Director of Public Prosecutions v Duncan
[2014] VCC 501
•11 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MARK DUNCAN (Pseudonym) |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Bendigo |
| DATE OF HEARING: | 9 April 2014 |
| DATE OF SENTENCE: | 11 April 2014 |
| CASE MAY BE CITED AS: | DPP v Duncan |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 501 |
REASONS FOR SENTENCE
Subject: Criminal Law - sentence
Catchwords: Pleaded Guilty to 5 charges indecent assault, 1 charge attempted indecent assault, I charge transmit child pornography, I charge possess child pornography; victim was step-daughter aged between 11 and 14 at the relevant times;
Sentence: 8 years 3 months non-parole period 5 years.
NotePseudonyms used for Offender, complainant and mother of complainant.
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| APPEARANCES: For the Director of Public Prosecutions | Counsel Mr P Jones | Solicitors OPP |
| For the Accused | Mr R. Kelly Mr M Williams (at sentence) | VLA |
HER HONOUR:
1 Mark Duncan[1], you have pleaded guilty to five charges of indecent assault and one charge of attempted indecent assault. The victim of these offences was your natural daughter, Paula Duncan[2]. The offending occurred many years ago when she was aged between nine and 18 years but the charges are limited to the years between the ages of nine and 14. You have also pleaded guilty to one charge of using a carriage service to transmit child pornography, and one charge of possessing child pornography, these offences occurred more recently, on 9 June 2012 and 12 March 2013.
[1]Pseudonym
[2]Pseudonym
2 It was in relation to those pornography offences that police went to your home with a search warrant in March last year, and interviewed you with your wife present. During that interview, following a break when police spoke with your wife, you admitted to the police that you had assaulted your daughter. Indeed, you made full admissions. You were co-operative with the police and explained the offending to them. It emerged that Paula had disclosed it to the family some years ago, when she was aged about 20, following which your wife had organised psychiatric help for you, as well as for Paula.
3 The offending began with grooming behaviour by you of your daughter when she was nine, culminating in inserting your finger into her vagina in various different circumstances. Those are Charges 1 to 4. Charge 6 occurred when your daughter came into your bed and masturbated you. Charge 5 is the charge of attempted assault. On that occasion you were about to insert your finger into her underpants when her mother came into the room and you stopped. Other similar behaviour, including fondling of her breasts, occurred on other occasions and are the subject of uncharged acts. The last of these was when your daughter was 18 or 19.
4 I add the comment that Charge 6 is no less serious by reason of the fact that it was an act of masturbation of your penis instigated by your daughter. It occurred at the Bayview Road house in the marital bed when your wife was asleep, when your daughter was a pubescent child aged 13 years, after a long period of sexual abuse upon her. I note that you disclosed that matter to the police voluntarily.
5 Your daughter left the family home soon after her disclosure and has remained estranged and isolated ever since, despite early attempts to mend the rift. She provided a detailed victim impact statement in which she described very serious consequences of the offending, including post-traumatic stress disorder, with an extensive number and range of symptoms. She is now aged 43, the mother of two small boys, and still feels affected by what you did in every facet of her life. She suffers frequent panic attacks and has weekly counselling.
6 She considers that her schooling was disrupted by being unable to focus on her schoolwork, and causing her to behave badly at school. Accordingly, she never achieved the level of education she had hoped for. She considers that she overprotects her children, out of fear that they might be abused.
7 Your wife's victim impact statement is a sad document, describing how she feels she has let down her children because in effect she trusted you. She tells of the enormity of the family rift, despite her efforts to help the family to overcome it.
8 You are now aged 73 and you suffer from poor health. According to a report from your general practitioner you have had heart disease for many years and suffer also from prostate cancer, which is being monitored. You require specialist investigation for osteoarthritis, as it is affecting your neck area and causing headaches. You have suffered from depression in the past which proved amendable to treatment.
