Director of Public Prosecutions v McDonnell
[2013] VCC 2206
•11 December 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-02385
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BRETT JASON McDONNELL |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 December 2013 | |
CASE MAY BE CITED AS: | DPP v McDonnell | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2206 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Klopper | |
| For the Accused | Ms E Nickolls |
HIS HONOUR:
1 Brett McDonnell, you were convicted by a jury of four charges of indecent act with a child aged under 16 years and two charges of sexual penetration of a child aged under 16 years. The maximum penalty for each offence is ten years’ imprisonment. The complainant was aged between 14 and 16 years at the time of your offending. You were aged between 29 and 30 years.
2 You were brought into the complainant’s family circle because the complainant, when aged 14, had announced to his mother that he was homosexual. The complainant at that time was obviously effeminate and had experienced difficulties at school because of this characteristic. You were approached by the complainant’s mother because she had met you in a social work-type environment and she formed the view, accurately as it turned out, that you, too, were homosexual. You were approached to see whether you were prepared to assist the complainant, amongst other things, in respect to the challenges he might face arising out of his sexual orientation. You agreed to help and soon became a fast friend of the complainant’s mother and, on one view of it, a de facto member of the complainant’s family.
3 You were certainly trusted by the complainant’s mother and stepfather in your role as mentor to the complainant. It is in this context, that you breached the trust placed in you by the complainant, a vulnerable boy, and his parents, particularly his mother, who had looked to you to assist her son and family in what was proving to be a difficult social problem for all of them and one which they found themselves ill-equipped with which to deal.
4 Charge 1, indecent act with a child under 16, occurred when the complainant attended at your house for dinner with members of his family. His family members left after an arrangement had been made by the complainant to stay overnight with you and your partner. The complainant stayed in a spare bedroom. After your partner had retired to bed, and whilst the complainant was in your lounge room, he looked into a chest and found gay pornographic videotapes. You entered the lounge room and permitted the complainant to look at the covers of the video tapes for a period of time and thereafter the complainant put the tapes back and went to bed.
5 The complainant lay in bed and read a gay novel which he had found on a bookshelf in the spare bedroom. After a period of time, you came into the spare bedroom, you sat on the bed and put your hand under the complainant’s t-shirt and rubbed his stomach and chest. The complainant had an erection from reading the erotic novel and his penis was half sticking out of his underwear. You put your hand down and touched his penis. You said, “What’s this?”. The complainant pushed your hand away and you apologised to him for being silly and left the room.
6 Charge 2, indecent act with a child under 16, took place at the complainant’s home. You had attended the complainant’s school in order to speak to a person in authority about the complainant being bullied. You took the complainant home from school. The two of you were the only people in the house and together you went to the complainant’s bedroom and sat on the complainant’s bed talking. The complainant was flipping through the pages of a hair magazine when you touched his chest and stomach and told him how skinny and beautiful he was. You took your penis out of your pants and masturbated whilst you were still touching the complainant’s chest and stomach. You leaned over and ejaculated onto the complainant’s stomach. You once again apologised to the complainant saying, “I’m sorry. I’m so bad. I shouldn’t have done that”.
7 Charge 3, sexual penetration of a child under 16 years, occurred at Rye. You had asked the complainant’s mother whether you could take the complainant to Rye to a friend’s house to celebrate the New Year. The complainant did not want to go to Rye with you, but was convinced to do so by his mother, who thought it would be good for him. Together with you and your partner, the complainant travelled to Rye, where he stayed overnight at your friend’s house. It seems that the complainant drank more alcohol than was good for him and he went to sleep on a camp stretcher-type bed in the lounge room. You and your partner, together with another male, were sharing a bedroom adjacent to the lounge room. You went into the lounge room, leaving your partner in the bedroom, and sat on the bed next to the complainant. You pulled back the doona cover and then laid down next to the complainant in the bed and commenced kissing him on the mouth. You rolled the complainant over and pulled down his pyjama pants and underpants and then moved down and opened his buttocks with your fingers and licked around and into the complainant’s anus penetrating him. Prior to this act, you had been lying behind the complainant masturbating.
8 Charge 4, indecent act with a child under 16, occurred at your home on the occasion of your 30th birthday party. The complainant was outside smoking a cigarette when you joined him. You led him by the hand to the front of your house near the chimney. You kissed the complainant on the mouth. Whilst you rubbed the complainant’s chest and stomach, you took out your penis from your trousers and put the complainant’s hand on it. The complainant became aware that other people were coming out of the house and pushed you away.
9 Charge 5, indecent act with a child under 16, occurred at the Melbourne Zoo at the complainant’s sister’s wedding reception. Some time during the night, you had approached the complainant in a toilet cubicle, but you were rebuffed by him. Later, when the complainant had left the reception area and was sitting down adjacent to a jetty and near a smoking area, you approached him, sat down next to him, and said, “I’m sorry, I’m sorry, just give me something”. You put your hand up underneath his shirt and then down underneath the complainant’s trousers and underwear and rubbed his penis and testicles. You were interrupted when the complainant’s mother came out of the reception rooms looking for the complainant. You made an excuse to the effect that the complainant was feeling unwell because he had consumed too much alcohol.
