Director of Public Prosecutions v Maloney (a pseudonym)
[2021] VCC 1078
•5 August 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
SEXUAL OFFENCES LIST
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LEONARD MALONEY (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE GEORGIOU | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 3 May 2021 | |
DATE OF SENTENCE: | 5 August 2021 | |
CASE MAY BE CITED AS: | DPP v Maloney (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1078 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: sexual assault of a child aged 16 or 17 under care, supervision or authority – charges 1, 3, 4 and 6 rolled up charges – sexual penetration of a step child – standard sentence offence – profound impact upon victim – brazen offending – offending over period of 5 or 6 months – gross breach of trust – admissions to police – pleas of guilty entered at earliest reasonable opportunity – pleas of significant utilitarian benefit – long history of alcohol abuse – Bipolar Disorder type 1 – manic or hypomanic relapses – moral culpability reduced by manic or hypomanic state at time of offending – sentence will weigh more heavily because of mental health issues – prospects for rehabilitation guarded – serious sexual offender on charges 3 to 6 – sexual offender registration for life.
Legislation Cited: ss 6D, 6E Sentencing Act 1991
Cases Cited: DPP v Dalgliesh (a pseudonym) [2017] VSCA 360; Verdins v R (2007) 16 VR 269; Worboyes v The Queen [2021] VSCA 169; Brown v The Queen [2019] VSCA 286
Sentence: Total effective sentence of 9 years and 10 months imprisonment with a non-parole period of 6 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Sonnet | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms D. Lamovie | Victoria Legal Aid |
HIS HONOUR:
1Leonard Maloney[1], you have pleaded guilty to the following charges:
[1] A pseudonym.
(a) Charge 1, that between 1 January 2020 and 15 January 2020, you intentionally sexually touched Eileen Young[2], a child aged 16, who was under your care, supervision or authority in circumstances where the touching was contrary to community standards of acceptable conduct.
[2] A pseudonym.
This is a rolled-up charge involving two occasions when, on a camping trip, you sexually assaulted Ms Young.
(b) Charge 2, that at Werribee[3] between 1 January 2020 and 16 June 2020, you intentionally caused or allowed Eileen Young, a child aged 16 who was under your care, supervision or authority, to sexually touch you in circumstances where the touching was contrary to community standards of acceptable conduct.
[3] A pseudonym.
The particulars of this charge are that the incident occurred while you were watching a movie.
(c) Charge 3, that at Werribee on 16 May 2020, you intentionally sexually penetrated Eileen Young, a person you knew to be the child of your domestic partner, in that you introduced your tongue into the vagina of Eileen Young and you introduced your penis into her vagina.
This is a rolled-up charge involving two instances of sexual penetration that occurred on the occasion of her brother’s birthday in May 2020.
(d) Charge 4, that at Werribee between 16 May 2020 and 15 June 2020, you intentionally sexually penetrated Eileen Young, a person you knew to be the child of your domestic partner, in that you introduced your finger into her vagina and you introduced your penis into her vagina.
This is a rolled-up charge involving two instances of sexual penetration while you were watching a movie with Ms Young.
(e) Charge 5, that at Werribee between 16 May 2020 and 15 June 2020, you intentionally caused or allowed Eileen Young, a child aged 16 who was under your care, supervision or authority, to sexually touch you in circumstances where the touching was contrary to the community standards of acceptable conduct.
The Particulars to this charge state that it happened on the same occasion as Charge 4.
(f) Charge 6, that at Werribee on 16 June 2020, you intentionally sexually penetrated Eileen Young, a person you knew to be the child of your domestic partner, in that on three occasions you introduced your finger into her vagina and that on one occasion you introduced your penis into her vagina.
This is a rolled-up charge involving four instances of sexual penetration, and which are particularised as occurring on the final occasion you and Ms Young were watching a movie together.
Circumstances of Offending
2The circumstances of your offending are set out in the Prosecution Opening for Plea, Exhibit P1. This is an agreed summary and forms the factual basis on which you fall to be sentenced.
3Ms Young, the victim in this matter, was aged 16 years at the time of your offending. She was your step-child. At the time you were living with Ms Young, her mother, Alison Young[4], and her two older brothers at an address in Werribee. You and the victim’s mother had been in a relationship for approximately eight years and became engaged in February 2015.
[4] A pseudonym.
4Charge 1 relates to an occasion when you, Ms Young, her family and others went on a camping trip to Torrumbarry between 1 January and 15 January 2020. The offending occurred when you, Ms Young, and her brother, were sitting around a campfire at night. You were intoxicated. At one point you placed your hands on her chest and moved them towards her vaginal region. You did this on a number of occasions. Whenever you did, Ms Young would move your hands away. Your conduct lasted approximately five minutes. At around this time you also put a hand on her left breast and squeezed it. You asked her “what am I doing wrong?” and suggested that you and she go for a walk. Ms Young refused, stating she wanted to go to bed. You made light of the matter saying you were only joking.
5Charge 2 occurred on an occasion when you and Ms Young were watching a movie. You took her hand and placed it down your pants moving it so that it was touching your erect penis.
