Director of Public Prosecutions v Maloney

[2018] VCC 741

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

AT GEELONG
CRIMINAL JURISDICTION

CR 17-02037

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK MALONEY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	23 May 2018
CASE MAY BE CITED AS:	DPP v Maloney
MEDIUM NEUTRAL CITATION:	[2018] VCC 741

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	Mr N. Goodenough	Office of Public Prosecutions
For the Accused	Mr S. Norton

HIS HONOUR:

1Mark Maloney, your childhood was far from ideal.  Your father was a violent man who subjected your mother to brutal beatings.  Ultimately he was imprisoned for an attack on her.  His violence created great fear.  You, your siblings and your mother moved, time and again, to get away from him.  This understandably led to instability.  You witnessed the violence and felt great fear yourself. 

2You did not develop or mature in those circumstances, in a way that helped you to always do the right thing.  In that context, you committed offences against two, very young boys.  The summary of the circumstances of your crimes were read out by the prosecutor, and I have taken into account all that was said. 

3But in summary, what occurred was in the late 70s, you moved to an address in Norlane next door to a family with two young boys.  The young boys would come with their father to your house.  You had a large train set in your bedroom. 

4In respect of the older of the two victims, you enticed him into your bedroom to play with the train set and thereafter, you made him give you oral sex.  The victim was between six and nine years.  The oral sex caused him to gag and choke.  This type of event or the oral sex in your bedroom, occurred on three occasions.  You have pleaded guilty to one charge of an indecent assault on a child and it is a representative charge of those three occasions.  You also promised lollies as an enticement and a reward and said to the child, it was to be a secret so that your dreadful conduct was kept from adults. 

5The circumstances of the younger victim are not dissimilar, save that he was very young, between four to five years' old.  He was made also, to give you oral sex under threat of being smacked and a matter no doubt, of real moment, to a four or five year old child.  Likewise he was threatened that if he told anyone, he would be smacked.  He too was required to give you oral sex like his older brother, to ejaculation and then swallow.  There were three incidents that make up the single representative charge. 

6As I said earlier in a sentence indication hearing, this is the briefest of descriptions.  The full account is set out in the summary of the prosecution opening.  What is to be kept well in mind, is that the sexual offending against children whenever it occurs, is serious criminal conduct.  Our community then in the 1970s and now, abhor sexual abuse of all vulnerable victims, especially children as young as the victims in this case. 

7As I said at the sentencing indication hearing, the impact on the victims is almost always significant and long term.  That was borne out in the victim impact statements completed by each of the victims.  The younger of the victims wrote that:

"For four decades I suffered depression and anxiety of trust which I still suffer from today".

8He says:

"The negative burden which I carried for so long, is now yours". 

9He says he is:

"Glad that this was conducted under law, because it is finally lifted from me the four decades of burden".

10He also spoke of the physical problems that have occurred to him because he took to drinking in excess.  The older victim wrote what occurred to him, was the worst thing that has happened in his 46 years on this earth.  He speaks of the emotional impact being profound with his adolescence tormented, in particular.  He blamed himself for phenomena these courts become only too used to.  That is, the victims, the children, wrongly blame themselves for what occurred.  There is only one person responsible and that is you, Mr Maloney.  He took up self-harm and it has affected his relationships as he grew older and family relationships, still to this day.  There can be no doubt that these offences were serious and shameful. 

11However, as I said in your application for a sentence indication, the sentencing discretion available to me remains a broad one.  In particular, if the offender was himself a child at the time.  You were 15 to 16 years' old at the time.  And as I have explained, you had gone through a childhood that did not give to you a moral compass that might have been given to others.

12However, the single fact, that is your age, is not determinative of the appropriate sentence. 

13What also needs to be examined is what has happened since.  Significant material has been gathered by you and your lawyers, that leads me to the conclusion that you are someone of otherwise good character having never been before the courts since this offending, for any offence let alone like offending.  Thus you are not someone who has a dangerous attraction to children and you do not present as someone who the community needs protection from.   Your otherwise unblemished life is something that you can call upon, in asking here for a merciful sentence. 

14You have always been a hardworking man.  You now operate a small business, as an owner truck driver.  Your work history is very much to your credit.  It has caused you great stress to tell of your offending to those work colleagues and friends that you felt could support you.  I take into account the shame and guilt that you have felt in those circumstances.  You are someone who is properly remorseful and contrite. 

15Of real importance in my view, is that you are a solid, family man who with your wife of 33 years has raised two daughters and now one has a child, your granddaughter.  They continue to support you even after the charges were laid.  They wrote letters in which they tell of your good qualities.  Your wife wrote:

"Mark has always been respectful, supportive, caring and loving throughout our marriage and the raising of our two daughters.  Mark is a person who does not like conflict as he was brought up in an abusive environment in which meant moving constantly, to get away from his father, most of the time leaving without some of their possessions".

