Director of Public Prosecutions v Mildenhall

[2018] VCC 322

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-16-02289

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY MILDENHALL

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	19 March 2018
CASE MAY BE CITED AS:	DPP v Mildenhall
MEDIUM NEUTRAL CITATION:	[2018] VCC 322

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty	Office of Public Prosecutions
For the Accused	Mr R. Davis

HIS HONOUR:

1Rodney Mildenhall, on 7 March of this year you were convicted by a jury of two charges of rape and five charges of indecent act with a child under the age of 16.  Those crimes carry maximum penalties of 25 years and ten years respectively.

2At the end of the Crown case I directed that you be acquitted of one charge of rape and the alternative of sexual penetration of a child under the age of 16.  The fifth charge of indecent act, being described number 4(a), was the alternative to that sexual penetration.  That was a situation of you licking the child's vagina, but there being insufficient evidence of actual penetration for it to go to a jury on that basis.

3You are now 65 years of age.  You do not get the benefit clearly of a plea of guilty which is often a very mitigating factor in these circumstances.  On the material before me and in the way in which the trial was conducted I am prepared to find that you have no remorse at all.  You do have prior convictions of some history or some age, sorry.  There are matters of violence but there is nothing of a sexual nature.

4Firstly, pursuant to s.464ZF of the Crimes Act I make an order that you provide a saliva sample for DNA purposes. That order having been made I tell you that should you refuse to provide such a sample police may use reasonable force to take it from you.

5Secondly, I am aware that because of the sentences I am to impose from Charge 4(a) or the indecent act charge onwards you are to be sentenced as a serious sexual offender.  I am aware that community protection becomes the principal sentencing purpose and that the sentences are to be cumulative unless otherwise ordered.  For reasons of totality obviously in a situation such as this I will be ordering a significant amount of concurrency.

6The Crown do not seek a disproportionate sentence so I do not need to consider that.  Next, because of the nature of the offending you will be placed on the Sex Offender's Register and I advise you that the reporting period will be for life.  You can take that down.  If you could accompany my associate please,
Mr Davis?

7MR DAVIS:  Certainly, Your Honour.

8HIS HONOUR:  A summary of the offending taken from the Crown opening, I might say that the complainant in the matter or victim in the matter gave a VARE tape and was cross-examined and I found her evidence compelling.

9You, Mr Mildenhall, at the time of this offending in the middle of 2015 were
63 years of age.  Your victim was approximately 12 going on 13 years of age.  She was in Grade 6 in primary school.  Prior to that she resided with her father and her sister.  She had a step-mother but had little contact with her biological mother.

10In June of 2015 her father decided to relocate the family to a rental property in Morwell.  He had known you for about three years after meeting through a friend.  You offered him and his two daughters the opportunity to live with you while they waited for their rental property to become available.

11They moved into your house at the end of June or the start of July of 2015.  The victim and her sister shared a bedroom.  You and the victim's father had a bedroom each.  One day in July of 2015 you offered to babysit the complainant at your house while her father was at an appointment and I think from memory her sister might have been with friends.

12You were left alone with her on your version of events for the only occasion in the whole month that they stayed there.  In any event, her father trusted you, with a child who on the face of it would appear to have been interfered with previously.  While you were alone with her she did some household chores for you inside and outside the house.

13She made a cup of tea, she helped you with the fence and she fed the dog, whichever order that might have all been in.  When she came into the house after doing those chores she described you as "acting all weird".  You approached her while she sat on the couch with her clothes on.

14You had your pants and underwear down, spread her legs and rubbed your penis back and forth on her leg.  She tried to tell you to stop but you did this for a few minutes.  She described this as "humping me on my leg".  You then took her into your bedroom and put her on the bed.

15You played the movie Avatar on a DVD player and that was followed by a pornographic movie and I will come back to that in a moment.  You described to her what was on that movie.  You removed her clothes and licked her vagina for a few minutes.  She said no and she tried to push you away.  That gives rise to the charge of indecent act as the alternative.

