Director of Public Prosecutions v Lukis (a pseudonym)
[2016] VCC 881
•24 June 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL LUKIS (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2016 | |
DATE OF SENTENCE: | 24 June 2016 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Lukis (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 881 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – indecent assault on a male person (2 charges) – gross indecency with a girl under 16 (one charge)
Legislation Cited: Crimes Act 1958; Sentencing Act 1991; Sex Offenders Registration Act 2004 (Vic)
Cases Cited: Stalio v R (2012) 223 A Crim R 261
Sentence: Total effective sentence of 21 months’ imprisonment wholly suspended for an operational period of three (3) years
S6AAA declaration: 3 years’ imprisonment with a non-parole period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Hogan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms A J Beech | Stary Norton Halpin Pty Ltd |
HIS HONOUR:
1 Daniel Lukis, on 22 June 2016, you pleaded guilty to Indictment No. F13241143 containing three charges, being two charges of indecent assault on a male person, Charges 1 and 2, and one charge of gross indecency with a girl, Charge 3. The maximum penalty for Charges 1 and 2 is five years’ imprisonment, whilst the maximum penalty for Charge 3 is two years’ imprisonment.
2 Tendered as Exhibit A on the plea was the Summary of Prosecution Opening for Plea. In summary, each of your three victims is the child of your sister. During the dates on the Indictment, your sister, together with her family, travelled to Melbourne to holiday with her extended family.
3 The victim of Charge 1 was your sister’s younger son. At the time of your offending, being between 1970 and 1973, your victim was staying at your home in Melbourne and sharing a bedroom with one of your children. One night you entered the bedroom, crouched over your victim, pulled down his pyjama pants and rubbed his penis until he ejaculated. At the time, your victim was aged between seven and 11 years and he is intellectually impaired.
4 Charge 2 relates to your sister’s eldest son. The offending occurred in 1972. Again, your victim was holidaying with his mother and was sleeping at your home. As with the victim of Charge 1, you masturbated him. Your nephew was aged between 11 and 12 at the time of your offending. Your victim described your offending in terms that he recoiled in fear and dread from you and that he tried to withdraw his penis right into his body away from you and that during the commission of the offence, he was shaking violently and really scared.
5 The victim of Charge 3 was your niece, who was aged between ten and eleven years at the time of your offending. One night in 1979, while she was staying at your home, you entered the bedroom that she shared with your own daughter. You told your daughter to “go and feed the dogs” and you then offended against your niece by having her masturbate you.
6 Whilst no victim impact statements were relied upon by the prosecution, that your conduct caused harm to your victims must be presumed and the account of the victim of Charge 2 gives eloquent support for and proper understanding of that sentencing principle.
7 The victim of Charge 1 disclosed the offending to his mother in or about 1975. Your sister travelled to Melbourne and met with your other female sibling and together they confronted you, and during that conversation you admitted your offending. You were presented with an ultimatum: seek treatment or your sister would go to the police. You elected to undergo treatment. Subsequently, the victim of Charge 3, your niece, disclosed your offending against her to her mother and when you were confronted by your sister about this conduct, you denied the allegation. By your plea of guilty you have belatedly acknowledged responsibility for your offending behaviour.
8 A perusal of the depositional material reveals that the acts which found the charges were not isolated ones. However, you can, and will only be sentenced for the individual acts that found the three charges to which you have pleaded guilty.
9 These matters came to the attention of the police when your sister, the mother of your three child victims, complained to the police in February 2015. What provoked this complaint was left unexplored during the plea.
10 You were arrested on 10 June 2015 and when interviewed under caution, made “no comment” answers to the investigator’s questions.
11 It is now some 40 to 45 years since your offending. You have hitherto been a man of good character. You entered your plea of guilty at the earliest opportunity and you are entitled to the benefits which flow from that plea, being that it has utilitarian benefit and that it is some evidence of your remorse.
12 You were born in Melbourne on 16 November 1937. You have two siblings, being an older and younger sister. Your father was an Anglican clergyman, which meant that your family moved regularly from parish to parish during your childhood. You described your parents as having a loving and stable relationship and I infer that your childhood within the family was a happy one.
13 Having matriculated, you attended the Pharmacy College and worked as a pharmacist until you retired, when you were aged approximately 65 years. Your career as a pharmacist had two aspects to it. The first being that you operated pharmacies in Pascoe Vale and Gardenvale until about 1981. From 1982 to 1983, you worked as a volunteer for World Vision in a refugee camp in Thailand as a pharmacy manager. Upon returning to Australia, you worked as a pharmacy inspector for the Commonwealth Health Commission until 2003, when you retired.
14 As to your personal life, in 1960, you married your first wife, who bore you three children. You were divorced from her in 1981. I was told that you have maintained a positive relationship with each of your three children until recently, being when this prosecution arose.
15 Upon return to Australia in 1983, you met your current wife and you married in 1985. This relationship is both a loving and supportive one and your wife was present in Court throughout the plea.
16 In March 2013, your wife was critically injured in a motor vehicle collision where she, as a pedestrian, was injured and hospitalised for months. You cared for her throughout her rehabilitation. You live together in a retirement complex in Deepdene.
