Director of Public Prosecutions v Niall (a pseudonym)

[2018] VCC 767

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BRODIE NIALL (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	28 May 2018
CASE MAY BE CITED AS:	DPP v Niall (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 767

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	Ms J Warren	Office of Public Prosecutions
For the Accused	Ms Dempsey	Victoria Legal Aid

HIS HONOUR:

1Brodie Niall[1], you have pleaded guilty to three charges of indecent act with a child under 16 and two charges of lineal incest.  Those crimes carry maximum penalties of ten years and 25 years respectively.

[1] Name is a pseudonym.

2You are now 80 years of age.  Importantly, you have no prior convictions, and as I understand it, nothing pending.  You pleaded guilty at an early time to a settled indictment, and you must, of course, get the utilitarian benefit of that plea of guilty.  Trials in this sort of area are very emotionally upsetting and difficult for complainants, and you have at least relieved your victim of that.

3I accept, in the circumstances, there is a degree of remorse, although when interviewed by police you denied any involvement at all.

4Because of the sentences that I will be imposing on Charges 3 to 5, you will be sentenced as a serious sex offender.  I am aware that community protection becomes a principal sentencing purpose, and that sentences are to be cumulative unless otherwise ordered, and I will be ordering otherwise, and the Crown does not seek a disproportionate sentence.

5Because of the nature of the offending, you will be placed on the sex offenders' register and I advise you the reporting period will be for life.

6Ms Dempsey, if you could accompany my associate to the dock, please?  Yes, thank you, Ms Dempsey.

7I also, pursuant to s.464ZF of the Crimes Act, make an order that you provide a saliva sample for DNA purposes. That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you. And that order is made and handed down.

8A summary of the offending is that at the time of it, you were aged between 69 and 71 years.  At this time, you are 80 years old.  The victim was your grand-daughter.  At this time, she is 17 years old.  At the time of the offending, she was aged between 6 and 8 years.

9You were her paternal grandfather, or "Pop", as she called you.  She was living with you and your wife - that is, her grandmother, "Nan" - at Cross Street in Newborough.  Her mother and older brother also lived there. The Victim’s brother started living with his grandparents in April 2006, while the victim and her mother moved in there in around December 2006.  They all moved out in March or July of 2008, and then the victim and her brother moved back in again.  That is of some significance, because the offending goes over the period of time where they were not living there.

10The offending occurred between January 2007 and the end of March 2009.  She recalls the first time you offended against her was in early 2007, when she had just started Grade 3.  She was in her bedroom when you came in and asked her to help with making ammunition in the garage.  She went with you to the garage, and sat beside you at the table.  You put your left hand above her right knee and started to rub her leg.  You then moved your hand up her leg and rubbed her vagina in an up-and-down motion with your thumb for a short period of time.

11That is Charge 1 of indecent act with a child under 16.  It is a representative charge; that is, the first occasion of the charge, and I understand that there are three, which is not a great deal of charges to represent in this sort of scenario.

12You did not say anything during that offending, and she did not react.  As is so often the case, she did not know what to do.

13The next incident she recalls was the Saturday after breakfast.  She had helped you in the garage.  You picked her up later at a table, face-up.  You took a grey blanket and some chocolates out of a box.  You gave her some of the chocolates with the blanket over her face.  You then removed her shorts and underwear, rubbing her inner thighs and vagina with your finger.  Her legs were bent up, with her feet flat on the table.  You moved her legs further apart, and rubbed her vagina in a circular motion.  That continued for about ten minutes.

14That is Charge 2, which is also a representative charge and is the example of it that you are to be sentenced for.  When you finished, you removed the blanket, put her underwear and shorts back on and walked her out of the garage.

15The shed at the back of the property had been converted into a gym, with various pieces of exercise equipment in it.  She recalls an occasion with you in the shed.  You seated her at one of the exercise machines to do her leg curls.  You put your hand on her leg, rubbed her lower leg and groin over her clothing.  After a short period of time, you laid her on her back, removed her pants and underwear, and continued to rub her vagina with your hands once her clothing had been removed.  That is part of Charge 2.

