Director of Public Prosecutions v Jukes (a pseudonym)

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

RORY JUKES (a pseudonym)

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JUDGE:	Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2024
DATE OF SENTENCE:	17 October 2024
CASE MAY BE CITED AS:	DPP v Jukes (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1650

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentencing
Catchwords: Indecent act with child under 16 years – Bugmy – victim impact – suspended sentence
Legislation Cited: ss 5(1), 6AAA Sentencing Act 1991 (Vic)
Cases Cited:Bugmy v The Queen [2013] HCA 37, Clarkson v The Queen [2011] VSCA 157, Stalio v The Queen [2012] VSCA 120.
Sentence: Total effective sentence of 14 months imprisonment, wholly suspended for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms G McMaster	Office of Public Prosecutions
For the Accused	Ms D Lamovie	Victoria Legal Aid

HER HONOUR:

Rory Jukes[1], on 29 July 2024, a jury of 12 convicted you of two charges of commit indecent act with child under 16. The victim of your offending was your niece, Zoe Rason[2]. Both offences occurred during the one incident on or about 5 November 2006 and are constituted by rubbing the top of the buttocks of Ms Rason (charge 1) and by rubbing her vagina (charge 2). You were found not guilty by judicial direction of the charges of sexual penetration and attempted sexual penetration.
[1] A pseudonym.
[2] A pseudonym.

Circumstances of the offending

At trial, Ms Rason confirmed that she was born in November 1997 and was 8 years of age in 2006. She was living with her mother in Frankston and her father – your brother - lived in Cranbourne North, with his partner and a house mate. From time to time she would go and visit her father and stay overnight (17/7/24, p34).
On the 5 November 2006 her uncle, that is your half-brother Jacob,[3] was getting married and you all attended his wedding. She went, along with a number of other people, including you and your partner at the time, Sarah Hogbin.[4] Before the wedding wound up, there was an argument between you and Ms Hogbin. You ended up going back to your brother’s home in Cranbourne North, along with your brother’s partner and Ms Rason.
[3] A pseudonym.
[4] A pseudonym.
In evidence in chief, Ms Rason stated that on returning home, she stayed up at the kitchen table with the adults who were drinking alcohol and playing music. Her dad then told her to go to bed and that she had to sleep on the mattress on the floor as the usual bedroom she occupied was taken. She went to bed in the lounge room and just went to sleep (17/7/24, p38). At the time she was wearing a long-sleeved pyjama top and long-sleeved pyjama pants, with no underwear. She couldn’t remember the time she woke up but stated, ‘I woke up during the middle of the night to [Rory]. He was touching my bum on the outside of my pyjama pants’ (17/7/24, p41). She gave evidence that you touched her on the outside of her pyjama pants for about 10 seconds and she lay there with her eyes closed, thinking you’d stop. Further, she described your actions as follows, ‘he was just rubbing with his full hand on my bum cheek. Kind of groping it’ ‘he was trying to pull my pants down from the back, and I was holding them up from the front’ (transcript 17/7/24, p48).
She then gave evidence, the subject of charge 2 - ‘I ended up rolling over to my back on my side’ and ‘he then put his left hand down underneath my pants onto my vagina.’ ‘He was rubbing my vagina closer, just below my clitoris, down where my hole is. He was just rubbing it; he didn’t put any fingers in’ (17/7/24, p49). She estimates that you did this for ‘around 10 seconds.’ During this time you said nothing.
She then stated that you went to put your penis inside of her vagina, but that she lifted up her knee when you went to do this and kneed you in the genitals and you rolled off her and she got up. After this happened, she was crying. You said to her ‘don’t tell anyone’ and she told you that she wouldn’t.
Ms Rason then walked off to the toilet and tried to get some help but was unsuccessful and she ended up returning to the lounge room and sleeping on the couch. The next day she told her father’s partner that you had touched her private parts. Her father was then informed but apparently didn’t believe her.
Over the years there was some limited further contact between you, as canvassed at trial.
On 14 June 2016 Ms Rason attended the police station to make a complaint against you. On 29 November 2018 you were interviewed by the police.