16You then grabbed her on her breasts.  It should be noted at this point that even now she is a diminutive young girl and would have been very frightened and very powerless in the situation that you presented to her.  If the attitude you displayed in terms of aggression during the course of your record of interview was any indication as to how you behaved when you threatened her I have no problems with accepting that her fear would have been very genuine indeed.

17Having done that you then tried to force her to suck your penis.  She kept saying no.  You told her, "If you don't do it I'll hurt you and your family and if you tell anyone I'll hurt you and your family".  She then sucked your penis.

18As I understand her evidence you were watching the home made pornographic movie at that time and were telling her what was going on in it.  After that you then grabbed and rubbed your penis.  You spread her vagina with your fingers and forced your penis into her vagina, thrusting it backwards and forwards.

19She tried to kick and push you away.  She felt pain and an ache.  She described in graphic detail in the VARE how that all came about.  After that incident she rolled away, put on her clothes and went to the lounge room.  Her father returned home and you gave her threatening looks she said, so she did not tell her father.

20You either at that time or previously had told her that you had been to gaol and that you had killed people or someone before.  You had clearly put her in a situation where she was compelled out of fear to act to your perverted wishes.

21On the following evening, and this gives rise to Charge 10, you babysat her and her sister again.  You walked past their bedroom rubbing your penis on the outside of your pants, you stared at her lying in bed, her sister was looking the other way.

22In April of 2016 she told a lady that someone had touched her.  That lady spoke to the victim's father straight away.  On the same evening she told her father that she had been raped by you.  She had, as I understand it, made contact with various people to try and talk to them, but in any event discussion took place as to what should occur and the police were involved.

23That was on the 19th when the police became involved.  On 21 April she made a pretext recorded phone call to you.  During that call she said, "I think I'm going to tell dad.  I can't keep the secret in any more".  You said, "If you do that I'll be in big trouble.  You wanted it as much as I did".

24The sheer arrogance of that is just breathtaking, Mr Mildenhall.  She is a little girl and not only were aware of her chronological age and that she was in Grade 6 or around that age but she looks very young and she looks very defenceless.

25You were interviewed by police and as I have indicated during the course of the plea that interview was disturbing.  You denied the offending and you engaged in conversations with the police such as this at Question 34:  "Yeah, what was your relationship like with the children?"  "[The victim] used to come and jump all over me.  [The victim’s sister] used to jump all over me when we were down - when they moved into their house down at Gona Avenue, the same thing".

26"What do you mean by that?"  "Jump all over me, sit on my lap and right in front of [the father]", that is the father, "And that was as far as it went, yeah, and even when we were up at Robyn's she used to come up and jump on my lap and massage me and that, [complainant] m'mm, but at all times there was someone around".

27Later on at Question 53, "Even you used to comment and say [the victim's] getting too close to you.  I never made a big deal of it, that is I didn't want to make a big fuss over it.  Even at Sue's place she was - yeah, yeah, Sue will tell you".  "Can you describe the relationship with [the victim] to me?"  "It was more like a big brother or father and daughter thing more than anything, because like all I know is I don't - I don't know the full story.  Apparently they were with his mother, with the mother, and they were with their mother and apparently they were molested there.  Be that true, be it not, I don't know."

28If that was your state of mind it just adds to the seriousness of all this,
Mr Mildenhall.  "I can only go by what [the father] said.  He ended up with the girls.  They used to go to counselling".  So you knew that at least.  "It's so long ago and that was about it.  That's all I really know about it and [the victim] used to ask me, you know, like we were sitting there one day, and Robyn and I were sitting there and [the victim] said, 'How old are you allowed to be before sex?' and my answer to her was, 'Ask your father,' and I said, 'What you should be doing is worrying about a good education, getting a house and then worrying about boys'".

29Further on there were discussions about her having apparently supposedly asked you about the age of having sex and matters such as that and I do not really need to go through that.  What is concerning at the end of that description of conversations is that you say, "It's virtually been the same conversation with her father.  I've been down their place.  The girls have been sitting on the floor with their legs open, no knickers on and I said, '[the father], pull them up,' and I said, 'Cover yourself up, girls,' in front of [the father] and then after I've said it [the father] said, 'Yeah, cover yourself up'".

