Director of Public Prosecutions v Jones (a pseudonym)

[2016] VCC 1454

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

AT MELBOURNE
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BOB JONES

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	Friday 23 September 2016
CASE MAY BE CITED AS:	DPP v Jones (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1454

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D.R. Cordy
For the Accused	Mr Williams

HIS HONOUR: 

1Bob Jones[1], you have pleaded guilty to two charges of indecent assault and one charge of gross indecency with a person under the age of 16 years.  At the time of this offending, those crimes carried maximum penalties of five years and two years respectively.

[1] A pseudonym.

2Insofar as Charge 1 of indecent assault is concerned, were those circumstances to exist as at today's date, and the crime relate to today's date, the maximum penalty would be ten years for certain, and in all probability 15 years.

3Insofar as Charge 3 is concerned of indecent assault, those acts now would attract a maximum penalty of 25 years.

4Insofar as the gross indecency is concerned, that act now would attract a maximum penalty of ten years.

5I simply make it clear that in a situation where the maximum penalty that I have to deal with as I've described, that there is a constraint put upon me which I think is fair, having regard to the decision of Stelleo that nevertheless should be recognised in the community in terms of sentencing.

6Firstly, pursuant to s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having being made, I advise you that should you refuse to comply with the request for such a saliva sample, the police may use reasonable force to take it from you.

7Secondly, in regard to this offending, by reason of it, you will be placed upon the Sex Offenders' Register, and I advise you that the reporting period will be for life and you will now be given some documentation in relation to that, and if Mr Williams you could accompany my associate to the dock please.

8From the outset I note that Charges 1 and 3 are representative, and that simply means that the charge is not to be treated as if it was in isolation.  I've also taken into account, as best I can, the sentencing statistics from the period of time over which this offending occurred.  Those statistics are, of course, of limited value as was correctly pointed out by the prosecutor.  Representative charges were not in vogue at that particular time, and those statistics do not reveal the length of time over which the offending took place, nor the degree of trust in which the accused had been placed; however, as I've indicated I'm well aware of the maximum penalties that were available at the time and I take those statistics into account as best as I am able.

9You are now 65 years of age.  You pleaded guilty to a settled indictment at a relatively late period of time, but you must get the utilitarian benefit of that plea of guilty, and in furthering the interests in the course of justice.

10The question of remorse is somewhat problematic, and in this circumstance I can just simply give you the benefit of the doubt in relation to that.

11The circumstances of this matter were that it was a trial, right up until the day of it being listed.  The victims had to give evidence and were, indeed, cross-examined in the Magistrates' Court and, accordingly, the utilitarian aspect is limited to a certain extent, but I nevertheless give you benefit for it.

12It is pointed out by your counsel that in this situation the plea of guilty should be viewed as you having had a reasonable chance of acquittal, bearing in mind the age of the matters, and the understandable destruction of the police file, and I take those matters into account.

13There is now a delay of some 23 or 24 years since the matters were reported to police.  I am not going to buy into why that is so.  On one view you simply absconded upon finding out about these allegations; on another view you may not have known.  The provisions relating to co-incidence evidence don't apply in a situation like this so I will simply work on the basis that it is a significant delay, and you are no longer being sentenced as a relatively young man.  The offending; however, did take place over a period of seven or eight years on my calculations of it.

14You are a man who is not in good health.  You have a number of conditions which were outlined to me by your counsel.  I accept that you will have more difficulty undergoing a prison sentence, and have had more difficulty undergoing a prison sentence because of, particularly, your lack of mobility, and I take that into account.

15I take into account the fact that you have been and, I assume, will remain in protection.  Very much in your favour is the fact that you have no prior convictions or findings of guilt, and have not been charged with any matters subsequently; however, as I have indicted, this offending did take place over a significant period of time.

16Having dealt with all those preliminary matters, though obviously matters of importance, I then turn to the summary of the prosecution and the nature of the offending.

17You, at the time of this offending, were aged roughly between 31 and 40.  The two complainants or victims as I now refer to them in the matter, were your nieces.  They are sisters, obviously, and were a very tender age when this offending started.  Joan[2], was aged between roughly four and 12, and her sister, Jean[3], between two and six when this offending occurred.

[2] A pseudonym.

[3] A pseudonym.

18You are their paternal uncle.  You lived with the family on and off for a period of time, and stayed at the family for a period of time; you went on holidays - I don't need to go into all that detail.  Because the charges are representative, I can deal with them in relatively short compass.

19The first charge, the indecent assault, is representative of four further occasions of similar offending, and between 1 July 1983 and 31 December 1983, Joan, who as I've indicated was then about four years old, was staying at Gippsland[4] with her father, her brothers and you.

[4] A pseudonym.

20She stayed in a cabin with her father and you stayed in a caravan with her brothers.  You and she were in the kitchen of the cabin when you grabbed her, made her sit on your knee, and proceeded to touch her vagina with your fingers.

