Director of Public Prosecutions v Lindrum
[2012] VCC 1365
•7 September 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRODIE LINDRUM[1] |
[1] A pseudonym
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JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12,13,14,15,18 June 2012, 10 August 2012 | |
DATE OF SENTENCE: | 7 September 2012 | |
CASE MAY BE CITED AS: | DPP v Lindrum | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 1365 | |
REASONS FOR SENTENCE
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Catchwords: Plea of guilty-Sexual offences against children-Offender also a child at time of offending-sentenced as adults-Subsequent sexual offending-Application for Sex Offender Registration under S,11 Sex Offenders Registration Act.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms. S. McDougall | Office of Public Prosecutions |
| For the Accused | Mr D. Langton | Lewenberg & Lewenberg |
HER HONOUR:
1 Brodie Lindrum, you have pleaded guilty to four charges of rape, and one charge of sexual penetration of a child under 16 years. These offences have a maximum penalty of 25 years' imprisonment. You have also pleaded guilty to one charge of committing an indecent act on a child under 16, which has a maximum penalty of 10 years' imprisonment.
The offences
2 The offences were committed by you against two of your female relatives. During these remarks, I will refer to them by the initials A and M. I do that in an attempt to preserve their anonymity, as the law requires, but I mean them no disrespect in not referring to them by name.
3 I sentence you on the basis of the opening which was read by the prosecutor (Exhibit A), which I will summarise briefly.
4 A is your step-sister. Charge 1 is a charge of sexual penetration of a child under 16 years. It is representative of two occasions when you penetrated the vagina of A with your finger, which occurred a few weeks apart between November 1997 and February 1999. She was aged eight or nine. You also attempted unsuccessfully to put your hands down her pants on a further two occasions which are not acts which form part of the charges against you. They do, however, show that your sexual behaviour towards your step-sister was not confined to the two penetrations in Charge 1. You were aged about 11 or 12 when you committed these offences against A.
5 The rest of the charges relate to M, who is your cousin. You were aged 17 when you committed the offences against M. M was aged eight or nine.
6 Charges 2, 3 and 4 occurred on the same day in 2004. You raped M when you penetrated her vagina with your finger in the lounge room (Charge 2), and with your tongue in your bedroom (Charge 3). You would not let her out of the locked room until she submitted to you kissing her, which you did by putting your tongue in her mouth (Charge 4 of indecent act).
7 Charge 5 is representative of three occasions when you raped M by putting your penis in her vagina. The first occurred a few weeks after the incident I just referred to, and you took her out of her bed to your room at night and locked the door. The second occasion was about a month after that. You took her to your room again, but this time you showed her a kitchen knife as a threat. A third occasion was within the same year, again in your room with the door locked.
8 Charge 6 is representative of two occasions when you raped M by putting your penis in her mouth. The first occurred on the same occasion as the first rape in Charge 5. You would not let her out of the locked room until she submitted to you putting your penis in her mouth. The second occurred on the same occasion as the third rape in Charge 5. On this occasion, you forced your penis into her mouth.
9 The number of offences committed against M shows that they were not isolated incidents.
Impact on the victims
10 I received victim impact statements from A and M. They have both suffered considerably as a result of your crimes committed on them when they were so young, and which they were unable to tell anyone about for years. As they did not ask for their statements to be read out in court, I will not go into much detail. Both have had difficulties with self-esteem, with trusting men, whether in relationships, or generally, and with mental health issues, which they put down to the damage you caused each of them as a child. I have carefully read their statements and take the contents very much into account in determining the appropriate sentence.
11 A and M should also be assured that none of this was their fault. Abuse of a child is never their fault. And it is completely understandable why it is difficult to tell someone about it. That is particularly so when threats are made to the child, and where a family member is involved, as here.
12 Nothing I can say or do can erase their suffering or bring back their lost years. However, what I can say is that they are very brave young women. Coming forward and letting the court deal with you now is very important, and is a step towards their recovery. I wish them well.
