly understood that his conduct was wrong. He also expressed shame. He showed some remorse, but this was mostly self-serving and distorted. He did not and was not able to empathise that the complainant had suffered a severe trauma. He instead mostly blamed the complainant and pondered if she had felt guilty for placing him in his current predicament. Mr Duggan’s lack of insight into the impact of the offending on the complainant and understanding of the complainant’s obvious vulnerabilities was profound.”
12 On 17 November 2014 the first victim (Ms Henderson) conducted a pre-text telephone call with you during which she discussed the offences. In that conversation you made comments which seem to acknowledge your abuse of the victim. However, in conversation with Dr Deacon you denied the offending and indicated you only pleaded guilty upon advice from your legal practitioner to avoid a trial and benefit from a sentencing discount. As far as Ms Henderson is concerned you express no remorse for your offending.
13 Mr Duggan, this is very serious offending. The first victim was entrusted to your care and you abused that trust in a shocking way. Ms Henderson was a vulnerable child between 6 and 8 years of age when you abused her. You treated her with contempt, gratifying your own needs at her expense. You sexually penetrated her twice and engaged in an indecent act on two separate occasions. You show no remorse for your criminal behaviour. When the victim complained to the police in 2002, you denied the offending. Had you not been apprehended for further offences in 2014, it is likely that you would have avoided your responsibility for this earlier offending. In her victim impact statement (VIS), Ms Henderson describes the impact of your offending on her life. She suffers severe stress, anxiety and depression. She has attempted suicide and feels self-hate. She is weighed down by sadness and shame. The offending has severely impacted on her enjoyment of life.
14 The second victim was a 12-year-old girl when you abused her. Over a period of days you sexually penetrated her and also engaged in indecent acts. She was highly vulnerable and you knew this to be the case. You took advantage of her to satisfy your own needs. You show limited insight into the seriousness of this offending. I have read the victim impact statements from the victim, the victim's mother and the victim's grandmother. They indicate the profound impact your offending has had on their lives. The victim is no longer living with her mother and is being cared for by her grandmother. Her depression and anxiety have reached new levels. She has attempted to overdose on more than one occasion and spent time in the mental health unit at Monash Hospital. She feels that her world has been turned upside down.
15 Mr Duggan, with offending of this type, general deterrence, protection of the community, denunciation and just punishment are all central sentencing considerations. In view of the finding of Dr Deacon about the future risk of re-offending – which I will discuss more fully later in these remarks - specific deterrence, whilst of some relevance, is not as significant as the other considerations.
16 I now move to matters relevant to your background and matters raised in mitigation.
17 You are a 69-year-old man.
18 You were born in Richmond and grew up in Noble Park. Your counsel told me that you had a happy, normal family life.
19 You left school in Year 11 and in 1966 commenced work with the SEC. In 1968 you went to work for Heinz in Dandenong and in 1975 moved to Natrad in Noble Park. You remained with that company until you were retrenched in 1997.
20 You married in 1968 and you have one daughter who was born in 1970. In 1993, you and your wife moved to Drouin and in August 1994 became foster parents with Anglicare. Between 1994 and 2002 you fostered 30 children. In February 1998, you were appointed a permanent carer for the first victim. This must have been incredibly difficult for the first victim who had been abused by you prior to that appointment.
21 You and your wife separated 4 years ago, although the marriage had been unhappy for some years. Your counsel told me that you and your wife had been separated under the one roof for about 10 years prior to the separation. I was told that your wife was a heavy drinker.
22 You have 3 grandchildren aged 20, 18 and 17. One of your grandchildren has written a supportive reference on your behalf. Your new partner has also provided a supportive reference.
23 You have no relevant prior convictions.
24 You have major health problems that will make gaol more onerous for you than it would be for someone without those conditions. You suffer from type 2 diabetes and are required to have injections twice daily. Your diabetes is relatively unstable. You have a significant back injury involving multiple disc bulges that cause lower back and right leg pain. You have had two hip replacements and continue to suffer hip pain. You have a history of heart problems and over the last decade or so, suffered from depression and been treated with anti-depressant medication. You attended a psychiatrist in Warragul about three years ago and have attended two separate psychologists over the last few years for supportive therapy. In October 2014 (after your apprehension on the most recent offences) you had an admission to a psychiatric facility. You attended at the hospital after taking a number of tablets. On admission you explained that your apprehension by the police was the catalyst for a suicide attempt. You were discharged after 2 days.
