Director of Public Prosecutions v King

[2019] VCC 1576

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

AT BENDIGO
CRIMINAL JURISDICTION

CR 18-00959

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL KING

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	26 September 2019
DATE OF SENTENCE:	26 September 2019
CASE MAY BE CITED AS:	DPP v King
MEDIUM NEUTRAL CITATION:	[2019] VCC 1576

REASONS FOR SENTENCE
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PSEUDONYMS USED TO PROTECT IDENTITY OF COMPLAINANTS

Subject: Criminal law - sentence
Catchwords: pleaded guilty 3 charges committing an indecent act with a child under 16 – 2 charges of indecent assault – 2 complainants  - one aged 12 and 15, the other 15 and 17 at time of offending  – Defendant 32 years  - trusted family friend – offending occurred at  complainants’ family home – profound and lasting effect –Defendant : limited schooling – drug and alcohol abuse from early age  - sexually assaulted as a child  - no relevant prior history – now abstinent from drugs  - moderated alcohol consumption  – no indication of remorse  - general deterrence – both counsel submit wholly suspended sentence appropriate.
Sentence: 3 years imprisonment wholly suspended for 3 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. G. Hayward.	Office of Public Prosecutions
For the Accused	Mr. J. Lavery	VLA

HER HONOUR:

1Daniel Thomas King, you have pleaded guilty to three charges of committing an indecent act with a child under the age of 16 and two charges of indecent assault.

2You were a close friend of the Johnson[1] family, including their two daughters, Jane[2] and Lisa[3].  At the time of the offending between 2006 and 2008, Jane was aged between 12 and 15 and she is now 24.  Lisa was aged between 15 and 17 and she is now 28.  You were approximately 32 years old at that time. 

[1] Pseudonym

[2] Pseudonym

[3] Pseudonym

3During those years, you were a frequent visitor to the Johnson's home most  weekdays and every weekend.  You would often touch Jane in ways that made her feel uncomfortable and soon after she turned 12 in October 2006, you first touched her sexually. 

4This occurred in the context of a conversation with her about puberty, which you attempted to disguise as an educational conversation.  You then commented on her breasts and cupped them over her clothing, with both your hands.  This is part of Charge 1 which is a rolled up charge. 

5You did this more and more frequently on at least ten occasions while making comments to her.  She would push your hands away each time.  She recalled a distinct occasion when you did this again, and that is the second part of Charge 1.

6One night after she had turned 13, she was sleeping in the spare room in the house, in a double bed, when you entered the room and got into the bed with her, waking her up.  You caressed her shoulder, neck, beside her breast and down her waist to her inner thigh.  She told you to get out.  Her mother came into the room and told you to get out and sleep on the couch whereupon you left the room.  That incident is Charge 2.

7On many other occasions, you touched Jane sexually, groping her breasts or sliding your hands upwards towards her inner thigh, brushing your finger over her vaginal area over her clothes.  She would resist and walk away and you would deny that you had been doing anything untoward.

8Lisa  is the elder of the two sisters.  One evening between 2003 and 2007, she returned home late after visiting her boyfriend.  She cut through a park near her home and found you sitting there drinking.  You told her to sit on your penis. 

9When Lisa was aged 15 in late February or early March 2007 you were at the family's home one evening.  You, Mr Johnson and Lisa had all been drinking alcohol.  In particular, Lisa had drunk a lot.  You began touching her in a flirtatious way, tugging her and touching her lower back and her upper thigh.  Mr Johnson stopped you a couple of times during the evening.

10Lisa felt very sick and was helped to bed by your and her father.  She was helped into a top bunk bed.  Mr Johnson went to get a bucket in case she vomited and you stood beside the bunk to make sure she did not fall out.  You reached under the doona and moved your hand down her body to her vagina.  With your finger, you touched the outside of her vagina. This is Charge 3. Lisa tried to push you away but was too intoxicated to do so.  When Mr Johnson returned to the room, you still had your hand under the doona and Mr Johnson said something like  'Oi' whereupon you moved your hand from under the doona and moved away. 