Victim Impact

Ms Rason provided and read in Court a victim impact statement in which she outlines the profound harm caused by your offending. She states, ‘nearly 18 years ago, at only 8 years old my innocence was ripped away from me, by my own blood, someone who is meant to protect me, and love me. At 8 years old you’re meant to be sleeping peacefully, not waking up to your own family touching your private parts.’ She describes how your offending took away her worth, privacy, confidence and voice. She states, ‘the months following the assault were the loneliest and darkest of my life no one believed me, no one protected me.’ Your offending went on to impact her relationships, her school experience and sense of connectedness and to undermine her trust in others, particularly men. Over the years, she has endured the deterioration of her mental health, severe depression, suicide attempts and a diagnosis of PTSD. She speaks of the joy and motivation that her children provide her and of the struggle and resilience needed to find her voice and to come forward.
In sentencing you, I take into account the impact of your offending on Ms Rason.

Gravity of the offending

Your offending is serious, involving a significant breach of trust and age disparity. At the time of the offending you were aged 36 and Ms Rason was only a young child, aged 8 years. You also offended against her in her father’s home where she was entitled to feel safe.
The circumstances of charge 2 immediately follow those of charge 1. Both incidents, I accept, were of short duration and in rapid succession, as submitted by your Counsel. I accept that there is no evidence of preplanning or premeditation and that your offending can be described as opportunistic. I consider that during the offending there was a degree of persistence on your part.
The prosecution submit that charge 1 is towards the ‘lower end’ and that the ‘opposite is true for charge 2’ as it was a very ‘adult-like act’ by you, on your 8 year old niece, involving a breach of trust, and causing significant harm. Your Counsel accepts that charge 2 is more serious than charge 1, involving as it does a more direct touching on the skin.
I accept that there is some distinction between the offending given the direct, and more intimate nature of the touching on charge 2 and I take this into account. Overall, I regard the objective gravity and your culpability on both charges as comparable. You offended against your young niece, in circumstances where she had been sleeping and awoke to find her uncle violating her, in the intrusive manner she describes.

