Director of Public Prosecutions v McQueeney

IN THE COUNTY COURT OF VICTORIA

Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-20-00915

DIRECTOR OF PUBLIC PROSECUTIONS

IAIN McQUEENEY

---

JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	4 December 2020
DATE OF SENTENCE:	4 December 2020
CASE MAY BE CITED AS:	DPP v McQueeney
MEDIUM NEUTRAL CITATION:	[2020] VCC 1985

REASONS FOR SENTENCE
---

Subject:

Catchwords:

Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A. McKenry	Office of Public Prosecutions
For the Accused	Mr G. Barns S.C.	James Dowsley & Associates

HER HONOUR:

Iain McQueeney, in the early 1980’s, you were employed as a delivery driver, bringing soft drinks to households. In January 1982, you began delivering drinks to the family home of David Caton.[1] He was a child just short of his 11th birthday. You befriended his parents.
[1] A Pseudonym
You offered David work and, between late February and March 1982, he began assisting you with weekend deliveries. Initially, you had him with you all day on a Saturday. That moved up to you having him for the whole weekend and his staying with you overnight. You began to groom him, touching him on the knee when you were shifting gears in your truck, then rubbing his inner thigh and telling him that he was, 'doing a good job'.
You then moved to touching his penis over his clothing, resting your hand on his leg in the truck and initiating sexualised conversations with him.
After around 6-8 weeks, he began staying overnight with you at a caravan. It was there that, on a Friday night in April or May 1982, you first sexually assaulted him in circumstances that give rise to the charges to which you are now pleading guilty. You directed him to take off his shirt. You kissed him, pushed him onto the bed, undressed him and kissed him around his genitals, before putting his penis into your mouth. You were completely naked. You then began rubbing your penis against his legs, buttocks and around his penis, pushing against his anus but stopping when he complained of pain. You then engaged in what is described as dry humping, that is, you stimulated yourself against his legs and around his buttocks, before ejaculating onto his chest.
For two or three weeks after that, he would stay in your caravan with you on a Friday night and you would sexually assault him in the same manner. By May, he was staying Friday and Saturday nights in the caravan with you, and you would continue your sexual assaults on him on a weekly or fortnightly basis. The offending escalated during that time, and you began pushing his head down to your crotch, making him kiss you on the penis, and by May or June, having him perform oral sex on you.
You continued to attempt to anally penetrate him using Vaseline to assist. Initially, it was not successful, and David would complain about the pain, but by July, after forcing him, on an occasion, to put your penis in his mouth, and stimulating it against his buttocks, you succeeded in forcing it into his anus. You did so without using a condom and whilst holding your hand over his mouth to prevent him from crying out. You ejaculated. You told him not to tell anyone.
This pattern of sexual offending involving anal and oral penetration continued until the end of 1983. It continued after you moved out of the caravan and into a farmhouse, where you would continue to have David stay with you on Friday and Saturday nights. He reports at times trying to resist your assaults but being held down until you had finished. On one occasion, in the farmhouse, he anally penetrated you with his penis. You told him that, 'no one had done that to you before', and that you 'knew that he was special'.
It is this conduct that gives rise to the four charges of sexual penetration of a child between the ages of 10 and 16 under your care, supervision, and authority to which you have pleaded guilty. Charge 1 is a course of conduct charge relating to introducing David's penis into your mouth, Charge 2 is a course of conduct charge relating to you introducing your penis into David's mouth, and Charge 3 relates to your penetrating David's anus with your penis. Charge 4 is a single act charge, relating to the sole occasion where David penetrated your anus with his penis.
The offending came to an end because, in late 1983, you simply disappeared out of his and his family's life. About a year later, you re-appeared and rang the family. You asked David whether he had missed you and he told you he had not. Then, in late 1985 or 1986, you contacted David’s parents again and made arrangements for him to stay with you in Queensland, where you were then living. He did not want to go but felt as a child he was unable to resist, unless he told his parents what had happened, and he felt unable to do that.
He therefore was sent up to Queensland and, although these are not charges on the indictment, because they are offences that occurred interstate, the sexual assaults of a nature that you have admitted to in Victoria continued. At that stage, David confronted you and told you that he hated what you were doing to him.
That is the last time that he saw or spoke to you. Although he did not go to the police and make a formal complaint until 2015, he told various people over the years what you had done to him. The precipitator for his going to the police in 2015 was reading in the media that you had been imprisoned for similar sexual assaults against other boys.
As a result of his formal complaint to the police, you were interviewed in 2016. You were at that stage serving a sentence in New South Wales for like offending against other boys. You made admissions or partial admissions to the offending, although it is fair to say that you minimised your conduct and understated the offending. You told the police that David had 'never ever complained until now' and that you were just 'playing around with him'. You denied that he performed oral sex on you and you said you could not remember if he had anally penetrated you. You stated his age to be older, around 14-16, but otherwise did make admissions and, of course, notwithstanding the partial admissions or the denials or minimisations, by the time you were charged and the matter came before this court, you entered very early pleas of guilty, admitting the conduct which I have just recited.
It was not until the New South Wales sentence that you were serving when you were questioned in 2016 expired in early 2020 that you were formally charged with these offences, and you were extradited to Victoria at the expiration of your New South Wales sentences.