11Lisa did not tell anyone what had happened, as she was too embarrassed and ashamed, but she confronted you a week or so later and asked you what had happened, and why you had your hand down her pants.  You replied, 'Have you told anyone about this?'  After this incident, Lisa made sure she was not around when you visited the house. 

12In 2008, when she was 17 years old, Lisa was at the dining table in her house doing her homework while you were drinking with her father.  Her parents went to bed and you reached around Lisa from behind her and grabbed her breasts.  That is Charge 4.  She tried to shrug you off but you kept doing it.  She stood up and you grabbed her hips and bottom.  That is Charge 5. 

13Lisa threatened to punch you, and you said, 'Yeah, come on, do it.'  She then punched you with a closed fist to your nose, cheek and chest area.  You fell to the floor, tried to get your breath.  Lisa ran from the house along the street to a BP service station where she told the assistant that she was running away from someone.  You then appeared and yelled at Lisa from outside.  Lisa did not leave until you had gone.  She returned home and went straight to bed without telling her parents.

14After her 16th birthday, Lisa confided to her friend that you had done things to her.  On a separate occasion, she told her friend that you had tried something on her, but she had broken one of your ribs.

15When Lisa was aged 20 and pregnant with her first child she told your step-daughter that you had done inappropriate things to her and had sexually assaulted her. 

16Shortly after the birth of the baby she told her parents and she reported it to the police on 1 February 2017.  During the investigation, the police contacted Jane who then disclosed your offending against her.

17When interviewed by the police, you admitted  knowing the Johnson family and that you had known Jane Johnson for most of her life, but you declined to comment further. 

18The gravity of the offending is to be assessed against the background of your friendship with the complainant's parents over many years and your constant presence at their home.  They trusted you with their young daughters, and the breach of that trust features in the victim impact statements that the complainants provided to the court and courageously read during the plea hearing. 

19Clearly, your offending has had a very profound and lasting impact on them.  You assaulted them at a vulnerable time in their teenage years and because you were their parents' friend, they felt too embarrassed and ashamed to tell their parents.  They were unable to be comforted and assured that they were not in the wrong, and that appears to have caused them great harm. 

20Offending in this way against children is very serious and that is reflected in the maximum penalty, which is ten years imprisonment for each of the offences with which you are charged.

21General deterrence is of great importance because of the need for children to be protected and because of the need for stern denunciation by the court, particularly bearing in mind the contempt with which the community regards such offending.  It is accepted that children suffer harm from being abused in this way, and that is, of course, borne out in this case by the effects on the two complainants.

22The need for specific deterrence is assessed somewhat differently and your rehabilitation since your imprisonment in 2010 is a matter to be taken into account as a significant factor along with some other mitigating factors.

23You are a 44 year old man in a stable relationship with a long-term partner.  You have a son from a previous relationship, born in 2002, who suffers from autism and attends a special school.  You have been his primary carer since 2005 although he has lived for significant periods with your mother and lives there now.

24You had limited schooling until Year 9, and worked at various unskilled jobs afterwards.  You have a poor work history, largely it would seem because of your drug and alcohol abuse for many years.  In recent years, you have been unable to find work because of your criminal history.

25You have had a significant drug and alcohol dependency from an early age, commencing with alcohol at the age of 12 or 13, and cannabis at age 14 leading to polysubstance abuse by the age of 16. 

26You continued to use illicit drugs until late 2010, when you were sentenced to two years and 10 months' imprisonment, for recklessly causing serious injury. 

27After serving 17 months, you were released on parole at the earliest opportunity and completed it successfully having undertaken drug programs in prison.  You also had counselling with CASA, the Centre Against Sexual Assault on account of having been the childhood victim of an uncle's offending.