6In May 2020, a party was held to celebrate Ms Young’s brother, your step-son’s, birthday. You and she were both drinking alcohol. At some stage during the evening Ms Young vomited and then went to bed. After everyone had left the party, you entered Ms Young’s bedroom and started to kiss her on the lips. You are not charged in relation to that act. You then penetrated her vagina with your penis. Ms Young told you she was in pain and that it was hurting. Despite that, you continued having sexual intercourse with her until you ejaculated inside her vagina. Ms Young said she was worried about falling pregnant and you told her if anything like that happened you would immediately take her to the doctor. You then inserted your tongue into her vagina for between one and two minutes. Your conduct on this occasion forms the basis of charge three.
7Charge 4 relates to an occasion when you and Ms Young were watching a movie on the couch. While watching the movie, you digitally penetrated her vagina. When the movie finished, Ms Young went to her room and you said that you would visit her for a second. You entered her bedroom and removed your clothing. You then inserted your penis into her vagina. You were not wearing a condom. Ms Young believes you did not ejaculate. You then heard your fiancée coming from her room. You quickly dressed and jumped out through the bedroom window.
8Charge 5 occurred on the same occasion as the incidents forming Charge 4. While you and the victim were on the couch watching the movie, Ms Young masturbated your penis. You did not ejaculate.
9Charge 6 relates to an occasion on 16 June 2020, when you and Ms Young were again on the couch watching a movie. You kissed her at that time. This is not a charged act. When you did so, she told you “this shouldn’t happen”. However, you then digitally penetrated her vagina. You then got up and retrieved a blanket from a cupboard. You returned to the couch and told Ms Young to lie down. You then pulled your pants down and put your penis into her vagina. You were not wearing a condom and when you ejaculated, you did so onto her jumper. You then inserted your fingers into her vagina.
10After some time Ms Young left to change her clothes. You got up and went to your fiancée’s room to check if she was still asleep. When you returned you started touching Ms Young again and joking “about round 2”. You again digitally penetrated her vagina. As you were kissing her, your fiancée entered the lounge room. Your fiancée believed you were masturbating yourself. She told Ms Young to go to her room. Ms Young was partially undressed when she left. From her room she could hear yelling between you and her mother. She heard you tell her mother that you were only tickling her. Alison Young later asked her daughter what had happened, to which she stated, “we had sexual intercourse”. Ms Young was very upset and threatened to commit suicide.
11On 16 June Alison Young contacted police. A ‘disclosure’ statement was made by Ms Young, in which she detailed sexual activity with you having occurred on several occasions. She was then conveyed to the Sunshine Hospital for a mental health assessment. After discharge from the hospital she attended the Royal Children’s Hospital for a forensic medical examination.
12Ms Young made a recorded statement disclosing the offences on 21 June 2020.
13She reported that you had told her not to tell her mother what had been happening otherwise you would go to gaol and she would look like the “family whore.” She said she had asked you to stop, but you were unable to do so. She was distressed and upset by your conduct. Ms Young stated you had expressed some remorse for your behaviour, but you continued to offend against her.
14There were a number of uncharged acts mentioned in the prosecution summary which I have not summarised. They provide some background and context to your offending, but you do not fall to be sentenced in relation to those acts.
15On 16 June 2020 you were arrested and interviewed. During your interview you made a significant number of admissions concerning your conduct.
Victim Impact Statement
16An impact statement made by Ms Young was tendered during the plea hearing.
17Ms Young, who is now 17 years of age, states that you were her guardian for over eight years and someone she regarded as a father figure. She said that your abuse set her life in the wrong direction and destroyed her teenage years. She further states that you should have been protecting and guiding her on the right path in life, not exploiting and manipulating her. Over the period in which you sexually abused Ms Young, she felt trapped and unsafe in her own home. She was scared as to what you might do if she denied your advances. Through your words and conduct, she was too scared to tell the other members of her family what you were doing. Your conduct has caused her to have feelings of guilt and self-doubt, even though she was the child and you the adult who initiated the sexual activities.
18As a result of your offending Ms Young was taken to hospital because she had suicidal thoughts. She has been diagnosed with depression and post-traumatic stress disorder and placed on antidepressant medication.
19It is clear from her impact statement that your conduct has had a significant psychological impact on her. It has also impacted her relationship with her mother, with whom she no longer has any contact. The family became homeless and resorted to living in a caravan park.
20While Ms Young feels that what happened was her fault, it is important that it be made clear that the only person who was at fault is you. You took full advantage of your position within the family of a 16-year-old child for whom you had parental responsibility as a stepfather.
Record of interview
21I will refer briefly to some of the answers you gave when interviewed by police.
22In answer to question 41 you stated:
“I knew what I was doing wrong but I didn’t know it was rape. I thought she was old enough or something. I thought 16 was consent. I don’t know. But I knew what I was doing was wrong. I’m obviously – I’m cheating on my missus and my fucking stepdaughter. I’m like a sicko. It’s not me, mate. Everybody knows me. That’s not me. I haven’t done anything wrong in my life. I’m so scared it was only …”
23At question 50 you acknowledged that all the children looked up to you. At question 54 you stated you were Eileen’s stepfather for eight years and, at question 71, you stated “It takes two to tango. I wasn’t the one fuckin’ pushing it.”
24At question 91 you answered:
“Look, we done all this stuff together. We done – we done it multiple times. Yeah. Probably five or six – six time maybe, maybe seven. I don’t know. And it just happened and that’s what happened … .”