This offending is, as the prosecution correctly submitted, a serious example of this type of offending. I accept, and Mr Barns of Senior Counsel did not submit otherwise, that the objective gravity falls into the high range.
The offending occurred over a period of almost two years. The victim was young; you took advantage of his vulnerability. You offended after a period of grooming. You breached the trust owed, not only to David, but to his family, whose friendship you had cultivated, and which had allowed you then to have the boy released into your care. There was a significant age difference between you. He was only 11 or 12 at the time your offending started. The offending escalated over time, and included penile penetration. It was frequent, weekly or fortnightly, and, as the victim impact statement makes clear, has had a profound and lifelong effect on David Caton.
In his victim impact statement, he said:
It's not easy to break down the ways this has impacted me. Before this happened, I was an extroverted child. After this period in my childhood, I became much more introverted. I kept what happened to me a secret for a very long time. It felt horrible to have such a secret and I felt guilty for it happening to me. As I have gotten older, the feelings of isolation and disconnection only grew. I have felt very distant from people who are supposed to be close to me. My memories of what happened are very visceral; they are visual things, sounds, textures that trigger these memories. Often, I am reminded. It takes a part of me back to those times. It's like a sharp reminder of my personal pains. This was a terrible first job experience for me, they were the worst two years of my life. My self-confidence has been shaken to the core. People I should be close to are far more distant than they should be. I'm not only reminded by the damage to my core self, but by physical triggers on a regular basis.
It is clear therefore that, subject to considerations personal to you, denunciation, deterrence both general and specific, and just punishment are significant factors that weigh in the sentencing mix.
You have an extensive criminal history dating back to 1958 for sexual offences and dishonesty and driving offences. You were first convicted and sentenced for sexual offences (charges of indecent practices between males) in the Hobart Supreme Court in 1958, so you must have been 17. It is unclear from the circumstances or from the criminal history, but given the sentence imposed, it is likely that that conviction related to consensual activity with someone of age. That is a matter referred to in the report of Dr Barth, to which I will make further reference later.
Save to say your criminal offending extends beyond sexual offences, both up to and after the date of these offences, I consider your nonsexual offences record to be of little significance for sentencing purposes for these offences, compared to your history of sexual offending.
After the 1958 sexual offence matter, up to the time of the commission of these offences, you were convicted on two separate occasions in New South Wales of multiple sexual offences involving boys and have been imprisoned on both occasions.
In the 37 years since the commission of these offences, you have been convicted and sentenced on my count on another four occasions for multiple sexual offences involving a number of boys and you have served lengthy terms of imprisonment. Some of those were, like this matter, for offences which were committed long before the time of sentencing. You have also, in the time since committing these offences, been convicted and sentenced in 2012 for multiple breaches of Sex Offender Registration Act reporting obligations. The convictions occurring after the offences for which I must sentence you are relevant to my assessment of your prospects for rehabilitation or perhaps, more realistically, given your age and health, to protection of the community, but are not taken by me to be prior convictions for the purpose of sentencing you today.
Since your extradition to Victoria, at the conclusion of your last New South Wales sentence, you have been in custody in Victoria. You have spent 275 days in pre-sentence detention here. You have spent most of the last 16 years in custody in New South Wales for sexual offences against boys or breaches of your Sex Offender Reporting Act obligations.
You are now just shy of your 80th birthday and you acknowledge that you will be sentenced to a further significant time in custody for these offences.
Whilst these offences are, as I have said, serious, and the impact on your victim has been profound and lifelong, and the objective gravity for offences of this type is properly described as high, and which warrant significant punishment and stern condemnation, it is a sad way to see out what must be regarded as coming towards the last years of your life, and a very sad life.
Your history is pitiable. Born in Tasmania and abandoned by your parents at six months, your childhood thereafter appears to have been devoid of love, nurture, and attachment. To emotional neglect and deprivation was added physical and sexual abuse at the orphanage where you were housed until you were seven. You were then adopted out. You were removed from your adoptive parents, at the age of 13, as a result of abuse and neglect, at the hands of the people to whom you were adopted and who were supposed to provide you with a loving family home and care. You described yourself in your teenage years as uncontrollable. Despite the efforts of a good and kind family with whom you were then placed to help you, you were not able to respond sufficiently well to their nurture to be able to remain with them. You often absconded, lived on the streets, and you were again returned to state care (if care is the right way to characterise it) at the age of 15. By 18, you were effectively on your own.
A poignant indicator of this neglectful and deprived childhood is that I understand the name ‘McQueeney’ is the name that came from your second adoptive or foster parents, rather than the name you had from birth.
Despite a limited formal education as a result of this neglect, you had a good work history. After teenage stints with retailers and on a fishing trawler, most of your adult life was spent in employment as a truck driver. At times, you also worked as a fruit picker. You moved up and down the east coast of Australia, living in various places in Tasmania, Victoria, New South Wales and Queensland.
Your early sexual experiences were of being the child victim of sexual abuse, initially at the hands of various older men who would, it appears, prey on children at the orphanage.