16I will also indicate there are uncharged acts here which simply put it into context, and you are not to be sentenced for those.

17In any event, on another weekend, she was helping you in your vegetable garden.  You went into the shed to get some tools.  You told her to sit down for a second.  She sat on a bench you used for bench presses.  You laid her down on her back, and knelt at her legs.  You removed her pants and underwear and spread her legs.  You put then you put your tongue on her vagina and licked up and down in a circular motion, varying the speed.  As the licking slowed down, she felt pain as you penetrated her vagina with your tongue.  That is Charge 3 of incest.  She flinched, and you stopped.

18The next occasion she recalls was a weekend, again, helping you with ammunition in the garage, again, the chocolate and the grey blanket, laid on her back, removed her pants and underwear, and rubbed her vagina with your fingers - part of Charge 2.

19After a period of time, you removed the blanket and gave her more chocolate.  You then undid the button and the zip of your pants, pulled your erect penis out of your pants before covering her head again with the blanket.  You rubbed your penis in a circular motion on her vagina for about five to ten minutes.  That gives rise to Charge 4, an indecent act with a child under the age of 16.

20Whilst that happened in the same occasion, they are of a very different nature in my view, and accordingly, whilst there will be considerable concurrency, they are not to be totally concurrent.

21While her head was still covered with the blanket, you did up your pants and belt and replaced her underwear and shorts.  You removed the blanket, and then you left the garage.

22One night, when her mother and your wife were out and the two children were at home with you, she had gone to bed.  It was cold, so she went in the living room and asked you for a blanket.  You took a pink blanket.  She got into her bed.  You covered her with the blanket.  You then sat down beside her and pulled the blanket off her legs, and rubbed her upper thigh and her vagina on the outside of her pajamas and underwear.  Again, that is another uncharged act.

23After a short period of time, you continued.  When she did, you removed her shorts, pants and underwear.  You continued to rub her vagina with your hand.  After approximately two minutes, you removed your own clothing so you were naked from the waist down.  You sat back down and continued to rub her vagina.  After a few minutes, you lay directly on top of her so you were face to face.  You held your upper body above her, and rubbed your penis back and forth on her vagina, which is an uncharged act.

24In any event, you reached down and held your penis with one hand and she felt pressure on her vagina as you rubbed your penis against the external genitalia of the vagina - that is, vulva.  You continued to do this for some time before you stopped, touched your penis with your hand, and rubbed your penis against her external genitalia for another approximately ten minutes.  You then got off her and got dressed.

25It is accepted that that is put on the basis of a penetration, albeit not a deep penetration but nevertheless, a penetration of some duration in time, and therefore gives rise to a charge of incest.

26The next occasion she recalls is a weekend in your bedroom.  You told her to get on the bed.  She did, sitting with her legs extended down the bed.  You sat beside her and rubbed her upper thigh and vagina with your right hand on the outside of her clothing, and that is again part of Charge 1.

27In December 2008, as I have indicated, she and her brother moved to Queensland.  In March 2009, when she was eight years' old, her family came to Victoria for a family wedding and stayed with you and your wife for two weeks.  On the last day of that stay, she was in the shed with you.  She recalls you kneeling in front of her, rubbing her vagina on the outside of her clothing while she was lying on her back on an exercise bench.  That again relates back to Charge 1 but is, again, an incident which occurs after there had been a significant gap.

28She ultimately complained and told her mother in 2009, but not as to the full extent.  In 2015, she told her boyfriend and after that, the matters came to light.  You were finally interviewed by police in June 2017, and whilst there were admissions of a sort, the offending itself was denied.

29As I said, you have ultimately changed your approach and pleaded guilty to this, and you must get a significant benefit for doing that.

