Director of Public Prosecutions v Dun (a pseudonym)

[2018] VCC 337

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAXON DUN (A PSEUDONYM)

---

JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 March 2018
CASE MAY BE CITED AS:	DPP v Dun (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 337

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Office of Public Prosecutions	Mr  P. Doyle
For the Accused	Mr M. Sharpley

HIS HONOUR:

1Jaxon Dun[1], you are convicted by a jury of three charges of incest and one charge of indecent act with child under 16.  You have no other criminal history.  Three victim impact statements were tendered.  One from the father of the two victims, your son, Seth Dun[2] and two, one each from Anabelle Dun[3] and Brandy Dun[4].  

[1] “Jaxon Dun is a pseudonym”

[2] “Seth Dun is a pseudonym”

[3] “Anabelle Dun is a pseudonym”

[4] “Brandy Dun is a pseudonym”

2They powerfully record the disastrous effect your offending has wreaked upon them and the family constellation.  In his victim impact statement, in addition to outlining the effects, your son points to positive aspects of your character, as he has known it over the years, and states that he does not wish you to go to gaol. 

3Such an attitude is to his credit and contrasts greatly with the attitude, as is demonstrated by the annexure to his victim impact statement from Bob, who apparently is Layla Hay’s[5] husband, in which he displays a deplorable attitude to what has occurred.  Your son also in his statement, observes Brandy’s struggles with guilt about the offending, because she did not report it and the subsequent offending which occurred to her sister, Anabelle.

[5] “Layla Hay is a pseudonym”

4The two victims were your grand-daughters.  Brandy was 21 but at the time aged 16. Anabelle is now 16, but at the time aged between 13 and 14.  At the time of the offending you were aged between 70 and 72.  On 7 April 2013, you and your wife were at Brandy’s family home.

5Brandy was alone with you, showing pictures of horses for sale on the internet in her bedroom.  You stood on her left-hand side and began to touch her upper, inner thigh, putting pressure on her thigh and then releasing it.  You then kissed her and moved towards her bed.  You inserted a finger into her vagina while your other hand rubbed her hip.  You asked Brandy if she liked it and she replied no.  You left the room. 

6The following day you approached Brandy in her bedroom and told her that if she told anyone, it would upset them and it must not happen again.  She said she did not want it to happen and you replied, "It was both of us".  She made complaints a short time thereafter, initially to Toby Walpole[6] on 8 April in the Facebook message that was tendered, and thereafter to Lily Sugerman[7] and Charles Paterson[8].  She decided not to report the matters to police of parents, as she did not want to upset family unity.  As recorded in her father's victim impact statement, she now feels guilty about this because of what subsequently happened with Anabelle. 

[6] “Toby Walpole is a pseudonym”

[7] “Lily Sugerman is a pseudonym”

[8] “Charles Paterson is a pseudonym”

7On about August 24, you visited the home of Anabelle who was living with her family.  She was to share a double bed with her grandmother while you were to sleep in her bed.  Before going to sleep she went into her bedroom to say goodnight to you.  Having said goodnight, she turned away however you grabbed her by the pyjama pants and pulled her back towards you.  You slipped your fingers inside her pyjama pants and underpants and inserted your fingers into her vagina.  As she stood beside the bed, you began to kiss her breasts.  She left the room and went back to the bed she was sharing with her grandmother. 

8Between 28 and 30 August 2015, Anabelle went to your house in Cowes for the weekend.  Around 11.30 in the morning, she said having slept in, she was sitting on the floor in the lounge room eating toast.  You sat on the couch behind her, grabbed her pyjama pants pulling her towards you.  You placed your hands down her pants and inserted your fingers into her vagina.  She then left to have a shower.  About a week after this incident, Anabelle disclosed the offending to her friend Bianca Doolan[9], and her foster mother Natalie Karloan[10].  Subsequently, the school and police were notified.

[9] “Bianca Doolan is a pseudonym”

[10] “Natalie Karloan is a pseudonym”

9After Anabelle’s complaint you visited Brandy at her Point Cook home and attempted to silence her.  You said to her that, "'What had happened, we both wanted it to happen' and I said", this is quoting from her evidence, "I didn't want it to happen and he told me that I mustn't tell anyone about what happened to me, because it would upset everyone".

10You gave evidence and denied the allegation and called various witnesses.  You alleged in your evidence, against the sound advice of your counsel, that Anabelle was sexually interested in you and became angry when you rebuffed her.  You believe this was her motivation for alleging the offending.  You also alleged that Brandy was angry at you for your refusal to buy her a horse, and this was her motivation for alleging the offending.  In addition you alleged that she decided to report the matter to the police in order to support her sister's allegation.

11In my view you evidence as to the victims motivation was capricious and malevolent and showed how truly remorseless you are for your offending.  No doubt in order to maintain face with your wife and friends, you will continue to deny the offending instead of being honest about your criminal weaknesses.  You have shown no remorse. 

12You are to be treated as a serious sexual offender on Charges 3 and 4, which means that under s.6D(a) of the Sentencing Act, I must regard the protection of the community from the offender as the principal purpose for which the sentence is imposed; and (b), 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.

