Director of Public Prosecutions v Jones (a pseudonym)

[2015] VCC 1463

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 15-00630

DIRECTOR OF PUBLIC PROSECUTIONS

v

LYNTON JONES    (A pseudonym)

---

JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Bendigo
DATE OF HEARING:
DATE OF SENTENCE:	15 October 2015
CASE MAY BE CITED AS:	DPP v Jones (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2015] VCC 1463

REASONS FOR SENTENCE
---

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

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Cordy
For the Accused	Mr A. Lavery

HER HONOUR: 

1Lynton Jones, you have pleaded guilty to three charges of indecent act with a child under 16 (Charges 1, 2 and 5) and two charges of incest (Charges 3 and 4).  The maximum penalty for the offence of indecent act with a child under 16 is ten years' imprisonment.  The maximum penalty for the offence of incest is 25 years' imprisonment. 

2The prosecutor made application for the taking of a forensic sample from you.  The making of that order was not opposed. 

3The circumstances of your offending are set out in some detail in the Summary of Prosecution Opening, which was tendered as Exhibit C.  In brief, the circumstances were as follows.  You were in a de-facto relationship with the complainant's mother from when she was two-years-old.  You and she thought of yourselves as father and daughter.  She is now 14-years-old.  You and the complainant's mother have two younger children.  You began sexually abusing the complainant when she was seven and continued until she was 13, when your offences came to light.  Your offending increased in seriousness as the complainant grew older. 

4Charge 1 of indecent act with a child under 16 relates to an incident which occurred between 29 November 2007 and 29 November 2008.  The complainant was about seven-years-old.  She was in her bedroom.  You had been drinking.  You came into the room, gave her a hug and started getting, as she described, 'a bit touchy feely'.  You left the room and came back about an hour later naked.  You hugged her again and was rubbing her back.

5Charge 2 of indecent act with a child under 16 is representative of five occasions when you touched the complainant on the outside of her vagina between 29 November 2010 and 23 February 2014.  You fall to be sentenced on the last occasion for this and each of the representative charges.   When the complainant turned about ten years of age, you began putting your hands under her clothing and feeling around her body.  On the last occasion you came into her bedroom and got into bed with her.  She says that she froze with fear and that you went under her clothes and rubbed her breasts and her vagina.   It appeared that on the occasions this activity occurred it was mostly on the weekends when you had consumed alcohol, according to the complainant. 

6Charge 3 of incest is representative of five occasions when you put your finger in the complainant's vagina between 1 February 2013 and 23 February 2014.  In describing the most recent time that this had occurred, the complainant told the police that you had rubbed her on her breasts, stomach, thighs and hips.  You had then rubbed her vagina and then put your finger into her vagina.  She said that it hurt.  She said on some occasions when you had done this she had been bleeding when she went to the toilet.  She said this had happened about three times.

7Charge 4 of incest is representative of between two and six occasions when you put your tongue in the complainant's vagina.  These occasions occurred between 1 January 2013 and 23 February 2014.  The complainant described the last occasion which was during the same incident as the previous incest charge.  She said that you used your tongue and that she was frozen with fear.  She said you licked her vagina until she moved into a position so that you could not.  She said it has lasted for about five seconds.

8Charge 5 of indecent act with a child under 16 is representative of five occasions between 29 November 2010 and 23 February 2014 when you touched the breasts of the complainant.  The prosecution puts its case on the basis that you touched her breasts, both over and under her clothing, as you admitted in your record of interview with the police.  As I am not able to determine whether the last occasion was one where the complainant's clothing was on or off, I am sentencing you on the basis that you touched her breast over her clothing on that last occasion.

9You had been engaged to the complainant's mother for about two weeks in January 2014 when the complainant disclosed your offending to a friend. 

10In March 2014 the complainant's mother recorded a conversation between herself and you, in which, after initial denials, you made some partial admissions and you said that the complainant had "been bloody muckin' around too". 

11You were interviewed after that conversation at the police station.  In that interview you made significant and substantial admissions to offending against the complainant.  You said you felt ashamed.  You said that you knew it was wrong and described some of the circumstances in which your offending had occurred. 

