Director of Public Prosecutions v Mackey

[2019] VCC 1977

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01507

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID BRIAN MACKEY

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	27 November 2019
CASE MAY BE CITED AS:	DPP v Mackey
MEDIUM NEUTRAL CITATION:	[2019] VCC 1977

EX TEMPORE REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N. Rogers SC with Ms J. Warren
For the Accused	Mr T. Kassimatis QC with Mr S. Cash

1HIS HONOUR:  David Brian Mackey, you have pleaded guilty to three charges of indecent assault of a person relating to two separate complainants; Deborah Bracero[1] and Carrie Smith[2].  The maximum penalty on Charge 1 is five years imprisonment and 10 years imprisonment on Charges 2 and 3.

[1] This is a pseudonym name.

[2] This is a pseudonym name.

2The charges relate to events which occurred you were 38 and 40 years of age.  Without doubt if I were to be sentencing you proximate or even nearer in time than now, you would be sentenced to a lengthy period of imprisonment and one which would be, in the circumstances of this case, well warranted.

3Your first victim, Deborah Bracero, was but 16 years of age when you committed the two offences against her.  She had been a student at the Morongo Presbyterian Girls' School in Geelong, when in Year 11 in 1972 you lectured a group of students at the school canteen with no teachers present.  She was present at that lecture and in due course made an appointment with you as she wished to receive a prescription for the contraceptive pill, about which you had addressed those students.

4At the very beginning of the consultation you told her to remove all of her clothing and lie on the examination table thus naked, completely unnecessary, you commenced an unnecessary examination by stroking her breasts and rolling her nipples.  You had the presumption to ask her if her nipples were sensitive and she said “No”.  Charge 1.

5Not satisfied with that perverted act you went further.  You then told her that you had to check if everything was all right inside, and again, in an unnecessary act, you inserted your fingers into her vagina with one hand whilst pressing her abdomen with the other.  You then removed your fingers from her vagina and rubbed her clitoris and again had the extraordinary presumption to ask if that was sensitive, to which she said “Yes”.  And you responded 'that's good'. You eventually gave her a prescription for the contraceptive pill.

6Shortly, I will come to the consequences for Ms Bracero of your offending.  In relation to the second complainant, Carrie Smith, she went to the Geelong Teachers' College where you lectured.  She attended one of your lectures in 1972.  She eventually attended upon you that same year after she had turned 18 to obtain the contraceptive pill.  You took her blood pressure and gave her the prescription.

7Two years later in 1974, you treated her for a corked thigh and in 1975, she was in Geelong for a weekend and had an eye infection so attended you at your private practice in Villamatta Street, Geelong.  You checked her eyes and put some drops in the eyes.  You queried her whether she needed a pill prescription.  She said that she may as well.  You, using that as an excuse, said you would need to do what was a wholly unnecessary physical examination.  You instructed her to remove the bottom half of her clothing and lie down.  You touched her vagina and said to this woman, 'This is your vagina', as if she did not know that, and 'it looks healthy'.

8She felt embarrassed but you went beyond that and touched her clitoris and said 'this is your clitoris', where upon you then began to rub her clitoris and asked her if it felt nice.  She said “No”.  You then stopped but asked if she'd ever had an orgasm.  What business is that of yours?  None.

9And so you used the idea of writing a prescription for contraceptive purposes as a trick to then proceed to ask them to submit themselves, naked in one case, semi-naked in the other, to a wholly unnecessary examination.

10The consequences for those then young women, now down to this time, have been profound, as illustrated by their victim impact statements.  Turning first to Ms Bracero.  She, among other things, has written:

'I was 16 years old and visiting a doctor who had been recommended by my school, Morongo, who had invited him to talk to us girls about contraception.  I was therefore not prepared for the sexual assault which took place.  I was left ashamed and confused at the time and never told anyone until last year when I made my statement to the police. I could not tell my parents at the time because this was a consultation that was kept secret from them, at Dr Mackie's suggestion.  He was the same age as my parents, so I trusted him completely'.

11Later, she writes:

'My trust in men was broken from then on.  Every time I had sex from then and until now, I relived the assault in my mind.  It is seared into my memory'. 

12Still later, she writes:

'The fear of being vulnerable has never left me from the time of the assault by Dr Mackie.  I often wonder what my life would have been like had my trust in males not been so crudely broken after my innocence was taken by him at an age that should have been the beginning of my life as a beautiful young woman'.

13Your second victim, Carrie Smith, writes:

'Although the assault happened 45 years ago, I have never forgotten it.  The last two years (after I first saw Leigh Ross) have especially been traumatic.  Reliving it all over again, giving my statement, thinking about it constantly, it is more real than ever. 

