Director of Public Prosecutions v Maloney (a pseudonym)

[2022] VCC 2092

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MILDURA

CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS MALONEY (A PSEUDONYM)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Mildura
DATE OF HEARING:
DATE OF SENTENCE:	4 October 2022
CASE MAY BE CITED AS:	DPP v Maloney (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 2092

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 A. Grant	Office of Public Prosecutions
For the Offender	Mr L. McAuliffe	Victoria Legal Aid

HIS HONOUR: 

1Thomas Maloney[1], you have pleaded guilty to one charge of incest.  That crime carries a maximum penalty of 25 years.  You are now 81 years of age.  You pleaded guilty in the ultimate and have expressed, in my view, appropriate remorse.  You must get the utilitarian benefit of that plea of guilty. 

[1]A pseudonym.

2This would have been a strange trial to run in times of COVID and bearing in the mind the decision of Worboyes.  There must be a significant discount for that.  There has also been a very significant delay in this matter and the significance of that I will be referring to later on.  That plays an important part in this sentencing process. 

3We are also dealing with times of COVID.  Any time spent in custody is spent in very difficult circumstances.  Far more difficult than it would have been at the time that this offending occurred.  You were 66 when it occurred.  You have no prior convictions of any description and you have no subsequent matters of any description. 

4The situation is there was no victim impact statement before me, and I will simply refer to the Crown opening.   At the time of the offending you were residing with the complainant and other family members.  You are the biological father of the complainant.

5Your daughter was 37 years of age at the time this occurred and is currently 51 years of age.  She is currently the full-time care giver of her daughter, you being the father of that daughter.  They both still reside together and you now reside in a nursing home. 

6I understand that has been very distressing for you having to leave the family, though as I understand it, your wife of now some 60 years still supports you as best she can.

7You and your wife had five children together and a number resided at the family home for quite a few years.  In November 2008 your daughter gave birth to a girl.  At the time of the birth she stated that she was unaware she was pregnant and contributed the conception to a one-night stand.  As time went on it turned out that the child had very significant medical conditions, partly caused by a difficult birth, as I understand it, but also because of some genetic disorder which was then ultimately passed on by you. 

8I do not need to go through the details of it all but testing took place by the Children's hospital and other people and ultimately it was determined that the father of that child had to be effectively you.

9At that point in time your daughter said that it occurred once.  She said that she did not want to have sex and said no but then says she could not explain how it occurred.  Looking at her statement, I made it very clear you are not to be sentenced for incest which involved force or threats or anything along those lines.  It is certainly not rape. 

10I note at this point in time – I am not going to make a great issue of it – that your daughter was 37, was not charged, and accordingly there are parity issues which I do not really need to go into detail because of the nature of the disposition I am going to give you. 

11In any event, sex took place on that day.  It was kept as a family secret.  You and your daughter never spoke of it again.  She said that she stayed in the lounge and you walked outside and that was it.  In any event the child was born.  You, in fact, stayed in the family unit and looked after that child pretty well it would appear, for some 13 years.

12It is in that situation that you were ultimately detected as that child's father and this offending came to light.  It is a situation where I asked counsel and no-one can seem to find a similar set of circumstances. 

13The law or sentencing law in regard to incest is one that children must be protected from adults who prey upon them.  But the sentencing matters I have seen – and I cannot find any other either – are where the victim was an actual child that is certainly under the age of 20.  I cannot find examples of incest getting to an appellate court where the complainant is in her late 30s and her father is in his mid-60s.

14That causes real difficulties in terms of sentencing.  Incest by its very nature is a serious offence.  It has to be regarded as such.  In the normal course of events it calls for general deterrence but in your situation where nobody can find a similar example it is hard to see how general deterrence plays much of a role. 

15You are now 81, in serious ill health in a nursing home.  Specific deterrence plays no part so far as you are concerned.  Denunciation clearly must play a part in all this and appropriate punishment becomes the real problem. 

16As I say, the sentencing law as far as I can find out always seems to be directing itself to young children, if I can put it in that way.  These circumstances where I am called upon to deal with, certainly from my experience, unique, though there must be other examples of it I am just not aware of them.

17As I have said, there was no force used, there were no threats used, it was not premeditated.  There were no threats after the event, there were no, 'Do not say anything or I will go to gaol.'  None of those concepts were involved.

18As discussed robustly with counsel for the Crown, it seems to me this is really a matter of the taboo involved around such a relationship.  It is pointed out that – very accurately by counsel for the Crown – that if this did not happen the child would not have had the genetic condition that it does have.

19On the other hand, if it had not happened, the child would not exist so there are all sorts of difficulties involved in a situation such as this.  As I have said, you are now in a nursing home.  It is clear from the material that you have been effectively taken away from that family and they now have nothing to do with you other than the mother and daughter – sorry, one of your daughters. 