16She goes on:

"Our two daughters and granddaughter adore their father and Pa.  Together we have raised them to be honest and caring and hardworking.  Both of them employed in good jobs where they are respected by their bosses and colleagues.  Mark has always been a hard worker and since we started our truck business, has earnt the respect of other sub-contract drivers and operational staff at the quarry, in which he is mainly contracted".

17That is an extract from a helpful letter explaining the stresses as well, once the charges became known.  Your daughter, Sandy wrote that you are loving, carrying and supportive.  Hardworking and always ensuring that they were happy.  Since the allegations you have become depressed and isolated. 

18Your daughter, Stacey wrote that:

"My father has been an inspiration to me since I can remember.  Taking and showing me through life that he was strong, noble, a hardworking man which continues to teach me every day".

19Some of your siblings and your friends also wrote letters.  They spoke of your helping others, as well as being a person of good character.  A work colleague, Mr Patton wrote that:

"Mark came to me months ago, so upset that he broke down when informing me of the charges that had been made against him.  He felt ashamed and bewildered that the charges had been laid".

20As I said your friends and work colleagues and also your general practitioner wrote of your character and I accept that you are now a decent, contributing member of our community.  As I said in the sentence indication, the crimes you committed were committed by you, that is you made poor, immature decisions as an adolescent.  And those sorts of crimes, indeed any crimes, are well in the distant past for you.

21As I indicated, you have been someone who has been anxious and depressed and unable to sleep since the offences came to light.  I accept that you are ashamed and contrite.  Although your plea of guilty was after a committal and after a sentence indications hearing, it does remain of value as the victims were not required to give evidence in a trial before a jury.  They have now, it seems, some sense of closure.  Your sentence will be less because of your plea of guilty. 

22The courts from time to time, have to deal with circumstances like these.  In the Court of Appeal in the decision of Boland, Nettle J, set out principles that encapsulate what sentencing judges need to be guided by, in dealing with circumstances such as this.  As I indicated at the sentence indicating hearing and I repeat, these are important guidelines. 

23He wrote:

"Decisions of this court, in R v Nutter, and R v Better, recognise that where offences which have been committed while an offender is a child or immature, and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending.  Although such an offender falls to be sentenced as an adult, common sense and fairness dictates that the assessment of the nature and gravity of the crime and of the offender's moral culpability, take into account that what was done was done as a child, or a person of immature years and not as an adult or a person of greater maturity". 

Counsel for the appellant is also correct that general deterrence ordinarily has a lesser role to play in sentencing of children and immature young people, than in the case of mature adults, and that it is significant that the appellant in that case, had not offended in more than 24 years', and in your case, longer.

24The sentencing options that do not involve immediate imprisonment have been, in other Court of Appeal decisions, or other authorities, been described as punishments that do express denunciation and do operate as deterrence to others. 

25Following the sentence indication hearing, I indicated that I would not impose a sentence of immediate imprisonment, but rather I would impose a sentence of imprisonment wholly suspended.  I remain of the view, that such a sentence does reflect appropriate denunciation and deterrence, though as set out both of those sentencing purposes are significantly moderated in accordance with the authorities that I have referred to.

26Can you please stand, Mr Maloney. 

27Committing the offence, Charge 1, you are sentenced to 14 months' imprisonment.

28Committing the offence, Charge 2, you are sentenced to 14 months' imprisonment.

29I order that six months of Charge 1, be cumulative upon the sentence imposed on Charge 2. 

30That gives a total effective sentence of 20 months.  That sentence is wholly suspended as it is desirable to do so.  It is suspended and the operational period of that suspension is 20 months. 

31According to the law relating to suspended sentences, I need to explain to you Mr Maloney, that should you commit an offence punishable by imprisonment in the 20 months from now, that is the operational period, that should you commit such an offence even if that offence was not dealt with by the imposition of gaol, by a magistrate, but if it is a crime that is punishable by imprisonment, and almost every crime that you could think of is punishable by imprisonment, then you breach this suspended sentence. 

32You would return back and I would have to impose a sentence of the full 20 months of gaol, unless there are exceptional circumstances that arise from this moment forward.  All right.

33So, 20 months' imprisonment and as no doubt has been something you have dwelt on, since these charges came to light, gaol for a man like you, you would never be the same.  So, just keep doing that is, what you have been doing, and do not commit any crimes.  But, should you, there is a very serious penalty that awaits you.

34If you had pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of two years, the minimum term of one year, before you would be eligible for parole.

35Is there anything else required.

36COUNSEL:  No.

37HIS HONOUR:  Thank you.  I thank counsel for their considerable assistance.  I will stand down.  Mr Maloney can come out of the dock.

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