25And at question 93 you answered:
“… I always had it in my head that – that if you’re 16 and you agree to it, yeah, then it’s sweet and this is what I thought … .”
26You stated that the first time you had sexual intercourse with Ms Young was on the occasion of her brother’s birthday in 2020. You were not able to provide police with much by way of detail, stating that you are an alcoholic and take a lot of pills. You told police that the last occasion anything happened between you was the night before your arrest.
27With regard to the camping-trip offences, you said that Ms Young told you what occurred, but you could not recall anything as you were blind drunk.
28You told police that you never wanted to hurt Ms Young or her mother but acknowledged that you had.
Criminal history
29You have admitted your criminal record. There are three separate appearances at Magistrates’ Courts between 2006 and 2018. You have not previously been convicted of any sexual offending. The only matter of concern was in July 2018, for the offences of intentionally damaging property and unlawful assault, your case was adjourned for a period of 2 years with a condition you continue with mental health treatment as required. The offences before me occurred during that adjourned period.
Background and personal circumstances
30I turn now to your background and personal circumstances.
31You are 35 years of age. You were 34 at the time you offended. You live with your parents and three younger siblings in the suburb of Hillside.
32You grew up in the Preston area local secondary school. You were not academically inclined, preferring instead to play sport. At the age of 15, your parents moved to Sydenham and you transferred to another secondary school. You had behavioural issues at school and were asked to leave at the end of year 10. With your parents’ encouragement, you found work as an apprentice plasterer. You lost your first job after approximately two years because of a poor work ethic. You were able to find another job through a connection with your football club. At the age of 21, you completed your apprenticeship.
33Approximately five years ago, you and a friend started your own plastering business, in which you were working at the time of the these offences.
34You described your relationship with your father as a difficult one. You were subjected to physical discipline from him. You had a much better relationship with your mother, who worked full time raising you and your four siblings.
35You told psychologist, Dr Matthew Barth, that both parents were heavy binge drinkers and that you often felt anxious and scared of your father as a child.
36You have a long history of substance abuse. You first used cannabis at the age of 16. You have also experimented with amphetamines and ecstasy, and have also abused benzodiazepines and panadeine. You were prescribed benzodiazepine when you tried to stop drinking in early 2020, but you became dependent on it and started sourcing it illegally. You were abusing that drug throughout the period of your offending.
37You have a long history of alcohol abuse. You have been a heavy binge drinker from the age of 18. Your use of alcohol increased significantly during the last three or four years of your relationship with Alison Young. You were then drinking in excess of ten standard drinks a day. You asserted that you were heavily intoxicated when you committed these offences. You continued to drink alcohol despite some efforts at drug and alcohol counselling. At the time of the plea hearing, you were drinking approximately six beers a day.
38You met Alison Young in the psychiatric unit at the Sunshine Hospital in 2012. You formed a relationship and commenced to live together within weeks of meeting her. Although the relationship became strained, you continued living together in same house until your arrest in June 2020.
39You have suffered from serious mental health issues since the age of 17. These are well set out in the reports of Dr Nina Zimmerman, psychiatrist, and Dr Barth, tendered on your behalf at the plea hearing.
40You first became unwell at the age of 17. You were diagnosed at the Orygen Youth Mental Health Service with Bipolar Disorder and commenced on the mood stabiliser, Lithium.
41Your next contact with a mental health service was in 2012, when you were 26 years of age. You were then admitted to the psychiatric unit at Sunshine Hospital because of a manic relapse. You were reported as not sleeping and having a number of false beliefs. You believed you had superpowers and that you had been touched by God. You hallucinated that you were flying and believed you were responsible for an earthquake that occurred in 2012 in Melbourne. It was during this admission that you met Alison Young. You were recommenced on Lithium and have been prescribed that medication ever since.
42Despite treatment and medication, you experienced relapses every one to two years. At times you were successfully managed by a Crisis Assessment Team in the community, but on other occasions you required inpatient hospital admission. You experienced elevated mood in January 2020. You were then managed by the Crisis Assessment Team and were given the mood-stabilising antipsychotic drug, Olanzapine, as well as Lithium, until your symptoms resolved.
43Dr Zimmerman examined your forensic history from other sources. A Forensicare Mental Health Summary, dated 27 July 2020, indicated that you were diagnosed with Borderline Personality Disorder and Bipolar Affective Disorder. You were first admitted to a psychiatric unit at the age of 25, when you were an inpatient in June 2012. You have had seven further psychiatric admissions, the most recent being between 14 and 22 June 2019.
44A Discharge Summary from Midwest Area Mental Health Service, dated 19 May 2020, records that you were referred to the Mental Health Service on 7 February 2020 because you were expressing beliefs that you were superman, you were not sleeping, and you were agitated over the previous 48 hours. It was noted that you had been drinking excessively during a recent camping trip and at home. The Crisis Assessment Team conducted follow-up visits on a daily basis. On 16 February 2020 you presented to the Emergency Department, not having slept for some 48 hours, drinking and agitated. You were discharged home with ongoing care from the Crisis Assessment Team.
45From a review of the collateral records, Dr Zimmerman states that you experienced an initial episode of illness at the age of 17, when you were managed in the community by Orygen Youth Mental Health Service, with symptoms of hypomania, including increased energy and activity, racing thoughts, talkativeness, decreased sleep, and an increase in goal-directed activity. You were then diagnosed with Bipolar Type 1 Disorder and commenced on Lithium.