25 Mr Bruce, Forensic Psychologist, has diagnosed you as suffering from a personality disorder. Dr Deacon is not so sure that your history is consistent with that diagnosis. It is hard for me to make a definitive finding on this issue. However, given the evidence about your long history of depression, I accept your counsel’s submission that your mental condition and your physical ailments, mean that a sentence of imprisonment will weigh more heavily on you than it would on a person without these conditions. Your sentence will be moderated accordingly.
26 You have pleaded guilty to the offences. It was not an early plea of guilty, nor is there any remorse as far as the victim, Henderson, is concerned. There is some limited remorse for the victim, Levitt. However, you are entitled to a sentencing discount because your plea of guilty has saved the victims from the trauma of giving evidence and has also saved the community the cost and expense associated with a criminal trial.
27 Even though you have no prior convictions, I am guarded about your prospects of rehabilitation. You offended between 1996 and 1998 and again in 2014. You have no remorse for the earlier offending and limited insight into the seriousness of your most recent offending. As against these facts I do acknowledge the risk assessment conducted by Dr Deacon. In his report he says that based on the STATIC-99, your risk of re-offending is moderate low. Whilst you score positive recordings in multiple categories on the RSVP, Dr Deacon concludes his assessment as follows - “With consideration of the presence of multiple risk factors for sexual offending, balanced against his old age and declining health, his risk of reoffending is likely to be low – moderately low. He requires completion of a sex offending program whilst in custody to reduce the risk of re-offending.”
28 Mr Duggan because a term of imprisonment will be imposed on Charges 1 and 2, the law requires me to deal with you as a serious sexual offender. This means that in relation to Charges 3 to 8, protection of the community is the paramount sentencing consideration. The prosecution has not sought a disproportionate sentence in this case and I do not intend to impose such a sentence. The purposes of sentencing can be fully achieved without the need for such an order. Section 6E of the Sentencing Act is also relevant. This section requires the imprisonment term on Charges 3 to 8 to be served cumulatively unless otherwise directed. There is a tension between this section and the principle of totality that is not easy to resolve. I have determined that to allow the full operation of that section would in this case produce a disproportionate and crushing sentence. In considering your overall criminality, I still must ensure that there is no disproportion between the totality of the criminality and the total effective sentence imposed.
29 Mr Duggan, you will be convicted on all charges and sentenced as follows – Charge 1, 6 years imprisonment (this is the base sentence); Charge 2, 3 years' imprisonment; Charge 3, 6 years imprisonment; Charge 4, 18 months' imprisonment; Charge 5, one year's imprisonment; Charge 6, 5 years' imprisonment; Charge 7, 4 years' imprisonment and Charge 8, 5 years' imprisonment.
30 I order that 6 months of the sentence on Charge 3, 3 months of the sentence on Charge 4, 12 months of the sentence on Charge 6, 3 months of the sentence on Charge 7 and 12 months of the sentence on Charge 8, be served cumulatively upon each other and upon the sentence imposed on Charge 1. This makes a total effective sentence of 9 years imprisonment. I fix a minimum of 6 years before you will be eligible for release on parole. I declare that you have served 31 days pre-sentence detention.
31 Pursuant to s6AAA of the Sentencing Act 1991, I declare that I would have sentenced you after trial to a total effective sentence of 12 years with a minimum term of 9 years.
32 Your offending attracts the provisions of the Sex Offenders Registration Act 2004, and you will be required to comply with the reporting obligations of that Act for the remainder of your life. My Associate will provide you with a document, which details your obligations.
33 I make the disposal order sought by the prosecution.
34 I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to co-operate in the taking of the sample, the police may take a blood sample and may use reasonable force to obtain the appropriate sample. This order is made pursuant to the relevant provisions of the Crimes Act 1958. I make the order for the following reasons – the seriousness of the offending, the order is in the public interest and the order is consented to.
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