Director of Public Prosecutions v McConnell (a pseudonym)
[2020] VCC 460
•20 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GLENN MCCONNELL (A PSEUDONYM) |
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| JUDGE: | HIS HONOUR JUDGE JOHNS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17 March 2020 |
| DATE OF SENTENCE: | 20 April 2020 |
| CASE MAY BE CITED AS: | DPP v McConnell (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 460 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW SENTENCE
Catchwords: Persistent sexual abuse of a child under the age of 16 years – Attempt to procure a minor for child abuse material – Supply of drug of dependence to victim - Plea of guilty – Multiple incidents of offending – serious example of offence – Significant delay -Prospects of rehabilitation – Remorse – Family Violence.
SENTENCE:Nine years imprisonment with a non-parole period of five years and 10 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Malobabic (For Plea) | Office of Public Prosecutions |
| For the Accused | Mr M. Cookson (For Plea and sentence) | James Dowsley and Associates |
HIS HONOUR:
Circumstances of Offending
Glenn McConnell[1], on 17 March 2020 you pleaded guilty to three charges, being one charge of persistent sexual abuse of a child under 16, one charge of supplying a drug of dependence to a child and one charge of attempting to procure a minor for child pornography.
[1] A pseudonym.
The maximum penalty for persistent sexual abuse of a child is 25 years imprisonment. The charge of supplying a drug of dependence to a child and attempting to procure a minor for the purposes of child pornography carry lesser maximum penalties of 10 years and 5 years imprisonment, respectively.
You have no prior criminal history.
The circumstances of your offending were outlined in the ‘Summary of Prosecution Opening’. This was Exhibit A on your plea and forms part of these reasons.
I do not propose to go through the details that constitute the offences – it suffices to say that this is a serious example of the offence of persistent sexual abuse of a child.
All instances of offending relate to one victim who is the younger sister of your then partner. You commenced a relationship with the victim's older sister in 2004 and began sleeping over at the family home, eventually moving in completely some time in 2005.
The family took you in, in a sense, in no small part due to the turmoil and dysfunction in your own family. You were grateful for the experience of their family life and support. They regarded you favourably and you were included in their family life.
Your offending was protracted and took place between 2007 and 2014 when the victim was aged between seven and 14.
In addition to the charges, there are also a number of uncharged acts which predate the charged acts. Many of these uncharged acts are not specified but were said to occur approximately once or twice a week when you were alone with the victim. They included exposing your penis to the victim and having the victim touch your penis. These matters are relied upon as background and context only.
10Charge 1 relates to six occasions of offending where you either penetrated the victim's vagina with your tongue, penetrated the victim's vagina with your finger, penetrated the victim's mouth with your penis or committed an indecent act in front of the victim in the form of exposing your penis and masturbating to ejaculation.
11Charge 2 relates to three occasions where you supplied cannabis to the victim. The first occasion being when she was only seven years of age. The two later occasions when you supplied cannabis to the victim, she was aged approximately 10 on one occasion and 15 on the other. Both of these occasions are alleged by the Prosecution to be followed by sexual offending.
12Charge 3 is related to the third occasion under Charge 2. During the Moomba festival in 2015, the victim wanted to buy cannabis from you. You offered to sell her the cannabis in exchange for photographs of her breasts or vagina. The victim refused and offered to pay $30 for one gram of cannabis. The drugs were provided to the victim for this price, which is conduct forming part of Charge 2.
Pre-Text Recording and Police Interviews
13On 20 June 2016, the victim undertook a VARE recording explaining the full extent of your offending.
14On that day police instructed the victim to call you as you had been trying to reach her after learning that she had disclosed the sexual abuse perpetrated by you against her to close friends and family. The call was recorded unbeknownst to you. You made admissions and apologised for your conduct.
15On 23 June 2016 you were interviewed by police.
16At your plea, your counsel extensively outlined the admissions you made about your offending both to the victim during the 20 June recorded call and your later interview with police. Your frequent statements of remorse were also outlined.
17Whilst your conversation on 20 June with the victim demonstrates that you never intended to report your offending and to encourage the victim to do the same, your admissions, while not encompassing the entirety of your offending, and expressions of remorse, are significant.
Personal Background
18You were born in September 1987 and are now 32 years old. You were aged between 19 and 28 years at the time of the offending. You are the eldest of three brothers in your family unit. Your siblings attended your plea hearing in support along with your father.
19Your childhood was described both in the Defence's Outline of Submissions (Exhibit 1), and during your plea, as one marred by family violence where you would attempt to stop physical, emotional, and verbal altercations between your parents from the age of six.