46Your next contact with mental health services was at the age of 26, when you experienced a fully-fledged episode of mania, with mood-congruent psychotic symptoms. You were then hospitalised. Your symptoms included grandiose delusions. Dr Zimmerman noted there is a pattern of you disengaging from services when manic or hypomanic. You have experienced relapses every one to two years and you then have Olanzapine added to your treatment regime. Dr Zimmerman states that your episodes of illness have all been manic in nature apart from one depressive episode after an early manic episode.
47Dr Zimmerman is of the opinion that you suffer from Bipolar Type 1 Disorder with mood-congruent features. Your relapses have almost exclusively been of a manic or hypomanic nature, with the exception of the one episode of depression in 2012 and your current episode of depression. It was also her opinion that you are currently suffering from Major Depression which is precipitated by current stressors. You also meet the criteria for Alcohol Use Disorder and Gambling Disorder currently in early partial remission.
48Dr Zimmerman states that Bipolar Type 1 Disorder is a major mental illness that is lifelong and usually follows a relapsing and remitting pattern, often with good functioning in-between episodes.
49Dr Zimmerman states that impulsive behaviour, including atypical sexual behaviour, can be seen during manic and hypomanic episodes. She states that according to DSM-V, manic episodes may be characterised by “unlimited and haphazard enthusiasm for interpersonal and sexual…interactions”. Sexual indiscretions and increased sexual behaviour, she states, are one of a number of defining characteristics of hypomanic and manic episodes.
50Dr Zimmerman considers there is good evidence that you were manic in February 2020 and hypomanic or manic in January 2020, at the time of the initial offending. She states that by May 2020 you had disengaged from psychiatric follow up. She believes it is likely, given your heavy drinking, your atypical sexual behaviour, your possible noncompliance with treatment, and the recent psychotic manic episode, that you were hypomanic at the time of the offending in May and June 2020.
51You also reported drinking heavily over the offending period, as well as abusing benzodiazepines. Dr Zimmerman states that mania and hypomania, in association with the disinhibiting effects of the large quantities of alcohol that you were consuming, is likely to have left you in an impulsive and disinhibited state, where you were more likely to act on inappropriate sexual feelings towards your stepdaughter.
52Dr Zimmerman considers that a custodial disposition is likely to be more onerous for you than it would be for someone without a diagnosis of Bipolar Disorder. She also states that at the time she assessed you, you were experiencing a depressive relapse of your illness, not only in response to the loss of your long-term partner, but also in relation to the charges and prospect of gaol. Dr Zimmerman states that it is likely that adjusting to the inevitable challenges of a custodial environment will risk increasing your depression and increase the risk of suicide. Should you become manic in the prison system, your disorganised impulsive and at times aggressive behaviours, will make you vulnerable to becoming embroiled in conflict and to becoming a target.
53When you met with Dr Zimmerman you wept and expressed remorse and guilt. You reported feeling at times during the offending period that what you were doing was wrong but slipped back into that wrongful behaviour in the evenings. Although you strenuously denied blaming the victim in any way, you did nevertheless speak of her enjoying what was happening at the time.
54Dr Zimmerman considers that given your very limited offending history, and no history of offending of a sexual nature, with ongoing engagement with mental health services and drug and alcohol counselling, you will represent a low risk of re-offending.
55Dr Barth saw you on 14 August, 14 September 2020, 24 February 2021 and 3 March 2021. In his opinion, you meet the criteria for a diagnosis of a major depressive episode. You remain a significant risk of further deterioration in your moods, and mental health treatment is unequivocally warranted. He agrees it is likely you were experiencing mania and or hypomania during the period of your offending. He states that given the longstanding and chronic nature of your mental health issues, it would seem reasonable to conclude that they have impacted on your ability to exercise appropriate judgment, particularly during emotionally challenging situations. He considers that your mental health issues have contributed to your impulsive decision making and disinhibited behaviour, but that there was no indication that you were unable to understand the wrongfulness of your actions when you offended against the victim.
56Dr Barth considers it highly likely that your conduct with the victim was primarily motivated by the interpersonal and sexual adjustment issues you have. These include a limited understanding of the normative sexual development of teenage females. He states that you viewed your behaviour as representing a “relationship” with the victim which was mutual and consensual. He considers that your offending behaviour occurred during a period when you were feeling particularly lonely, saddened and dejected by the lack of a close intimate connection in your life. The victim of your offending did not challenge your sense of inadequacy and self-doubt. Your offending indicates that you also had significant difficulty and confusion differentiating between a healthy filial affection with the victim and a neurotic attachment. He states that your limited understanding of the normative emotional and sexual development of teenage female children, and your heavy alcohol abuse, are likely to have provided the final disinhibiting factors for your offending. Dr Barth stated that it is widely acknowledged that Bipolar Disorder is associated with higher levels of impulsivity and disinhibited behaviour which impacts the person’s ability to exercise appropriate judgement. He considers that you represent a moderate risk of sexual recidivism which could be reduced by appropriate treatment together with close supervision and support.
57Dr Barth also confirms a diagnosis of Alcohol Use Disorder and a diagnosis of Gambling Disorder in partial remission.