9 You were assessed recently by a forensic psychologist, Dr Pamela Matthews, who considers you are at moderate risk of reoffending. She identified a number of factors which reduced the risk, such as your isolation from young members of the family and the fact that your offending had been de-escalating in severity when it ceased. Added to that is the decline in your cognitive abilities, which she noted after subjecting you to various tests.
10 She said social support, counselling, restriction on alcohol abuse and keeping busy on a daily basis would all be factors that would reduce the risk further. The fact that you pleaded guilty to the charges, and expressed remorse in other ways as well, and that you have developed some insight into why you offended and the impact it has had, are additional factors that reduce risk and are also to be taken into account in determining the length of your sentence.
11 Your early plea of guilty, following your cooperation with the police, means that you are entitled to a discount on your sentence, as it has avoided the need for a trial and saved your daughter and your wife, and perhaps others, from having to give evidence and be cross-examined. The case has come before the court relatively quickly and that assistance to the system of criminal justice deserves recognition. You have admitted to your sexual interest in young girls and when referred to psychiatric treatment after your daughter's disclosure, you remembered the advice of the psychiatrist, which was never to deny the abuse you had perpetrated. Hence your admissions to police when your wife told them what had occurred years earlier.
12 The abuse by a father of his own daughter deserves the strongest condemnation by the courts. It is inimical to the standards of decent behaviour that the community expects of parents and must be punished sternly. You abused your daughter over a long period of time and caused great harm to her. Sadly, as might be expected, harm has also flowed to the rest of the family as well. You sacrificed your daughter's wellbeing and entitlement to safety at home to your own selfish and deviant desires.
13 She tried to stop you by reporting your behaviour to school authorities, and it is a sad indictment of those times that nothing was done about it. She surmises that it was because of your good standing in the community. Indeed, your conduct professionally as a firefighter was beyond reproach and you have several awards and commendations to attest to that. It was during much of the same period when you received those awards that you were committing the offences. It was well after you had begun to do so that you were subjected to a number of severe stressors associated with the Ash Wednesday fires and a house fire at Tecoma in 1983 and 1984. So while psychological distress may have had an impact on the continuation of the offending, there is no such link with its commencement.
14 The pornography offences occurred after the breakdown of your marriage and when you were living separately from your wife but in the same residence, due to financial problems you were experiencing following the separation. The use of the carriage service involved your communications via the internet with a police officer in the USA purporting to be a 13-year-old boy. You sent seven pornographic images to the officer depicting children engaged in sexual activity with adult males.
15 The Australian Federal Police were notified, resulting in their attendance at your home. There they seized your computer and located a USB memory stick. Later analysis disclosed 1,655 picture files, and four video files on the computer, and 469 picture files on the memory stick. This is a relatively large number. I accept that you had believed you had deleted much of it but that proved not to be the case.
16 Most of the images and videos are classified at the lower levels of seriousness, according to the scale commonly used in these prosecutions. Only two belonged to Level 6, the most serious level. Tables prepared by the prosecution, setting out the levels of the pornographic material found in your possession, shall be appended to these sentencing remarks.
17 The need for general deterrence in a case such as this is of paramount importance in sentencing, for the reasons to which I have already referred, including community abhorrence and the need to reinforce expected standards of behaviour. An aggravating factor is the gross breach of trust implicit in the offences of indecent assault. The need for specific deterrence is reduced by factors such as your remorse and some insight, your declining years and reduced opportunity.
18 The maximum penalty for indecent assault, applying at the time of the offending, was five years' imprisonment. The current maximum penalty for use of a carriage service to transmit child pornography is 15 years, and for possessing child pornography, five years. In regard to the pornography charges, I take the view that in this case the sentence for possessing child pornography should be greater than for the charge of transmitting child pornography, even though the maximum penalties might suggest otherwise. I take the view that because of the large number of images found in your possession, compared with the limited contact with the officer in the United States, and the limited number of images transmitted.
19 Would you stand now please, Mr Duncan? I sentence you as follows: for each of the charges of indecent assault, Charges 1, 2, 3, 4 and 6, three years' imprisonment.
