Director of Public Prosecutions v Dunlea (a pseudonym)

[2017] VCC 1106

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

LUKE DUNLEA (A PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	4 April 2017 and 14 August 2017
DATE OF SENTENCE:	14 August 2017
CASE MAY BE CITED AS:	DPP v Dunlea (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1106

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW – SENTENCE
Catchwords:            Incest; brother/sister; young offender; delay  
Legislation Cited:     Sentencing Act1991; Sex Offenders Registration Act 2004

Cases Cited:R v Mills [1998] 4 VR 235; DPP v Dalgliesh (a Pseudonym) [2016] VSCA 148

Sentence:                 Convicted and ordered to serve Community Correction Order of three years, with 150 hours unpaid community work and rehabilitative conditions

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APPEARANCES:	Counsel	Solicitors
For the DPP	C Hollingworth	John Cain, Solicitor for Public Prosecutions
For the Accused	R de Vietri	Victoria Legal Aid

HER HONOUR:

1       Luke Dunlea,[1] you have pleaded guilty before me to one charge of incest between siblings.  You took part in an act of sexual penetration with your younger sister, Brianna,[2] between 1 January 2012 and 4 February 2014.  The charge is representative of two occasions where penile/vaginal sex occurred between yourself and your sister.

[1]Luke Dunlea is a pseudonym.

[2]Brianna is a pseudonym.

2       The offending happened when you were aged between sixteen and eighteen and your sister was aged between ten and twelve.

3       Brianna and you are both children of the relationship between your mother, Alicia Harper[3] and your father, Peter Dunlea.[4] They were in a relationship but separated in 2004.

[3]Alicia Harper is a pseudonym.

[4]Peter Dunlea is a pseudonym.

4       Thereafter you continued to live with your mother and sister Brianna.  Your mother commenced a new relationship with a man called Jeremy Galvin.[5] In 2010 you all moved into Mr Galvin's home in Aspendale, and in February 2013 you later moved to a home in Patterson Lakes.  Both you and your sister had separate bedrooms at the end of the house, whilst your mother and Mr Galvin shared another bedroom at the other end of the house.  In September 2013, your girlfriend, Jessica,[6] commenced living at the address and shared a room with you.

[5]Jeremy Galvin is a pseudonym.

[6]Jessica Fyans is a pseudonym.

5       In early 2014 your sister was treated for a condition which was identified as genital herpes.  On March 3, 2014, your mother was advised by the Royal Children’s Hospital of the diagnosis and informed that it was highly unlikely that she could have received the condition from near transfer; that is, sharing underwear with your girlfriend.

6       Your offending was disclosed after your sister's diagnosis was confirmed, and your mother spoke to your sister about the diagnosis and its cause.  Eventually it was revealed that you had had sexual intercourse with your sister and that the sex was forced.

7       Your sister returned to the hospital that night after threatening to commit suicide and was admitted until discharged home on 7 March 2014.

8       Your father telephoned you and confronted you with the allegations on 4 March 2014.  You denied those allegations. 

9       On 10 March 2014 your sister completed what is known as a VARE at Moorabbin Police Station detailing in her statement the two occasions when penile/vaginal sex took place.  She was aged 12 at the time of the taking of the statement and said the first occasion occurred when she was aged ten and was about to go into Grade 5.

10      The context to that offending was it happened after a breakup with one of your previous girlfriends. You entered her room and started talking to her and then you engaged in penile/vaginal sex.  She screamed for help because she did not want to have sex but you persisted.  You told her that it was just what brothers and sisters did. 

11      Your sister detailed another occasion when penile/vaginal sex occurred four weeks prior to the making of her VARE when she was twelve and you were eighteen.  She stated that you came into her room and it happened again.  You held her down, holding her chest with your hand, and started rubbing her vagina.  She asked you to stop but you did not do so.

12      When you were formally interviewed on 27 March 2014, you made admissions to having sex on one occasion only.  You said that it happened some three to six months earlier and that it was penile/vaginal sex.  You stated that you did not have a recollection of the other earlier occasion.  Towards the end of the interview, you said you could not remember having sex with the victim (A 270) but if the victim said that it happened, it must have (A 196).