20You have a history of illicit drug abuse and started using cannabis from the age of 14. Your counsel submitted that you have an ongoing cannabis dependency.
21In his report dated 23 August 2019, Mr Jeffery Cummins opined that you have a Cannabis Misuse Disorder which is characterised as moderate.
22Your parents separated when you were aged approximately 16 or 17. You told Mr Cummins during a psychological evaluation that both your parents were 'Alcohol dependent and had a gambling problem'.
23Between the ages of 17 and 19 you disclosed during your psychological evaluation that you attempted suicide due to your tumultuous family environment.
24You completed high school until midway through Year 12. You did not complete Year 12. After leaving school you completed a 12-month pre-apprenticeship in joinery at Newport TAFE.
25Your employment history has been sporadic. You initially worked primarily as a sheet plasterer and renovator with your father until that relationship broke down in 2014.
26You have worked for yourself at times, however, your most recent employment was with Mameca Property Services Pty Ltd doing plastering work for aged care facilities.
27As of February 2020, you have been unemployed and currently reside with your father in Spotswood.
28Your support network is evident. In addition to your immediate family attending your plea hearing in support, you have found a new partner after separating from the victim's older sister.
29You and your new partner welcomed your first child in November last year. Your new partner is aware of your legal situation and offending. I am told she remains supportive.
30As for your current mental state, Mr Cummins diagnosed you as being, 'Severely depressed' and demonstrating anxiety about your impending incarceration.
Gravity of the offending
31Any offence of persistent sexual abuse of a child is a serious offence. The maximum penalty reflects the seriousness. Your conduct represents a serious example of the offence, largely due to the young age of your victim, the length of time over which the offending occurred, the context of drug use, the aggravating feature of ejaculating into your young victim's mouth, and the gross breach of trust.
32Through your Counsel, and through your admissions and dealings with
Mr Cummins you acknowledge the gross breach of trust involved in your offending. The entire family of the victim placed their trust in you. Your victim regarded you as an older brother. The victim's family provided stability, security and warmth – you betrayed their trust in a most wicked and deceitful way.33Your offending was a gross breach of the victim's trust also. She was a mere seven years of age when you began to abuse her in a vile and destructive way. The effects of such a gross breach of trust are evident in her victim impact statement.
34Charge 2 is also very serious given the young age of the victim and the context of sexual abuse. I have taken care to avoid double punishment where the criminality overlaps or is intertwined at least between Charges 1 and 2.
35The conduct was exploitative in that it involved persistently sexually abusing the victim from aged 7 to 14 to fulfil your own sexual gratification. The conduct was also manipulative: Charge 2 and 3 demonstrate how you used cannabis to influence an already impressionable child to carry out your abuse. There are other examples of manipulation in the Prosecution summary.
36The victim impact statement (VIS) demonstrates the severe and ongoing effects upon your victim.
She describes how suffers paranoia.
She suffers from daily anxiety, stress and paranoia'
She explains how she feels trapped and like she can never get away from the experience'
Impact on family and relationship with victim:
37Offending of this nature also tears at the fabric of the family and there have been significant impact on family relationships as a result of your offending, particularly the relationship between your victim and her sister.
38The law aims to protect children from exploitative predatory conduct such as yours, and to protect them from the devastating consequences of such
self-serving exploitation and manipulation.39I must impose sentences which give voice to the community's denunciation of such crimes. I must impose sentences which provide sufficient deterrence to you, but also others who may contemplate engaging in such wicked behaviour for their own gratification at the expense of a child and a childhood.
Prospects of Rehabilitation
40Your counsel submitted that your prospects of rehabilitation are promising. He relied upon your previous statements of remorse and the report by Mr Cummins in his submissions.
41I accept that your prospects of rehabilitation are reasonable taking into account your statements of remorse, absence of prior criminal history, insights into offending, and analysis contained within Mr Cummins' report.
42Your admissions were prompt and significant, particularly in a matter such as this. As your Counsel put it, you have stayed true to your admissions during the largely unexplained and unsatisfactory delay of two and a half years since you made, what I consider, to be very significant admissions.
43It is also relevant to my assessment of your prospects that you were a young person of 19 when the offending commenced, having had a disruptive upbringing. You have demonstrated appropriate conduct since detection.
44I accept your expressions of remorse are genuine.
45It was submitted on your behalf that your offending occurred in the context of drug abuse and depression flowing from a difficult upbringing. This feature provides some context to your offending and illustrates how your prospects of rehabilitation depend in no small part on you being able to deal with your drug addiction issues.