20 For Charge 5, attempted indecent assault, two years' imprisonment;
21 For Charge 7, use of a carriage service for transmitting child pornography, two years' imprisonment;
22 For Charge 8, possessing child pornography, three years' imprisonment.
23 Cumulation is warranted by the long period of time over which you offended, as well as by the need for the sentence to reflect the gravity of what you did. This must be tempered by the need for a proportionality and to avoid the sentence being crushing. In this regard, I take account of your age and state of health, and that for those reasons prison will be more difficult for you than for others who do not suffer from the health problems to which I referred earlier.
24 I shall deal with the State sentences first. The sentence for Charge 1 will be the base sentence for the purposes of cumulation. One year of each of the sentences for Charges 2, 3, 4 and 6, and six months of the sentences for Charges 5 and 8, will be served in cumulation upon the base sentence. That results in a sentence of eight years.
25 In relation to the State sentences I order that you serve a minimum period of four years and nine months before being eligible for parole. Charge 7 is a charge under the Commonwealth Criminal Code, and accordingly I order that the sentence for that charge begins today. The sentence is for 12 months, as I said, and I order that you serve a minimum period of three months before being eligible for parole. After serving those three months you will begin to serve the sentences imposed for the State charges.
26 Therefore, the total effective sentence will be eight years and three months, and you will serve five years in total before being finally eligible for parole. If you had pleaded not guilty to these charges, taking into account the overall sentence, I would have sentenced you to ten years' with a non-parole period of seven years.
27 The prosecution seeks an order for a forensic sample of saliva to be obtained from you, and through your counsel you have consented to that. I make that order and must advise you that the police have the power to use reasonable force, if necessary, to obtain the sample but I trust that will not be the case.
28 The Sex Offender Registration Act requires that you report your details to the police every year for the rest of your life, once you are released from prison. As terms of imprisonment are being imposed for Charges 1 and 2, it follows that you are being sentenced as a serious sex offender for each subsequent charge, except for Charge 7 which is the Commonwealth charge. That shall be entered on the court record. I note that the prosecution has not sought a disproportionate sentence under s.6D of The Sentencing Act, in order to achieve the protection of the community.
29 Are there any other matters, Mr Jones, that I have omitted?
30 MR JONES: No, Your Honour. There's only one thing, Your Honour. In relation to the document we were given, Your Honour. For Charge 7. I thought I heard - I might have misheard it, Your Honour. I thought I heard Your Honour impose a two year sentence for that.
31 HER HONOUR: No, it's 12 months.
32
MR JONES: I think you did say that, Your Honour. So
that for completeness, it's 12 months.
33 HER HONOUR: Yes it is 12 months.
34 MR JONES: But it's two years on Charge 8.
35 HER HONOUR: Just one moment, I'll just check that. Yes, I did say that, didn't I? For Charge 7 it should be 12 months, not two years.
36 MR JONES: Yes.
37 HER HONOUR: And for Charge 8 it's three years.
38 MR JONES: Is that three or two, Your Honour?
39 HER HONOUR: Excuse me. Can I have a look at this? Thank you. Yes, it should be two years. I'm sorry about those errors. I'll just repeat that again for the record, Mr Jones.
40 MR JONES: Thank you, Your Honour.
41 HER HONOUR: For Charge 7, the use of the carriage service for transmitting child pornography, 12 months. For Charge 8, possessing child pornography, two years.
42 MR JONES: So those sentences begin immediately? They're the Commonwealth ones.
43 HER HONOUR: It's only Charge 7 which is the Commonwealth one.
44 MR JONES: Sorry, yes.
45 HER HONOUR: Yes, and that begins immediately.
46 MR JONES: And then, at the beginning of a non-parole for that, the State commences.
47 HER HONOUR: Yes, that's right. So there's no gap.
48 MR JONES: As specified by Your Honour.
49 HER HONOUR: There's no gap.
50 MR JONES: So there's no gap.
51 HER HONOUR: That's right. I wonder if you and Mr Williams wouldn't mind passing those pages back because of the errors on them. If you would like a revised copy of the sentence I can make that available quite quickly.