58Dr Zimmerman was called to give evidence at the further plea hearing on 3 May 2021. She was asked by your counsel, Ms Lamovie, about her conclusion you were hypomanic at the time of your offending in May and June 2020. Dr Zimmerman stated she tries to couch her opinions in conservative terms but considered it more likely than not your mental state was one of hypomania that was affecting your behaviour. She stated there was clear evidence you were psychotic in January and February of that year, these being symptoms of a manic state, but not so in relation to the May/June period. However, during that period, the evidence shows you were drinking heavily, behaving impulsively, showing poor judgment and behaving in a sexually atypical way. That, coupled with your confirmed diagnosis of Bipolar Disorder, was sufficient for her to conclude you were likely experiencing hypomania in the May/June period. Your judgment, and consequential thinking, were impaired. Your use of alcohol at the time would have enhanced your difficulties, and your dependence on diazepam would have contributed to your poor judgment and poor impulse control.
59While you had some awareness of the wrongful nature of what you were doing, Dr Zimmerman considered that because of your bipolar condition, aggravated by alcohol and diazepam, you were not able to exercise appropriate judgment and make calm and rational decisions. You behaved in an impulsive manner and were disinhibited.
60Under cross-examination by Mr Sonnet, Dr Zimmerman agreed that when she examined you, nine months after the offence, you showed no formal thought disorder. She added, however, that you have a history of that disorder.
61It was put to Dr Zimmerman that the last reference to collateral information she had was the Discharge Summary of 8 March 2020. As to the gap between that date and May 2020, Dr Zimmerman stated that the collateral information showed you were no longer engaging with treating services.
62Mr Sonnet challenged Dr Zimmerman’s conclusion that you were in a hypomanic state when you offended in the May/June 2020 period. Dr Zimmerman maintained her opinion that it was likely you were in a hypomanic state during that period. This was notwithstanding the many references in your interview with police that you knew what you were doing was wrong.
63It was put to Dr Zimmerman that your latter offending had nothing to do with your Bipolar Disorder or hypomania but was a consequence of your drinking. Dr Zimmerman disagreed. She stated that your drinking of gross amounts of alcohol was because you were elevated. You have a history of increased alcohol use when elevated. Dr Zimmerman reiterated that atypical sexual behaviour is a classic symptom of hypomania. In further cross-examination, Dr Zimmerman maintained her position that your appreciation of the wrongfulness of your conduct was compromised. She said that you had an awareness of your wrongdoing and you tried to resist. However, in a hypomanic state, the ability to think through the consequences was compromised.
64Dr Barth was also called to give evidence. He confirmed he was involved in assessing and treating you. He stated that the symptoms of hypomania included an increased propensity for impulsiveness and that the condition manifests itself in a number of ways, including a propensity for substance abuse, gambling and irresponsible sexual behaviour.
65Dr Barth stated there was a fair amount of collateral information to suggest you were suffering hypomania. He could not be certain how acute your symptoms were towards the end of your offending but stated there is a period over which there are residual symptoms in recovery.
66Under cross-examination by Mr Sonnet, Dr Barth stated it was his belief that in May and June of 2020 you were experiencing hypomania. Even though, in his opinion, you knew that what you were doing was wrong, you did not understand the impact of what you were doing.
67Asked by Mr Sonnet the link between your mental-health state and your offending, Dr Barth stated it would have had a significant impact; he referred to disinhibited behaviour and impulsive decision making.
Prosecution submissions
68Mr Sonnet made submissions in respect to the gravity of each offence charged. He submitted that Charge 1 fell towards, but not at, the lower end of the scale of such an offence. A similar submission was made in respect to Charge 2.
69Regarding Charge 3, Mr Sonnet submitted the offence gravity fell at the mid-range of the scale. He pointed to the fact that this is a rolled-up charge involving two acts of penetration. Furthermore, you ejaculated inside the victim’s vagina and you took advantage of her vulnerability, given she was intoxicated. Mr Sonnet also submitted you violated the sanctity of her bedroom in order to commit the acts.
70Mr Sonnet submitted that the gravity of your offending in Charge 4 also fell at the mid-range level. Again, he referred to the fact this was a rolled-up charge involving two types of penetration. The offending again occurred in the victim’s bedroom when you committed the second act of penetration. You were not wearing a condom. You fled to avoid detection when you heard your fiancée, thus demonstrating your awareness of the wrongfulness of your conduct.
71In respect to Charge 5, Mr Sonnet submitted that the gravity of your offending fell between the low and mid-range end of the scale.
72Mr Sonnet submitted that the offence gravity relating to Charge 6 fell above the mid-range of the scale for such offending. He submitted Charge 6, which is a rolled-up charge involving four different acts of penetration, is a very serious example of the offence. You did not wear protection and, it was submitted, the circumstances demonstrate an awareness of the wrongfulness of your conduct.
73Mr Sonnet submitted that all offences involved a significant breach of trust as the stepfather of the victim; it was offending marked by a significant disparity in age between you and the victim, and involved persistence, premeditation and subterfuge over a significant period. A further component of aggravation, it was submitted, was your conduct in persuading the victim not to tell her mother, including that you would go to gaol and that she would look like the “family whore”. This, he said, involved emotional blackmail of the complainant, designed to avoid detection and the continuation of further offending against her. As to the impact of your offending, Mr Sonnet relied upon the victim’s impact statement.