My relationships with men have been affected by what happened'.

14Then, in the last paragraph, she wrote:

'Imagine not forgetting David Mackey for all those years.  In January 2018 I suddenly had a strange feeling about him & I Googled his name. What a surprise when I saw the Geelong Advertiser article about him and the Geelong Grammar students.  That's when I decided to take the next step and here we are now!'

15Many such victim impact statements I have heard read by prosecutors, by victims and I have read them myself.  Sexual assault does not in its consequences disappear with time.  It festers and causes great harm, physical, emotional, social, with the victims thinking that it was their fault in some cases, with the victims distrusting men in particular, withdrawing, becoming depressed, avoiding situations which they should enjoy, but no, it is the opposite for them.

16They are lost in a world of distrust.  This is what you have done to your two victims.  The consequences have not gone away and remain with them to this day, hopefully the conclusion of these matters will bring some relief to them.

17I started these sentencing remarks observing that if I was sentencing you earlier in your life, you would be going to gaol and there would be no doubt about it; guilty pleas or not.  You used your position as a doctor, a medical practitioner that persons in need of help should be able to trust.  You exploited your position of trust to engage in these sexual activities which could only have been motivated by one thing, your own sexual gratification at their expense, unexpectedly and completely out of the blue.

18Is it surprising that this experience inflicted on them by you has had such dramatic consequences?  This offending was a gross breach of trust by you against them under the guise of the simple act of writing a prescription.

19And so it is in your twilight years that I come to sentence you.  You are a man now of 85, at the time around 38-40 years of age.  You are man who suffers multifarious aspects of ill health, both physical and mental and I shall not elaborate upon them.  I have had the opportunity of observing you throughout the 13 days that these matters have occupied my court.  You are a clearly a man in fragile ill health.  You live an isolated life.

20The offending for which I must sentence you occurred no less than 46 to 48 years ago, almost half a century ago, but as I have said, still live in the memories of your victims.  You come before the court without any prior criminal history and you are entitled to call upon that, although I give less weight to it, given the nature of your offending as involving a gross breach of trust of your profession as a medical practitioner.

21You have pleaded guilty and that I take into account in terms of its utility, sparing your two victims at least the experience of having to give evidence before a jury.  It is important for all to understand that in sentencing there are a number of factors that I must take into account.  General deterrence, deterring others from similar offending is the sentencing factor that I would ordinarily take into account in this matter as the principal sentencing factor.

22But you, for the reasons articulated by Mr Kassimatis QC, are not in short a suitable vehicle to hold up to others as being an example to discourage others from similar offending.  Thus that factor is relegated to a matter of much less importance.  Protection of the community would also be high on the list of matters I would take into account, but here, there is no need.  You are old, you are fragile and you are isolated.  You pose, at this stage, no risk to the community in the future.

23Specific deterrence is a matter that always or almost always, is of moment, deterring the offending from reoffending, but here, for much the same reasons, that matter I must take into account also falls away.  There is, as Mr Kassimatis QC has correctly submitted, nonetheless a need for the matters that I take into account to include the need for just punishment, but here one wonders what the justice of the punishment would be on a man of your age, on you physical and mental health.  It too is much diminished, and denunciation for your failed behaviour towards your patients to whom you owed a duty of care to care for, not abuse.

24Taking into account all these matters, it is plain that the sentence that I would otherwise have passed approximate in time, or even 10 years, 20 years past or 30 years past, this offending time is a different one.  If you consent, I will release you on a community corrections order for a period of two years.  Do you consent?

25OFFENDER:  I do.

26HIS HONOUR:  It will be prepared.  And I make a declaration under s.6AAA that but for the pleas of guilty, I would have imposed a community corrections order in the vicinity of three years.

27What is the closest place that he needs to attend from Point Lonsdale, I don't know.  I would imagine it is Frankston.  I'm sorry, Point Lonsdale, that's the other side.

28MR KASSIMATIS:  Probably Geelong.

29HIS HONOUR:  Geelong, yes.  I've got the wrong peninsula.  All right.  That will be prepared.  Now, in terms of the registration, what is the situation there in terms of duration?  What's the Act again, it's the ‑ ‑ ‑ 

30MS ROGERS: Sex Offenders Registration Act, and if Your Honour sees the defence submissions, footnote 8, that picks up the various sections of that Act which leads one to it.

31HIS HONOUR: I declare that pursuant to the Sex Offenders Registration Act 2004, that you are a registered sexual offender for life.

32Does that cover matters?

33MS ROGERS:  Are convictions going to be recorded in relation to the charges?

34HIS HONOUR:  Yes.

35MS ROGERS:  Thank you, Your Honour.

36HIS HONOUR:  I should have said that.