21A similar situation occurred between 1985 and 1986.  She was sitting next to you on a couch in a lounge room.  You said that you wanted to play doctors with her and she agreed.  You stated that you would be the doctor.  You then touched her vagina with your fingers.  You told her not to tell anyone; that you would give her money if she did not.

22Between November 1985 and November 1986 when she was again six years old, she had fallen asleep in a lounge room.  You picked her up, carried her to the bedroom and put her in bed.  You then touched her on the vagina with your fingers.  She says that she was scared and screamed.

23Between 1987 and 1988 when she was eight years old, you took her and her sister and one of her brothers to a Shopping Centre.  On the way home you stopped at a park and she was trying to play on the swings, but you kept following her and chasing her.  She ran away from you.  You put one hand up the leg of the shorts and touched and rubbed her vagina.  You stopped when she yelled at you.

24Between November 1987 and November 1989 when she was nine years old, you took her and her sister and brother to a swimming pool.  Once in the pool you kept following her around.  She was in the corner of the pool when you grabbed hold of her and touched her vagina with your fingers.  You did this a number of times on that particular occasion.  You gave her $4 so that she wouldn't tell her mother what you had done.  You told her to tell her mother that she had found the money, if she was asked.

25That all gives rise to Charge 1.  You've indicated it was over an extended period of time and is certainly not in isolation.

26Between November 1987 and November 1989, Joan, Jean and one of their brothers was at your caravan park in country Victoria, going for a swim.  They all went into your caravan.  You took all your clothes off in front of them and stood naked for a while, then asked them - the complainants that is, to touch your penis, and they refused.  That gives rise to Charge 2.

27As I've indicate already, I don't propose to impose a custodial sentence for that matter, but what it does indicate in terms of the overall offending is the brazenness of what you were prepared to do.

28Between January of 1991 and May of 1992, Jean was in bed in her house.  She was awakened by you putting your hand underneath the blankets.  You put your finger inside her vagina.  That gives rise to Charge 3.  That is again representative of four further occasions of similar offending that she is able to particularise in that charged period.

29Again, between January 1991 and May 1992, you took her and two of her brothers to the movies in a local town.  She was sitting on one side of you and her brothers were sitting on the other side.  Throughout the movie you had your hand down the front of her underpants and was touching her vagina.  You were rubbing the outside of her vagina and also inserting your finger into her vagina.  That caused her pain.

30On another weekend, between 1991 and 1992, you took her and two of her brothers to a High School so the boys could play tennis.  She was sitting on the steps with you watching her brothers.  You called her to come and sit closer to you.  You then put your hand down the front of her underpants and were touching her vagina.  You were rubbing the outside of her vagina and also inserting your finger into her vagina.  Again this caused her pain.

31Again in that timeframe, she was lying on a bed behind the couch in the lounge room of the house.  You were sitting on the couch.  There were other family members in the lounge room.  You put your hand down behind the seat cushions and through the back of the couch.  You then put your hand down the front of her shorts and underpants and were touching her vagina.  You were rubbing the outside of her vagina and also inserting your finger into her vagina.  That caused her pain.  Again, that's an indication of the brazenness of this particular offending.

32Again in that timeframe she was sitting on your knee, in the couch in the lounge room of the house.  You put your hand down the front of her underpants and were touching her vagina, again rubbing the outside of her vagina and also inserting your finger into her vagina.  That caused her pain, and in that situation you gave her a bag of coins and told her not to tell anyone.

33In late May of 1992, Jean disclosed to a school friend what had happened and police began investigations.  Each of the victims made statements and their statements are being retained.

34What has happened subsequently is that police were able to locate you and as indicator I am making no findings about that at all, but in due course, at least one of the girls became aware of where you were, you were ultimately arrested, extradited from the Northern Territory and have ultimately, after negotiations, pleaded to these matters.

35The victims have made victim impact statements, one of which was read out in court, and one of which was tendered.  Those victim impact statements clearly outline what those of us who are experienced in the criminal law see on such a regular basis.  The consequences of this sort of offending are dramatic and long reaching, and can ruin lives.

36Jean said in her victim impact statement:

"So my story begins when I was two years old, between the ages of two and five years old, and I remember being in constant fear these fundamental years were taken away from me.  Those years that should have been filled with happy memories, instead, were filled with nightmares and many sleepless nights late into my teens, and returned again in my 20s and more recently my 30s.  I've had many sleepless nights living in fear with constant nightmares, flashbacks and sweats, anxiety attacks.  I can't be alone at night.  I also have to constantly double check all the locks on the doors and windows.  He has totally messed with my self-esteem and relationships, physical and emotional impact has been (indistinct) immeasurable and can't be put into words."