12In sentencing you I have taken into account your personal circumstances.  Your personal circumstances were set out in the report from Mr Warren Simmons, psychologist, dated 18 September 2015, which was tendered as Exhibit 1.  You are now 37.  You were raised in a rural area of Victoria.  When you were about three your parents separated and your mother re-partnered with a gentleman who you now regard as your father.  Your mother and father appear to have a strong relationship and were in court to support you.  You have three sisters who are also supportive of you. 

13You completed Year 12.  You then went on to work in various jobs until 2007 when you found employment with a chicken processing company where you remained until March this year.  During the offending you were working a 7.00 pm to 3.00 am shift.  You have had a number of relationships with women.  At 18 you had a sexual relationship with a girl who was 13 and a half.  Your relationship with the complainant's mother commenced when you were about 25 and she was about 21.  That relationship ended when you were charged with these current offences.

14

You outlined to Mr Simmons your history of alcohol and drug usage.  It appears that you, at the time of this offending, had been drinking on a daily basis.  You began cannabis use at about 21 and continued using cannabis despite the disapproval of the complainant's mother.   It is Mr Simmons' opinion that your use of alcohol may have disinhibited you to a degree, enabling you to act on your sexual thoughts in relation to the complainant. 

Mr Simmons says that you did not rely on this as an excuse and accepted full responsibility for your actions.           You have no diagnosable mental health issues.  Mr Simmons says that you were sexualised at a very early age, after discovering your father's sexual material.   Mr Simmons says that the balance of probabilities suggest that you do have a paedophilia attraction but this appears to be confined primarily within the family, with no evidence of you ever seeking out victims outside the family. 

15Mr Simmons says that you accept full responsibility for what you have done and have expressed remorse to him.  He says that you have acknowledged that your behaviour may have had significant impact upon the complainant and hope that the complainant and her family are having appropriate treatment.  Mr Simmons says that you would benefit from treatment in respect of your early sexualisation and drug and alcohol counselling. 

16You have admitted a limited but significant prior criminal history.  In September 1996, you were sentenced on three counts of sexual intercourse with a person above ten years and under 16 years, at the Gosford District Court in New South Wales, to a period of nine months periodic detention.  These charges apparently arose out of your relationship at the age of 18 with a girl who was 13 or 14 at the time. 

17In sentencing submissions your counsel accepted that a sentence of imprisonment would be imposed but submitted that your offending was well short of the worst sort of this serious offending.  He submitted that I should take into account in fixing the non-parole period that you would require some rehabilitation and that that would have to occur in the absence of support other than the support you receive from your immediate family.  Your counsel submitted that you may have housing difficulties and that there would need to be a period of adjustment in the community on your release from prison.  

18Your counsel submitted that I should take into account in mitigation your plea of guilty, your admissions and your cooperation with the police.  Your counsel said you are genuinely remorseful and conveyed your apologies to the complainant.  Your counsel said you have difficulties in understanding why you offended.  You have said that you were using alcohol but you knew it was wrong and that you would use alcohol in the context of your social isolation, given your work hours and re-offended despite your regrets the next day or in the period after your offending for the previous offending. You have told your counsel that you have greater clarity in thinking about all of this after spending a period in custody on remand. 

19Your counsel submitted that I should take into account, in respect of general deterrence, that you had lost your relationship with your partner and children, although you hoped to be able to regain your relationship with your children, including the complainant.  Your counsel submitted that specific deterrence had already been achieved.  He said that you have a strong desire for rehabilitation and wish to engage in hard work once you are released from custody. He says you are in mainstream in prison, despite the risks attached to that, and that you have been working in prison, learning welding skills.  Your counsel also submitted that I should take into account the conditions in custody at the Metropolitan Remand Centre since the riots in June 2015. 

20Your counsel submitted that I should regard the prior offending as being totally different from this offending, given the circumstances of that offending and you having been in an illegal relationship but in a girlfriend/boyfriend relationship with the victim in that matter. 

21In sentencing submissions the prosecutor submitted that I should take into account that you had engaged in a gross breach of trust with a significant impact on the complainant and her family.  He submitted I should take account that this had occurred over a protracted period.  The prosecutor conceded that significant weight ought be given to your plea of guilty and admissions to the police.  He submitted that some weight ought to be given to specific deterrence, given you had received a gaol sentence for a previous sexual offence, albeit in a different context.  The prosecutor did not seek a disproportionate sentence for the purposes of community protection.

