Director of Public Prosecutions v Joyner (a pseudonym)
[2018] VCC 338
•21 March 2018
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID JOYNER (a pseudonym) |
---
JUDGE: | HAMPEL | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 20 March 2018 | |
DATE OF SENTENCE: | 21 March 2018 | |
CASE MAY BE CITED AS: | DPP v Joyner (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 338 | |
REASONS FOR SENTENCE
---
Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D. Cordy | Office of Public Prosecutions |
| For the Accused | Mr S. Gardner | Pica Criminal Lawyers |
HER HONOUR:
1 Since the age of 18, you, David Joyner,[1] have led a good, hard-working life and you have earned the esteem of many people, including your two, now young, adult daughters, your second wife and people of good-standing in the community, who you count as your friends, neighbours and employers. But from the age of ten until 18, you engaged in conduct which caused enormous harm to three of your younger sisters.
[1] David Joyner is a pseudonym.
2 From the age of ten, you began to touch your sister, Anne[2] – who is 18 months younger than you and the closest to you in age – in a sexually inappropriate way. That touching continued and escalated, so that by the time you were 14, the age that the law holds a child criminally responsible for his actions, you were already well entrenched in a pattern of sexual abuse of her. Between the ages of 14 and 18, you sexually offended against Anne and two younger sisters, Julie[3] four years younger than you and Alice,[4] eight years younger.
[2] Anne is a pseudonym.
[3] Julie is a pseudonym.
[4] Alice is a pseudonym.
3 You are the oldest of eight children born to parents who worked long and hard as dairy farmers. The children, particularly the older ones, were required to assist the parents in farm chores, including that relentless task of the daily or twice daily milking of the cows and looking after the younger children.
4 It is suggested and perhaps with some force, that being given such responsibilities so young, not only limited your exposure outside of school hours to children other than your siblings, but allowed your bullying behaviour towards your younger siblings to go unchecked. And as Mr Gardner put it, to allow behaviour which started as childish experimentation, to become entrenched before you reached the age of criminal responsibility and so somewhat normalised for you by the time you had reached the age of criminal responsibility. This, of course, was not and cannot be put by way of excuse, but it does provide a context and perhaps some explanation for how this behaviour began, continued for as long as it did, and then stopped.
5 Turning then to the circumstances. You have pleaded guilty to one charge of indecent assault and one charge of incest, in respect of Anne, the first, the oldest of the three sisters against whom you have offended.
6 The first charge of indecent assault occurred in 1982, when Anne was 14 and you were 14 or 15. You came into Anne's bedroom where she was lying on the bed reading a book and took off her pants, touched her vagina with your fingers and then licked her vagina with your tongue.
7 Charge 2 of incest in respect of her occurred somewhere in 1982 or 1983, when Anne was 14 and you were 15 or 16. Your parents, as was apparently often in their custom, had gone out, leaving you and Anne in charge of the younger children. The younger children were all in bed. You and Anne were in the lounge room and you began to pressure her to have sex with you. She did not want to and told you so and you told her that it would be all right because she had not yet started menstruating and so would not become pregnant.
8 You took her to her bedroom, pushed down her pants and forcibly penetrated her vagina. It really hurt her. She was saying "no" and screamed when it hurt and told you to get off. She was able to eventually get free and ran and locked herself in the bathroom, screaming in pain and distress. She was bleeding. She said to you, "If you ever come near me again, I'll fucking kill you." You said, "I'm sorry, I'm sorry" and remained at the door for some time. Anne did not stop screaming until you left the bedroom. That was the last time you touched her.
9 Charge 3, to which you have pleaded guilty, is a charge of indecent assault concerning your sister, Julie. This occurred somewhere between August 1983 and July 1985. Julie was 12 or 13 and you were 16 or 17.
10 It was the habit of all of the children to play in the haystacks at the farm, often making tunnels or cubbyhouses. Julie was playing in the haystacks, crawling through them. You came up behind her and touched her on the area of her vagina, outside her clothing, as she moved through the haystacks.
11 Charge 4 is the first of the two charges to which you have pleaded guilty concerning your sister, Alice. It is a charge of indecent assault and by contrast to the other charges to which I have detailed, this is a course of conduct charge. Seven separate instances of indecent assault are the course of conduct relied on for this charge. All of them involve you rubbing your penis, your erect penis, between Alice's legs.