30The victim impact statements before me, which were read out by the learned prosecutor - those victim impact statements eloquently describe the dreadful consequences that betrayal of trust at this level within a family causes.  Those victim impact statements talk about the guilt of the mother and the feelings of self-blame and worthlessness, and all on the ongoing and often forever ongoing psychological damage that has been caused.  Your daughter says:

"Due to his actions, both her (your grand-daughter) and I have fought aloud and suffered in silence as she did not trust me for a long time because she thought I knew and let it happen.  Although I did not know, I will never get over the feelings I have of failing to protect my daughter for as long as I live.  I will never forget or forgive his actions towards her, for preying on her innocence, for taking her trust, for his betrayal of us both and for the wedge he placed between me and her.

"He was my Dad and I loved and trusted him more than anyone in the world.  Now I do not.  I am depressed and crying nearly every day over his actions, his deceit, the hurt he has caused to everyone, and having lost my good Dad.  Witnessing other people's 'loving fathers' and grandfathers when I am watching a TV show, seeing an advertisement or while out is now very distressing, and constantly reminds that he should've cared for and protected us.  He did not."

31Your grand-daughter says:

"I was alone.  For years, I was alone and not close to anyone.  I fought with everyone.  Not just Mum, but other family and friends."

32She then goes on to say:

"I was hurting and struggling to cope with the emotions that I have that were connected with the crime.  It affected my thoughts.  I couldn't sleep.  My school grades and attendance went down.  It affected my attitude and behaviour.  I was suspended a lot from school and I was getting in trouble at home as well.  It still negatively affects my whole life.

For years, I've missed out on having a good relationship with my Mum, Nan, other family and friends, because of him.  I now have anxiety because I mistrust people and can never truly relax around anyone.  I still have trouble sleeping, and the stress I have over the whole situation has at times made it hard to focus on my life.  I get depressed and feel sorry for myself.  Never understanding why this happened to me makes me feel unworthy.

Because of the crime, ever since, I have suffered emotional distress.  I will always feel betrayed by him and hurt by what he did.  I still feel angry that I was so young and that this crime has taken away a large part of my childhood.  I'll never understand why he did what he did, and will never forgive him for changing my life before I even got a chance to live."

33These were not one-off incidents.  This was a pattern of conduct - albeit, I have seen worse - over an extended period of time on a very small little girl.  It is inexcusable and is described, quite properly, in those statements as a total betrayal.  It is clearly serious.

34Of course, there is application of general deterrence.  I think in your situation, specific deterrence would be pretty pointless.  It calls for denunciation and also calls for just punishment.

35A custodial sentence of significant proportions is inevitable.  I am well aware of all the authorities in relation to sentencing for crimes of this nature.  So I therefore look at matters personal to you.  Your counsel provided a very succinct, if I may say so, set of submissions.

36You are 80 years of age.  You have no prior convictions.  You have nothing pending.  You have basically worked all your life.  You have, as I understand it, three children who are now all in their 40s.  They have been brought up.  You married in 1961 and your wife has stuck by you for a long period of time - nearly 60 years.

37Your family originally was near Tanjil Bren near Mount Baw Baw, where you went to primary school.  You went to Warragul Tech.  Your father ran an engineering workshop.  You qualified as a boiler maker and maintained steady employment until you retired in 2003.  You worked at the SCC, Loy Yang, and other places.  Between 1956 and 1958, you did your national service, receiving two defence medals.

38You have certainly been involved in volunteer work and in community work - with the church, with the op shop.  You are a member of the a Greyhound Club, where you acted as the finish line photographer and later as secretary and treasurer.  You took up flying in 1964, but were not able to afford it.  In 1980, you joined a Target Club.  Your volunteered your time and services and have been made a life member in 1996.