30You then concede that you had had DVDs of a similar description.  Later on at Question 87, "I've pulled [the victim] up quite a few times for getting a little bit too provocative with me and Robyn has seen it, her own father has seen it and even Sue has seen it.  I've pulled her up several times on it".

31Then in terms of your attitude to all this and concern for a child who clearly has dramatic problems, whether you were guilty or not you in conclusion effectively said to the police, "My penis did not go anywhere near her fucking vagina".

32I think that interview amply displays your lack of remorse and your total absence of empathy for that child.  It involves a massive breach of trust, massive.  She was a defenceless child, alone, threated, kept in fear, by a much older man who simply subjugated her for his own pleasures.

33If there is any doubt as to why people go to gaol for very long periods of time for this sort of offending it can be seen in the victim impact statement.  Her father is proud of his daughter for standing up to you.  She says, "Ron has affected my life.  He has affected my ability to trust people.  I have difficulty speaking to friends and family.  When he threatened my dad I mostly hid in my closet because I was scared to come out and go outside.  Every time he came to the door I ran to my room in fear.

34He has affected my emotions.  I am more agitated, I can't trust new people I meet because of his doing.  He has affected my family.  Dad lost his job because of the effects of this, me because I was getting pocket money.  No longer that happens.  He has destroyed my life, he has destroyed me.

35He ruined my ability to express my emotions normally.  I stutter and even my hands shake when I try and express them.  Ron has reactivated by PTSD.  I get nightmares and flashbacks from what has happened.  I have trouble sleeping some of the time".

36That is the almost invariable consequence of offending of this nature on young children.  The only option open here is a very significant gaol sentence.  The offending has to be regarded as serious. It calls for the application of general deterrence, in your situation at your age, it still calls for the application of specific deterrence, denunciation and appropriate punishment.

37I then turn to matters personal to yourself and at your age say your prior convictions are not of great significance in this circumstance, but you have got very little that you can call in aid.  You would appear to have had regular employment throughout your life.  Your father was a builder.  You shifted around the country a fair bit working as a builder and the like.

38You have seven children of your own and you still have contact with at least one and you are currently in a relationship I am told.  At one period of time you were living in Mirboo North for years training greyhounds and you would appear to have been in that sense had something of an itinerant lifestyle.

39It is unfortunate that it has all come to this but there is not much else that can be done about it.  I understand that you do have some support and indeed your daughter was in court.  I take into account your age.  I take into account your health.  I accept that you have a chronic heart condition but there is nothing before me to suggest that the authorities will not be able to treat that adequately and I have no concerns in that regard.

40Whether you get visitors in gaol I have got absolutely no idea.  In the end this offending can only be described as gross.  You have debauched a little girl effectively, Mr Mildenhall, and for that you will receive condign punishment.

41The prospects of your rehabilitation are up to you.  You show very little insight.  The prospects of your reoffending because of the ageing process are probably not high but I can make no further comment on it than that.

42As I have indicated to counsel I will be giving concurrency for each of the indecent act charges except what were once referred to 4(a) and that is for reasons of totality.  Even though these matters all occurred in the one incident, the two penetrations and the licking of her vagina are very distinct acts, one after the other, to which this little girl was subjected.

43I think that even though it is the once incident there still has to be a significant degree of cumulation between them, bearing in mind, as I must have as a matter of law, the s.6A of the Sentencing Act.

44Accordingly, doing the best I can in all this on Charge 1, three months and on Charge 2, three months.  On Charge 4, that is indecent act, licking of the vagina, three years and six months.  On Charge 5, six months.  On Charge 6, eight years.  On Charge 8, seven years.  On Charge 10, three months.

45I direct that 30 months of the sentence imposed on Charge 8 and 18 months of the sentence imposed on Charge 4(a) be served cumulatively upon each other and upon the sentence imposed on Charge 6.  That gives a total effective sentence of 12 years.  I direct you to serve a minimum term of nine years before becoming eligible for parole and I direct that 12 days be reckoned as having been served under this sentence.

46Are there any other orders I have to make?  Remove him please.

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