12 The first occasion occurred when the children were playing or swimming in the dam. Alice was between 7 and 9 and you were aged between 14 and 17. She was not, at that stage, a strong swimmer and you had taken her out into the deep water. It was there, taking advantage of her in that way, that you pulled her pants aside, rubbed your penis on her vagina and continued to do so for some time, moving when it became a little too difficult for you, to shallower water so you could continue doing it. You also, on that occasion, tried to make, or in fact made her touch you on your erect penis, but by then you had got to shallower water and she was able to get away from you.
13 The second occasion occurred in the calf shed, where you made her lie down on some straw or hay, rubbed oil on your penis and then rubbed your erect penis around and against her vagina.
14 The third occasion occurred in the garage at the farm when Alice was aged between 8 and 9 and you were aged between 16 and 17. She was playing in the garage. You grabbed her, pulled her pants down and again, rubbed your penis on her vagina.
15 The fourth and fifth occasions both occurred when you placed Alice on the new washing machine, or against the new washing machine in the laundry. Both the laundry or washing machine occasions occurred when Alice was aged between 8 and 10 and you were between 15 and 17. On each occasion, you rubbed your penis against her vagina. On the first occasion, using your saliva to wet her vagina, whilst pulling her closer to you with the other hand. The second of these occasions came to an end because you were disturbed. The first, consistently with what happened in relation to the second and third occasions, came to an end when you chose for it to end.
16 The sixth occasion occurred in Alice's bed when she was asleep. As she said in her victim impact statement, she used to wrap herself tightly in the sheets and blankets, in order to protect herself from you. She was wrapped tightly in her bedding on this occasion and you not only woke her up by trying to remove those sheets and blankets from around her, but proceeded over her active protests and resistance and saying "no". Alice was between 8 and 10 at this stage and you were between 15 and 17. Although she told you "no", you kept pleading with her, saying to her, amongst other things, that you needed it.
17 Eventually you left her alone and turned your attention to the younger sister, Margot, who was asleep in a bedroom. Margot was only five at the time. Alice told you to leave Margot alone and you turned your attention back to her. She then permitted you to do what you had previously done, that is, rub your penis against her vagina, in order to protect Margot from being subjected to the same conduct. On this occasion, not only did you rub your penis on her vagina, again moistening her with your own saliva, but you kept rubbing until you ejaculated on her.
18 The final occasion occurred in the caravan, in the yard of the second farm that the family had lived in, when the boys were sleeping there, before their bedroom was built. Alice had been sent into the caravan for some timeout. She was only ten and told she was not allowed to come out until her mother let her. You were 17 at the time. You came into the caravan and you were nice to her. You played with her, you played with her Barbies and comforted her. You then started to touch her. You removed her clothing and again, rubbed your penis against her vagina until you ejaculated. At one stage you actually lay on top of her as well. She remembers some of the surrounding details of that and the other incidents far too vividly for someone of that age to be burdened with, far too vividly for a memory that someone so young still has to carry with her.
19
The fifth and final charge to which you have pleaded guilty is one of incest concerning Alice. She was aged ten at the time and you were aged 17. Again, you came into her bedroom and woke her up. She woke to find you rubbing your penis on her mouth. You forced your penis into her mouth. She is
a remarkable woman and she was a remarkable girl. She bit, hard, to make you realise you could not do that. It was the only way that she was able to stop you. She bit hard and would not let go. You had to pull her hair to get her away from you and to force her to release you. This was enough, fortunately for her, for you to never try that or anything else with her again.
20 None of your three sisters told anyone at the time that it was happening and it was not until many years later that they did. It was not until about somewhere between 1998 and the year 2000 that Anne, the oldest, first told her mother something of what had happened. She told her then that it had happened, not only to her, but also to Alice.
21 The following year, Anne again spoke to her mother and at that stage, said that she thought your wife should know, in order that your daughters were safe. Your mother agreed with that. It would appear that at least you were confronted by your mother and father with this knowledge. It is not clear whether your wife or your children were told at that stage.
22 When your mother did confront you, you acknowledged that you had sexually misconducted yourself with your sisters. You were very nonspecific in what you said you had done and expressed an appreciation that you would not be forgiven by God.
23 Shortly after that, you went to Anne's house and apologised to her for what you had done to her when she was a child.
24 There the matter rested until your sisters finally decided that they would make a formal report to the police. That did not occur until 2016. You were interviewed in May 2016 and you made some admissions to the police in relation to sexual misconduct with Alice, acknowledging inappropriate behaviour with her when she was six or seven and you were 13 or 14. You acknowledged that you had rubbed your penis between her upper thighs. You said this had happened on no more than six occasions, over a couple of months. You denied any sexual penetration of Alice's vagina and you acknowledged that you had turned your attentions to Alice because Margot, who was a baby at the time, was a heavy sleeper and would not be disturbed. You said you knew if you tried anything with your older sisters, they might have woken the other one up. You denied any offending at all occurring with either Anne or Julie at the time.