13      You told police up until the allegations you were smoking 7 grams of cannabis per day and it badly affected your memory.

14      Mr Dunlea, objectively this offending is very serious, involving as it does penile/vaginal sex with your younger sister on two occasions reflected in the one representative charge.   Your offending has had an extremely traumatic and long-lasting effect on both your sister and mother and extended family members.  There were a number of aggravating features to your offending,  including the fact that you did not use condoms, that your sister lost her virginity and she contracted the STI, namely herpes, which effects have been ongoing. 

15      Mr Dunlea, the offending is considered to be serious, and that is reflected in the penalty prescribed by Parliament, namely five years maximum penalty. 

16      Your sister read her Victim Impact Statement to the Court, in which she stated the profound effects your crime has had on her.  It has affected her physically, emotionally and socially.  Since being diagnosed with herpes linked to the intercourse, she has had ongoing medical issues.  In addition she has suffered greatly. She has experienced night terrors, difficulty sleeping, depression, anxiety and problems with distrust.

17      I have also had regard to her further statement dated 8 May 2017.  She has also had admissions for treatment into the Banksia Unit at the Royal Children's Hospital. 

18      As a consequence of your actions, her life has been severely disrupted. She had to leave one school because of some fellow students finding out about what had happened.  She has had to relocate to other parts of metropolitan Melbourne, leaving behind family and friends.  She now has difficulty making friends and has real difficulties trusting others.  Her treatment at the Royal Children’s Hospital continues.

19      Your sister described not being able to lead a normal teenage life and says she is very attached to her mother and finds it difficult to cope socialising with others.  She says, and I quote:

“I lost my childhood because of what you did to me.  I will never ever have a normal life.  I really just want him to know that he has stolen my childhood, my happiness and I will always have this disease to remind me.”

20      I have also had regard to your mother's Victim Impact Statement.  Alicia Harper read her statement to the Court today, and it underscores the real difficulties that she has experienced.  She is severely conflicted, this offending involving, as it does, her son and her younger daughter.  She described her situation as being the worst Hell you can ever go through, seeing one child go through Hell and grieving for the other. She says that you have torn your family apart and you have destroyed her life in every way, and she feels like you do not care and that you are not sorry.  She now is full-time carer for Brianna and is no longer working.  She says that she does love you because you are her son, but she does not like what you have done and who you have become. 

21      In sentencing you, I have had regard to the matters put on your behalf by Mr de Vietri.  I noted at the commencement of his submissions he did relay to the Court your apology.  You do say now that you are sorry for your actions and that the last thing you wanted to do was to ruin your sister's life as well.  You acknowledge the serious nature of your offending and the great impact it has had primarily upon your sister, but also upon your mother, father and extended family members.

22      In Court, at the first plea hearing, you were supported by your father.  He maintains his support notwithstanding the very difficult personal circumstances that he finds himself in.

23      I note that you are now twenty-two and at the time that the offending occurred you were aged between sixteen and eighteen years old.  You were considered to be a child in the terms of the law at that time.  Had you been dealt with as a sixteen year old, you would have been subject to a different sentencing regime that applies in the Children’s Court, whereas now you are being dealt with in the adult jurisdiction where you are subject to a more punitive sentencing regime.

24      You were born and raised in the south eastern suburbs of Melbourne.  Your father was a painter and your mother worked at a golf course.  As I mentioned earlier, your parents separated when you were only in your early teens. You do not have a good relationship with your father, it is not very close.  He is described as having problems with alcohol and he is not very involved in your life, although he does now support you.   Your mother has not been able to have a relationship with you, particularly following the disclosure of this offending. 

25      I noted that your schooling was disrupted and characterised by bullying.  You attended several primary schools and you completed Year 9. Because of poor performance and learning difficulties characterised by dyslexia and poor literacy skills, you were unable to complete Year 10.

