Director of Public Prosecutions v McKeon (a pseudonym)
[2017] VCC 2013
•21 December 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SEAN MCKEON (a pseudonym) |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 December 2017 | |
DATE OF SENTENCE: | 21 December 2017 | |
CASE MAY BE CITED AS: | DPP v McKeon (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 2013 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Persistent sexual abuse of a child under 16 – Common assault – Incest – Plea of guilty
Legislation Cited: Sentencing Act 1991 – Sex Offenders Registration Act 2004
Sentence: 13 years imprisonment with a non-parole period of 10 years imprisonment; 384 days pre-sentence detention; Section 6AAA declaration 17 years imprisonment with a non-parole period of 14 years imprisonment; Sex Offender Registration for life.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Gibson | Solicitor for the Director of Public Prosecutions |
| For the Accused | Ms G Connelly |
HIS HONOUR:
1 Sean McKeon[1], on 2 October 2017 at Horsham, you pleaded guilty to a settled Indictment No.G12740540.1 containing three charges, being: Charge 1, persistent sexual abuse of a child under the age of 16 years, relating to your daughter, “BN”; Charge 2, common assault of BN; and Charge 3, incest of your daughter, “JA”.
[1] Sean McKeon is a pseudonym.
2 On 2 October, your plea hearing was adjourned to 15 December so that a psychological report and other materials could be obtained to be presented on your plea.
3 The maximum penalty for Charges 1 and 3 is 25 years’ imprisonment, while the maximum penalty for Charge 2 is five years’ imprisonment.
4 On 15 December your criminal record was filed and admitted by you as accurate. You have 40 prior convictions from nine court appearances in New South Wales, Queensland and Victoria. These appearances are predominantly for driving offences as well as dishonesty and street offences. You have been sentenced to terms of imprisonment both immediate and suspended. Your prior offending covers a period of 27 years from when you were 23 years of age.
5 Tendered as Exhibit A on the plea and read aloud in court was a 14 page summary of prosecution opening. I will summarise your offending in the briefest of terms. The offending relied upon in support of Charge 1 consisted of 14 acts of sexual penetration of a child under 16 and one indecent act with a child under 16, your daughter, BN, between 21 August 2013 and 25 July 2014. In the relevant period, your daughter was aged between 14 and 15 years. It was accepted by Ms Connelly of Counsel who appeared on your behalf that sexual penetration of your daughter during the charged period was frequent and more so towards the end of the charge period and that this was the context in which your charged offending occurred. When engaging in acts of intercourse with BN, you made utterances like “I just want to fuck you baby” and “Fuck me baby”. Simply stated, you used your daughter as a sex object.
6 In respect of Charge 2, common assault, this event occurred on the morning following the occasion described as 6b within the indictment. The complainant, your daughter, BN, was texting her boyfriend when you told her to give you her phone. She refused and you pushed her into a wardrobe cupboard and bent her fingers back to get the phone from her. You took her phone and told her she could go to school if she did not tell anyone, a reference to your previous conduct towards her.
7 Charge 3 concerns your daughter, JA, and is a representative count but on a limited basis. A few weeks prior to July 2014, you had been to the hotel with JA. You became drunk. You both returned home and your daughter texted a friend to see if she wanted to meet up. JA asked you if she could meet with her friend and you told her that she had to stay home. You were in the lounge and you pulled your daughter by her arm and made her sit down. You asked her to give you “a blow job”. She refused and then you asked her for sex. You offered her $50 if she gave you sex. Eventually you had sex with your daughter who was 14 years of age. You initially had sex with her standing up and then you changed position and made your daughter squat on top of you so that your penis was in her vagina. It is the second act of intercourse during this event that constitutes the facts upon which the charge is based.