25 The effect on each of your three sisters has been profound and lifelong. Not only was that clear from the content of their original statements of complaint, but also more powerfully from the victim impact statements which were read aloud in your presence yesterday. Each of them spoke of the fear and shame and guilt they felt, of their powerlessness, and the vivid and deep sense of grief for the loss of the safe, happy childhood that they felt and were indeed entitled to feel they should have been able to enjoy within the family. Each of them spoke of the burden of carrying with them the knowledge of what had happened to them, before they had the courage or felt that it was the right time to speak out.
26 Each of them spoke of the distress that they felt at feeling they and not you were the ones who were, as a result of what you had done, alienated from the family. Each spoke of their dismay at the feeling of not being protected or supported by their parents, both as children and later, when they had had the courage to reveal what happened. And each of them spoke of the long-term effects and the blighting of the adult lives. They referred to the destructive behaviours in which some or all of them had engaged. They had difficulties in establishing and maintaining good, supportive, respectful relationships and revealed some of the paths that some of them had at times pursued of engaging in terrible and abusive relationships.
27 They spoke of the impact on their mental health. Some of them struggled at times with substance abuse and all of them mourned their inability to be able to take full advantage of educational and employment opportunities that should have been available to them, given their obvious levels of intelligence. They spoke too of the sense of grief and loss that their children did not have contact with their the extended family and of the pain for some of them of living a lie, that is, of not wanting to disclose to their own children or partners or to other family members what had happened to them as children, why they did not have contact with their extended families, and of the suffering or the misperceptions as to why that might have been.
28 Whilst for every victim of sexual abuse, their story and the effect on them is unique, what each of your sisters has said in their victim impact statements, is an all too common expression of the long-term consequences that we know now occur for people who have been sexually abused as children.
29 As was acknowledged in the course of the thoughtful and considered plea presented on your behalf by Mr Gardner, the successful, high achieving and fulfilling adult life that you have led, your apparent ability to fulfil your potential, unaffected by your wrongdoing, stands in stark contrast to the diminished lives and unfulfilled potential that each of your sisters has experienced as a result of what you did to them.
30 The offending began nearly 40 years ago and finished 33 years ago. The appreciation of the gravity of these offences and the penalties for them, both in terms of the statutory maximum and the sentences that were imposed at the time, was very different then. Although, of course, I must sentence you by reference to the maximum penalties then applicable, I must take into account the greater understanding now of the gravity of such offending and of the knowledge of the risk, which in this case materialised for all three of your victims, of the profound and long-term harm flowing to them as a result.
31 I must also take into account the fact that you were child, that is, a person under 18 at the time of the offending in relation to all three sisters. Had the offending come to light at the time – and I want to make it very clear that your sisters bear no blame or responsibility for the fact that it did not – you would have been dealt with in the Children’s Court and subject to the very different sentencing philosophy that by law applies in that court. That is, that the rehabilitation of the child offender is to be the paramount sentencing consideration.
32
As was acknowledged in the course of the plea, had you been dealt with at the time, or had this offending occurred now and you came before the court as
a young offender, in the Children's Court, to be sentenced, you would have been referred for expert assessment by psychologists and other child development experts, with real expertise in the area of inappropriate and unlawful adolescent sexual behaviour and you would have been offered every opportunity to participate in a program of intensive counselling and therapy, designed to reduce or remove the risk of such offending continuing and to develop appropriate victim empathy.
33 Your sisters would also have been referred for expert assessment, counselling and treatment by psychologists and other child development experts with expertise in assisting victims of sexual offending to move safely along that path, from being victims to survivors.
34 Your parents too would have been offered expert advice in how to support and assist and listen to their daughters, as well as how to safely and appropriately supervise and manage you and assist in your rehabilitation.
35 I make these points not to suggest that your sisters bear any responsibility for the matters not coming forward. Their sense of powerlessness, of fear that they would not be listened to and protected came across very clearly in the statements, and in victim impact statements. I refer to it because it is a highly relevant consideration when looking at how to sentence you today as a mature adult for offending that occurred when you were so young.
36 It is clear that I must sentence you as the man you are today, having regard to the fact that as you were legally a child time, you would have been subject to that very different sentencing regime.