46I take into account the presence of a strong support network in the form of your brothers, father, and partner as positive forces for rehabilitation upon your release.
47I have noted Mr Cummins' observations as to the benefit you will gain from sex offender programs whilst in custody. You will have ample time to complete such programs. I am satisfied that you have appropriate insight, motivation, and incentive to benefit from such programs.
48As I have noted, you and your partner have a young child. I expect your absence from your infant's early development will cause you much angst whilst in custody and I take this into account. I also regard this fact as a matter that adds to your motivation to rehabilitate.
49This is your first time in custody. I have taken that matter into account, as I have the extraordinary circumstances being experienced in our community at present due to the COVID-19 pandemic.
50Whilst there is no evidence of an outbreak in any prison at present, and I do not assume that there inevitably will be a serious outbreak, I accept that conditions in custody at present are considerably more onerous than previous, if for no other reason than due to the ceasing of visits. It is expected that that situation will continue for some time.
51I accept also that the general anxiety in the community of an untethered outbreak is understandably harder to bear if it is experienced by a prisoner in a regulated and managed environment such as a prison, where one has restricted control over who one is exposed to and how.
52
I received a written submission on this topic from your Counsel which is
Exhibit 3. There are several considerations set out at paragraph 6, in points a) to e) in that exhibit, and I accept those matters.
Delay
53A significant matter in mitigation in your case is the consequences of delay. I am referring principally to the delay of some two and a half years between your police interview and the matter being dealt with by this Court.
54You were interviewed on 23 June 2016, 3 days after the matter was reported. You made substantial admissions as I have stated. You were charged on summons to attend a filing hearing on 19 November 2018.
55The matter took a usual course through the justice system from that date forward, including committal mentions, plea negotiations, and an adjourned plea date.
56The almost two and a half year delay between interview, charging, and filing hearing has not been satisfactorily explained.
57Throughout that period, given your substantial and significant admissions, you had the matter hanging over your head. You knew what awaited you ultimately.
58You sought to rebuild your life and rehabilitate as best you could whilst the matter was hanging over your head during that period. I take this delay into account.
59Your plea of guilty is early and is a significant matter in mitigation.
60As I have stated, in your case, general and specific deterrence are important sentencing considerations. There is a paramount public interest objective in promoting the protection of children. This is particularly so when you are placed in a position of trust and care for the victim. Flowing from this, there is a need to denounce crimes committed against children such as your crimes.
61
Further to your experience in custody, based upon the report of
Mr Cummins, I accept that you may experience some hardship in custody given your personal difficulties and I have taken this matter into account.
Sex Offender
62
By virtue of the sentence I will impose on Charge 1, you will fall to be sentenced as a serious sexual offender when I impose the sentence on Charge 3.
I must enter that fact into the records of the Court.
63
Consequently, there is a presumption of cumulation in relation to the sentence I impose on Charge 3.
I must also regard the protection of the community as the principal purpose for which the sentence is imposed.
Sentence
64
I sentence you and as I said, you can remain seated, Mr McConnell.
I sentence you as follows.
65In relation to Charge 1, I sentence you to eight years imprisonment. This is the base sentence.
66In relation to Charge 2, I sentence you to three and a half years imprisonment.
67In relation to Charge 3, I sentence you to 12 months imprisonment.
68I direct that 9 months of the sentence imposed on Charge 2 be served cumulatively on the sentence imposed on Charge 1.
69I direct that notwithstanding the presumption of cumulation that only three months of the sentence on Charge 3 be served cumulatively on the sentences imposed on Charges 1 and 2.
70
That makes a total effective sentence of nine years imprisonment. I set a
non-parole period of five years and 10 months.
71Pursuant to s.18 of the Sentencing Act, I declare that you have served 34 days of pre-sentence detention and direct that this be administratively deducted from the amount that I have imposed today.
72In relation to Charge 3, I declare that you have been sentenced as a serious sex offender pursuant to s.6F of the Sentencing Act.
73As a consequence of your convictions on the charge on the indictment, you are to be registered under the Sex Offender Registration Act. The period of reporting is for life.
74Pursuant to s.6AAA, I declare that but for your plea of guilty, I would have imposed a sentence of 12 years imprisonment with a non-parole period of nine years.
75I make the s.464ZF(2) orders as sought. Are there any other orders required, Ms Jones?
76MS JONES: No, Your Honour.
77HIS HONOUR: Mr Cookson, is there anything I have overlooked or needs clarification?
78MR COOKSON: Nothing further, Your Honour.
79HIS HONOUR: All right. Thank you everyone for attending. Adjourn the court.
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