8 On 25 July 2014, police informed you that your daughter, BN, had made an allegation of physical and sexual abuse against you. Shortly thereafter you left for Queensland. It was put on your plea that you did so to visit your sick mother. On 6 October 2016, you were extradited from Queensland to Victoria. On 27 October 2016, you were interviewed under caution at the Hopkins Correctional Facility and you made a “no comment” record of interview. I was informed by your counsel, Ms Connelly that you were arrested in Queensland two days prior to your extradition on 6 October 2016 and have remained in custody since that time. Accordingly, as at the date of your plea, your pre‑sentence detention was 378 days because during the term in which you have been on remand, you were sentenced to 61 days’ imprisonment which does not count as pre‑sentence detention. However, I must take the period of 61 days into account when arriving at an appropriate sentence in your case.
9 You conducted a contested committal. A special hearing for the purpose of cross-examining each of your daughters was due to commence on 3 October 2017 at Horsham. Each of the complainants had watched their VAREs and were prepared to give evidence on 3 October 2017. However, a few days prior to 3 October 2017, the matter was compromised and you were arraigned on the day prior to the scheduled commencement of the special hearing. Accordingly, whilst your plea has utilitarian value because the complainants were not cross-examined, they were prepared and ready to be cross examined as late as a few days prior to 2 October 2017. That process must have been a traumatic experience for them.
10 Tendered as Exhibit B on the plea and read aloud in court were your two daughters’ victim impact statements. They are simple documents that set out symptoms of sleeplessness, nightmares, flashbacks and the inability to work and breakdowns when they encounter men who present with physical characteristics or mannerisms similar to your own. They each feel isolated, anxious and depressed. Put simply, Mr McKeon, you have stolen your victim daughters’ adolescence. They, in all likelihood, will never be whole again.
11 I regard your conduct the subject of Charges 1 and 3 to be serious examples of offences of their kind and deserving of condign punishment.
12 Mr McKeon, you are aged 53 years. You migrated to Australia from England with your family in 1966 when you were aged two. Your family settled in New South Wales and your father worked in a clothing store. Your parents separated when you were 12, when your father “turned gay”. Your father lives in Sydney and you have some contact with him. You have a brother two years your senior. Your mother re‑partnered and you got along well with her new partner; he died in 2015. After your parents’ separation and during your adolescence there was what was described by your counsel as to-ing and fro-ing between your mother’s and father’s homes.
13 You were educated to Year 9 and thereafter you have worked primarily in labouring jobs. Whilst in custody you work on a daily basis in ground maintenance at the Hopkins Correctional Centre and have undertaken both training and educational courses.
14 You have had two significant relationships and presently are in a third of two years’ duration with a woman who knows of your offending and who has children and grandchildren. Your first relationship commenced when you were 17 years old and lasted approximately 17 years. There are two children of this relationship. You told Dr Barth whose report dated 1 December 2017 was tendered as Exhibit 3:
“… that the sexual intimacy in the relationship gradually decreased and that he [you] subsequently ended the marriage.”
15 Your second relationship again lasted approximately 17 years and six children were born of the relationship including the two child victims the subject of the plea indictment.
16 You told Dr Barth:
“He [I] felt unappreciated by her and stated that ‘she used me to do everything’.”
17 You told Dr Barth that your wife had several affairs and eventually ended the marriage in 2012. You have abused alcohol since the age of 13 and Ms Connelly informed me that you were introduced to alcohol by your father and that from the age of 13 you were his drinking partner.
18 Dr Barth reports:
“Mr McKeon said that his father repartnered with a man which he found confusing. Compounding matters, Mr McKeon told me that his father attempted to engage in sexual behaviour with him on several occasions when he was aged between 13 to 15 years old. He stated that this behaviour consisted of his father ‘trying to grab my dick’ and ‘putting it on me’ with regards to having sex, particularly when he was intoxicated from alcohol. Mr McKeon said that he ‘told him to fuck off’ and his father eventually ceased this behaviour.”
19 Ms Connelly, on your behalf, informed me that penetrative offences were committed against you by your father, contrary to that which you told Dr Barth.
20 Tendered as Exhibit 5 was a reference from your mother, who in respect to the issue of abuse of you at the hands of your father, wrote:
“At the age of 13 years his father and I separated, Sean and his brother stayed with their father for a few months while I worked in Sydney.
Sean left his father soon afterwards and Simon got work. Sean came down and stayed with me in Sydney. He did say his father wanted him to sleep with him but that was all I knew till he told me, much later.”