Basis for sentencing
Aggravating features and seriousness of offending
13 First, your crimes are made more serious by the following facts about which I am satisfied beyond reasonable doubt:
·With both complainants, you used force to get your way;
·With both complainants, you arranged to get them alone, and, I find, acted in a predatory way;
·You caused both complainants pain with some of your acts;
·You threatened both complainants to ensure they did not tell anyone, which was successful for years;
·There are representative charges for each complainant, and these charges demonstrate a pattern of repetition[2];
·Charge 2 was committed in the presence of other children;
·On a number of occasions, you locked the door of your bedroom so that M could not escape;
·On one occasion, you forced M into submission by showing her a knife; and
·You were twice M’s age.
[2] R v SBL [1999] 1 VR 706 ; R v DLM [1999] 2 VR 98 at [51]
14 Next, I accept that while sexual offending against children is always serious, the offences you committed against M show an escalation in seriousness from those committed against A. Charge 4 I consider to be of much less seriousness than the other offences
Other sexual offending
15 You have been convicted of other sexual offending which occurred after these events. About 18 months after you last offended against M, in April 2006, you committed serious offences against a young woman who you attacked on a path by a creek. I was provided with a copy of His Honour Judge Morrow’s sentencing remarks from 23 November 2006. You received a term of imprisonment of 10 years with a minimum of 7½ years for two charges of rape, making a threat to kill, false imprisonment, and recklessly causing injury.
16 These offences show two things:
·First, that you employed a number of the same tactics that you had used against your child victims: threats, false imprisonment, predatory behaviour, and use of a knife; and
·Second, that your offending escalated again in seriousness from the offending against M in 2004 to the offending against a stranger in 2006.
17 You are of course not being sentenced again today for the 2006 offences. However, the 2006 sentence affects the sentence I am passing today in a number of ways.
Serious sexual offender
18 First, because you have already been convicted of two charges of rape for each of which you received a term of imprisonment, following the acceptance of your plea of guilty for the sexual offences involving A and M, you must now be declared a serious sexual offender. That means that for all of the charges on which sentence is to be passed today, I must regard the protection of the community from you as the principal purpose for which sentence is imposed.
19 I may impose a sentence greater than is proportionate in order to achieve that purpose. I do not propose to do that in this case because the prosecution have not asked me to do so, and, in the circumstances of your case, I consider that the usual sentencing principles will be sufficient to enable an appropriate sentence to be passed.
20
Because you will be sentenced as a serious sexual offender, the sentences
I impose must be served cumulatively on any uncompleted sentence of imprisonment unless I direct otherwise. That applies whether the uncompleted term of imprisonment is imposed today, or was imposed previously. Your counsel has submitted that there are strong reasons why I should direct to allow for some concurrency. I will return to that aspect later.
Factors in mitigation
21 There are a number of matters which I must take into account in your favour.
Plea of guilty
22 The first of these is the fact that you have pleaded guilty. In most cases, a person being sentenced is entitled to have that fact taken into account in their favour. In this case, I do so, but only in a minimal way. I take into account that by your plea, the community has been spared the time and cost of a trial, and your victims have been spared the ordeal of giving evidence – what is known as the utilitarian benefit.[3]
[3] Phillips v R [2012] VSCA 140 at [36]
23 I do not accept that your plea of guilty is an expression of remorse. You have expressed no remorse and continue to deny the offences.
24 The prosecutor fairly conceded that I should take into account that you indicated an intention to plead guilty at an early stage, while your case was still in the Magistrates’ Court, even though, in this court you initially changed your mind and pleaded not guilty, until returning to your original plea, after a ruling I made allowing the prosecution to lead evidence of your earlier plea of guilty in the trial.
25 Your counsel reasonably conceded, as he put it, that process lowered and compromised the benefit to which you were entitled.
26 In a case called DLM[4], the accused pleaded guilty on a re-trial to offences he had earlier contested. A judge of the Court of Appeal said :
“As has been said on many occasions no prisoner can be penalised more for having placed guilt in issue but this [the case before that court] was a case where the applicant sought a benefit by way of reduction and his admissions showed that the applicant must have known his guilt, so that any benefit to which he is entitled by reason of his pleading guilty (as provided by statute) should here have been of a minimal kind.”
[4] Ibid at [52] ; italicised passage added
27 From your plea of guilty in the Magistrates’ Court, I can conclude that you must have known your guilt. In those circumstances, I can tell you that the sentence I intend to impose is less than would have been imposed had you been found guilty after a trial, but the reduction for that is minimal.