39As a result of the intervention order, which has obviously flowed from this, you surrendered your firearms and you had to give the club away.  It has been indicated to me you contributed to the local community through voluntary work with the Christian church, and with the op shop.  I understand that you would drive people around, and you would distribute groceries and fruit and the like to the community.

40Clearly, other than for this offending, and serious offending it is, you have endeavoured to lead a hard-working and community-minded life.  All those matters can be called into account at this stage.

41It is a sad state of affairs that this offending occurred.  This is not historical offending that may be 30 or 40 years ago that we sometimes have to deal with.  Just a sad state of affairs that has occurred in all these circumstances.  However, when I look at it, it is absent many of the common aggravating features - the threats, use of objects, language, depraved activity, and the like.

42You did plead guilty at an early opportunity and must get the benefit of that.  I am fully aware of the principles in relation to totality and rehabilitation.  At the age of 80, I have to impose a sentence which may include the realistic possibility of you dying in custody.  I take that matter into account.

43But the prospects of your rehabilitation are good.  You have got a good work record, and you have got good security for when you are released.  You still have at least partial family support.  As I said, the risk of you reoffending is, in my view, very limited if not non-existent.

44In so far as your age is concerned, I obviously take that very much into account.  I have before a full summary of your medical conditions and there is nothing in that which gives rise to any of the principles in Verdins, and there is nothing in that which could not be treated within the prison system.

45What it comes to when someone is being sentenced for offending in this way, it is a total betrayal of trust of your grand-daughter, her mother, your wife and the whole family.  In words that were used by Mr Justice Hedigan in the case of The Queen v MJ, adopted in an earlier statement of Justice Marks in R v Sposito, it is said:

"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care, is degenerate."

46Mr Justice Hedigan went on:

"The offence of incest is particularly erosive of human relations, and casts doubt on the assumption that parents" - or, I interpolate in this case, grandparents - "are natural trustees of the welfare of the children.  It ought to be unnecessary to recount the morbid features of incest, the most prominent of which include the exploitation by the stronger will of the adult, the weaker will of the child, the physical and psychological subordination of the child to the perverted indulgences of the adult, the gross breach of trust placed in the offender by the victim and the community, and the irreparable fundamental damage to the victim."

47All those matters apply to you in this situation, Mr Niall, and the sentence must reflect that, despite your age and despite the difficulties under which you will have to undergo that sentence.

48As I have indicated, I will be ordering only partial cumulation.  Totality demands that that is the only course I can take.  I have endeavoured to take into account age and the mitigatory factors in the individual sentences that have been imposed, and also in so far as cumulation, and the minimum term, are concerned.

49It is never an easy sentencing process sentencing somebody of your age who has no prior convictions and nothing pending, but the consequences of incest are just so serious that nothing other than a significant custodial sentence can suit the purposes, particularly of general deterrence.

50Accordingly, Charge 1, which is representative, six months.

51Charge 2, which is representative, nine months.

52Charge 3, four years.

53Charge 4, 18 months.

54Charge 5, three years.

55I am not going to buy into which forms of incest are worse than others, but I simply indicate in this situation that Charge 5 I regard as less serious, if there could be such an expression, as Charge 3.

56In any event, three months of the sentence on Charge 1, three months of the sentence on Charge 2, six months of the sentence on Charge 4, and 12 months on the sentence imposed on Charge 5 are to be served cumulatively upon each other, and the sentence imposed on Charge 3.

57That gives an effective head sentence of six years.

58Because of your age, and because of the plea of guilty, in reality, I direct that you serve a minimum term of three years before becoming eligible for parole.  There is no pre-sentence detention.

59So that you understand the benefit of having pleaded guilty, and the saving your victim and her mother of the traumas of a trial, I say that but for that plea of guilty, you would have been sentenced to be imprisoned for a period of nine years with a minimum term of six.

60All right.  Now, the 464.  There are no other orders, are there?

61COUNSEL:  No, Your Honour.

62That is it?  All right, you can take him now.  Thank you, gentlemen.

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