37
That is not to say that you are to be held blameless because you were legally
a child. I am satisfied that you knew at all times for the offending covered by the indictment, and in respect of the charges to which you have pleaded guilty, that what you were doing was wrong. The shame and guilt that you expressed in your interview, that you said you felt when entering the family home and seeing photographs of your sisters on the walls, is testament to that. That is, that you knew at the time that it was wrong. Although you were a child, you used your authority as the oldest brother in order to conduct yourself with your sisters, in a way that no brother should. You are legally and morally culpable for your conduct.
38 The sentence to be imposed on you must reflect denunciation of this abuse of familial trust and of your position of power over your sisters in the family. It must serve as a deterrent to people, particularly older brothers in a family with younger sisters, to mark the laws and society’s condemnation of the abuse of young girls in a family in such a way and to make clear that those engaging in such conduct, will be held accountable and punished in a way that is appropriate to their age and circumstances.
39
Your guilty pleas, although entered late, carry considerable weight. Each of your three sisters, Anne, Julie and Alice, has been vindicated as truthful and reliable in respect of the charges to which you have pleaded guilty. Your guilty pleas and Mr Gardner’s express acceptance of the truthfulness of the accounts of each of them, as contained in the prosecution opening on the plea, makes that clear. They have not only been vindicated as truth tellers, they have been spared the ordeal of having to relive what are clearly such deeply distressing events and memories for them by having to give evidence at trial. They have been spared the indignity of being called liars, fantasisers or imaginers in
cross-examination.
40 Although the guilty pleas were entered late, only after the day the matter was listed for trial, it is my considered view that the public acknowledgement of the truthfulness of the accounts of each of your sisters (and of sisters in cases of interfamilial sexual abuse generally), the vindication of their truthfulness and ultimately this acceptance of legal and moral responsibility, carries much greater weight than a court door guilty plea normally would.
41 Your guilty pleas also, of course, entitle you to credit for their utilitarian value, for their role in advancing the interests of justice.
42
What then of the other matters relevant to the assessment of the man you are today? I have already given a short description of your adult life. You come before the court as a man without any criminal convictions since this offending stopped. Oral and written character evidence was adduced on your behalf.
I accept that you are entitled to the benefit of the good character of your adult life. That is evidenced, not only by an absence of criminal convictions, but by affirmative evidence in your favour.
43 I accept that there is no evidence of any sexual impropriety occurring with anybody else, or after you turned 18 and left home.
44 I accept the evidence that you have been a good father to your daughters and after the breakdown of your first marriage, you maintained a close emotional connection with your daughters and continue to provide emotional, financial and other support to them. I say this, not because it is noteworthy, in the sense that you should be congratulated for that, but because sadly in many cases, children are often the collateral damage of relationship breakdown and financial support is often withdrawn, or the result of a breakup of a marriage means that the children suffer financially. This does not appear to have been the case with your family. I take this therefore, in the sense that you are a person who has displayed a sense of responsibility, moral, as well as legal, for your children, even after the breakup of the relationship with the children’s mother.
45 Although there was not a financial obligation to your sisters, the difference in the acceptance of moral responsibility for you children, compared to your youthful absence of acceptance of moral responsibility to your sisters, is a contrast that must be noted.
46 You have many positive factors counting towards your prospects of rehabilitation. Having regard to your history since you turned 18, I am satisfied that the likelihood of your offending in like manner as low. Specific deterrence is not a significant sentencing factor in this case.
47 Although you did not enter your guilty pleas until the very last minute, it is clear that you had acknowledged to a number of people, including your parents, as early as the year 2000 and your now second wife that you had sexually offended against your sisters, well before you were charged. I accept that you have shown a limited degree of insight and some remorse, whilst at the same time, engaging in what I consider to be likely the not praiseworthy, but all too common phenomenon of sexual offenders, of minimising the conduct.
48 You are lucky to continue to enjoy, in light of this, the support of your children and of your second wife, having regard to what you have acknowledged and pleaded guilty to.
49 You have a long history of hard work, working to establish your own farm and herd and of engaging in other employment in order to assist you to fulfil your dream of running a viable farm, whilst at the same time, as I have noted, fulfilling your moral and financial obligations to your former wife and the children of your first marriage.
50 You do not suffer from any psychological or psychiatric condition and do not have any problems with substance abuse which would adversely affect your prospects for rehabilitation
51 Had this offending occurred when you were an adult, there is no doubt, as your counsel acknowledged, that no sentence, save for one of imprisonment, immediately served, would have been appropriate and it is clear, as your counsel also frankly acknowledged, that even though this offending occurred when you were legally a child, that no sentence other than one of imprisonment is appropriate today for the offending. That being so, the serious sexual offender provisions of the Sentencing Act 1991 (Vic) are applicable.