Age at time of offending
28 The next matter I take into account in your favour is that you committed all of the offences for which I am to sentence you while you were under the age of 18, and therefore, still a child. This is the most significant factor in your favour. As mentioned earlier, you were 11 or 12 when you committed the offences against A, and you were 17 when you committed the offences against M.
29 This means that had your offences come to light at the time, you would have been dealt with under a completely different sentencing regime in the Children’s Court. It is likely that you would have received at most, a period of probation if you had been dealt with in the Children’s Court for the offending when you were 11 or 12, and you would almost certainly have received a period of detention in a Youth Training or Justice Centre for the offending when you were 17, especially if the earlier offending was known.
30 I cannot impose Children’s Court sentences on you, but the sentences I impose will recognise that you will be undergoing sentences as an adult in an adult gaol for sex offences committed when you were a child.
31 Your age of 11 or 12 at the time of the offending against A would have allowed you, if you had gone on with your trial, to put the argument before the jury that you were too young to form the intent to commit those serious sexual offences. I note that the prosecution submitted it had evidence that would meet that argument, but nevertheless, I take into account in your favour that you have foregone that argument.
Age at time of sentence
32 The next matter in your favour is that you are still a young man, shortly to turn 26. Usually, any sentence I impose should maximise your chances of rehabilitation. Here, the principal purpose of my sentence is protection of the community because of your status as a serious sexual offender.
33 However, that does not make your age, nor rehabilitation, irrelevant. I must still seek to provide the opportunity for you to reform your life. Your counsel submitted that as you have been in custody for the last six years since you were 19, undergoing sentence, you have not been tested by any time spent in the community to assess if you have reformed your life in any way. I will return to discuss the aspect of rehabilitation in a moment.
Personal circumstances
Background
34 Your background is outlined in the sentence of Judge Morrow. Briefly, you apparently grew up in a family where violence was commonplace, particularly from your stepfather who was in the family from when you were aged 12 to 17. It should not be lost on anyone that those ages coincide with the offending for which I am to sentence you. I am not qualified as a psychologist, but in the absence of any other explanation for your offending, this case may well provide a practical example of what many research studies show about the effect of violence on a child’s cognitive development.
35 You left school at about 17, with a poor education, and already a cannabis user for five years. You lived on the streets, and by the time you were 19 in 2006, you were a heavy user of cannabis as well as using amphetamine and methamphetamine. Despite all this, you did have some employment in labouring jobs, and you were working at the time you committed the offences on 17 April 2006.
Current circumstances
36 You were arrested on 24 April 2006, as DNA matching yours was obtained from the victim. Your DNA was on the database because of your criminal history. Although no history is alleged against you here, I note as part of your background that you had 29 charges from three Children’s Court appearances and one Magistrates’ Court appearance between 2002 and 2005. The offences were dishonesty, drug and driving offences.
37 On 21 June 2006, you received a term of imprisonment in the Magistrates’ Court for non-sexual offending which was reduced on appeal to this court to eight months. You were undergoing that imprisonment when sentenced by Judge Morrow, and thus have been in custody for one reason or another since 24 April 2006, when you were aged 19. There was limited pre-sentence detention for the sentence imposed by Judge Morrow, and that sentence was ordered to be served cumulatively on the eight months. You were to be eligible for parole in August 2014, but I must set a new non-parole period today.
38 I take into account that the sentence you are undergoing is your first time in custody, that it is of significant length, that you have already been in custody for over six years, and that you are still a young man.
39 I note that you have been working while in custody, with a responsible position as a billet.
Rehabilitation
40 A report from Dr Sullivan was provided to Judge Morrow and is referred to in his sentence. Dr Sullivan noted then that you were diagnosed at an early age with attention deficit hyperactivity disorder for which you were prescribed medication. Dr Sullivan noted your drug and alcohol history, but he was unable to find anything which would explain your behaviour in committing the serious sexual offence in 2006. He did say that if in fact you were using methamphetamine before this attack, it could induce hypersexuality and aggression.
