Director of Public Prosecutions v McDonald, Anthony
[2013] VCC 699
•24 May 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02384
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY McDONALD |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 May 2013 | |
DATE OF SENTENCE: | 24 May 2013 | |
CASE MAY BE CITED AS: | DPP v McDonald, Anthony | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 699 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. MacDougall (Plea) | OPP |
| Mr N. Donaghy (Sentence) | ||
| For the Accused | Mr D. Gibson (Plea) | Victoria Legal Aid |
HER HONOUR:
1 Anthony McDonald you have been found guilty by a jury of three charges of what used to be called maintaining a sexual relationship with a child under 16, a charge which is now more accurately called persistent sexual abuse of a child under 16.
2 Each charge relates to a different child, the three daughters of a couple who had for many years counted you as one of their closest friends. You were treated by the couple and the children as part of the family. You were frequently in the home, and were always present at birthdays and Christmas. You were present at the birth of the youngest of the girls, and became her godfather. The parents trusted you to babysit, and to allow the girls to go to your home for visits and sleepovers.
3 In order to protect their anonymity, a right conferred on them by the Judicial Proceedings Reports Act 1958, I will not refer to them by name, or give any other identifying information in these reasons. I need, however, to describe the conduct that you engaged in with each of them. Anyone who does not wish to know the detail should leave the court now. I will let you know when you can return.
4 The evidence on which the jury was asked to deliberate concerning the oldest girl was that the sexual abuse of her commenced when she was about eight years old, and continued until she was 11 or 12. She is now 21. She was able to identify four specific occasions where you committed one or more indecent acts on her. The first three occasions were all at the flat that you were then living at in Glenroy, between 2000 and early 2003. The first occasion involved you exhibiting adult pornography in her presence. The second, getting into bed naked with her, and rubbing her chest over her clothing. The third involved rubbing her chest under her clothing, and touching her on the vagina. Apart from this last act, she said all the other types of conduct had occurred on multiple occasions. She became upset on the occasion when you touched her on the vagina and asked you to take her home. You did so, and did not touch her again whilst you were living at Glenroy. In March or April 2003 you went to live in the country. The last of the identifiable occasions occurred when the family visited you there. During the visit, and at a time when you had the oldest girl alone with you in the kitchen of your house, you exposed yourself to her and told her not to tell anybody.
5 The evidence of the sexual abuse of the second girl was that it began on visits to your home in Glenroy in 2001 when she was about six, and continued until 2003 when you moved to the country. There was a single instance event at her family home on an occasion when you returned to Melbourne, and then the sexual abuse resumed between 2007 and 2008 following your resettlement in Melbourne, when she was aged between 12 and 13 years old. This child was able to identify nine separate occasions involving 14 separate acts over that period. The acts she described were not only offences of indecent act with a child under 16 but also acts constituting sexual penetration of a child under 16. There were also some acts properly characterised as attempts to commit an act of sexual penetration, or an indecent act. The indecent acts here were exhibiting pornography in the child’s presence, being naked in her presence, putting her hand on your penis, pushing your penis against her groin, touching her vagina, and as she became older and began to develop, touching and attempting to touch her breasts. The acts of sexual penetration involved two occasions of putting your finger in her vagina, and one attempt to introduce your penis into her mouth. Like her older sister, she too, gave evidence of your engaging in like conduct on other occasions, and of other inappropriate, sexualised touching.
6 The youngest gave evidence relied on by the prosecution, of four occasions involving four indecent acts and two acts of sexual penetration, after your return from the country, between 2008 and 2011, when she was aged between nine and 13 years old. The indecent acts were touching her vagina, touching her breasts and masturbating in her presence. The acts of sexual penetration involved you introducing your tongue into her vagina. In addition, she, and her middle sister gave accounts, differing in some detail, of you touching her, the youngest child, in the presence of her sister, at the time that you were living in Glenroy when she was somewhere between three and five years old, that is, between late 2001 and early 2003. The youngest child acknowledged in cross examination she was uncertain about that earliest event, and the prosecution expressly disavowed reliance on her evidence, as sufficiently probative of sexual misconduct by you on an occasion. However, it did rely on the evidence of the middle child as to what she saw you do, in proof of the commission of an indecent act sufficiently probative to be relied on as an identifiable act on a specific occasion. I am satisfied, having regard to the verdicts, that it is appropriate, for sentencing purposes to accept the evidence of the middle child about seeing you touching her younger sister on the groin, on the occasion she gave evidence about. I accept it therefore as a proved indecent act in respect of the youngest child, on an occasion. The youngest child also gave evidence of uncharged acts which provide a context for the identified acts. Although she was unable to identify any particular occasion with sufficient specificity for the purpose of the charge, she gave evidence that she too was shown adult pornography by you on occasions. She too gave evidence that you performed indecent acts of the type she identified, and acts of sexual penetration of the type she identified, on other occasions.