37Joan said,

"The years of sexual abuse I encountered have robbed me of my self-esteem and my confidence, my dignity, my innocence and my self-respect have all be compromised as a result of the abuse carried out on me.  My faith in myself and in men has been destroyed.  I've no trust in men at all and this affects my ability to have a relationship.  I find myself very jumpy and fearful when a man gets close to me and in my personal space.  I will never leave my children in the care of anyone but me due to fear of them being sexually abused, and I never want them to have to go through this lifelong trauma that I live.  I live in constant fear of being abused again.  I can't sleep with my bedroom door closed due to fear of someone sexually assaulting me during the night, and if I have to run and escape I can do so, easily.  I struggle to believe I have anything to offer my friends anymore as I am not the person I dreamt I'd be."

38Each of those victim impact statements, as I've indicated, very eloquently in my view, impart, the gross effect of offending such as this has - that's why people have to go to gaol who commit offending like this, why they have to go to gaol for significant periods of time.

39The aspects of sentencing in such a situation - moral culpability is not reduced.  General deterrents are very important.  In your situation, specific deterrents might not be of such significance because of your age and the fact that you at least haven't been charged with any such offending since the late 1990s, and appropriate punishment and denunciation must be given weight in this sentencing process.

40The breach of trust involved in all this - if I haven't said I will say it now, is massive.  It went on over a long period of time, and it was certainly pointed out in one of the unfortunate victim's statements, can destroy families.

41Even though you are 65 and not in good health, and you have remained out of trouble since, you must receive a condign punishment.  An active gaol sentence is inevitable.

42Your counsel argued on your behalf that because of the date of the offending, that a partially suspended sentence was within range and was available to me.  Having given the matter consideration I accept that submission, but I will make it clear that the sentence has to be one that fits within the head sentence available.

43I will then look to matters personal to you and your counsel filed on your behalf very helpful outline of submissions.  I've already been through the matters in regard to the plea, the sentencing statistics and all those matters, and I take them very much into account.

44Your history is outlined in the document that was tendered.  At the age of 65 with (indistinct) anything that may have happened in your earlier years.  It would appear from that - and I accept what your counsel has said, that over the years you do have a good work record.  This is only - and I use that word very cautiously, the offending that you have been charged with, and I'm told that upon your ultimate release you will be able to return to the Northern Territory and have a 'carer' who can there look after you.

45With offending such as this, in my view, there is very little else that can be said.  There is no suggestion of a psychological or a psychiatric disorder, and I've already mentioned the difficulty that you will have in prison.

46However, taking all those matters into account, particularly your age, you are in a situation where your rehabilitation is up to you.  The risk of you reoffending I don't think is high, despite there being three charges here.

47Accordingly, on Charge 1, you are sentenced to be in prison for a period of 18 months.  On Charge 2, you are fined $2,000.  On Charge 3, you are sentenced to be in prison for a period of two years and three months.  I direct that nine months of the sentence imposed on Charge 1 is served cumulatively upon the sentence imposed upon Charge 3.  That gives an effective head sentence of three years.  I direct that 12 months of that sentence be suspended for a period of two years; that means the effective term to be served is two years, and I direct that 395 days be reckoned as having been served under this sentence.

48Insofar as s.6AAA is concerned, I point out that in a situation such as this, is relatively meaningless.  You could not have been convicted by a jury of these charges in this form.  Had you proceeded to trial, you would have gone to trial on a significantly larger number of individual counts.  What would have occurred had you been convicted of those individual accounts by a jury is, basically, anybody's guess.  The sentence would have been significantly higher than the one that I have imposed; however, for statistical purposes if nothing else, and just to indicate that your plea of guilty did get you a significant benefit, as did your negotiations in this matter, so that but for your plea of guilty, you would have been sentenced to be in prison for a period of 4 1/2 years with a minimum term of three.

49Any other orders I have to make?

50MR CORDY:  No ‑ ‑ ‑

51HIS HONOUR:  I'm not even sure that - I've just done that so he understands he got a discount.

52MR CORDY:  Yes, yes.  There is just one matter that I wanted to raise with Your Honour.

53HIS HONOUR:  Yes.

54MR CORDY:  Your Honour has clearly dealt with the nature of representative accounts in the correct way; however, when Your Honour was dealing with Charge 1, you said this.  "That that incorporates four further charges - or four further incidents ‑ ‑ ‑

55HIS HONOUR:  Four further incidences, yes, is that the wrong word is it?

56MR CORDY:  It is the wrong word.  You used the correct word in respect of Charge 3, where you said that, "Again, this is representative of four further incidents."

57HIS HONOUR:  Oh I see.  That sounds like I've treated it as a rolled up account.

58MR CORDY:  Yes.

59HIS HONOUR:  Yes.  Thank you for that.  I will amend the transcript.  You are quite correct, and I shouldn't have said that.  I am treating each as simply representative and indicative of the fact that it's not in isolation, and it's not in a short timeframe, that's all I'm saying.  Thanks (indistinct) I appreciate that.  No other orders that need to be made?

60MR CORDY:  No, Your Honour.

61HIS HONOUR:  All right.  I thank counsel for their professionalism in the way this was all dealt with.

62MR CORDY:  Thank you, Your Honour.

63MR WILLIAMS:  Thank you, Your Honour.

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