74With regard to your mental health history and the application of Verdins’[5] principles, Mr Sonnet, in oral submissions, stated the real dispute between the prosecution and the defence is the weight to be attached to the moderation of culpability. This concession was made in oral submissions, following the evidence of Drs Zimmerman and Barth.
[5] Verdins v R (2007) 16 VR 269
75In written submissions, the prosecution conceded, in relation to Charges 1 and 2, that Verdins’ principles 1 to 6 are relevantly engaged “to their fullest extent”. In relation to Charges 3 to 6, it was conceded that Verdins’ principles 5 and 6 are relevantly engaged to their fullest extent and general and specific deterrence moderated to an extent to take into account your mental health history. However, the prosecution disputed any causal link such as to moderate significantly moral culpability. However, as stated, following the evidence, Mr Sonnet conceded it was open to moderate moral culpability and deterrence, but the issue remained as to what weight was to be given to those considerations. Mr Sonnet submitted there should be only slight moderation in relation to moral culpability and deterrence. He relied principally on your answers to police when interviewed, which were, it was submitted, replete with knowledge and awareness of your wrongdoing. Mr Sonnet submitted that the answers you gave do not reveal a severe compromise in your mental state. For instance, some of your answers showed your efforts to avoid detection, such as jumping through a window at the time of Charge 5, and an effort to engage in subterfuge by encouraging Ms Young not to tell what you had been doing.
76Mr Sonnet submitted that your state of intoxication when you committed the offences set out in Charge 1 provided you with foreknowledge that the consumption of alcohol in gross quantities may lead to you offending against the victim. Thus, he submitted, your state of intoxication was an aggravating feature of your offending in Charge 3, when you were grossly intoxicated.
Defence submissions
77In detailed written and oral submissions, Ms Lamovie relied on a number of matters in mitigation of sentence which I summarise as follows:
(i) Your pleas of guilty, entered at an early time, are of significant utilitarian value. They have spared the civilian witnesses from the trauma of having to give evidence at committal and at a trial;
(ii) Your pleas of guilty also demonstrate you taking full responsibility for your conduct and facilitating the course of justice;
(iii) When interviewed by police you made comprehensive admissions to your offending;
(iv) Your documented history of mental illness and that your offending occurred in the context of that mental illness, such that Verdins’ principles 1 to 6 apply;
(v) The offending was out of character and represented an aberration. As a consequence of your offending, you have lost the love and support of your former partner and that estrangement weighs heavily upon you;
(vi) You are unlikely to re-offend in this manner and, as such, specific deterrence can be moderated;
(vii) You have the ongoing support of your parents and siblings, and have a strong employment history; and
(viii) You have been receiving counselling from Dr Barth and are motivated to continue to reform.
78Ms Lamovie acknowledged that by reason of your offending, you face a significant sentence of imprisonment. She submitted, however, the sentence should be moderated by reason of the above matters, with particular emphasis on your mental state both at the time the offences occurred and at the time of sentencing. She urged, on your behalf, that a lengthy parole period be imposed.
79With respect to the gravity of your offending, Ms Lamovie submitted that the offending took place over a confined period but acknowledged there was an escalation of sexual interest and contact. It was also conceded that your offending involved a profound breach of trust in relation to the victim, and in relation to your former partner. Ms Lamovie accepted that the victim was entitled to feel safe and secure in the family home and in her own bedroom.
80Ms Lamovie also placed reliance on the Court Integrated Services Program Progress Report dated 29 October 2020, the Australian Community Support Organisation Progress Report dated 29 October 2020 and references from your mother and your work partner. Each of those documents were tendered at the plea hearing and I have had regard to them.
81You had been living with your parents since being released on bail until the time I remanded you. Your mother speaks of your overwhelming sadness and remorse. It is apparent that your offending came as a surprise to your mother. She describes you as a hardworking man who always tried to give his family the best. Your parents and siblings remain supportive of you. Your business partner said he was shocked to hear of the allegations, stating he has never seen that side of you and that it is completely out of character. He too speaks of your remorse, and of his preparedness to support you.
Sentencing considerations
82Your offending against Ms Young was serious, as is all sexual offending by adults against children. There is a presumption that children suffer harm from sexual offences committed against them and, in this case, the harm suffered by Ms Young is well articulated in her impact statement. Your offending has had a profound impact upon her.
83The seriousness with which your offending is viewed may be gauged by the maximum penalties that may be imposed. The maximum penalty for sexual penetration of a stepchild is one of 25 years’ imprisonment and the maximum penalty for sexual assault of a child aged 16 or 17 under the care, supervision or authority of an offender is five years’ imprisonment. Furthermore, the offence of sexual penetration of a stepchild is subject to a standard sentence of 10 years’ imprisonment.
84A factor that makes your offending more serious is that the offences represent a gross breach of trust placed in you by Ms Young and her mother. You were Ms Young’s step-father. You were in a position of authority and had the responsibility to care for and protect her. Instead, you betrayed your position and the trust that was placed in you for your own selfish sexual gratification. Ms Young was vulnerable and felt powerless to stop your offending. Moreover, you sought to dissuade her from telling anyone about what was occurring with implied threats.