26      After leaving school, you worked as a panel beater for a few months, a tyre fitter, assisting your father with painting, doing some building, labouring type work and working in a plastic mould company.   You are about to commence work as an assistant with a friend who is a mechanic, and you are keen to pursue a career in that area.  You have had very few close friends during your childhood and schooling years.  

27      You have had a long term history of cannabis use, commencing when you were 14, with regular use and heavy daily use up until the time of offending.  You have also reported using other drugs on occasion.  Alcohol was a problem two years ago, but you now consume irregularly. 

28      Following the report to the police of this offending, you have had to remove yourself from living in your mother's care, and you have been living transiently since, staying between friends’ homes and sometimes in your car.  You are currently living with a friend who is a disability support worker.  You have formed a new relationship, an age-appropriate relationship, and you assist your girlfriend with the care of her mother.

29      You come before the Court as a person who has no prior criminal history. 

30      You are considered to be a youthful offender, and accordingly special principles of sentencing apply, and I refer to R v Mills.[7] 

[7][1998] 4 VR 235.

31      Youth of an offender, particularly a first-time offender, is a primary consideration for the court, and in the case of youthful offenders, rehabilitation is more important than general deterrence and the emphasis is on rehabilitation.  It has long been the case that a youthful offender is not sent to an adult prison if such a disposition can be avoided. 

32      I have taken into account the lengthy delay in this matter coming before the court, which is in no way attributable to any actions on your behalf.  Notwithstanding you were interviewed on 27 March 2014 you were not charged until 12 July 2016.  So you had the matter hanging over your head for some two years and four months. The matter then proceeded by way of a filing hearing and committal mention, and was resolved on 9 September 2016 at the committal mention, and thereafter, it was listed for a plea hearing.

33      The prosecution properly concede that there has been a delay that was outside your control, and it was in no way attributable to any actions on your behalf.    One of the reasons for the delay, the primary reason, was that the matter was considered by the Office of Public Prosecutions. There was some thought given to whether a second VARE ought be obtained.  On 22 May 2015, the complainant confirmed that she did not wish to make a follow-up VARE.  The brief was then returned back to Victoria Police for authorisation of the charges. Then there were some difficulties locating you because of your itinerant lifestyle.  It was not until 12 July 2016 you were located and the charges were laid. You were arrested under warrant but released immediately on bail.

34      I have taken into account delay and note that during the time period involved there has been no subsequent or further offending, apart from the traffic offences that were discussed this morning.   That matter is yet to be finalised in Court, and you are due to go to the Magistrates' Court tomorrow.

35      I accept that you entered a plea of guilty at the earliest stage.  There is real utility in your plea.  You have, importantly, spared the victim the further trauma of having to give evidence on your trial.  You have facilitated justice and the sentence will be discounted accordingly.

36      That plea of guilty does recognise an acceptance of wrongdoing on your behalf.  You take responsibility for your actions.  Whilst you did not recall the first incident and only had a partial memory of the second occasion when intercourse occurred, in accordance with your record of interview, you do now acknowledge that these events did occur, and through your plea, you accept that the charge is representative of the two occasions, and importantly, you do not dispute what is said. You acknowledge that what your sister said about what happened is true. 

37      I accept that the plea of guilty does demonstrate a degree of remorse on your behalf.  You have expressed sorrow today.  You have expressed disgust at the hurt that you have caused.

38      Dr Aaron Cunningham, forensic psychologist, assessed you for the purposes of a report for the plea hearing. At the earlier plea hearing I indicated that I had difficulties with a number of aspects of his report.  In particular, he considered that you presented with major depressive disorder.  There is no evidence of that fact.  You have had no treatment in respect to that condition.  Although I accept that since these charges have been laid you have suffered depression and some suicidal ideation.

39      He also postulated that one of the reasons why you could not remember what had happened was because of your low working memory index, and it was submitted that your report of having no precise recollection of the instances of offending was not inconsistent with that finding and your history of drug use. 

40      Given the heavy cannabis use that you were indulging in at around that time, I consider that is a possible explanation, but that in no way excuses your behaviour.