In your teens, you reported having some consensual sexual experiences with similarly aged people, both male and female, but you were already, by your late teens, acting on what has become a lifelong pattern of sexual abuse of male children.
You married and for a period led a settled life. You fathered three children. In 1979, when you were 40, your wife and your two youngest children died in a collision. That collision was caused by your falling asleep at the wheel of your truck. You have been estranged from your eldest child for the 40 years since that devastating loss. It would appear you have had no support or counselling for that loss in the intervening years.
You do not report any history of substance abuse. You appear to be of average intelligence and, despite the multiple traumas you have been exposed to, have not been diagnosed with mental illness or psychological disorder. Apart from participation in 2011 in a 12 month sex offender treatment course called CUBIT in New South Wales during one of your sentences, you have not sought or engaged with counselling or, it would appear, have been offered it.
Your itinerant lifestyle, extended periods of incarceration, absence of family ties or connections and estrangement from your son, means that you have no ties to any places or people.
I consider that the deprivation and disadvantage of your childhood are likely to have had a profound, adverse impact on your development and an enduring adverse impact on you. None of those matters that so disadvantaged you in your childhood were of your making.
A very careful and detailed report was provided by Dr Barth. He summarised your circumstances in these terms:
1)Mr McQueeney's mental state was normal in all major respects. His mood was euthymic, his thought processes were not impaired, and he reports no symptoms of significant psychological disturbance.
Mr McQueeney would not currently meet criteria for any psychological condition.
2)Mr McQueeney's underlying intelligence is estimated to be at the lower end of the average range. His turbulent childhood years and educational disadvantage is manifest in a persisting lack of psychological sophistication. Nevertheless, Mr McQueeney is not cognitively impaired, and there are no deficits in his ability to understand the wrongfulness of his behaviour.
3)A detailed assessment of Mr McQueeney's interpersonal adjustment indicated noteworthy dysfunction. His reported experiences of abandonment, sexual abuse, and violence as a child resulted in a negative view of the world. He engaged in various impulsive and disinhibited behaviours from a young age to mask his lack of direction. This has culminated in a long history of criminal behaviour.
4)Notwithstanding the period when he was married, Mr McQueeney has predominantly lived a nomadic and transient lifestyle. His interpersonal adjustment continues to be exemplified by prominent antisocial features.
5)Mr McQueeney had considerable difficulty discussing his sexual adjustment in any depth. However, with noteworthy persistence, some conclusions were reached. Mr McQueeney has been deeply conflicted about his sexuality from a young age, when he developed a sexual attraction to both males and females. Mr McQueeney expressed embarrassment about his sexuality and admitted that he kept his desires hidden from people around him.
6)Furthermore, Mr McQueeney's ability to achieve healthy adult intimacy is very limited, contributing to his propensity to seek out sexual experiences with underage males, where he was able to have complete control over these encounters to act-out his sexual desires.
Mr McQueeney was unable to discuss his sexual attraction to children beyond very broad statements; however, his entrenched offending clearly indicates severe psychosexual pathology. In particular, a deviant sexual attraction toward pre-pubescent and pubescent male children.
7)Mr McQueeney's psychosexual pathology meets criteria for a diagnosis of Paedophilic Disorder - Sexually Attracted to Males, and, Other Specified Paraphilic Disorder - Hebephilia - Sexually Attracted to Males by DSM-5 criteria.
8)Notwithstanding his participation in offence-specific treatment, Mr McQueeney's insight into the motivations for his offending and his deviant sexuality is very limited. On a more positive, he was able to express some developing empathy into the impact of his behaviour on the victims. Nevertheless, as discussed above, his understanding of the harm caused to children who are the victims of sexual abuse remains underdeveloped. Further participation in specialist sex-offender treatment is unequivocally warranted.
9)A comprehensive assessment of Mr McQueeney's risk of sexual recidivism was completed by utilising the Static-99R and the RSVP. This assessment analysed the historical, dynamic, and protective factors germane to sexual offending, which indicated that Mr McQueeney currently poses a moderate to high risk of recidivism. His risk is relevant in relation to further sexual offending against male children.
Dr Barth concluded:
'Mr McQueeney continues to present as a man with deep-seated psychosexual issues which require close ongoing management and supervision. The gravity of Mr McQueeney's problems highlights the urgent need for him to continue to participate in a comprehensive sex-offender treatment program as soon as is practicable. Given the entrenched nature of his psychosexual pathology and his lack of insight into his offending, Mr McQueeney will require an extended period of time participating in treatment before he is likely to make any significant progress. To his credit, Mr McQueeney admitted that his progress in treatment has been slow and he expressed a strong desire to participate in further specialist treatment and any other intervention the Court may deem as desirable. To be clear, sex-offender treatment should focus on assisting Mr McQueeney to gain insight into the interpersonal and sexual factors which motivated his offending, developing his understanding of the deviant sexual fantasies which underpinned his behaviour, enhancing victim empathy and psychoeducation regarding the normative sexual development of children. Detailed relapse prevention planning and fantasy management training should also constitute a prominent focus of treatment. Finally, treatment should focus on Mr McQueeney's own reported sexual abuse and the impact this may have had on his sexual development and sense of sexual identity. When considering
Mr McQueeney's previous difficulties within a group environment, it may well be that intensive and specifically tailored individual treatment may be a more effective treatment modality for his complex needs'.