Personal circumstances

Your personal circumstances were canvassed in detail by your Counsel and in the report of psychologist Pamela Matthews of 25 September 2024.
On the return of this matter for sentence, an issue arose relevant to the personal narrative canvassed with the Court and the matter was adjourned. The prosecution informed the Court that Ms Rason had made some inquiries which suggested that you did not have ongoing contact with your son Christopher and that both your daughters were not dead. The Court had previously been told that you remained in regular contact with your son and your eldest daughter had died in a workplace accident in 2017 and your youngest daughter soon after by suicide. At that stage, both Counsel agreed that there was no need for the Court to conduct any investigation into this matter.
Your Counsel maintained that this is what you had been told and if in fact the contrary is true, it doesn’t impact any principle or factor relevant to sentencing. The prosecution submitted that to the extent that any such information may have excited any sympathies, or factored into this Court’s findings relevant to rehabilitation, then it should be put aside.
Within the interim period further submissions have been filed by both parties. Defence maintain the information is hearsay and irrelevant; there’s been no attempt to mislead the Court; and that it does not bear upon the conclusions of Ms Matthews. The prosecution advise that the nominal informant has made further inquiries and contacted your son and daughter. The prosecution submit your self-reported history likely impacted the findings of Ms Matthews; the accuracy of your history is in doubt; and findings as to your rehabilitation are predicated on these matters.
I have taken an opportunity to reflect on this matter and on the materials before the Courts. The disputed facts are not contained or referred to at all in the psychological report. I infer therefore that they have not impacted or influenced the opinions of the writer. They are part of the overall narrative provided by your Counsel, on instructions, and I accept, given what has arisen, that there is a need to exercise caution in this respect. It does not lead to a blanket rejection of all your reports to Ms Matthews or your Counsel but it calls for careful scrutiny. As previously indicated, on the face of it, it is extraordinary to suggest that you may in fact have been mistaken or misled as to whether your daughters were dead. However, even if the unearthed information is accurate, I am not able to confidently find that you have deliberately misled the court in this respect. As to the discrete disputed factual matters themselves, they have no bearing on the sentence I intend to impose, or my reasons for doing so. I therefore do not consider it necessary to hear further evidence on this issue.
Turning to your personal history as you have narrated it, you were born in 1970 and are now 54 years of age. You have one sibling and your parents separated when you were a young child. On separation you and your brother initially lived with your mother and moved to WA. Your mother later re-partnered. After marrying she had two more children who are both now in their early 50s and with whom you apparently maintain contact. I also note that you have older siblings from both your mother and father’s side though you didn’t grow up with them.
As a child you report that you were exposed to violence and that both your parents struggled with alcohol addictions. After separation, your father was largely absent from your life. It wasn’t until your teenage years that your returned to live with him. This was in the context of having disclosed to your mother an incident of sexual abuse by a teacher at your school. Instead of believing or supporting you, she sent you, at the age of 14, to live with your estranged father in Melbourne. There was no formal report of this matter, but this of course, is not uncommon.
There were problems and conflict in the relationship with your father. You describe him as a difficult and hardened man, and as having served prison time for armed robbery in the eighties.
During this period you didn’t attend school and you ended up leaving home though had the good fortune to be taken in by an employer and his family. For some time you worked for this employer laying steel pipelines and doing drainage work and then were selected to play Rugby League in Brisbane, which you did until you had a serious motor vehicle accident, sustaining a back injury.
You returned to live with your mother in W.A until you were back on your feet and then ended up moving in with friends. You were unsettled after this accident, working at various jobs, and travelling around Australia with your partner at the time. During this period, you report injuring yourself again in a car accident.
In the context of heavy drinking you were involved in violent offending. At the age of 20, you served your first jail term at Port Hedland, W.A for serious criminal charges. During this period in custody, you worked and managed to complete your year 11.
On your release from this sentence, you continued to be involved in street level offending for cannabis use, drink driving and some petty theft, consistent with your prior history. You stayed in W.A, working in the mines and for steel companies, and formed another relationship that continued for 7 years. When the relationship ended you turned to drinking and the overuse of prescribed medication to deal with your emotional issues.
You then travelled for awhile with your younger brother, moved to Victoria and commenced your relationship with Ms Hogbin until 2007. You had moved in with her in her home in Hastings. During this time, you had also mended your relationship with your father and were in contact with him until his death in 2012.
After your relationship with Ms Hogbin ended, you moved to Halls Creek, near the Northern Territory border, with W.A, living in a caravan park near your brother Cameron Rason.[5] This is generally consistent with the evidence called at trial. You worked as a caretaker at the local pub and did some work at the mines.
[5] A pseudonym.
In 2010 at the age of 39, you were convicted of further serious offending – receiving a sentence of 4 years and 9 months on the 5th of May 2010 in relation to a charge of causing Grievous bodily harm. You describe the Fremantle gaol as ‘nasty, scary’ but again you managed to use your time in prison productively and completed rehabilitation programs.
On completion of the sentence, you moved to Queensland where you received support from your maternal uncle Matthew Jukes[6] who ran a crayfish diving business – Torrens Crays. You have worked on and off for your uncle since this time, which is consistent with the letter that he has provided. You are presently living in a house owned by him and working on his diving boat. You work three weeks offshore to three weeks on shore. You are unable to dive because of health issues but you drive the boat and do other work on deck.
[6] A pseudonym.
You were in contact with your mother who lived in W.A until you were charged but you decided it was best to stop contact with her until these proceedings had finalised, so as not to compromise her relationship with other family members.
I am prepared to accept, as advanced by your Counsel, that your background has been marked by social disadvantage, neglect and sexual abuse. On a careful and robust analysis of the evidence before me, accepting what has been put on your behalf, I am not satisfied that it reaches a level that engages the Bugmy principles as advanced by your Counsel.[7] I do however take these matters into account in an assessment of your personal history. To the extent that any ongoing physical medical conditions are relied upon – and I didn’t understand them to be - in the absence of any medical reports I am unable to make any confident findings as to the impact or consequences of such injuries.
[7]Bugmy v The Queen [2013] HCA 37; (2013) 249 CLR 571.
Moving on, you formed a relationship with Kate Thurgood,[8] who lives in W.A, four years ago, which has endured through Covid-19 and these court proceedings. Ms Thurgood visits you regularly in Queensland. In turn, you would travel to WA until you were charged with these offences and had bail restrictions imposed on your movements. You have a paternal relationship with her 14-year-old son. Ms Thurgood supported you in Court through these proceedings and continues to provide support. Ms Thurgood also provided further insights into your relationship in her support letter. You’d known each other for decades prior to starting a relationship and she speaks of your close connection to her children.
[8] A pseudonym.
Over the years in your past relationships you have fathered a total of four children. I have already made reference to them. Your youngest daughter I note was offended against by your brother, Cameron Rason, when she was 14 years of age and your brother was convicted. You’ve since severed all ties with him.
You have a prior criminal history, though not for any sexual offending. The prosecution submit that your history is relevant and while you’re not to be sentenced for your previous offending you have not led a ‘blameless life.’ Your Counsel submits that while you have a prior history and subsequent offending, you come before the Court not having been charged with anything other than driving offences from 2014 to 2019.