21 Tendered as Exhibit 6 was a reference written by your brother who in respect to the issue of your sexual abuse wrote:
“I became aware of Sean’s abuse by our father in my early twenties and I confided with him the same abuse that I was dealt by our father.”
22 For the purposes of your sentence, I am prepared to accept that you were sexually abused by your father. However, bearing in mind the conflict that exists between your instructions to Dr Barth, your instructions to your counsel and the general nature of the contents of the references as to the abuse at the hands of your father and the period over which it may have occurred, I am unable to determine the nature and extent of that sexual abuse with any degree of confidence.
23 In respect to your mental health, you currently suffer from reactive depression arising out of your present predicament. You reported to Dr Barth that throughout your life you had mood and emotional disturbances when under emotional pressure. In order to deal with these crises you resorted to alcohol and drugs to manage your distress. After you moved to Victoria you consulted a general practitioner who prescribed you antidepressants which you continue to take whilst in custody.
24 You suffer from chronic emphysema and this causes you continual breathing difficulty and intense coughing.
25 You are entitled to the utilitarian benefit of your plea. However, the issue of remorse in your case is more problematic. You told Dr Barth that you had no recollection of the offences due to your heavy intoxication with alcohol and cannabis. However, you did say to Dr Barth:
“I am remorseful, it (the offending) would have fucked them up. I shouldn’t have done it at all. I want to tell them I’m sorry”.
26 Later in his report, Dr Barth opined that your understanding of the impact of sexual abuse on children remained simplistic and underdeveloped. You had difficulty discussing the impacts of sexual abuse on children beyond broad statements such as “It is harmful” and “It’s very wrong”.
27 To my mind, there is no question that you understood that your offending conduct was wrong and manifestly so, and while it may be that your understanding of its consequences on your victims was simplistic or underdeveloped, which is a matter that I take into account, it can only operate marginally as a mitigating circumstance. However, this simplistic or underdeveloped understanding operated to your disadvantage in the risk assessment conducted by Dr Barth. Using the Static-99 assessment tool, your risk of re-offending was assessed in the “moderate-low” category. However, when using the Risk of Sexual Violence Protocol (“RSVP”), you fell in the “high-risk” category and that is the risk category into which Dr Barth was of the opinion that you fall.
28 Ultimately, Dr Barth concluded:
“Mr McKeon presents as a man with deep-seated psychosexual and behavioural issues. The gravity of Mr McKeon’s problems highlights the urgent need for him to participate in a Sex‑Offender Treatment Program as soon as is practicable. Given the entrenched nature of his psychosexual pathology and his significant lack of insight into his offending, Mr McKeon will require an extended period of time participating in treatment before he is likely to make any progress.”
29 Tendered as Exhibit 4 was the reference of your current partner, who wrote that she had full knowledge of your charges of incest but she was extremely shocked by them because you had been around her three children and two grandchildren from the very first week of us knowing one another and that you had never given her the impression that something like this (your offending) could have happened in your past.
30 Should your relationship with the author of Exhibit 4 remain in place after you are released from prison, you will present a significant risk to any children that regularly come into your company.
31 During the course of your offending against your victim, BN, she was prescribed the contraceptive pill. However, there were occasions upon which she forgot to take this medication. There were medical reasons for the prescription of the contraceptive pill to this adolescent girl. In May 2013, a hormone implant was implanted into the complainant, BN. In respect to the initial consultation that took place on 8 May 2013, it occurred in the presence of her mother (see depositions page 526). However, you attended on the day of the actual implant, being 28 May 2013 (see depositions page 526). The complainant, BN, described your attitude to this process at question and answer 235 and following of her VARE:
“And Dad said that the rod would be heaps better in my way and his way because I wouldn’t fall pregnant and he wouldn’t get in trouble for it and whatever else. And he reckons that I – I wouldn’t get sick with the rod and like, it’s not as easy to fall pregnant with the rod than the pill is … and I said to him like ‘I'll get the rod’ and he said ‘Okay coz it would be good for you anyways’ and I said ‘Why’s that?’ and he said ‘Because you won’t get pregnant’ … and he took me to get it done and ---“
32 Ms Connelly on your behalf submitted that your involvement in having BN implanted with a contraceptive device could not constitute an aggravating circumstance of your offending. In particular, at paragraph 4 of her outline of further submissions on plea, Ms Connelly submitted:
“The defence makes the following contentions as to the relevance of all of this for sentencing purposes:
a. the evidence does not establish as a matter of aggravation that the reason the rod was inserted (or the pill taken) was to support
Mr McKeon’s offending or that he instigated or was the driving force behind it being prescribed to BN.