17 Tendered as Exhibit 1 on the plea was a bundle of documents that included an Outline of Submissions for Plea in Mitigation, a number of authorities, a medical report from Dr Anne Money, a psychological report from Mr Patrick Newton, as well as various certificates and character references.
18 By report dated 16 June 2016 Dr Anne Money opines that you are aged 78 years and suffer from significant health issues, which include:
(i) Hypertension, hypercholesterolaemia and that you have significant cardiovascular risks;
(ii) Prostate cancer which I was informed was treated by way of radical prostatectomy;
(iii)
Depression and anxiety. On review of Mr Newton’s report, this state appears to be reactive to your present circumstances. You have had past and recent suicidal ideation. In the past, the ideation resulted from you simply being sick of life; however, in more recent times, it has resulted from your present circumstances. You have had a longstanding problem with alcohol and of recent times, have sought assistance from
Dr Peter Drysdale, psychiatrist at the Delmont Private Hospital. You are now abstinent of alcohol. Investigation by way of MRI scan shows that you have had past left frontal lobe cortical strokes;
(iv) You suffer from chronic iron deficiency and you are under the care of a haematologist, and this complaint may mean in the future that you will require regular blood transfusions;
(v) You suffer from osteoarthritis which affects you by way of restricting your mobility, and you suffer chronic pain as a result of this condition. This condition requires careful management and an exercise program.
19 In Dr Moneys’ report, she sets out the medication which you currently take, which is extensive but which also includes a number of anxiolytics.
20
The report of Mr Patrick Newton, psychologist, reveals a picture of a man with a complicated and confused sexual orientation. Your first sexual experiences occurred in early secondary school with other boys. You reported to Mr Newton that you continued to experience homosexual urges throughout your adult years; however, you rejected these on religious grounds. You reported to
Mr Newton that you experienced recurrent sexual urges regarding male children from your thirties. There was a period of time late in your first marriage where you experienced sexual difficulty with your wife and you pursued a brief homosexual liaison during that time.
21 In 1968, you consulted a psychiatrist in respect to your intrusive sexual fantasies. You had one consultation with the psychiatrist, who suggested that you take up sport. No other treatment was provided.
22 However, upon the ultimatum put to you by your sister, the mother of your child victims, you consulted Dr William Orchard, psychiatrist, who treated you over a number of years.
23 You complain presently of persistent memory difficulties, lack of concentration and a reduction in the ability to understand things. All of these matters seem to result in causing you to become increasingly confused.
24 In the context of paragraphs 37 and 38 of Mr Newton’s report, which I will not set out, he opines as follows:
“…Drawing on his own experiences of sexual behaviour as a young person, Mr Lukis reasoned that his underage victims would be capable of engaging in sexual contact with him and deriving pleasure from the experience.”
25 Mr Newton further opined that, based on his review, that you would almost certainly have met the diagnostic criteria for Paedophilic Disorder at the time of your offending. He further opined that it would not now be appropriate to diagnose you as suffering from any paraphilic disorder.
26 Mr Newton conducted a risk assessment on you and concluded that you were a low risk of recidivism.
27 Prior to your retirement, and throughout your retirement until recent times, you have worked as a volunteer at Austin Health, providing support to those receiving palliative care through that institution. Since 2003, you have worked four hours per week in this capacity and have accumulated well over two thousand hours of voluntary work in this much-needed area. Your contributions in this area are recognised by a number of certificates contained in Exhibit 1.
28 You are an active member of the Anglican parish, Holy Trinity in Surrey Hills. A reference from the vicar of that parish forms part of Exhibit 1. Whilst the vicar of the parish has known you for only four-and-a-half years, being the length of his time at that parish, he writes that you are a member of the parish council and a lay reader at evening services. You assist in fundraising activities, and he writes that you attended confession at St Cuthbert’s Brunswick, acknowledged the wrongness of your offending and sought and received absolution for your conduct. He is aware of the re-emergence of your suicidal thoughts and regards you as a devout and upstanding person of faith.
29 Your brother-in-law describes you as being loved, respected and honoured by all of your wife’s family, including his four daughters. He writes that you regularly stayed at his home over the last thirty years.
30 A further reference from one of your nieces, a medical practitioner, speaks of you as being warm, caring and never intimidating.
31 Your counsel, Ms Beech, conceded on your behalf that the only appropriate sentence in all the circumstances was one of imprisonment. However, she submitted that any such sentence should be wholly suspended. I agree that the application of the principles of general deterrence, public denunciation and just punishment mandate a sentence of imprisonment.