52 So far as Charges 3 to 5, you fall to be sentenced as a serious sexual offender and I make that declaration accordingly.
53 I note the presumption, I note first that that means that the predominant sentencing consideration must be protection of the community and that the presumption in favour of concurrency is reversed, so there is a presumption in favour of cumulation.
54 I am not satisfied, having regard to the predominance of the need for protection of the community, but also having regard to the need to impose a sentence that is proportionate and to conform with the principle of totality, that it is necessary to cumulate the sentences fully, or to impose a disproportionate sentence.
55 I am satisfied, having regard to the fact you were legally a child at the time and what that means, in terms of the sentencing philosophy that then would have applied and the good and offence-free life that you have lived since then, that it is appropriate to exercise my discretion to fully suspend the sentence that I am about to impose.
56 I want to make it clear to each of you, Ms Anne Clements,[5] Ms Julie Joyner[6] and Ms Alice Davis,[7] that in coming to this decision, I am not devaluing what has happened to any of you, or the harm caused to each of you.
[5] Clements is a pseudonym.
[6] Joyner is a pseudonym.
[7] Davis is a pseudonym.
57 It is clear that in cases of sexual abuse of children, denunciation, deterrence, both general and specific and just punishment are the major sentencing factors to be taken into account. However I have, as these reasons have indicated, identified what I consider to be an almost irreconcilable tension between giving appropriate weight to the wrong done and the harm caused to victims such as you and evaluating the moral culpability of an offender at the time of the offending and at the time of sentencing. Ultimately, I must do my best within these very difficult constraints to arrive at a sentence that I consider to be just in all of the circumstances, taking into account the principles which I have just identified.
58 The orders of the court will reflect the findings of guilt and that the offending is of such gravity as to warrant a term of imprisonment. In my view, that will serve appropriately in these circumstances, the needs of denunciation, deterrence and punishment.
59 David Joyner, can you now please stand.
60 On Charge 1 of indecent assault in respect of Anne Clements, you are sentenced to be imprisoned for a period of nine months.
61 On Charge 2 of incest in respect of Anne Clements, you are sentenced to be imprisoned for a period of 18 months.
62 On Charge 3, indecent assault in respect of Julie Joyner, you are sentenced to be imprisoned for a period of three months.
63 On Charge 4, indecent assault, the course of conduct charge in respect of Alice Davis, you are sentenced to be imprisoned for a period of 15 months.
64 On Charge 5 of incest in respect of Alice Davis, you are sentenced to be imprisoned for a period of 18 months.
65 The sentence on Charge 2 is the base sentence.
66 I direct that three months of the sentence on Charge 1; three months of the sentence on Charge 3; six months of the sentence on Charge 4; and six months of the sentence on Charge 5, be served cumulatively upon each other and upon the sentence on Charge 2.
67 That makes a total effective sentence of three years and I fully suspend that sentence for a period of three years.
68 I must warn you, Mr Joyner, that if you commit any offence punishable by imprisonment during the period of suspension, Parliament requires that you be brought back to this court and most likely before me, to be dealt with. Parliament also requires, that unless you can established exceptional circumstances arising since today, that that sentence is to be restored and served.
69 I declare, pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, I would have sentenced you to a total effective sentence of six years' imprisonment and fixed the period of four years as the time that you would have had to have served before being eligible for parole.
70 I note, for the reasons identified by the prosecution, that the Sex Offenders Registration Act is not applicable in these circumstances. I have already made the serious sexual offender declaration.
71 Application was made for the provision of a forensic sample order and I do not consider it, in the circumstances, appropriate to make such an order. I decline to do so.
72 Are there any further orders that are required to be made?
73 MR CORDY: No, Your Honour.
74
HER HONOUR: The orders that I pronounced correctly reflected what I said
I intended to do, including the arithmetic?
75 MR CORDY: The sentence is correct, as far as the prosecution is concerned.
76 MR GARDNER: I agree with that, Your Honour.
77 HER HONOUR: All right, thank you.
78 Ms Clements, Ms Joyner and Ms Davis, thank you for your attendance and for your respectful participation in what I understand must have been very difficult proceedings for you.
79 I appreciate that this may not be entirely the outcome that you had perhaps wanted, but I hope that this passage through the court process, has given you some sense of being able to take some control and autonomy back over your lives and that you are indeed well on the way to being the survivors that you are and are seeing yourselves as the survivors you are, not just as the victims of something that should never have happened to you.
80 I hope that you can take control of your futures better from now on and lead those rich and fulfilling lives that are clearly open to you to live.
81 Thank you, we will adjourn until 2 o'clock.
- - -
0
0