10 Charge 6, sexual penetration of a child under 16 years, occurred at your home. It occurred in mid to late afternoon. Prior to arriving at your home with the complainant, you had been grocery shopping together. The groceries were not unpacked, but left on the kitchen bench and you offered the complainant a glass of wine. The two of you ended up in the spare bedroom sitting on the bed. You put your hand under the complainant’s t-shirt and rubbed his chest and stomach. You told the complainant how beautiful and skinny he was. You then removed your penis from your trousers and said to the complainant, “Come on”. The complainant knew what that meant, that you wanted him to suck your penis. The complainant knelt down in front of you and put your penis in his mouth and sucked on it. You eventually masturbated to ejaculation and left the room.
11 The complainant’s antipathy to you, resulting from your conduct towards him, developed to the point where, on the occasion of his surprise 16th birthday party in August 2002, he abused you for having the temerity to attend that celebration.
12 Some time after his 16th birthday, the complainant left home because he found his position at home untenable because of the relationship that had developed between you and his mother and, as he perceived it, the rest of his family.
13 Some days immediately prior to 28 February 2003, the complainant was brought home by his mother and stepfather in a sorry state. He was nursed by his mother for a number of days, and during this period he broke down and revealed to his mother than you had sexually abused him and that this abuse was the motive for him leaving home.
14 This revelation led to a confrontation between you and the complainant’s mother who, by this time, was your co-worker at a charitable organisation which, in part, provided accommodation for troubled young persons. The complainant’s mother had spoken to another work colleague and she, too, confronted you over your conduct towards the complainant. As a direct result of this last confrontation, your employment was terminated.
15 You gave sworn evidence before the jury and denied each and every allegation made against you by the complainant. Character evidence was called on your behalf. By their verdict, and in conformity with my instructions to them, the jury must have accepted the complainant’s evidence beyond reasonable doubt, in respect of each of the six charges on the indictment.
16 Tendered as Exhibit A on the plea, were the victim impact statements of the complainant, his mother, father and brother, as well as his partner. Each statement focused on different aspects of the impact that your offending has had upon these people. Suffice it to say, that there were recurring themes in the statements, being your breach of trust, the parents’ feeling of guilt because in their minds they had failed to protect their son, the continuing harm done to the complainant, which resulted in counselling, medication and, at times, hospitalisation, and the necessary worry and time spent by those who love him to support him over the last 10 years or so. Your offending has had a profound effect upon the complainant, his family and his partner.
17 You are 42 years of age and it is now some 10 years or so since your offending. You have lived with your current partner for over 21 years and, in September 2006, whilst in the United Kingdom, you had your relationship recognised by civil union. You have a Bachelor of Arts in Youth Affairs from the Royal Melbourne Institute of Technology, having graduated in 1997. You have always worked in the social welfare sector for organisations like the Wesley City Mission, Vic Deaf, the Department of Human Services and the Melbourne City Mission. You have worked at the “coal face” dealing with the homeless, the drug addicted and psychiatrically unwell endeavouring to improve their lives. You have held positions of responsibility, managing others and coordinating services to assist the less fortunate in our society. Not content with being employed in this challenging field, you have been a volunteer as well, giving up your time to help others who live on the fringes of our society. You have been highly regarded by your employers and your peers. (See Exhibits 1 and 2 on the plea.)
18 Your partner’s brother gave evidence of your generosity to neighbours and others that demonstrates you to have what he described as “a big heart”. You are the trusted uncle to his children. Your convictions mean that you have lost your career, your reputation within your area of employment and generally. However, you have the ongoing support of your partner and family and friends.
19 You are close to each of your parents, but particularly close to your mother. Your mother is terminally ill and has only weeks to live. You will be in prison when she dies. You will not be able to provide the support to her that normally would have been the case had you been at liberty. This fact weighs heavily on you.
20 Your counsel, Ms Sutherland, relied upon delay between the offending and sentencing as a mitigating factor. (See R v MWH [2001] VSCA 196 and R v Nikodjevic [2004] VSCA 222 and the cases referred to therein.) She did so on three basis:
(i)that in the intervening period you have continued to work in your chosen field and have not committed any further offences and have therefore used this period of delay to rehabilitate,
(ii)that because you were confronted by the complainant’s mother, as well as another work colleague in February 2003, about your offending, you have lived with the prospect of a prosecution present in your mind since that time, and
(iii)Your conduct must be viewed as an aberration, albeit one that lasted some 15 months or so, motivated as it was by your attraction for the complainant.
21 It must be remembered that you denied any offending to the police when interviewed by them and in your evidence to the jury. There has never been any acknowledgement by you of your offending conduct. Your professed state of mind is that none of the offending conduct occurred. Without such acknowledgement, it is difficult to see how rehabilitation can commence. However, your blameless life subsequent to your offending, must impact favourably on your prospects for rehabilitation and I view them very favourably because of the way that you have lived both before and after your offending and because of the support that you have from your partner, family and friends.