22Lynton Jones, your offending was clearly serious, and particularly in relation to the incest charges.  Incest is a very grave crime.  You were in a father/daughter relationship with the complainant.  She was entitled to expect proper love, affection, care and protection from you.  I consider some statements that were made in the case of VZ (1998) 7VR 693, by Justice of Appeal Batt, are relevant here. In respect of incest, he said:

"It is an abhorrent offence, striking at the root of the family relationship, and usually as here, involving breach of trust and dereliction of protective duties in a pursuit of perverted gratification or the exercise of power.  Accordingly, the offence usually merits condign punishment since general deterrence and denunciation of the offender's conduct will usually be important for sentencing purposes".

23In this case you repeatedly sexually offended against your de-facto step-daughter from a very young age over a number of years.  The offences were committed in her own home, indeed in her own bed, where she ought to have been able to feel safe.  You, on your own admission, continued to offend, despite her saying no to you and despite you understanding that it was wrong, and that you attempted to offend when intoxicated.  You went ahead and exploited your relationship with the complainant for the purpose of gratifying your base sexual desires.  Your offending was a gross breach of the trust of the complainant and her mother.  I consider your offending not to have been in the worst category of this offending but as a serious example of grave offending. 

24I have taken into account in mitigation your plea of guilty.  I accept that that was made at the earliest practical opportunity. You made significant admissions to the police and clearly your admissions meant that you were going to ultimately plead guilty.  It is understandable that discussions were required in order to arrive at the actual charges and basis on which those charges would be put.  The utilitarian benefit of your plea of guilty has been considerable.  You have saved considerable trauma in the complainant and other witnesses having to give evidence.  You have saved the expense of a trial and inconvenience to others. 

25I accept that you are genuinely remorseful.  You made admissions to the police of a significant nature.  You have expressed your remorse to the police, to the psychologist and in court. 

26I consider that your prospects for rehabilitation are reasonably good.  You have gained some insight into your offending although, in my opinion, more work needs to be done in respect of that.  I accept that you wish to avoid reoffending and will engage in that work if given the opportunity.  You have only one prior matter alleged and that is significantly different.  You have family support.  You, of course, do need to address your drug and alcohol issues in order to improve your prospects of rehabilitation.  I consider that there is some risk of your re-offending, especially if you are placed in a domestic situation with young girls.  I consider that specific deterrence does still require some weight in sentencing you. 

27There have been severe personal consequences for you as a result of your offending in the loss of your relationships.  That, in my view, is related to specific deterrence which has, to a degree, been achieved but does not, in my view, reduce the weight that needs to be given to general deterrence.  General deterrence remains an important sentencing consideration.  General deterrence is achieved by imposing punishment severe enough to deter others from giving weight to their sexual thoughts and impulses in relation to children. 

28Your offending must be strongly denounced.  Condign punishment is warranted for the purposes of general deterrence and denunciation and that requires a significant sentence of imprisonment. 

29You will be sentenced in respect of each of these charges as a serious sexual offender because of the prior matters. Section 6D of the Sentencing Act 1991 says that community protection must be the principle purpose of any sentence that I impose. Community protection can be achieved without a disproportionate sentence in this case.

30Section 6E of the same Act requires that the sentences imposed are to be served cumulatively, unless otherwise directed. I have taken that into account but total cumulation would offend against principles of totality and proportionality.

31I have taken into account in sentencing you in respect of Charges 3 and 4, that the act in each charge on which you are to be sentenced occurred on the same occasion, or during the same incident. 

32Could you please stand, Mr Jones?  I should also say that I have taken into account that you have had some difficulties in custody as a result of the conditions after the riots, and that that will, no doubt, continue to effect matters whilst you are in custody.  I have taken that into account, both in the head sentence and in the non-parole period. 

33On Charge 1 you are convicted and sentenced to six months' imprisonment. 

34On Charge 2 you are convicted and sentenced to 18 months' imprisonment.

