Director of Public Prosecutions v Thomas Daniel (a Pseudonym)

[2016] VCC 1272

IN THE COUNTY COURT OF VICTORIA  Revised

Not Restricted

Suitable for Publication

AT GEELONG CRIMINAL DIVISION

DIRECTOR OF PUBLIC PROSECUTIONS

v

THOMAS DANIEL (A PSEUDONYM)

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JUDGE:	Grant
WHERE HELD:	Geelong
DATEOF HEARING:	15 August 2016
DATEOF SENTENCE:	17 August 2016
CASE MAY BE CITEDAS:	DPP v Thomas Daniel (A Pseudonym)
MEDIUMNEUTRAL CITATION:	[2016] VCC 1272

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For theDPP	Ms A Hassan	OPP
For the Accused	Mr A. Paull	M Brugman & Associates

VICTORIAN GOVERNMENT REPORTING SERVICE

565 Lonsdale Street, Melbourne - Telephone: [phone]
182632

HIS HONOUR:

1Thomas Daniel1, you have pleaded guilty to one charge of indecent act with a child under 16 and 1 charge of incest. The maximum penalties for the offences are as follows:

·     Charge 1, indecent act with a child under 16, ten years imprisonment.

·     Charge 2, incest, 25 years imprisonment.

2Briefly, the charges on the indictment relate to offending against your daughter. She was born on 16 December 1990 and at the time of your offending was aged between nine and 14.

3Both charges are representative charges. A representative charge provides a context for the offending and enables me to understand that the offending was not an isolated event. However, the fact that the charge is representative may not be used to increase what would otherwise be a proper sentence.

4The first charge relates to your behaviour between January 1999 and December 2000. The victim had fallen asleep in the passenger seat of your car. She woke up to discover your hand on her vagina. You were trying to put your hand inside her underpants. She moved away and you took your hand away. The charge is representative of other occasions when you had the victim in your car and rubbed the victim’s right leg near her vagina.

5Charge 2 relates to your behaviour on an occasion in 2004 when you entered the victim’s bedroom at night and knelt next to the bed. You pulled the bedding back, removed the victim’s underwear and started rubbing the top of her vagina. You then licked the inside of her vagina. This continued for 20 minutes or so. The charge is representative of other occasions when you committed the offence of incest in the same way.  The victim maintains that

1  Thomas Daniel is a Pseudonym

this occurred “pretty much every second night” when she lived with you.

6In mid-2011, your daughter reported the matter to her mother (Ms Goodwin2).

Two weeks later you confessed your crimes to Ms Goodwin.  You also wrote a letter to your daughter apologising for your behaviour.

7On 22 August 2014 you made further admissions to Ms Goodwin in a pretext phone call. You acknowledged touching the victim, that it shouldn’t have happened, that you knew you did the wrong thing, that there was no justification for what you had done and that you were sorry for what you had done.

8You were interviewed by the police on 2 October 2014 and made a no comment interview.

9Mr Daniel, this is serious offending.

10The Court of Appeal has recently described the recurrent features of incest as follows:

"Extreme invasion of the victim’s person, exploitation of a vulnerable child, violation of social norms, long term and severe victim impact, serious breaches of the trust reposed in the offender by the child and by the spouse or partner and an undermining of the familial roots of society.”3

11Mr Daniel, your daughter was entitled to your love and protection. She did not receive that. You betrayed the trust placed in you as a father. You abused the trust in the most shocking way. This is not a case of one isolated incident of abuse. There were a number of occasions in 1999 and 2000 when you acted indecently towards your daughter. As I have said on one occasion you put your hand on your daughter’s vagina while trying to put your hand inside her underpants. On other occasions you rubbed her right leg near her vagina. More seriously, in 2004, you committed numerous acts of incest against your

2  Ms Goodwin is a Pseudonym

3 See - DPP v Charlie Dalgleish (A Pseudonym) [2016] VSCA 148 at p.20.

daughter by touching her vagina and putting your tongue in her vagina.

12I have read the victim impact statements from your daughter and Ms Goodwin. They indicate the profound and long term impact the offending has had on their lives.

13Your daughter explains how her whole life has been affected by what you did to her. She writes that no words can describe the suffering, pain and trauma that she has experienced at the hands of a man who was supposed to love and protect her. She is unable to work, she has trust issues with her partner, she feels weak and vulnerable and she is in receipt of ongoing psychiatric treatment.

14Ms Goodwin, your former partner, explains the distress and harm that she has suffered as a result of what you did. She says in her statement that she can never forgive herself for allowing her daughter to have contact with you. I feel obliged to comment that there is no reason why she should regard herself as responsible in any way for what you did. There are two points to make in this regard. First, the Family Court of Australia had ordered that you have regular contact with your children. Second, you presented yourself as a father who would behave appropriately towards his daughter. Your former partner had no reason to believe that you would act in the way that you did.

15Mr Daniel, with offending of this type, general deterrence, denunciation and just punishment are central sentencing considerations.