32 Ms Beech emphasised that your offending was not penetrative, that it was short-lived, with only three particularised incidents founding the charges, and that there was no violence or coercion involved in your offending. Further, she emphasised that your offending was not without psychological explanation. She further stressed that the offending ceased in 1975, that you sought treatment for a lengthy period of time which has proved to be successful and that there has been no further offending. She emphasised your age and ill health, and that the delay between the cessation of your offending and your prosecution ought act as a mitigating factor in your case because of the way in which you have used the intervening years, namely by continuing to work at your profession, seeking treatment, contributing to the community and not reoffending. In addition, she submitted that your age, your ill health and the effect of incarceration upon your present state of ill health impacted further on the effect of delay in your case. In addition, she referred to the thorny problem of current sentencing practices as it applies to historical offending, and in particular referred to paragraphs 52 to 54 of Stalio v R [2012] 223 A Crim R p.261. In particular, she emphasised the concept of equal justice as it applies to the disparity between sentencing practices at the time of your offending and current sentencing practices.
33 You offended against three small children, the children of your sister. These children were in your care. You breached the trust that your sister placed in you and you offended against these three children in your home in an environment where they ought to have been safe. When confronted you acknowledged your wrongdoing in respect to the victim of Charge 1, however you denied any offending in respect of your niece. When presented with an ultimatum of treatment or police intervention, self-preservation caused you to choose treatment. To my mind there is little or no risk that you will re-offend. I regard the application of the principle of specific deterrence as having little or no application to you. You are an elderly man in ill health and you are psychologically fragile. To my mind that fragility is a direct result of this prosecution. It is some 40 to 45 years since your offending and you have not re-offended in that time. In that time, you have sought treatment successfully albeit under the threat of prosecution and have contributed to your community and maintained an ongoing relationship with your extended family and your own children until recent times. Each of these factors impact upon the way in which you ought to serve the sentence of imprisonment which is conceded as being appropriate in your circumstances.
34 In respect to Charge 3, you fall to be sentenced as a serious sex offender and protection of the community from you is the principal sentencing purpose for which the sentence on that charge is to be imposed.
35 By these sentences, I must punish you, publicly denounce your conduct and deter others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedence, and endeavouring to produce sentences which reflect and promote the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows.
36 On Charge 1, I sentence you to twelve (12) months’ imprisonment.
37 On Charge 2, I sentence you to twelve (12) months’ imprisonment; and
38 On Charge 3, I sentence you to six (6) months’ imprisonment.
39 I order that three (3) months of the sentence imposed on Charge 3 and six (6) months of the sentence imposed on Charge 2 be served cumulatively upon each other and on the sentence imposed on Charge 1.
40 This results in a total effective sentence of twenty-one (21) months’ imprisonment.
41 I order that the sentence be wholly suspended for a period of three (3) years.
42 Pursuant to s.6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to three years’ imprisonment with a non-parole period of two years.
43 I declare that in respect of Charge 3 you have been sentenced as a Serious Sexual Offender and I direct that that fact be entered in the records of the Court.
44 I direct that pursuant to the provisions of the Sex Offenders Registration Act 2004 that you be registrable under that Act for life.
45 What will happen now, Mr Lukis, is that documents in respect of your obligations under the Sex Offenders Registration Act will be brought to you. Those documents inform you of your obligations. You are to sign those documents merely as an acknowledgement that you have received them.
46 MS BEECH: Your Honour, may I approach the dock with Your Honour's associate? Just to explain what that form is to Mr Lukis?
47 HIS HONOUR: Yes.
48 MS BEECH: Thank you. Thank you, Your Honour.
49
MS HOGAN: Your Honour, if I may raise two matters in relation to
Your Honour's summary of the facts?
50 HIS HONOUR: Yes?
51 MS HOGAN: In relation to Charge 3, I heard Your Honour say the date of 1979.
52 HIS HONOUR: No, 1975.
53 MS HOGAN: 1975? I apologise, Your Honour. My instructor and myself thought you said 1979. I must have misheard that. In relation to the victim subject of Charge 2, Your Honour identified he is the victim who has a cognitive impairment, but it is the victim of Charge 1 who has the cognitive impairment.
54 HIS HONOUR: That will be corrected.
55 MS HOGAN: Thank you, Your Honour. In relation to the forensic sample, has Your Honour made that order?
56 HIS HONOUR: In relation to?
57 MS HOGAN: The forensic sample.
58 HIS HONOUR: Well I have not sought the attitude of Ms Beech in that respect yet. I do now.
59 MS BEECH: Yes, it is consented to, Your Honour.
60 HIS HONOUR: Thank you. The Crown have made application for a forensic sample pursuant to s.464ZF of the Crimes Act. That order has been consented to by your counsel. The order is for the taking of a scraping from your mouth or what is known as a buccal swab. The next part of the order is expressed in a rather ham-fisted way. You are to attend on the officer in charge of the Box Hill Police Station at 1 Kangerong Road, Box Hill during a period of four weeks commencing 28 days after this sentence. So that means 28 will elapse and then your obligation commences and you must attend within four weeks of that obligation commencing.
61 I have made this order because of the seriousness of the circumstances of the offending warrant the order. The order is by consent and the granting of the order is in the public interest.
62 I need to inform you that if at the time of request of the forensic sample, you do not consent to the taking of a mouth scarping, under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted. I hand down three copies of the order.
63 You may step out of the dock, Mr Lukis.
64 I would like to thank counsel for their assistance in this matter and a most competent plea delivered, Ms Beech.
65 MS BEECH: Thank you, Your Honour.
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