35On Charge 3 you are convicted and sentenced to five years' imprisonment. 

36On Charge 4 you are convicted and sentenced to five years' imprisonment.

37On Charge 5 you are convicted and sentenced to ten months' imprisonment. 

38As a result of the application of s.6E of the Sentencing Act 1991, I will express the sentences in respect of concurrency, rather than cumulation. The sentence on Charge 3 is the base sentence. Four months of the sentence on Charge 1, nine months of the sentence on Charge 2, four years of the sentence on Charge 4 and six months of the sentence on Charge 5 are to be served concurrently on each other and on the sentence on Charge 3.

39The total effective sentence is a term of imprisonment of seven years and three months, with a non-parole period of five years. 

40Mr Jones, that sentence is to serve the sentencing considerations that I have said to you.  It cannot, of course, make up to the complainant for what has happened to her.  The complainant, in my view, in her victim impact statement, very powerfully describes the harm that has occurred to her as a result of your offending.  The sorts of things she describes are sadly typical of people who have been the victims of incest or other offending by someone within the family. 

41I would like to now say something about what she said, as well as commending her for her courage in coming forward when she did, and also making it absolutely plain, as everybody else has done, that the only blame in this matter rests with you.  No blame attaches to her in any way whatsoever. 

42In her victim impact statement, the complainant says:

"The things he did to me were things I'm supposed to experience with someone I love.  He exposed me to things I shouldn't have been exposed to at my age.  I knew it was wrong but I was scared everyone would blame me.  I felt that he took an important part of my life away from me". 

She says she was scared to be at home because of you coming up to her         room.  She says:

"I hate that I'd freeze and you wouldn't leave, even when I said no".

She says, and it needs to be repeated and repeated, no means no. 

43The complainant describes the ongoing consequences to her of your offending.  She describes past occasions of self-harm, poor school attendance, problems with anger control.  It appears that there has been some improvement in those matters due to counselling.  She also describes her sorrow at her loss of relationship with you and the impact on her mother and sisters. 

44She describes looking forward to growing up, falling in love and getting a good job and starting a family.  Very sadly she also says "I'm scared people are going to blame me".  That, of course, is not what should happen.  The only person who should receive any blame, as you understand, is you. 

45The complainant describes her sorrow and hurt about what you did.  She is particularly upset about what happened within her family and to her mother.  Her mother, in her victim impact statement, understandably describes her distress at this long-term relationship turning out to have been something different than she thought, and ultimately her children losing their relationship with their father.  She describes her hurt and anger in that respect. 

46She also describes her protective feelings towards her daughters and the difficulties that that occasionally causes, now that the complainant is getting somewhat older and more independent.  She has trouble sleeping too.  She also describes the sort of impact that happens when there is family disruption of financial problems for her. 

47It is to be hoped that the complainant and her mother are able, with support and assistance, to move forward in their lives after your offending.  It will never be forgotten.  It will always be there but it is to be hoped they will be able to deal with it at some point in the future.

48This sentencing process gives some finalisation in respect of those matters.  As I have said, it cannot of course make up for what has happened but it is some recognition by the community of the gravity of your offending. 

49You are sentenced in respect of each of Charges 1, 2, 3, 4 and 5 as a serious sexual offender and that is to be recorded on the court's records.  You will be sentenced in respect of three Class 2, and two Class 1, offences for the purposes of the Sex Offenders Registration Act 2004. You will be required to comply with the reporting conditions of that legislation for the rest of your life. Shortly you will be given some paperwork which outlines the requirements of that legislation. You will be asked to sign a document to say that you have received that paperwork.

50But for your plea of guilty, I would have sentenced you to a term of imprisonment of ten years with a non-parole period of eight years. 

51I declare that you have served 140 days of this sentence by way of pre-sentence detention, to be deducted administratively. 

52I am making the order for a taking of a forensic sample from you.  I do that because of the seriousness of your offending and because the making of that order was not opposed.  I am required to tell you, Mr Jones, that when the authorities come to take the sample, by way of a saliva swab from your mouth, you must cooperate with the authorities.  If you do not cooperate they are entitled to use reasonable force and to take a blood sample.  I am sure that you will cooperate with them.

---