Delay

It was submitted on your behalf, and I accept, that delay here has had been significant and is an important mitigatory factor. The offending took place in 2006 and was not formally reported until 2016. In respect of this delay, it is not an uncommon occurrence for there to be a delay, particularly when the offending involves a young child. It has obviously taken considerable strength and courage for Ms Rason to come forward as she did. The delay involved also illustrates that the impact of your offending has been long lasting.
As a mitigating factor in your case, your Counsel submits that delay is relevant in a number of ways, focusing attention on issues of rehabilitation and fairness.
First, you have not reoffended in this manner for a period now approaching 18 years. I do note however, as highlighted by the prosecution, that you do have some subsequent matters, though of a different nature. Your Counsel notes that you were last before the Court in WA for driving offences in 2019 for which you received a fully suspended sentence which you successfully completed.
Second, within this intervening period, it is submitted, you have taken significant steps to address factors such as your prior alcohol dependence. You have made positive change in your life, as borne out by your prior (or subsequent) criminal history and the support letters tendered on your behalf.
There has also been delay in the investigation of this matter. The complaint was made in 2016 and you were arrested and interviewed on 29 November 2018. Then, as indicated by the prosecution chronology, the first filing hearing wasn’t until 14 April 2023 and thereafter there were a range of procedural dates throughout 2023 and 2024 until the trial commenced and concluded in July 2024. After the plea hearing the prosecution updated the court that between November 2018 and March 2023 there had been some attempts to locate you and that ‘during lockdown, the investigation was deprioritised due to travel restrictions on all non-urgent matters.’
In sentencing you I take into account, as advanced by your Counsel, the delay in your case.[9] While the delay should not result in a sentence that devalues the gravity of your offending or the significant harm caused, it is an important consideration.
[9] R v Merret, Piggott & Ferrari [2007] VSCA 1.
I take into account the period from your arrest in 2018 and the approximate 6 year period that you have had this case hanging over your head. As stated in the letter from your uncle and employer, Matthew Jukes (co-written by Hannah Pollock[10]), over the many years the stress of these proceedings has taken it’s toll.
[10] A pseudonym.
Further, I take into account that you were remanded for 4 days, that is between 24 March 2023 and 27 March 2023, before being bailed on this matter by the Cairns Magistrates’ Court.
I also take into account that in your case you have been on bail for a substantial period of time and the conditions have, to some extent, impacted your relationship with Ms Miles[11] – given you live in different states.
[11] A pseudonym.

Prospects of rehabilitation

In your case, there is evidence of some rehabilitation and you have been assessed by Ms Pamela Matthews as representing a low risk of future sexual offending.
Ms Matthews also opines that ‘the offences before the court do not meet the DSM 5TR diagnostic criteria for Paedophilia or other paraphilia as the behaviour did not continue for 6 months or more.’
Further, while she notes that you maintain your innocence she considers it likely that your alcohol abuse, use of cannabis, general asocial attitudes and unstable relationship contributed to the offending. She concludes: ‘currently, Mr Jukes’ age, his reduction in alcohol use, his employment, a longer-standing emotionally intimate relationship and lack of contact with the victim or her family are protective factors. Further, the writer notes that the risk of Mr Jukes’ sexually re-offending is very low’.
In my assessment of your rehabilitative prospects I take into account that you have participated in the workforce since 2019 and made efforts to maintain a stable and productive lifestyle. As already noted, you currently work for your uncle, and Ms Pollock, on their fishing vessels. Their letter details your history of working for their business, noting that you worked successfully as a Dory Driver for some 2 years, gaining valuable skills. In 2018 you stopped working and then in 2021 returned to Cairns and recommenced your employment with them. They state, ‘Due to his reliability and skill’s we were more than happy to re-employ him.’ They speak of the trust and confidence they have in you and that they are relying on you to work for the next Lobster season.