85As was stated by the Court of Appeal in DPP v Dalgliesh (a pseudonym),[6] “[s]entencing for parent-child incest … must reflect the … grave breach of trust. It must act as a deterrent, general and specific, and must signify the community’s firm denunciation of conduct of this kind”.
[6] [2017] VSCA 360, [73]
86Your offending was brazen, occurring in the family home where others were present, and whilst on a family camping trip, again where others were present. Although you knew your behaviour was wrong, you persisted in your sexual abuse of Ms Young. I consider it a circumstance of aggravation that when you sexually penetrated Ms Young with your penis, you were not wearing a condom and on one occasion, you ejaculated into her vagina. You exposed her to the risk of pregnancy. I have regard also to the fact that there was a significant age difference between you. As I have already mentioned, you were 34 years of age and Ms Young 16 years.
87Your offending occurred over a period of some 5 or 6 months and was not marked by any direct threats or additional violence beyond that involved in the offending. However, your conduct in telling Ms Young not to tell anyone, and the potential consequences if she did, aggravates your offending. You did this to reduce the risk of you being found out.
88I accept Mr Sonnet’s submissions generally concerning the relative gravity of your conduct in respect of each charge. I also have regard to the fact that Charges 1, 3, 4 and 6 are “rolled-up” charges. Through your pleas of guilty to each of those charges, you have agreed to more than one instance of offending being bundled into a single charge. The maximum penalty available, however, is that relevant to the single charge. This is a matter that works to your advantage in sentencing.
89You admitted your conduct when first interviewed by police and I accept that your pleas of guilty were entered at the earliest reasonable opportunity. Your pleas are of significant utilitarian benefit to the Court and the community. You have saved the Court the time and expense of a trial. This is a matter of particular significance at this time of the COVID-19 pandemic. As was recently stated in Worboyes v The Queen,[7] a sentencing judge “must ensure that the plea of guilty results in a perceptible amelioration of sentence”.[8] Your pleas of guilty are also significant as you have spared Ms Young and members of her family the emotional trauma of having to re-live the events at trial.
[7][2021] VSCA 169
[8]Ibid [39]
90I also consider the admissions you made to police and your pleas of guilty are indicative of your genuine remorse for your offending. This is also evident in the reports tendered on your behalf.
91Your early pleas and cooperation have facilitated the course of justice and represent an acceptance by you of responsibility for your offending. However, your answers to police, when interviewed, that “it takes two to tango” and that you were not the one “pushing it” suggests, at least at the time of the interview, that you did not accept full responsibility for your offending. Your perception in that regard fails completely to understand the power imbalance between you and Ms Young, her young age, and her vulnerability. Make no mistake, Mr Maloney, you are fully responsible for what occurred between you and Ms Young.
92Based on the reports and evidence of Dr Zimmerman and Dr Barth, I accept it is likely you were suffering from mania and or hypomania at the time you offended. Whilst you were also drinking heavily and abusing benzodiazepines at the relevant time, I consider these are connected to your Disorder. Dr Zimmerman states, in her report, “triggers for relapses in Mr Maloney’s drinking include episodes of mood disorder (both manic and depressive) and psychosocial stresses”. Dr Barth states that the symptoms of hypomania include a propensity for substance abuse.
93You were prescribed diazepam when you tried to stop drinking in early 2020. Unfortunately you then became dependent on that drug. I should state here that I do not accept that your drinking aggravated your offending in charge three. I am not satisfied to the requisite standard that you had the relevant understanding that alcohol intoxication may lead you to offend in the way you did.
94As noted by Dr Zimmerman and Dr Barth, mania and hypomania are associated with increased atypical sexual activity and increased impulsivity. I accept that your mental state resulting from your Bipolar Disorder, and the associated use of benzodiazepines and alcohol, left you impulsive and disinhibited where you were more likely to act on inappropriate sexual feelings towards your step-daughter. I accept also that it impaired your ability to exercise appropriate judgment, to think clearly and make rational choices. This is not to say that you did not know that what you were doing was wrong. You knew your behaviour was wrong. This is clear, in my opinion, from the expert evidence, your admissions to police and your comments to Ms Young that she not tell anyone what you were doing and that if she did you would be gaoled.
95Despite that knowledge, in my opinion, your moral culpability is nevertheless reduced by reason of you being in a manic or hypomanic state in early 2020, and in a hypomanic state at the time you offended later that year. Accordingly, the sentence to be imposed will be moderated on account of your reduced moral culpability.
96For similar reasons, there will be some moderation of the need for general and specific deterrence. Neither consideration is eliminated but is to be sensibly moderated having regard to the nature and severity of your symptoms both at the time you offended and at the time of sentencing. Your Bipolar Disorder appears generally to respond well to medication, and it was not suggested you were suffering from its symptoms at the time the reports were prepared or at the time of the plea hearing. You did, however, present to both Dr Zimmerman and Dr Barth with Major Depression.
97I accept that because of your mental health issues, the sentence to be imposed will weigh more heavily on you than a person in normal health and that there is a serious risk of imprisonment having a significant adverse effect on your mental health. Dr Zimmerman stated that it is likely that adjusting to the inevitable challenges of the custodial environment will risk increasing your depression and increase the risk of suicide. You will also be serving your sentence, at least for the foreseeable future, under the restrictions imposed by reason of the COVID pandemic, including a quarantine period, lockdowns and a banning of personal visits. These restrictions add to the burden of imprisonment and I have regard to them in the sentences to be imposed.