41 Dr Sullivan also provided a report for this hearing (Exhibit 1). He confirmed that there is no indication that you have any specific mental disorder. You were apparently drinking with your mates before going out to commit the 2006 offence. In this case, Dr Sullivan was of the opinion that if the events concerning A and M occurred (and by your plea you have admitted that they did), then your sexual problems commenced earlier in your life and may not simply have been associated with intoxication, by which I take it Dr Sullivan meant from both drugs and alcohol. I do note that in respect of the events in paragraphs 33-39 of the agreed summary, you had been drinking with friends before that series of offences was committed against M. There is no evidence that you had been drinking or drug taking before the offences against A occurred.
42 Dr Sullivan stated that you need to participate in the Sex Offender Program, which he says will assist you in developing greater insight and understanding into risk factors for your offending, including drug and alcohol abuse, and to learn strategies to prevent re-offending. I agree that it is important for you to undertake such a program. You are to be encouraged to do it, and to participate fully to get the most benefit.
43
However, I do recognise that with a new non-parole period to be set, you may not be received into the Sex Offender Program until closer to the end of that period. Further, as I stated in court on the previous occasion, it is my understanding that it is not usual for prisoners to be considered eligible for the program if they do not admit their involvement in the offending. You have admitted your involvement in the 2006 offences. With these offences today, although you have pleaded guilty, you have made it clear, as reported to
Dr Sullivan, that you have done so on pragmatic grounds and you deny the offending. It will be for you to decide your approach to the Sex Offender Program. I simply note that you are currently prepared to participate in it.
44 Your counsel submitted that on the basis of Dr Sullivan’s opinion that you have no specific mental disorder, your prospects of rehabilitation are reasonable, or at the least, cannot be written off, given your young age. Further, he pointed to the minimum of two years yet to be served of your current non-parole period as a time for further rehabilitation to take place.
45 In the report of Dr Sullivan provided to me, he notes that you have lost privileges on one occasion for a drug screen that was positive for cannabis. The prosecutor submitted that this demonstrated that you had not shown any sign of rehabilitation in respect of drug use, which as Dr Sullivan noted in the report to Judge Morrow, may have been a contributing factor to that offending.
46 Further, the prosecutor submitted that there was little, or no, sign of rehabilitation between the offending against M and the offending against the woman 18 months later. The prosecutor distinguished the case of Miller[5], referred to by your counsel, on the basis that during the period between the commission of the offences and sentence in that case, there was no further offending, unlike your situation.
[5] [2011] VSCA 143
47 I have read the case of Miller and I have attempted to address the relevant factors there mentioned in these sentencing remarks. I agree with the prosecutor that there is a difference between you and Miller, who was aged 35 when sentenced for offences occurring when he was 14 and 17 years old, had not re-offended in any way, and showed strong evidence of rehabilitation in other areas of his life.
48 While, as your counsel submitted, you have not had a chance to show any rehabilitation, because you are in custody, it cannot be forgotten that you are in custody because you have re-offended in a relevant, but even more serious manner within a short time of the last of the earlier offences.
49 As things currently stand, I find your risk of sexual reoffending is high. While you are unlikely to offend against related children again, as you will have little access to underage family members for the foreseeable future, your risk remains high because you offended against an adult victim who was a stranger to you.
50 However, your prospects of rehabilitation may be increased by you successfully completing the Sex Offender Program or other programs to address your offending generally, and it is relevant that you have no specific mental disorder to affect your chances of rehabilitation. Because of your young age, I accept that the sentence I impose should give you such chances as can be given to reform your life, although this must be weighed against the other principles affecting your sentence.
Ancillary orders
51 Application has been made by the prosecutor for you to be registered as a sex offender. I will deal with that application in a separate ruling.
Submissions
52 The prosecutor submitted that the relevant sentencing principles include just punishment, denunciation, general and specific deterrence, protection of the community and totality. She conceded that the factors in your favour were your early plea of guilty, the fact that you were a child when you committed the offences, and that you are still a young man.
53 Taking all that into account, the prosecutor submitted that imprisonment is the only option, and the range put forward was four to six years as a total sentence. She submitted that there should be partial cumulation on the offences for which you are to be sentenced today, but had no instructions as to cumulation between the sentence imposed today and the sentence you are undergoing.