Sentencing principles

The purpose for which sentence may be imposed are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. I accept your Counsel’s submission that, although still clearly relevant, given your assessment as a low risk of reoffending in this manner, protection of the community and specific deterrence has less prominence in the sentencing synthesis. I also accept, as submitted by the prosecution, that denunciation is an important part of sentencing in offences against children.[12] It is well understood, and attested to in this case, that sexual offending against children is harmful. Your conduct was abhorrent and shameful. Plainly, general deterrence, denunciation and just punishment are all factors that need to be given due recognition in the sentence imposed.
[12] Clarkson v The Queen [2011] VSCA 157.
I take into account the sentencing guidelines referred to in s.5 of the Sentencing Act 1991 where relevant to your case, along with the applicable maximum penalty. I have also considered the principles of proportionality, parsimony and totality.
Your Counsel submits that an aggregate sentence is available given the totality principle and the prosecution submits such a disposition is open. Even though I accept that charge 2 can be regarded as the more serious charge, in all the circumstances, given the nature and proximity of the offending, I consider that an aggregate sentence is appropriate. As the Court of Appeal has stated, ‘the kind of case for which an aggregate sentence is appropriate is one where the number, similarity and proximity in time of the offences is such that it would be an artificial exercise to impose individual sentences and then, by means of modest orders for cumulation, to arrive at a total effective sentence proportionate to the total criminality.[13]
[13] DPP v Frewstal Pty Ltd (2015) 47 VR 660; Hassall v The King [2024] VSCA 163.
I have also had regard to ‘current sentencing practices’ which relate to practices current as at the date of sentencing. In particular your counsel referred me to a number of decisions, which I have considered. Of course each case turns on its own particular facts and circumstances and, as she acknowledged, the cases she referred to involved pleas of guilty to the offending.[14] The principle of equal justice also requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time.[15] No specific submission has been made addressing this and your Counsel indicates that it has been difficult to discern a clear sentencing practice at the relevant time.
[14] See: DPP v Wilkinson (a pseudonym) [2019] VCC 303; DPP v Morris Jenkins [2019] VCC 126; DPP v Kevin Ballinger [2018] VCC 2262; DPP v Damian Ryan [2023] VCC 652.
[15] Stalio v The Queen [2012] VSCA 120.
There was no dispute between the parties that a term of imprisonment is warranted in your case. The dispute centred around the structure of such a sentence and whether you should be required to serve an immediate term of custody. Your Counsel submits that given in particular your progress in achieving rehabilitation since the commission of the offences, a wholly suspended sentence, which is open to be imposed in your case, would satisfy all sentencing principles. The prosecution submit that given the gravity of the offending you should serve an immediate term, structured with a non-parole period.
I have given careful consideration to your case and ultimately have reached the conclusion, given the gravity of the offending and it’s significant impact, that the only just and appropriate sentence is a term of imprisonment. However, taking into account the mitigating factors advanced on your behalf, the substantial delay in this matter, the absence of any further offending of this nature and your ongoing rehabilitative efforts, I am satisfied that in the circumstances it is desirable and/or appropriate to make an order suspending in whole the sentence imposed.

Sentence

Synthesising all relevant matters, you are convicted and sentenced as follows -
On charges 1 and 2 I sentence you to a term of 14 months imprisonment. This period is wholly suspended for a period of 2 years.

HER HONOUR:

Her Honour: I am required to explain to you the purpose and effect of the order. You will have a 14 month sentence hanging over your heard for a period of 2 years. That is a term of imprisonment and you must abide by it. The consequences that may follow if you breach the order by committing an offence punishable by imprisonment during its operational period, are that you would come back, before me on breach proceedings, and you may be required to serve the period that was suspended. Do you understand?

OFFENDER:

I understand very clearly, Your Honour.

HER HONOUR:

By reason of your conviction of two class 2 offences you must be placed on the SORA registry. I therefore further order that you are required to comply with the reporting obligations under the Sex Offenders Registration Act (SORA) and the length of the reporting period is 8 years which is mandatory in your case (see s.34(3), Sex Offenders Registration Act 2004). You will be provided with documents and paperwork in relation to these obligations. You will be asked in a moment to sign that you have received that material. The obligations you will see are onerous, they require you to make the contact that is needed, and they also require annual checks, check-ins and for you to keep the Registry up to date and apprised of your circumstances. And they include a range of matters including telephones, car registrations, employment and so on. Do you understand?

OFFENDER:

I understand.

[2024] VCC 1650

17 October 2024