b. The evidence does support the finding that Mr McKeon knew of the contraception and that it enabled his offending to go undetected by preventing pregnancy. It is submitted that this knowledge is not a matter of aggravation.
c. the offending is not aggravated by Mr McKeon recklessly subjecting BN to the risk of pregnancy.”
33 There is no doubt in my mind that you, Mr McKeon, were very keen for your daughter to use contraceptives so that she would not fall pregnant as a result of your conduct and that you believed that this was very much in your interest because it reduced the risk of your conduct being discovered. You took advantage of the fact that BN could be properly prescribed contraceptives to alleviate symptoms that she suffered as a result of her menstrual cycle. However, I am unable to find that this conduct constitutes an aggravating circumstance of your offending.
34 You pleaded guilty on the day prior to the scheduled date upon which the special hearing was to be conducted. You are entitled to the utilitarian benefit that flows to you from your plea as your daughters did not have to be cross-examined at the special hearing. As to the question of remorse, whilst your plea of guilty is some evidence of remorse, your deflection of your responsibility for your behaviour by telling Dr Barth that you had no recollection of it, is not indicative of a man who is remorseful for his offending conduct. I find that you exhibit little or no remorse.
35 As a result of amendments to Schedule 1 of the Sentencing Act 1991, you do not fall to be sentenced as a serious sexual offender. However, it is appropriate to cumulate some of the sentence imposed on Charge 3 on Charge 1 in all of the circumstances of this case.
36 As stated earlier, I regard your offending in respect of Charges 1 and 3 as serious examples of offending of their kind. Your breach of the sacred trust vested in you as a parent is manifest. You have stolen your daughters' adolescence from them. In my view, it is unlikely that they will ever be whole again. General deterrence must be the principal purpose of sentencing in respect of your conduct and I regard the protection of the community from you as important in the exercise of my sentencing discretion, bearing in mind Dr Barth’s assessment of your risk of re-offending and the contents of Exhibit 4 on the plea.
37 Taking into account the circumstances of your offending and its effects, with your personal circumstances and antecedents and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1 – ten years’ imprisonment;
On Charge 2 – six months’ imprisonment; and
On Charge 3 – six years’ imprisonment.
38 I order that three years of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1. This results in a total effective sentence of 13 years’ imprisonment. I order that you serve ten years’ imprisonment before you will become eligible for parole.
39 I declare that you have spent 384 days by way of pre‑sentence detention.
40 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have sentenced you to 17 years’ imprisonment with a minimum of 14 years’ imprisonment.
41 I declare that you be subject to the provisions of the Sex Offenders Registration Act for life. You may be seated.
42 Are there any ancillary matters apart from the prisoner signing the relevant documents?
43 MR GIBSON: No, Your Honour.
44 HIS HONOUR: Thank you very much, Mr Gibson. I recollect from your opening there was to be an application for a 464ZF order. It may be that is not required.
45 MR GIBSON: It is not required, Your Honour.
46 HIS HONOUR: Thank you, Mr Gibson.
47 Mr McKeon, what will happen now is my associate, Mr Murphy, will bring you a document that relates to the application of the Sex Offenders Registration Act to you. You are asked to sign it simply as an acknowledgment that you have received the documents and no more.
48 MR GIBSON: If Your Honour pleases.
49 HIS HONOUR: Ms Connelly, if you would like to approach the dock while that is being done. I would like to thank counsel for their assistance in the matter. I will break the link.
50 Remove the prisoner, please.
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