28Since your release from prison, you have remained abstinent from drugs and you have moderated your alcohol consumption.  Your partner gave evidence about this and stated that you no longer have any problem with either form of substance abuse.

29She has a daughter who treats you as her father, and a reference has been provided by the partner of your step-daughter.  There are three children of that relationship for whom you are a grandfather.  You are trusted by that family and your support is greatly appreciated by them.

30You pleaded guilty just before the trial was due to begin, so it was a late plea, but it avoided the need for a trial and further cross-examination of the complainants.  They had already been cross-examined at the committal hearing, and Lisa Johnson referred to the anxiety she suffers during the lead-up to go to court. 

31The plea entitles you to a discount on your sentence, but less than a full discount, and there is no indication of remorse, other than your acceptance of responsibility for the offending.  I understand that that acknowledgement is important for the complainants. 

32Delay is a factor to be taken into account, given that you were interviewed in May 2017.  The committal took place a year later, and you have been on bail throughout. 

33About two years after this offending, you underwent sentence as I have mentioned, for offending which resulted from a fight when you were affected by alcohol. 

34As your counsel, Mr Lavery, submitted, it is somewhat unusual for a defendant to be rehabilitated successfully during a period of delay before being dealt with by the court.  Rehabilitation is an indication that reoffending is less likely, and so the community is likely to be protected in this way. 

35I also take into account that your criminal history is limited to driving offences for which you were placed on a Community Based Order in 2006.  One of those charges was for driving while exceeding the prescribed concentration of alcohol in your blood.

36Alcohol was obviously key to this previous offending, and to the later offending for which you were imprisoned, but which is not a prior conviction.  To the extent that alcohol was a disinhibiting factor in offending against the complainants, it is not an excuse but serves partly as an explanation. 

37It was submitted by your counsel that the sentence imposed should not exceed three years and that given the date of the commission of the offences, a wholly suspended sentence of imprisonment is open as an option and is appropriate in your case. 

38Mr Hayward, for the prosecution, submitted that this was disgraceful offending, that you took advantage of two children who trusted you, as did their parents, and that being intoxicated was no excuse. 

39He submitted that given your successful rehabilitation, the level of offending, the lack of relevant prior convictions and your plea of guilty, a wholly suspended sentence of imprisonment is open. 

40In determining the appropriate sentence in this case, I have taken into account sentencing practice at the time of the offending, together with the Sentencing Advisory Council sentencing snapshot to which I was referred, as well as the gravity of the offending and the mitigating factors. 

41I have concluded that while a sentence of imprisonment is appropriate, the circumstances overall allow for the sentence to be wholly suspended.  Would you stand now please, Mr King. 

I sentence you to the following terms of imprisonment:

For Charges 1 and 4, 18 months for each charge. 

For Charges 2 and 5, 12 months for each charge,

For Charge 3, two years. 

The sentence for Charge 3 is the base sentence for purposes of cumulation.  I order that three months of each of the other sentences be served in cumulation upon the base sentence.  That results in a total effective sentence of three years. 

The sentence will be wholly suspended for three years.  If, during that time, you are found guilty of any charge which could attract a prison sentence, you will have breached the suspended sentence and may have to serve the sentence. 

Having been sentenced to prison for Charges 1 and 2, you are to be sentenced as a Serious Sexual Offender in relation to the other charges, but I note that the prosecution does not seek a disproportionate sentence for those charges in order to protect the community. 

If you had pleaded not guilty, I would have sentenced you to three years and six months' imprisonment with a non-parole period of two years and six months. 

It is mandatory that you be subjected to the Sex Offender Registration Act and that you are required to provide your details to the police each year for the rest of your life. 

42You will be given a form to sign dealing with that shortly.  While that is being done, are there any other matters, Mr Lavery, first of all?

43MR LAVERY:  No, Your Honour.

44HER HONOUR:  No.  Mr Hayward?

45MR HAYWARD:  No. 

46HER HONOUR:  I think that completes everything.  Adjourn please Mr Percy. 

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