54 Your counsel conceded that imprisonment was the only option, but, although he also conceded that it was difficult to take issue with the range put forward by the prosecutor, he submitted it to be such that even a sentence at the bottom of the range would add significantly to your non-parole period, and possibly to the head sentence.
55 He further submitted that the relevant sentencing principles and the seriousness of the offending should be reflected in the head sentence, but leniency should be extended in respect of the non-parole period, which can be tailored to take into account the mitigating features and the potential prospects for rehabilitation, and perhaps be shorter than the usual period that might be directed in such a sentence.
56 Your counsel also submitted that you have lost the benefit of concurrency that you may have received had you been sentenced for all these offences in 2006, and that, perhaps because of the time that has passed since the offending, the range for the sentence today could be reduced.
57 In reply, the prosecutor submitted that time had passed since the offending because you had threatened your victims into not complaining about the offences.
Findings
58 Apart from the findings I have expressed during these reasons, I make the following further findings:
·I am satisfied that the time that has passed between the offending and sentence arises because of the reluctance of your victims to come forward, given the family relationship, their ages when you offended against them, and your threats to them;
·Your subsequent offending 18 months after your offending against M shows that there was no rehabilitation in that period;
·Even allowing for the time you have spent in custody since then,
which has removed your ability to demonstrate rehabilitation in the community, there is no evidence before me to show that you have begun to reform your life;·While fairness usually requires that account be taken of the fact that an offender has had the prospect of punishment hanging over his head in the time that has passed between the offending and sentence[6], I note that you did not raise with the authorities these earlier offences when being sentenced in 2006 in order to provide a basis for concurrency or reduce any delay before you were dealt with;
[6] WC v R [2012] VSCA 30 at [11]
·Further, it may not have been hanging over your head as such, as you may well have expected your victims’ silence to continue;
·As a result, the time that has passed since the offending (15 years in respect of A and eight years in respect of M) is to be taken into account in your favour mainly by acknowledging that had the offences come to light back then, you would have been dealt with in the Children’s Court, and in a minimal way as having the prospect of punishment hanging over your head for that time if the offences came to light;
·The crimes were serious examples of sexual offending against children;
·Your moral culpability for Charge 1 is lower because of your young age at the time, which was closer in age to your victim;
·However, I find that even then you were well aware of what you were doing, and that it was wrong;
·Your moral culpability for Charges 2 to 6 is higher, because you were almost an adult, were twice the age of your victim and were well aware of the criminal nature of your acts;
·For the same reasons, general deterrence, which means that by my sentence of you for Charges 2 to 6, I must deter other young males from committing sexual offences against children in their family, remains of considerable importance in a case dealing with sexual offending against a child, even though you were still a child at the time;
·However, I recognise that the importance of general deterrence for Charge 1 is greatly reduced because of your young age at that time; and
·Specific deterrence, which means that my sentence must seek to prevent you from reoffending in future, remains of high importance, because you have offended again, and in a more serious way.
59 Summing up, in your favour is your age at the time of offending and now, the time that has passed since the offending, the different sentencing regime you would have been subject to at the time of the offending, the need to ensure that your total time in prison does not exceed the period demanded in all the circumstances of your case, and to a minimal extent, your early plea of guilty. Against those factors is to be weighed the aggravating features of your offending, your lack of remorse, lack of rehabilitation, subsequent serious offending, your status as a serious sexual offender, specific deterrence, just punishment, denunciation, and to a limited extent, general deterrence.
60 For all the reasons I have expressed, I have decided to direct for some cumulation, departing from the total cumulation which would otherwise occur by virtue of the serious sex offender provisions. There will be total cumulation of Charge 1, partial cumulation of Charges 2 and 6, but no cumulation for Charges 3 and 4 as they are part of the same occasion as Charge 2. There will be partial cumulation of the sentence imposed today on the sentence imposed in 2006. The new non-parole period will be lower than might otherwise be directed, taking into account the offender’s age, and providing some chance for him to rehabilitate. I have considered my assessment of his risk of re-offending as high, and I am satisfied that, if he is granted parole when eligible, that supervision will provide some protection to the community.