7 The matters came to light in February 2012 when the youngest girl confided in her school counsellor. That set off a train of enquiry and investigation which led to the two older girls disclosing what had happened to them.
8 As is so often the case in cases of this sort, the complainants did not tell their parents or other trusted adults at the time what you had done to them. They each said they were afraid, and that they had been told they were not to tell or would be in trouble if they did tell. Each said because of the closeness of the relationship between you and their parents, they feared they would not be believed, and they feared for the consequences. They were afraid of what their parents would do if the truth came out. Although not able necessarily to articulate it in these terms, their explanations demonstrate the power an older and trusted member of the family circle has over innocent, vulnerable young children. There had been some partial disclosures, made in confidence, over the years by the two younger girls, but they had refused to allow their confiders to tell their parents, teachers or the police. The middle child said, poignantly, when cross-examined about her failure to tell her mother, that you had told her she was not to tell, and that because, as a child she had told lies, she did not think her word would be accepted over yours, the grown-up, and close friend of the family. This is one of the saddest explanations I have heard from an abused child, and it powerfully demonstrates the powerlessness children who have been abused by a trusted adult member of the family circle feel.
9 In the course of the police investigation, the oldest girl, at the request of the police rang you and recorded the conversation. You made admissions of a general nature to engaging in some form of impropriety with her when she was a child, but denied emphatically any sexual misconduct with the two younger girls.
10 Shortly after that, in late March 2012 you were interviewed. In the course of that interview you said that on one occasion you had been in bed naked with the oldest girl, and that you had slept naked in your bed with the younger girl, although top to toe and with blankets between you. You also said that the middle girl had on one occasion inadvertently seen a very short segment of a pornographic video when she turned on the TV and the pornographic video you had left in the VCR came onto the screen. You otherwise denied any inappropriate sexual contact with the three girls.
11 At the time of your arrest a search warrant was executed. Some child pornography was found in your possession. In total, 33 Category 1 images (images of children, but no sexual activity), one Category 2 movie, and 12 Category 4 movies (involving penetrative sex with children) were found. You pleaded guilty to a charge of possession of child pornography, and I accept did so at the earliest stage. To place your possession of this child pornography into some context, you also had over 700 adult pornography images or movies. When interviewed you showed a considerable familiarity with the manner in which child pornography could be accessed online. You had downloaded, stored and labelled the child pornography images and movies, in a way that demonstrated an awareness of their content. Although you asserted in the interview your sole sexual interest was in older women, this belied that.
12 The impact on your three victims, not surprisingly, has been significant. Each of them had spent some years trying to deal with the matters in their own way. As their evidence at trial, and their victim impact statements made clear, each of them has struggled with feelings of shame and guilt, and with the distress associated with having to bring the events back to the forefront of their minds, to give evidence about them and to be subjected to cross-examination which challenged their truthfulness and reliability. Their mother in her victim impact statement spoke of the guilt she felt for having been unable to protect her daughters, and of the sense of betrayal she felt that you, a person she had regarded as a friend for so many years, who she had trusted to be present when she gave birth to her youngest daughter and to appoint as that child's godfather, had so grossly and persistently breached their trust and hers.
13 In addition, each of the girls has had to give evidence, and to submit to cross examination. The oldest, being over 18 by the time the matters came to light, had made a statement to police, was cross-examined at committal, and gave evidence at trial. The middle child was living interstate by the time the matters came to light. Had she been in Victoria, as she was under 18 at the time, she would have participated in a video and audio recorded taking of evidence. Because she was in a different jurisdiction, she was initially taken to make a statement to local police. Her statement was made in accordance with the procedures there. That meant a written statement. She then made a second written statement to local police, clarifying dates and times. Some months later, she came to Melbourne, and was asked to make a further statement. In accordance with Victorian procedure, as she was still then under 18, this was by way of a VARE. She then made a further statement, again clarifying dates and times. Because of her age she was not cross-examined at committal, but she was required to give oral evidence in chief and submit to cross-examination at trial. The youngest child, who was 14 at the time of trial, participated in a VARE and was cross-examined at a special hearing immediately before empanelment. Thus for each of them, the process of making statements and giving evidence was a painstaking and traumatic one.