13Pursuant to s.6E of the same Act, every term of imprisonment imposed by a court on a serious offender for a relevant offence, must unless otherwise directed by the court, be served cumulatively.  The prosecution does not seek a disproportionate sentence.  In sentencing you I have taken into account that you are a serious sexual offender on Charges 3 and 4.

14I have taken into account the principles of totality and proportionality. 

15On your behalf your counsel, in mitigation relied on, (1), your background; (2), your age, you are now 75; (3), your previous good character and his summation of the circumstances of the offending, in that he submitted it was brief, untrammelled by violence or coercion and brought to an end by a negative response on the part of the complainants. 

16As I have just read in relation to the facts of the case, there was a grabbing in relation to each of the events - of each the complainants.  There was no further violence, I accept that and the events were swift.  However, you certainly verbally attempted to stifle Brandy into reporting your action.

17You grew up and were educated in Devonport, Tasmania.  After leaving school you have had a variety of jobs including a carpet layer, working in the building and construction industry and in 1972, you joined the police force in Tasmania and continued as a policeman for approximately 15 years.  You met your wife, Alexandra[11] when you were 19 and she was 17.  You married three years later and have two children, Ashley[12] and Seth.  After your retirement from the police force, Alexandra and you moved to Cowes.

[11] “Alexandra is a pseudonym”

[12] “Ashley is a pseudonym”

18A patient health summary was tendered to outline some of the health difficulties you have including sarcoidosis and diabetes, and it outlines the various medications you are taking.  That was attached to the remand document last night, and will be attached to the sentence document today.  I have taken all these factors into account.

19In sentencing you I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community, seeking to ensure that as far as possible offenders are rehabilitated into society.  I express my denunciation of your behaviour.  I will say a bit more about that in a moment.

20The basis purposes for which a court may impose a sentence are punishment, general deterrence, specific deterrence, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victim, if any.  General deterrence is a major sentencing factor in your case.  How is it that you are not aware, or ignored the continual press coverage about the sexual abuse of children in our society.  It has been headline news at least for the last ten years, however for reasons best known to yourself, you decided to ignore that and thought you could get away with it.

21The courts must impose sentences that tell the community that this sort of behaviour will not be tolerated.  In regard to specific deterrence, because of your age and previous criminal background, it has played little role in my sentencing here.  However, denunciation is certainly an important factor.  Protection of the community I have to consider in the way it is outlined in the Serious Sexual Offender provisions, however, realistically because of your age and the time you will spend in custody, hopefully that will not be a major concern.

22A grandparent is in a unique position of trust, responsibility and love concerning grandchildren.  Your offending here abused each of those principles.  You have grossly effected their lives, you have divided your family.  Instead of a peaceful, contented life after the age of 75, you will spend a substantial period of it in gaol.  Your offending was shameful.  You have shown no remorse.  I have taken into account your otherwise good character, your age, your background, the circumstances of the offending as detailed previously.

23On Charge 1, I sentence you to a term of imprisonment of six years.  I fix that as the base count and I have picked that as the base count because it is the first one and for no other reason.

24On the second charge, I sentence you to a term of imprisonment of six years. 

25On the third charge, I sentence you to a term of imprisonment of one year.

26On the fourth charge, I sentence you to a term of imprisonment of six years and six months.

27I direct that 18 months of the term of imprisonment that I have imposed on Charge 2, three months of the term of imprisonment that I have imposed on Charge 3, and 18 months of the term of imprisonment I have imposed on Charge 4, be served cumulatively upon each other and also with the base count.

28That makes a total sentence of ten years and six months, have I got that right?  No, sorry.

29MR DOYLE:  It is nine years and three months.

30HIS HONOUR:  Yes, I apologise.  Nine years - sorry my arithmetic.  I will do the ‑ ‑ ‑

31MR DOYLE:  It is 39 months cumulation on the six.

32HIS HONOUR:  Yes.  Nine years and three months.  Thank you.  And I declare that you serve a period of seven years before being eligible for parole.  I have made a 464ZF Order and you are to be placed on the Sex Offenders Registration List for the period of life.  So I will just run through that again.

33Charge 1, six; Charge 2, six; Charge 3, one year; Charge 4, six years, six months; 18 months on Charge 2; three months on Charge 3; 18 months on Charge 4; cumulative with each other and upon the base count which makes a total of nine years, three months with a non-parole period of seven.

34MR DOYLE:  Yes.  Can I just clarify, Your Honour, Charge 3 was one year?

35HIS HONOUR:  Yes.

36MR DOYLE:  Yes, thank you.

37HIS HONOUR:  Otherwise I think the arithmetic is now correct.

38MR DOYLE:  Yes, Your Honour, and he should get one day pre-sentence detention.

39HIS HONOUR:  Yes.  Do you agree with that, one day of PSD?

40DEFENCE:  Yes, Your Honour.

41HIS HONOUR:  I declare that the time of one day that you have served, be reckoned as part of the term of imprisonment that I have just imposed.  Are there any other matters?

42MR DOYLE:  No, Your Honour.

43DEFENCE:  No, Your Honour.

44HIS HONOUR:  All right.  Thank you.  You can take Mr Dun out, thank you.

45HIS HONOUR:  I will adjourn the court until the appeals are ready.

46COUNSEL:  Yes, Your Honour.

‑ ‑ ‑