Sentence
61 You are convicted and sentenced as follows:
·Charge 1: sexual penetration of a child (representative) – 8 months' imprisonment
·Charge 2: rape – 2 years 6 months' imprisonment
·Charge 3: rape – 2 years 6 months' imprisonment
·Charge 4: indecent act – 1 month imprisonment
·Charge 5: rape (representative) – 3 years 6 months' imprisonment
·Charge 6: rape (representative) – 3 years' imprisonment
62 Charge 5 of 3 years 6 months' imprisonment is the base sentence. I direct that 8 months of the sentence imposed on Charge 1 and 6 months of the sentences imposed on Charges 2 and 6 are to be served cumulatively on the sentence imposed on Charge 5 and on each other. All other sentences are concurrent. I have expressed these orders in this way rather than as required by the serious offender provisions of the Sentencing Act, to make it easier to understand them.
63 That results in a sentence for those offences of 5 years and 2 months' imprisonment.
64
I direct that 3 years and 2 months of that sentence be served cumulatively on the sentence the prisoner is currently undergoing. That makes a total effective sentence of 13 years 2 months' imprisonment commencing on
23 November 2006.
65 I direct that the prisoner serve 3 years before becoming eligible for parole. That sentence starts today 7 September 2012. That is a new single non-parole period in respect of all the sentences the offender is to serve or complete.
66 Another way of putting that is, that if stated to commence from 23 November 2006, the new total non-parole period is about 9 years and 3 months.
67 I declare that the prisoner has been sentenced on all charges as a serious sex offender, and direct that this be noted in the records of the court.
68 I note that the period declared as pre-sentence detention by Judge Morrow is still to be taken into account.
69 If you had not pleaded guilty, the sentence you would have received from me on the earlier offences alone is 6 years with a minimum term of 4 years' imprisonment.
70 Just take a seat Mr Lindrum. I might just leave the Bench while counsel looks at that and ensures that there is nothing that is inaccurate about that, and then I will return to deal with the application for the registration.
Upon Resuming
71 HER HONOUR: Yes, any inaccuracy in the orders of the sentence?
72 MS McDOUGALL: No, Your Honour.
73 MR LANGTON: No, Your Honour.
74 HER HONOUR: Turning then to the application made by the prosecution for registration under the Sex Offenders' Registration Act, that application is made under s.11(2) and is described as a discretion with the test in sub-s.3.
75 In my view, it is not a true discretion because if I find the test is met I have no discretion then arising whether to proceed to make the order, or as to the length of the order.
76 Just for completeness as has been pointed out in submissions this morning, it is not relevant for me to consider ss.44 or 45 of the Act and I do not need to decide the question whether the order made by His Honour Judge Morrow remains in force.
77 The submissions were made by counsel and are on the transcript this morning. I do not propose to repeat them. I have decided in revisiting the Act that during the course of determining whether the test in sub-s.3, is met I should not have regard to the reporting period. While in this case in particular that may seem harsh, the test provides for a risk at this point in time and therefore the reporting period in one sense is not relevant.
78 As I have expressed in the reasons for the sentence which have just been delivered, I have found that Brodie Lindrum is at high risk of sexual reoffending. It follows for all the reasons that I did express in those sentencing reasons that I am satisfied beyond reasonable doubt that Mr Lindrum poses a risk to the sexual safety of one or more persons or of the community.
79 I therefore propose to make the order under s.11(2) that the offender comply with reporting obligations. Brodie Lindrum, the period in which you must comply after release is for the rest of your life, and as I have said, I have no discretion about that aspect once I have found the test is met.
80 However, after 15 years you are able to make an application to the Supreme Court to be exempt from the life reporting.
81 You can take a seat again Brodie Lindrum. I will just have the documents provided to me. Mr Langton, would you or your instructor accompany my Associate to Mr Lindrum for the purpose of providing the documents for the Sex Offender Registration.
82 MR LANGTON: Yes, Your Honour.
83 HER HONOUR: So we are just providing you with the documents, Brodie Lindrum, if you can sign where indicated to acknowledge that you have received these.
84 Thank you once again to counsel for their assistance in this matter.
85 COUNSEL: If it please the court.
86 HER HONOUR: Thank you. Brodie Lindrum may be removed.
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