14 When, consistently with your instructions, it was put to them that they were lying, or mistaken, that they had given accounts contaminated by the knowledge of what their sisters were alleging, or had deliberately colluded to concoct false allegations, their distress on realising that that was what you had instructed was the response to their allegations was palpable. So was their sense of outrage, that this person who had been part of the family trusted circle, and who had so abused and betrayed that trust, would deny to their faces what he had done and call them liars. In cases where a person pleads guilty to sexual offences, the fact the victims have been spared the ordeal of giving evidence, and the indignity of being called liars, fantasisers or unreliable, is properly relied on as a matter reducing the sentence otherwise appropriate. In this case, these young women did indeed suffer the ordeal of giving evidence. Although you are not to be punished for exercising your right to plead not guilty, the impact on your victims of having to relive the events and give evidence, is properly a matter to take into account as part of the effect on them.
15 Their mother, father and younger brother are also victims, secondary victims of your offending. You have betrayed their trust, and despoiled their family memories, too.
16 Each of the complainants, and their mother, spoke in their victim impact statements of feeling guilty, for not knowing, not realising what was happening, for the girls, and not having been able to protect their sisters, for their mother, not having been able to protect them all.
17 I want to make this very clear. Whilst many victims feel guilty, and blame themselves, think it must have been somehow their fault, think that they should have been able to protect the others, nobody other than you bears responsibility for your behaviour. None of your victims are to blame, nor are their parents. It was your abuse of the trust and friendship of innocent young children and their parents, your abuse of the power you were able to exert over these young children because of the relationship, and because you were an adult, your abuse of their innocence, ignorance and trust, in telling them not to tell anybody, and telling them they would not be believed and they would be in trouble, in telling them this was normal, which allowed you to continue to abuse these children with impunity for so long. They should not feel guilty because they believed you, and because they did not speak up earlier. Their mother should not feel guilty because she trusted you. They are in no sense responsible for your misconduct towards them and their siblings.
18 They are remarkably strong and lovely young women. They showed great courage in coming forward, and seeing the trial through. They showed great dignity in the way they conducted themselves throughout the trial. They may feel sad and powerless at present, but they should take pride in the knowledge they stood their ground, and were believed. This is a significant step forward in understanding that you are now taking control of your lives, that you have gone from powerless to powerful. You are well on the way to becoming survivors, not victims.
19 This is very serious offending. In all it spanned 11 years: five years with the oldest girl, seven with the second; and 10 with the third. The offending escalated over time. You took gross advantage of your closeness to the family and the position of trusted adult and in effect, family member. Your conduct was insidious. You took advantage of the opportunity that close family relationship had to give you access to the children, to have their trust and to have been able to have touched them, cuddled them and kissed them in a way that a trusted family friend could do. You exploited that by progressing to sexualised touching, which you told them was a normal part of what a loving family member did to express their love. You were careful to advance slowly, so your early touching could have been explained away as innocent or accidental, had the girls complained. Once assured of their silence, your conduct escalated.
20 It is correct as Mr Gibson submitted on the plea, that there are worse cases, involving more acts over a longer period of time, involving gratuitous degradation, or infliction of pain or humiliation, where compliance is brought about by violence or threats of violence, or where an offender has deliberately selected his victims and then gone about inveigling himself in the good graces of their family. Whilst accepting these additional aggravating features are not present here, that does not gainsay the seriousness of your offending.
21 It is clear, therefore, that considerations of denunciation, just punishment and deterrence loom large in sentencing you.
22 You are now 54. You have no criminal history of any sort. As Mr Gibson acknowledged, you face a substantial term of imprisonment. That I accept is a difficult prospect for a person of your age, on his first encounter with the criminal justice system, and for a person who, as you do, maintains his innocence.
23 That is compounded in your case by the absence of family support, and by the loss of what appears to have been a significant friendship and a significant part of your life with this family. There is nothing in your upbringing, family background, education or employment history which has placed you at any disadvantage, or could explain your offending. There is no history of physical illness, mental illness or psychological condition or substance abuse which might bear on your culpability, or have an adverse impact on you in prison.