41      The matter of memory was addressed by Dr Adam Deacon, consultant psychiatrist, Forensicare. Overall, I consider Dr Deacon's explanation in respect to this aspect more plausible, and I rely on his expressed opinion.

42      Dr Deacon says you do not present currently as experiencing a major depressive disorder, rather it is far more likely you are struggling with a high level of self-loathing and shame directly related to the offending. There was no evidence of you suffering a mental condition in proximity to the time of the offending occurring, and there was no evidence of any underlying mental condition which impaired your ability to exercise appropriate judgment, impair your ability to appreciate the wrongfulness of your conduct involving the offending, or contributed to the commission of the offending. 

43      In respect to the memory aspect, he stated that the most plausible explanation for your purported loss or lack of memory for the offending is that you felt so disgusted and ashamed for what you did, that you have consciously suppressed or repressed this from your memory.  He said, curiously you do not deny engaging in the offence, but rather you deny recollecting the event itself.  He says this phenomenon is not uncommon in sexual offenders.  He said you may be prevaricating, but he thinks it is more likely that your purported absent memory relates to activated psychological defence mechanisms.

44      Both Dr Aaron Cunningham and also Dr Deacon confirm that you present as a moderate risk of sexual offending. Dr Deacon concurs with that conclusion based on the administration of the risk for sexual violence protocol that he administered.  

45      He says, "I concur with Dr Cunningham that Mr Dunlea presents at least as a mild risk of sexual offending and possibly into the moderate range."  He recommends that you be referred to the Sex Offenders Program either within prison, or when you are released into the community.

46      Overall, I have had regard to the gravity of the offending, which I consider to be serious.  I consider this to be a mid-level example of this type of offence having regard to the particular circumstances of the offending and the aggravating features I have already highlighted.

47      As has been stated by the Court of Appeal in DPP v Dalgliesh (a pseudonym),[8] the act of penile/vaginal intercourse can be considered to be an act of violence.

[8][2016] VSCA 148

48      It is conceded on your behalf the charge is predicated on the presumption of harm and that actual harm has been demonstrated through what was stated in your sister's Victim Impact Statement.  It is also accepted that your actions were aggravated by the fact that there was no condom used, that your sister lost her virginity and contracted a sexually transmitted disease. 

49      Your offending was not isolated in nature but rather represents two separate occasions when this act of sexual intercourse occurred. 

50      Notwithstanding the very serious nature of your offending, I have to have regard to all of the relevant sentencing principles that apply, and in particular, the matters in mitigation that I have highlighted as I have been going through these sentencing remarks.

51      The courts in this state also recognise in cases where adults are being dealt with for offending that occurred when they were children that regard must be had to common sense and fairness which dictates that the assessment of the nature and the gravity of the crime and your moral culpability must take into account that what was done was done as a child and that general deterrence does have ordinarily a lesser role to play in sentences involving children than in the case of adults, and I have taken into account those principles.[9]

[9]See R v Boland (2007) 17 VR 300 approving R v Nutter (VSCA Unreported, 8 November 1995) and R v Better [2003] VSCA 71 (Charles, Buchanan and Vincent, JJA).

52      Mr de Vietri submitted in all the circumstances that a Community Correction Order ought be considered, such an order be of a length that reflects the seriousness of the offending and allows you sufficient time to complete a specialist treatment program.  He submitted that, together with the punitive aspect, a rehabilitative order that includes drug and alcohol treatment and a sex offender treatment program would be appropriate to address your underlying offending behaviour.

53      Ms Hollingworth, on behalf of the crown, submitted that disposition is a matter for the Court, but a Community Correction Order, or a moderate immediate term are all within range, and that would include a combination of jail to be followed by a Community Correction Order.

54      You have been assessed at the request of the court, and you have been found to be suitable for a Community Correction Order following an Extended Pre-Sentence Assessment conducted by Danielle Tabacchiera from Frankston Community Correctional Services, and I have had regard to the contents of her report dated 29 June 2017.

55      In considering the most appropriate disposition I have had regard to the guideline judgement of the Court of Appeal in Boulton v The Queen (“Boulton”).[10]

[10][2014] VSCA 342.