98In my opinion your prospects for rehabilitation are, at this time, guarded. Your prospects are very much tied in with you obtaining and successfully completing treatment for your interpersonal and sexual issues, alcohol and drug issues, gambling disorder and a sex offender treatment program. You must also adhere to the treatment regime for your Bipolar Disorder and depression. I make this finding notwithstanding your good employment history, your few prior convictions and your good family support. I also find, based on the assessments performed by Dr Barth, that you present a moderate risk of sexual re-offending. Accordingly, there is still a need for the sentence to deter your from re-offending.
99The offence of sexual penetration of a step-child is a ‘standard sentence’ offence. The standard sentence, as I have said, is 10 years’ imprisonment.
100In Brown v The Queen[9] the Court of Appeal held this requirement:
·is to be treated as a legislative guidepost, having the same function as the maximum penalty;
·does not affect the established instinctive synthesis approach to sentencing; and
·does not otherwise affect the matters which the court may, or must, take into account in sentencing.
[9] [2019] VSCA 286 at paragraph [4].
101The Court went on to state that:
The standard sentence provisions do not have any bearing on the judge's obligation to assess the seriousness of the subject offence. That assessment remains a necessary part of the process of instinctive synthesis and is not constrained by the legislative definition of objective factors. Those constraints are referable only to the assessment which gives content to the hypothetical offence as an offence in the middle of the range of seriousness.[10]
[10] Ibid at paragraph [7]
102I have taken into account the standard sentence as one of the many factors relevant to the process of instinctive synthesis sentencing. Like the maximum penalty, the standard sentence operates as a sentencing guidepost but does not alter the instinctive synthesis approach to sentencing.
103Given the sentences I intend to impose on charges 1 and 2, you will fall to be sentenced as a serious sexual offender on charges 3 to 6. Pursuant to s. 6D Sentencing Act 1991, I must regard the protection of the community as the principal purpose for which the sentence on those charges is to be imposed. I do not intend to impose a disproportionate sentence as I do not consider it is warranted to achieve the protection of the community. Section 6E requires that every term of imprisonment I impose must be served cumulatively unless I direct otherwise. Whilst effect must be given to that section, it does not exclude the application of the totality principle.
104I have had regard to current sentencing practice in respect to all charges on the indictment. In the case of those offences to which a standard sentence applies I have had regard only to those sentences imposed under the standard sentencing regime. Current sentencing practice is one of a number of factors to which I must have regard, but it is not a controlling factor.
105Notwithstanding my findings regarding the impact your mental health issues have had on your offending, there is still a need, albeit moderated, for the sentences I impose to deter you and others from committing similar offences and to denounce your offending as abhorrent.
106The individual sentences I am about to impose on charges 3, 4 and 6 fall below the standard sentence of 10 years. I have decided to impose sentences less than the standard sentence having regard to each of the sentencing considerations I am required to take into account, including those considerations weighing in favour of mitigation of sentence.
Sentence
107I will now proceed to sentence.
108Mr Maloney, on Charge 1, you are convicted and sentenced to 6 months' imprisonment.
109On Charge 2, you are convicted and sentenced to 9 months' imprisonment.
110On Charge 3, you are convicted and sentenced to 6 years 6 months' imprisonment.
111On Charge 4, you are convicted and sentenced to 5 years 6 months' imprisonment.
112On Charge 5, you are convicted and sentenced to 10 months' imprisonment.
113On Charge 6, you are convicted and sentenced to 7 years' imprisonment.
114Charge 6 is the base sentence. I direct that 18 months of the sentence imposed on charge 3, 2 months of the sentence imposed on charge 2, 12 months of the sentence imposed on charge 4, and 2 months of the sentence imposed on charge 5 be served cumulatively on the base sentence and on each other.
115This makes a total effective sentence of 9 years and 10 months’ imprisonment. The non-parole period you will be required to serve is the minimum period that I consider justice requires you must serve having regard to all the circumstances of your case. It must also adequately reflect the gravity of your offending and the purposes set out in the Sentencing Act, including the minimum non parole period under s 11A of that Act. I set a non-parole period of 6 years’ imprisonment.
116On charges 3, 4, 5 and 6 I declare you a Serious Sexual Offender.
117Had it not been for your pleas of guilty the sentence I would otherwise have imposed is one of 12 years with a non-parole period of 8 years.
118The period of imprisonment reckoned as already having been served is one of 146 days, not including today.
119Under the Sex Offenders Registration Act 2004, charges 1, 2 and 5 are ‘class 2’ offences and charges 3, 4 and 6 are ‘class 1’ offences. You are a registrable offender and your reporting obligations are for life.
120I must inform you, Mr Maloney, that you must register on the Sex Offenders’ Register upon your release, and I will have forwarded to you documents that set out the requirements of the Sex Offender Registration Act and the consequences for you if you fail to observe those requirements. I will also have forwarded to you a document which you must sign acknowledging receipt of the relevant documentation. The prison authorities will then ensure the signed document is returned to the Court.
121Are there any other orders that need to be made?
122MR SONNET: No, Your Honour, nothing arises.
123HIS HONOUR: Thank you. And thank you both for your assistance in this matter.
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