24 Before this offending commenced you had a number of relationships with adult women, and in more recent years you have formed relationships with a number of adult women in the Philippines. You do not appear to have had any difficulty in maintaining long-term age-appropriate heterosexual relationships. Your absence of previous convictions of course means there is no history of like offending with other children.
25 In considering your prospects for rehabilitation, and the weight to be given to specific deterrence, I take into account in your favour the absence of a history of like offending, or of any criminal offending, the absence of mental illness or psychological condition, the absence of substance abuse, and your history of employment. The objective risk factors would appear to be your isolation, being essentially without friends and with no support from family except from one sister, and the absence of explanation for or understanding of your offending. You cannot of course be punished for exercising your right to plead not guilty. However, the jury’s verdict, a not surprising one having regard to the strength of the evidence, the absence of explanation for your offending means that no meaningful conclusion can be drawn about your risk of reoffending. I accept that the offending was situational: that is that you took advantage of the closeness you had to this family and their trust in you, to offend against the children. I accept it is unlikely that on your release you will have the opportunity to form a relationship of the sort you did with this family. However the absence of explanation for the offending also means that no meaningful conclusion can be drawn about whether you would pose a risk of offending against other children if you could in other ways get access to them.
26 It follows that the sentence must give weight to specific deterrence, and that the positive matters in your favour so far as your prospects of rehabilitation are concerned must be countered by those unknowns.
27 I was assisted by the reference to recent decisions of the Court of Appeal in particular DDJ[1], concerning current sentencing practices for this offence. In DDJ the Court said:[2]
[1][2009] VSCA 115
[2][65] – [70]
“65. As discussed in the next section, the sentencing information provided by the Director indicates that current sentencing practices for this offence are inadequate. The range of sentences being imposed appears not to reflect the very high maximum which Parliament has fixed. But, however that may be, we are not at liberty in resentencing DDJ to disregard current practices. The simple reason is that his plea of guilty was entered on the reasonable assumption that he would be sentenced according to current practices. It would be unfair, therefore, to resentence him on a basis which he could not reasonably have anticipated when deciding whether to plead guilty or contest the charges.
66 On this count, DDJ will be resentenced to seven years’ imprisonment. The sentence has been reduced to take account of his exposure to double jeopardy because of the Crown’s appeal against his sentence.
The adequacy of current sentencing practices
67 As the foregoing examination has revealed, sentences for this offence are – generally speaking – clustered around a mid-point of five years’ imprisonment. That was the median sentence for this offence in the period 2001–06 and again in 2008. Five years is only 20 per cent of the maximum penalty. There are, as we have seen, instances where the sentence is considerably higher, extending to 10 years on two occasions and to 12 years on another. But – with the exception of the 12 year sentence in 2007 – no sentence imposed between 2001 and 2008, and none considered in the appeal decisions we have reviewed, exceeded 40 per cent of the maximum penalty of 25 years. That seems a surprising result, given that these cases include some of the very worst examples of the offence.
68 Sentencing judges are required by s 5(2)(b) of the Sentencing Act 1991 (Vic) to have regard to current sentencing practices. But they are also required – by s 5(2)(a) – to have regard to the maximum penalty for the offence. The discretion which a sentencing judge has in dealing with a particular offender is a vital part of the administration of criminal justice. But sentencing judges may not disregard the will of Parliament as expressed in the fixing of the maximum penalty. As this Court said in R v AB (No 2),[3] the setting of the statutory maximum fixes the parameters within which the sentencing discretion is to be exercised. The analysis set out above indicates that the statutory maximum for this offence is not being given appropriate weight.
69 Sentencing judges are not to be criticised for paying careful attention to current sentencing practices. Not only are they bound by statute to do so but they are naturally concerned to ensure consistency of sentencing from one case to another. After all, the first of the stated purposes of the Sentencing Act1991 (Vic) is ‘to promote consistency of approach in the sentencing of offenders.’[4] Consistency in sentencing is a hallmark of the rule of law.[5]
70 But the significance of this Court’s decision in R v AB (No 2)[6] is that a judge who concludes – as the trial judge did in that case[7] – that current sentencing practices are not consistent with the statutory maximum for the offence in question is not constrained by those practices. Rather, the judge, while paying due regard to current practices, is obliged to sentence consistently with the maximum (subject to considerations of fairness which may arise, as discussed above).”
[3](2008) 18 VR 391.
[4]Section 1(a) of the Sentencing Act 1991 (Vic).
[5]MacNeil-Brown [2008] VSCA 190.
[6](2008) 18 VR 391.