20Before me, I have a report from Alison Reinhart, a clinical psychologist, and I also have before me your medical records.  I think they can be dealt with in fairly short compass in this situation.  As is pointed out in your counsel's – very helpful, if I might say so – submissions, you have a history of loss. 

21Your brothers and sisters and parents have all passed away.  Your only son and daughter-in-law were killed in a car crash about six years ago.  Your wife, from whom you are now separated, survived lung cancer recently but still has difficulties.  You suffer from severe symptoms of depression, anxiety and grief.  You take various mediations as antidepressants.  You take oxazepam for anxiety and insomnia.  I accept that you attempted suicide by overdosing when these matters came to light.

22Your medical records also show that you suffer from chronic obstructive pulmonary disease, gastritis, (indistinct), arthritis and a chronic tremor.  You use a four-wheel walker for stability and you have a shower chair and rail.  Your counsel relies on the principles of Verdins and whilst that plays no part on moral culpability, in situations such as yours, to be taken from your nursing home where you do receive treatment and where you do have some sort of community and family connection to be simply put in gaol and await your death - which is what it really would amount to, in my view - is not supported.

23Anyway, I have taken into account 4 and 5 of Verdins.  I have already mentioned general and specific deterrence.  I do not need Verdins for those.  So far as rehabilitation is concerned, it is a bit pointless at the age of 81.  You have worked all your life and you are a first-time offender.  You are a person of good character. 

24You apparently worked delivering water for farming for 30 years.  You have been married for 58 years.  You have feelings of guilt and shame and you now consider yourself as an old man, a burden to your family.  You have psychiatric assessment and treatment since last year following your suicide attempt.  The psychologist's report clearly bears that out. 

25I do not think I need to go through the details of your history excepting how in the nursing home you have a doctor close by when you need it.  Despite your anxiety at being separated, you do not have to worry about giving living tasks.

26Your emphysema is getting worse as you get older.  Clearly your anxiety is the same.  I do not need to go through the matters which your counsel pointed out.  They are quite accurate in terms of your needing a walking frame and the like.  You scored on that psychologist's report as extremely high ranges in anxiety, including breathing difficulty, trembling, panic, heart racing and feeling scared. 

27You also scored in severe ranges of stress, including finding it hard to wind down and relax as well as extremely severe ranges of depression, with symptoms including a lack of positive emotion, low mood, lack of motivation, enthusiasm, hopelessness about the future and a sense of meaninglessness. That is the position you find yourself in as an old man facing the rest of his life, Mr Maloney.  Accordingly, I am going to look at all the matters involving this.  

28Clearly, I accept what the Crown say about the taboo and the consequences of it.  But this is a situation where, in my view, punishment is an extraordinarily difficult proposition.  I was tempted initially in these circumstances to give you an adjourned disposition.  It seems to me that even with conviction that would be trivialising it.  I am not prepared to impose a community corrections order that is done simply for the fact of doing it. 

29I have no idea whether you would be able to do one hour community or something.  I do not know.  A fine clearly would be ridiculous.  In my view, active custody is way beyond what this deserves at this time, bearing in mind your condition.  I certainly take into account the matters of mercy insofar as you are concerned. 

30It seems to me that any sentencing judge taking an old man from a nursing home with your mental and physical disabilities and putting him in gaol to die, as I said, would not be proper sentencing in effect or purpose in my view.

31Accordingly, in all the situations that exist here the only remedy left is really a suspended sentence.  I make it clear that my instinctive response is that that is too much for this.  However, when I look at it pragmatically you will not be breaching it.  At least it shows that incest is a serious crime.  We just have to leave it at that, I think.  Rehabilitation is immaterial and risk of you re-offending, in my view, is zero. 

32Accordingly, taking all those matters into account, you are sentenced to imprisonment for a period of 12 months and that is to be – because I consider it to be in the interests of justice to do so, I am not going to refer to all the authorities on that - that will be suspended for a period of 18 months. 

33Pursuant to s6AAA of the Sentencing Act, but for your plea of guilty you would have been sentenced to imprisonment for a period of 18 months. That would have been suspended for a period of two years because I would have considered it in the interests of justice to do so.

34Any other rulings I have make, gents?

35MR GRANT:  No other orders, thank you.

36MR MCAULIFFE:  Apologies, Your Honour, I think there was just one day of pre-sentence detention just to be declared, otherwise nothing further.

37HIS HONOUR:  You don't declare the day that you – I don't remember this – you don't declare with a suspended sentence.  Just remember in case he breaches it he's got a day up his sleeve.

38MR MCAULIFFE:  Thank you, Your Honour, I appreciate it.

39HIS HONOUR:  You don't declare the time against a suspended sentence.

40MR MCAULIFFE:  Thank you.

41HIS HONOUR:  All right.  Can I just say those submissions were very helpful, too.  I meant that when I said that.

42MR MCAULIFFE:  If the court pleases.

43HIS HONOUR:  And for Mr Grant's usual robust contribution.

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