52 MR JONES: No, Your Honour.
53 MR WILLIAMS: There's no error on my paper, Your Honour. It was just in Your Honour's ruling that the error arose. It was only in the sentencing. The paperwork that I've been provided correctly reflects Your Honour's orders.
54 MR JONES: Yes.
55 HER HONOUR: Does it?
56 MR WILLIAMS: Yes, Your Honour.
57 MR JONES: Yes.
58 HER HONOUR: All right. Thank you. You can be seated for the moment, Mr Duncan. I just want to make sure everything's in order before you go. I think he's been handed now, Mr Williams, the form under the Sex Offender Registration Act. I think everything's all in order now and Mr Duncan can be taken. Thank you. The officer will take you now, Mr Duncan. Do you want to have a word with Mr Williams, do you?
59 OFFENDER: Yes.
60 HER HONOUR: Would you like to approach the Dock, Mr Williams? I'll give you a moment.
61 MR WILLIAMS: I'll speak to Mr Duncan when he's been released from the court.
62 HER HONOUR: All right. (To Prisoner) Mr Williams will speak to you a little later, Mr Duncan.
63 OFFENDER: Thank you.
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Chart of Evidence: Paula Duncan (Pseudonym) (DOB: 13.04.1970)
| Date | Location | Age | Brief Description | Evidence | Offence | Charge |
| 1.12.1976* | 6 years | Hand touches vagina (no penetration). | Statement of Paula Duncan. Para 16 - 17 | Uncharged act. Offender not identified. | -I | |
| 1.3.1981 – 15.2.1983 | 9 years – 12 years | Hand of upper thigh | Statement of Paula Duncan. Para 24 - 26 | Uncharged act. | -II | |
| 1.3.1981 – 15.2.1983 | 9 years – 12 years | Touches outside of vagina Digital penetration of vagina Re-penetration of vagina Accused masturbates himself | Statement of Paula Duncan. Para 32 Para 33 Para 36 Para 38 | S 44(1) Indecent Assault Crimes Act 1958* S 44(1) Indecent Assault Crimes Act 1958* S 44(1) Indecent Assault Crimes Act 1958* Uncharged act. | 1 2 3 -III | |
| 1.3.1981 – 15.2.1983 | Accused touches breast/nipples of complainant | Statement of Paula Duncan paras 53/54 | S 44(1) Indecent Assault Crimes Act 1958* | 4 | ||
| 16.2.1983 – 31.12.1984 | Bayview Road | 12-14 years | Hand under band of underpants (cream on back of legs incident) | Statement of Paula Duncan para 64 | Attempt (Common law) S 44(1) Indecent Assault Crimes Act 1958 | 5 |
| 16.2.1983 - 12.4.1984 | Bayview Road | About 13 years | Rubs vicks on complainant’s chest | Statement of Patricia Duncan Para 18 – 20 Admission in ROI Page 289, 304, 307 - 310 | S 44(1) Indecent Assault Crimes Act 1958 | 6 |
| 16.2.1983 – 31.12.1984 | Bayview Road Belgrave | 12 – 14 years | Complainant masturbates Accused’s penis | Admission in ROI Page 290 and 314-316 | Uncharged Act | -IV |
| 1.1.1985 - 31.12.1987 | 15 – 17 years | Mouth on breasts (windscreen wipers) | Admission in ROI Page 319 – 321 and 329 | Uncharged Act | -V | |
| 1.1.1988 | 18 – 20 years | Admits to assaulting complainant until she left Frankston, aged 20 | Admission in ROI Page 322 | Uncharged Acts | -VI | |
| 13.4.1988 – 12.4.1990 | 29 Stewart Street Frankston | 18 or 19 years | Touches breast and digital penetration of vagina | Statement of Paula Duncan para 76 – 79. | Uncharged Acts | -VII |
*Statutory Alternative (per Dibbs v R) is section 55(1) Indecent Assault on a Girl Crimes Act 1958, offence dates 1.1.1980 – 28.2.1981
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