37MS ROGERS:  Your Honour, there is one thing.

38HIS HONOUR:  Yes.

39MS ROGERS:  There is one thing and it is about the community correction order.  I might get Ms Warren to walk Your Honour through it.

40HIS HONOUR:  Yes.

41MS WARREN: Your Honour, I just wonder whether Your Honour – Your Honour hasn't pronounced a condition that would be attached to the community corrections order. The Sentencing Act requires at least one condition be attached.

42HIS HONOUR:  And what are the conditions that are available?

43MS WARREN:  Well, Your Honour hasn't ordered an assessment report which would normally be required ‑ ‑ ‑ 

44HIS HONOUR:  Do I need ‑ ‑ ‑ 

45MS WARREN:  ‑ ‑ ‑ for a treatment condition.  Pardon, Your Honour?

46HIS HONOUR:  Do I need to?

47MS WARREN:  No, only if Your Honour were going to impose a treatment condition which I don't think anyone is suggesting.

48HIS HONOUR:  I think that would be a waste of the community's money.

49MS WARREN:  Yes.  And I don't anticipate that Your Honour would be suggesting that community work would be appropriate either.

50HIS HONOUR:  I don't think so, Ms Warren.

51MS WARREN: What I propose, Your Honour, would be a bond condition which is s.48JA of the Sentencing Act which provides, a court which is making a community corrections order may attach a condition requiring a defendant to pay an amount of money as a bond, the whole or part of which is subject to forfeiture if the offender fails to comply with the order.

52HIS HONOUR:  And the period of the bond is whatever period I make it?

53MS WARREN:   Yes.  Well, it would be the duration of the order, Your Honour, so ‑ ‑ ‑ 

54HIS HONOUR:  Yes.  Well, I will direct that he pay – that there be a bond in the sum of $2,000.

55MS WARREN:  Yes, Your Honour.

56HIS HONOUR:  For a period of two years.

57MS WARREN:  As Your Honour please.

58HIS HONOUR:  Is there a need for the payment to be made?  No.

59MS ROGERS:  No.  It's essentially a promise, Your Honour.

60HIS HONOUR:  Yes, it's a promise.  There is no requirement for a stay.  Whilst I have the opportunity, may I thank you, Ms Rogers; you, Ms Warren; you, Mr Kassimatis and you, Mr Cash, for the way in which this matter has been dealt with throughout.

61MS ROGERS:  Thank you, Your Honour.

62MR KASSIMATIS:  Thank you, Your Honour.

63MS ROGERS:  And Your Honour, just before Your Honour leaves the bench, the suppression order that was granted by Your Honour at the commencement of the proceedings will obviously cease today.

64HIS HONOUR:  Yes.

65MS ROGERS:  I don't think Your Honour needs to do anything about that because of the nature of the order that was granted in the first place, but I just draw it to the attention of everybody.

66HIS HONOUR:  It will be put on the court orders perhaps when I attend to that, that the suppression order made on whatever date it was, is lifted.

67MS ROGERS:  Yes.

68HIS HONOUR:  Or whatever the appropriate terminology is.  Insofar as the permanent stay of ruling is concerned, it has been revised by Ms Jackson and I, so that the paragraphing, the shambolic paragraphing, in which another egregious obvious errors have been corrected, it will be made available to the parties this afternoon.  It is in revised form but it is not in the polished form that sometimes, if needs be, those sorts of rulings are revised.

69What was the name of the New South Wales case involving the doctor?  I just can't remember.

70MS ROGERS:  Davis.

71HIS HONOUR:  Davis?

72MR KASSIMATIS:  Yes. 

73MS ROGERS:  An ACT case.

74HIS HONOUR:  An ACT case?

75MS ROGERS:  ACT case, yes.

76HIS HONOUR:  That's right, it went to the Federal Court.

77MS ROGERS:  Full Court of the Federal Court.

78HIS HONOUR:  Davis.  Thank you.  I have signed the notice under the Sexual Offenders Registration Act.  The acknowledgement must be signed by Dr Mackey and countersigned by Ms Jackson, and this is the community corrections order that needs to be signed by Dr Mackey which I will then countersign.

79I will also add in that there is a stay of 28 days in the event that there does have to be payment of the bond.

80MS ROGERS:  Yes.

81HIS HONOUR:  Bring that back, it has to be changed apparently.  It looks like Mr Kassimatis, your instructor will just have to look at what the arrangements are concerning payment or non-payment of the bond.  It is not something I've ever done before.

82Before court adjourns, can I say to you, Ms Bracero and you, Ms Smith, I thank you very much for the dignified way in which you have conducted yourselves in trying circumstances.  I wish you well for the future.

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