56      For some time now, the availability of a Community Correction Order has been available to the Victorian courts.  Such an order has dramatically changed the way in which courts can deal with sentencing disposition.  This is a disposition that enables all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to an option of imprisonment, which is skewed towards retribution and deterrence.

57      It is still an order that is considered to be punitive;[11] such an order can achieve deterrence[12] and may be suitable even in cases of relatively serious offending which might previously have attracted an immediate term of imprisonment.[13]

[11]Ibid [85]-[102].

[12]Ibid [123]-[130].

[13]Ibid [131].

58      I also have had regard to your relative youth, and as was said by the Court of Appeal in another case of R v Tiburcy,[14]  sentencing court must look to the future as well as to the past, and there is real benefit in the community at large as well as to individuals themselves and their immediate families if the underlying offending behaviour can be addressed and further criminal activity can be avoided.

[14][2006] VSCA 244.

59      Having regard to the findings of the people who have assessed you as to your suitability for your Community Correction Order, together with the report of Dr Adam Deacon, I consider that the disposition which I am about to impose is the most appropriate to reflect the community's denunciation, to impose just punishment, to ensure protection for the future, and to address your particular individual needs so as to reduce the likelihood of reoffending.

60      I will now make the formal court orders, so I ask that you do stand, please, Mr Dunlea.

61      In respect to Charge 1, you will be convicted and ordered to serve a three year Community Correction Order.

62      In addition to the mandatory core provisions, you will be subject to supervision for those three years, required to perform 150 hours unpaid community work over three years, undertake assessment and treatment (including testing) for drug abuse and dependency as directed, and undergo treatment and rehabilitation, including offending behaviour programs.

63      That latter condition is to enable a referral to be made to the Corrections Victoria Specialised Offender Assessment and Treatment Service (SOATS) to undergo an assessment to determine your suitability to be placed in the Better Lives Program.  That program is delivered to individuals whose offending is of a sexual nature. The Community Correction Order runs for three years commencing from today's date.

64      You have had the opportunity of having the order explained to you by your counsel, and you have indicated to him that you understand the nature of such an order and its effects, and further, you understand what happens in the event of a breach of such an order.

65      I make the s.6AAA declaration that but for your plea of guilty I would have imposed a term of imprisonment of three years to serve 18 months.

66      Upon your conviction in relation to the charge under the Sex Offenders Registration Act 2004, you have committed one Class 1 offence, and that legislation provides that you are subject to mandatory reporting for a period of 15 years and, therefore, you are required to report for 15 years.  Shortly my associate will approach you with a notification of all the requirements of that legislation.

67      I make the order for the taking of a forensic sample pursuant to s464ZF. The making of the Order was not opposed, and I consider it is in the public interest, having regard to the serious nature of your offending.

68      All right.  That completes all the necessary orders.

69      MS HOLLINGWORTH:  Yes, Your Honour.

70      MR DE VIETRI:  Yes, Your Honour.

71      HER HONOUR:  Okay.  I have signed the Community Correction Order, I have signed the s.464ZF order.  The only thing I need to tell you about, Luke, is that you will have to attend Frankston police station and give them a forensic sample.  I have to tell you that if you do not cooperate by providing a mouth scraping under supervision, then the police can take the sample by way of a blood sample and they may use reasonable force to enable that to be conducted.

72      All right.  I have signed those orders.  Mr de Vietri, if you could, please spend some time just explaining to your client the necessity for him to comply with the terms of the SORA legislation.

73      MR DE VIETRI:  Yes, Your Honour.

74      HER HONOUR:  The impacts of that are pretty grave too, in the event that he were to breach any of those conditions.

75      MR DE VIETRI:  Yes.  My instructor and I will sit down with Mr Dunlea and explain all those orders, including the timeframe for all those matters.

76      HER HONOUR:  All right.  If you would not mind just accompanying my associate just to get all the documentation signed, and then I will leave the Bench.

77      All right.  We can adjourn the court.  Thank you.

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