I accept Dr Barth's opinions and recommendations and urge those responsible for your care, whilst you are in custody, whilst you are being considered for release on parole and, if granted, on parole, to adopt and implement his recommendations.
In comprehensive and helpful written submissions, Mr Barns S.C. and

Mr McKenry were largely in agreement on the appropriate sentencing principles and their application in this case. I accept their submissions as correctly outlining the relevant principles and, without lengthy repetition of them, accept, adopt and apply them here. In fixing on the appropriate sentence, I take into account as reducing the sentence otherwise appropriate the following matters.
Your early plea of guilty, for its utilitarian value, its weight in advancing the interests of justice, and, coupled with the admissions when interviewed, as evidence of remorse. I accept Mr Barns' submissions as to the significance of that, given the evidence of the impact on the victim, namely sparing him the indignity of having to give evidence. This is clearly a matter that entitles you to a considerable reduction.
I also take into account the delay since you were questioned in 2016 and being charged and dealt with. I take into account the loss of opportunity to have the sentence to be imposed for these offences reduced by the making of partial concurrency orders with the sentence you were serving in 2016.
I take into account the combined effect of your age, at nearly 80, and your poor health. In addition to what might be described as a general or expected

age-related decline, I have specifically been told about your heart condition and the impact that that has had on you to date. Even taking into account the mitigating factors that reduce the sentence, I accept that you have to face the prospect that you may not see out your sentence or be able to live independently upon your release.
I also accept that the continuing fear of COVID-19 has an impact on the sentence and should reduce it. Although Corrections authorities are to be commended for their efforts in managing not to have COVID-19 spread into the prisons, it is an ever-present fear and, in a restricted environment such as a prison, the fear is greater. For an older person such as you are, the fear of what could happen if you contracted it, obviously, is a burden to carry.
Whilst efforts have been made to compensate for the suspension of