22 As to the issue of the prospect of a prosecution being ever present in your mind since February 2003, any benefit that accrues to you from this, could only be regarded as being “at the margins”. Your mindset has been that you have done no wrong. Any prosecution therefore would have been, so far as you are concerned, erroneous and wrong. Whilst it is true that the complainant made a deliberate decision not to report this matter to police in February 2003, he did so as a damaged 16 year old, unable and ill-equipped to face the prospect of reliving how he was offended against by you. In the end, very little weight can be given to this matter, in the exercise of my sentencing discretion.
23 The third argument sounded somewhat hollow, coming as it did as an argument in mitigation on behalf of a man who has denied any wrongdoing. In accordance with the jury’s verdict, there can be little doubt, despite your denial to them, that you found the complainant attractive and acted upon your improper feelings for him to debauch him. In my view, nothing turns on this argument because I have already made a findings in respect of your prospects of rehabilitation.
24 Viewed individually, the acts which found the charges, are not of the worst kind. Indeed, the act that founds Charge 1, is at the lower end of offending of its kind. However, to view the individual acts in isolation is to fail to come to grips with the totality of your offending. You were brought into the complainant’s family circle to be a mentor to him. The complainant was a vulnerable and troubled young boy. You breached his trust. You debauched him. You breached the trust of the complainant’s mother and stepfather, with whom for the period of your offending, you were fast friends, more so with the complainant’s mother. Whilst there was no client/social worker relationship, you knew that the complainant was vulnerable. Your life’s work to that point had been spent dealing with such people, yet you chose to give into your passions and offend.
25 You exploited your position of trust, you were an adult and the complainant was but a child. You offended against the complainant in his home, a place where he was entitled to feel safe. You offended against him in your home when he was your guest. You offended against him when you were a guest at the his sister’s wedding reception. Your offending was brazen. You were befriended by the complainant’s family and this provided you with some protection against suspicion and it inhibited the complainant in complaining. Your offending is a serious example of offending of its kind.
26 General deterrence and public denunciation must play significant roles in the exercising of my sentencing discretion. In my view, specific deterrence is of less significance in your case. On Charges 3 to 6, you are to be sentenced as a serious sexual offender and protection of the community from you becomes the principal purpose for which sentence is to be imposed.
27 Would you please stand.
28 By this sentence I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. Taking into account the circumstances of the offences and their effects with your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
In respect of Charge 1, I sentence you to 12 months’ imprisonment.
In respect of Charge 2, I sentence you to 18 months’ imprisonment.
In respect of Charge 3, I sentence you to three and a half years’ imprisonment.
In respect of Charge 4, I sentence you to 18 months’ imprisonment.
In respect of Charge 5, I sentence you to 18 months’ imprisonment.
In respect of Charge 6, I sentence you to four years’ imprisonment.
29 I order that four months of the sentence imposed on Charge 1, six months of the sentence imposed on Charge 2, 12 months of the sentence imposed on Charge 3, six months of the sentence imposed on Charge 4, and six months of the sentence imposed on Charge 5, be served cumulatively upon the sentence imposed upon you in respect of Charge 6. This results in a total effective sentence of six years and 10 months’ imprisonment and I set a non-parole period of four years’ imprisonment.
30 I direct that it be entered in the records of the court that, in respect to Charges 3, 4, 5 and 6, you have been sentenced as a serious offender. I declare that you have served 20 days by way of pre-sentence detention, not including today.
31 Pursuant to the provisions of the Sex Offenders Registration Act 2004, you are registrable under that Act for life. You may sit down. An application was made pursuant to s.464ZF of the Crimes Act that you undergo a forensic procedure, being a scraping from the mouth and I have made an order to that effect. I have made that order because of the seriousness of the circumstances of the offending warranted it, that it was not opposed and that the granting of the order is in the public interest.
32 I must inform you that if at the time of request you do not consent to the taking of a mouth scraping, under the supervision of an authorised member of the police force, then the police may use reasonable force to enable that procedure to be conducted and I hand down that order. Now the sex offenders registration documents please.
33 Mr McDonnell would you stand up please. What must take place now pursuant to the provisions of a Sex Offenders Registration Act is that my associate will bring to you a notice which is a document which sets out your obligations under the Act. It will be explained to you in short compass. You will be asked to acknowledge the service of this document on you and later I have no doubt that Ms Nickolls will explain the full ramifications of this to you. Thanks Mr Associate.
34 A copy of my orders will be made available to the parties and a copy of the documents or notification under the Sex Offenders Registration Act will also be provided to the parties. Are there any other matters?
35 MS NICKOLLS: No Your Honour.
36 MS KLOPPER: No Your Honour.
37 HIS HONOUR: Remove the prisoner please, 11 o'clock.
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