[7]Nettle JA, sitting as a trial judge, imposed the sentence which was upheld on appeal: The Queen v AB [2006] VSC 96.
28 I agree with the opinion expressed in that decision that, if one takes the general median of five years’ imprisonment as reflective of current sentencing practices, then those practices are not consistent with the statutory maximum of 25 years’ imprisonment. If current sentencing practices include the higher end sentences referred to in the passage I have just quoted, then in my view, the appropriate sentences for these charges fall within that range. In the circumstances of this case, I do not consider myself bound by a median of five years.
29 In fixing the appropriate sentence in this case, I take into account, in addition to the matters I have already referred to, the following matters: this is not a case as DDJ was, where the prisoner was given the benefit of the assumption he pleaded guilty on the reasonable assumption that he would be sentenced according to current practices. DDJ was sentenced on a single charge of maintain a sexual relationship with a child under 16. Here, there are three victims. His offending spanned a period of five months, not years. He pleaded guilty and was entitled to a reduction in the sentence as a result. Although the Court of Appeal did not make a s.6AAA declaration, it made it clear the sentence was reduced as a result of the guilty plea. By contrast, you fall to be sentenced after a contested trial. Although DDJ’s sentence was increased, the Court made specific reference to the reduction in the sentence otherwise appropriate by reason of the double jeopardy principle then applicable to Director’s appeals.
30 There must be a degree of cumulation between the sentences for the first three charges, to reflect that they concern three different victims, and to reflect the escalation in sexual misconduct over time. The possession of child pornography charge is separate from the others, and again, whilst not losing sight of the principle of totality, must be reflected by partial cumulation upon the other sentences.
31 I am structuring the sentence so as to give you the opportunity, if you choose to do so, and Corrections and the parole board see fit, to participate in a sex offender treatment program both in custody and in the community. I recommend that you be assessed and considered for participation in a sex offender treatment program if found suitable.
32 I declare you are to be sentenced as a serious sexual offender in respect of Charge 3 and 4, and direct that be recorded.
Sentence
33 Anthony McDonald, on the four charges of which you have either been found guilty or pleaded guilty, you are convicted. You are sentenced on:
34 Charge 1, to be imprisoned for 6 years. I direct that 1 year be served cumulatively on the other partial cumulation orders I am about to make and the base sentence.
35 Charge 2, to be imprisoned for 9 years. This is the base sentence.
36 Charge 3, to be imprisoned for 9 years with1 year to be served cumulatively on the other partial cumulation orders and the base sentence.
37 Charge 4, to be imprisoned for 12 months with 6 months to be served cumulatively on the other partial cumulation orders and the base sentence.
38 That makes a Total Effective Sentence of 11 years 6 months. I fix a non parole period of 9 years.
39 I declare that you have spent 24 days in pre-sentence detention. I direct that that be counted and reckoned as part of the sentence already served.
40 Pursuant to the provisions of the Sex Offender Registration Act you are required to be registered for life and I make a declaration to that effect.
41 Pursuant to s.6AAA I declare that but for your plea of guilty to the charge of possession of child pornography I would have sentenced you to a term of imprisonment on that charge of two years.
42 I direct pursuant to s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a forensic sample. I direct that that be by way of taking of a buccal sample, a scraping from the mouth. I must inform you, Mr McDonald, that if you do not cooperate in the provision of that sample then it is likely that the more invasive means of taking it, namely a blood test, will be employed and I also must advise you that the police are authorised to use reasonable force in order to obtain the sample if you do not cooperate in its provision.
43 I also make the disposal order for the items sought by the Crown and listed in the schedule to it.
44 Mr McDonald, I must provide you with a copy of the reporting provisions under the Sex Offender Registration Act and I must ask you if you are prepared to sign a receipt acknowledging that you have received it. You are not obliged to sign the receipt acknowledging it but the court record will record that you have been provided with a copy in any event. I will ask Ms Munster to accompany my associate to the dock to provide you with those reporting conditions.
45 Thank you, I note that you have signed the receipt of those reporting conditions.
46 Do the orders that I have pronounced reflect what I said I intended to do?
47 MR DONAGHY: Yes, Your Honour.
48 HER HONOUR: Is the arithmetic correct?
49 MS MUNSTER: Yes, Your Honour.
50 HER HONOUR: Any further orders required to be made?
51 MR DONAGHY: No thank you, Your Honour.
52 HER HONOUR: Thank you. Could you remove Mr McDonald, please?
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