16I now move to matters relevant to your background and matters raised in mitigation.

17You are a 55-year-old man. You have no prior convictions. However, this needs to be balanced against the fact that the offending against your daughter occurred between 1999 and 2000 and again in 2004.

18You were born in a town in south-west Victoria. You did not have a happy childhood. You were one of five children. Your mother had those children before she had turned 21. Her inability to cope with the demands of motherhood resulted in your placement at an orphanage. When you were two years old you were fostered to a family who lived in a small town, about 40 miles out of a large regional centre. The family was isolated. Your foster parents were in their sixties and were emotionally distant. You felt unloved and you were bullied by your foster siblings.

19You told Dr Anthony Cidoni, a consultant psychiatrist, who assessed you on 9 May 2016 that you had suffered sexual abuse as a child. In his report Dr Cidoni said: “Mr Daniel described that on several occasions his foster father grabbed him on the penis whilst they were playing when he was aged between seven and nine. He stated that in primary school in Grade 3 a boy that was three years older unzipped his trousers and played with his penis.”

20You were not a good student at school. You told Dr Cidoni that you had trouble focussing and concentrating in class. You described behavioural problems that resulted in several suspensions. You also told Dr Cidoni that you had a long history of hyperactivity. You have been diagnosed by various mental health practitioners as suffering from Adult Attention Deficit Hyperactivity Disorder, hereinafter called ADHD.

21In a report of 30 March 2016, Dr Chia, a consultant psychiatrist, opines that you would have suffered this disorder as a child. I accept that this is most likely to be the case.

22Mr Daniel, the disadvantage you suffered in your early years is a relevant matter for me to take into account when determining sentence.

23After leaving school you worked variously as a labourer in a tyre factory, as a painter and a farmer before working for many years as a truck driver.  I accept

that you have a good work history.

24You met Ms Goodwin when you were a young man; she was 17 years old.

You were in a relationship for 15 years. You had five children. The relationship broke down and you separated in 1997. In 1999 orders were made in the Family Court of Australia allowing you regular access to the children.

25Dr Cunningham, forensic psychologist, diagnosed you as suffering from autism spectrum disorder. His report does not make it clear in any detailed way how he came to that conclusion. Indeed, Dr Cidoni states in his report that he could not find evidence to support such a diagnosis. Dr Cidoni’s opinion, which I accept, is that you suffer from ADHD, an adjustment disorder and methamphetamine use disorder. Given this diagnosis, your counsel did not seek to rely on the Verdins' principles.

26You have pleaded guilty to the offences. It was not an early plea of guilty but the delay in the plea is explained by the exploration of the issue of fitness to plead. You told Dr Cunningham that you were not guilty by virtue of your ADHD.

27The hearing was adjourned for the issue of your fitness to be investigated.

You were assessed by Dr Cidoni as being fit to plead and as a result the matter has proceeded as a plea of guilty. I was told by your counsel that it was never your intention to dispute the victim’s account or require her to give evidence.

28I accept that your plea of guilty is an acceptance of responsibility for your offending. Importantly, your plea has saved the victim and her mother, from the trauma of giving evidence and has also saved the community the cost and expense associated with a criminal trial. You will be given appropriate credit for all these matters.

29The acknowledgment of your wrongdoing in 2011 and 2014 together with your plea of guilty are consistent with remorse. On the other hand, your comment to Dr Cidoni that your daughter “Had wanted the contact” shows limited insight into the seriousness of your wrongdoing and its impact on your daughter. Dr Cunningham says in his report that you did not have a significant appreciation of the consequences of your offending on your daughter.

30Even though you have no prior convictions, I am guarded about your prospects of rehabilitation. You offended over two different periods and Dr Cunningham has assessed you as a moderate risk of re-offending. You would clearly benefit from participating in a sex offender treatment program.

31Mr Daniel, will you stand please. Mr Daniel, you will be convicted on both charges and sentenced as follows.

32Charge 1, one year imprisonment.

33Charge 2, five and a half years imprisonment.

34I order that six months of the sentence on Charge 1 be served cumulatively upon the sentence imposed on Charge 2. This makes a total effective sentence of six years imprisonment. I fix a minimum term of four years before you will be eligible for release on parole.

35Pursuant to s.6AAA of the Sentencing Act 1991, I declare that I would have sentenced you after trial to a total effective sentence of eight and a half years with a minimum term of six and a half years.

36I declare that you have served two days pre-sentence detention.

37Your offending attracts the provisions of the Sex Offenders Registration Act 2004, and you will be required to comply with the reporting obligations of that Act for the remainder of your life. My Associate will shortly provide you with a document which details your obligations.

38I also order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to co-operate in the taking of the sample, the police may take a blood sample and may use reasonable force to obtain it. I make the order for the following reasons, the seriousness of the offending, the order is in the public interest and the order is consented to.

39Yes, thank you, you can be seated there.

40(Orders signed and acknowledged.)

41You can remove the prisoner, thank you.

42(Prisoner removed.)

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