face-to-face visits, it is not the same as the possibility of face-to-face contact. There is restriction on movement and activity within the prison. You are not able to exercise the same autonomy as those in the community over what you can do to keep yourself safe. All of those I take into account as added burdens in prison by reason of COVID-19.
I also take into account the impact of the principles of totality and proportionality. Even accepting the limitations on the application of totality principles, given that you must be sentenced as a serious offender for all charges, nonetheless totality and proportionality play a role in sentencing you. I note that, despite the serious offender provisions, the Prosecution does not, in the circumstances, submit that a disproportionate sentence is required to be imposed.
As discussed with counsel in the course of the plea, it is somewhat artificial to speak in positive terms about your prospects for rehabilitation given the age of these offences, your continued offending since the commission of these offences, the history of childhood deprivation and disadvantage, which are likely to have had an enduring effect of you, the evidence of the entrenched nature of your paedophilic disorder, Dr Barth's opinion as to your level of risk and his opinion as to the time needed to assist you to make any progress in addressing the attitudes and beliefs which may reduce your risk of offending, and your current age.
I have already referred to the 12 month sex-offender treatment program, the CUBIT program you undertook in custody in 2011. Nine years later, after much of that time in custody and, at nearly 80, Dr Barth still assess your insight as limited, your risk of reoffending as moderate to high, and your need for engagement in treatment as extending over years.
It is better, in my view, to consider how best to ensure the sentence protects the community whilst keeping the period of time that you must serve in custody at the minimum necessary to properly address the needs of denunciation, punishment and deterrence. I say that, having regard to your pitiable circumstances as I have outlined them. Your prospects for rehabilitation cannot be described as anything other than bleak. But, as discussed with counsel, protection of the community does not necessarily require a longer sentence or a more limited gap between the head sentence and the non-parole period, nor does it require cold storage.
Your age, your childhood deprivation, its likely lasting effects, including your absence of any familial or social connection, call for compassion to weigh in the sentencing mix.
I propose to allow for a considerable gap between the head sentence and the non-parole period to allow for a safe and supervised release into the community. In my view, that properly meets the needs and protection of the community and the other sentencing needs. I urge those responsible for your custody and the parole authorities to take into account or to consider carefully what I have said, and to give you the opportunity of being able to see out the balance of your sentence under supervision on parole in the community.
On the four charges, Iain McQueeney, to which you pleaded guilty, you are convicted. On each of Charges 1, 2, and 3, you are sentenced to be imprisoned for a period of seven years.
On Charge 4, the single instance, you are sentenced to be imprisoned for a period of five years.
I make the sentence on Charge 1 the base sentence. On each of Charges 2 and 3, I direct that six months of those sentences be served cumulatively upon each other and upon the partial cumulation I am about to order in respect of Charge 4 and on Charge 1. On Charge 4, I direct that nine months of that sentence be served cumulatively upon the other partial cumulation orders and Charge 1.
That makes a total effective sentence of eight years and nine months. I direct that you serve a period of five years before being eligible for parole.
I declare that you have spent 275 days in pre-sentence detention and direct that that be counted and reckoned as part of the sentence already served.
I declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that, but for your pleas of guilty, I would have sentenced you to a head sentence of 12 years and fixed the period of nine years and six months as the non-parole period.
I declare that you have been sentenced as a serious offender in respect of all charges and direct that that be noted on your record.
Pursuant to the provisions of the Sex Offender Registration Act 2004 (Vic) you are required to be registered for life, and I make that declaration accordingly.
ACCUSED: Can I talk to your Honour for a minute, please?
HER HONOUR: Do you want to speak to me?
ACCUSED: Yes, please.
HER HONOUR: Yes, Mr McQueeney.
ACCUSED: Your Honour, I would like to say one thing, if I may. I would like to say sorry to my victim and any other victim that is out there. If I did the program - through it years ago when I was offending, it probably would never ever happened. And I would like to say also, if there is anyone out there that's being abused come forward, say something. Not the days when we used to come forward and get a smack under the ears for saying something. That don't happen like that anymore. Come forward. Thank you very much.
HER HONOUR: Thank you for that, Mr McQueeney. What happened to you as a child should never have happened, should not have happened to any child, and should not have happened to you. And I hope that, in what I have said, I have tried to take that into account, and to recognise that, although you must be responsible and accountable for what you did to this boy and to the other boys, you are a victim too. That has to be taken into account. What you have said about the CUBIT program is very important and I hope that you are offered real assistance in your time in custody, so that it can help you come to terms with what happened to you and what you have done to the other boys, and so that you can have a meaningful life on parole and on release.
Thank you for the way you have participated in this hearing. You have clearly been respectful, remorseful, and accepting of your fate. Not everybody is like that and it speaks volumes for you and, again, although I did not hear you say that until I finished passing sentence, much of it was reflected in what Mr Barns had said on your behalf and what was in Dr Barth's report. I hope it is indeed, seen by you to be reflected in the way I have structured the sentenced to be imposed upon you.
ACCUSED: Thank you.
HER HONOUR: I wish you well. Thank you.
- - -

[2020] VCC 1985

4 December 2020