Director of Public Prosecutions v Thurmond (a pseudonym)
[2024] VCC 470
•15 April 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LINCOLN THURMOND (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE GAYNOR |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 March 2024 |
DATE OF SENTENCE: | 15 April 2024 |
CASE MAY BE CITED AS: | DPP v Thurmond (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 470 |
REASONS FOR SENTENCE
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Subject: | CRIMINAL LAW |
Catchwords: | Indecent act with a child under 16 – incest – complainant biological daughter – historical child sex offending – Offender suffers from avoidant personality pattern with compulsive and masochistic traits – early guilty plea – sincere remorse – excellent prospect of rehabilitation. |
Legislation Cited: | Sex Offenders Registration Act 2004; Sentencing Act 1991 |
Cases Cited: | Phillips v R [2012] VSCA 140 |
Sentence: | TES 3 years, 2 years of sentence suspended for 3 years – sex Offender registration for life. |
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr N. Donaghy | Office of Public Prosecutions |
For the Offender | Ms A. Roodenburg | Dribbin & Brown Criminal Lawyers |
HER HONOUR:
1Lincoln Thurmond[1], you have pleaded guilty before me to two charges of committing an indecent act with a child under 16 and one charge of incest.
[1] A pseudonym.
2The facts underlying are as follows:
3The offending occurred between 1992 and 2001 when the complainant, who is your daughter, was aged between four and 14 years and you were aged between 32 and 42 years.
4She lived with you, her mother and two siblings until 1995 when you and your then wife separated. After that she went on regular access visits with you on Wednesday nights and every second weekend from Friday night until Monday morning. She ceased contact with you when she disclosed the offending to her mother in 2012.
5Charge 1, indecent act with a child under 16, is a rolled-up charge comprising two separate incidents. They relate to a time when the complainant was living with you between 1 January 1992 and December 1995.
6The first incident occurred when the complainant was in her bedroom lying on a bed with you lying next to her and tickling her both under and over her pyjamas, which you often did. On this occasion the complainant was not wearing any underwear and you tickled her stomach and legs with your hand, running your hand over her vagina, your fingers having direct contact with her vagina. The complainant reacted by closing her legs but you tapped on the inner thigh a couple of times so she spread her legs open and you tickled her inner thighs and ran your hand across her vagina, doing this several times and running your hand from one thigh to the other, touching her vagina as it passed. You then got up and left the room.
7The second incident was recalled by the complainant as occurring possibly a week later or even the next night when again she was in her bedroom lying on her bed and you again were lying next to her on your right side under the doona. You began to stroke and tickle her stomach and legs which were spread apart. You moved your hand to her thighs and started tickling her inner thighs with your fingers, running them from one side of her inner upper thigh to the other and brushing her vagina with your fingers directly on her skin. Again the complainant closed her legs and you whispered, 'It's okay', and she separated them again and you moved your hand across her vagina so it touched the vagina but your hand did not stay there but continued to pass across. You again stopped without saying anything and left the room.
8Charge 2, an indecent act with a child under 16, occurred between 16 October 1998 and 16 August 1999 when the complainant was aged between 10 and 11 years of age and was on an access visit to you at your home in Lilydale, where you lived alone.
9She woke one morning and went to your bedroom. You were wearing just underwear and got under the doona and began spooning or lying next to you in the same position you were. Her back was touching your chest and you had one arm under her neck and the other over her waist. The complainant had begun to develop breasts and you used both hands to stroke and massage her breasts directly on her skin. You did not remove your hand from her breasts until both you and the complainant got out of bed. The incident went on for no longer than 10 minutes.
10Charge 3, incest, occurred between 16 October 1998 and 31 December 2001 when the complainant was aged between 10 and 14 years and was again staying with you in Lilydale. You had given her a stubby of VB beer to drink and the two of you were lying on the floor in the loungeroom listening to music. The complainant was talking to you about being anxious about kissing a boy and asked to kiss you, to which you said no. She asked you again, you leaned over and began to kiss her and your tongue went inside her mouth. The kiss was not a prolonged one, however, it was under one minute. This is an uncharged act and is led by way of background and context.
11That same night you and the complainant were again lying on the floor in the loungeroom when she initiated conversation about oral sex. She was not wearing any clothing from her waist down, was lying on her back with your body in between her legs, your head level with her pubic area and she could feel you breathing on her vagina. You then put your tongue on her vulva and moved it up and down her vulva while your mouth cupped her vagina. You licked her clitoris in the process.
12The following day you approached the complainant and commented that you thought it went too far and no further sexual activity ever happen again.
13The complainant first disclosed the offending to her sister before the last incident in 2001, then told her psychologist in 2012, and then her mother and other members of the family soon after. She reported the matter to police on 29 June 2022.
14This lapse of time is extremely common in historical child sex offending, it being well understood that it can take the victims of child sexual abuse a long time to report the matter formally to police.
15Police attended at your home on 7 October 2020 and you were arrested and taken to the Lilydale police station where you made a 'no comment' record of interview. You were charged on 8 June 2023 on summons.
16The maximum penalty for committing an indecent act with a child under 16 is 10 years' imprisonment. The maximum penalty for incest by a parent is 25 years' imprisonment. It is a Class 1 offence and you will be placed on the sex offence register for life.
17This matter proceeded by way of a filing hearing on 30 June 2023, an offer from the defence in August of that year, a committal mention and an acceptance of the defence offer on 11 September 2023.
18The matter proceeded by way of a committal mention and straight hand-up brief and a plea of guilty was entered by you at that stage. It is accepted that this was a plea made at the earliest opportunity.
19I now turn to your personal circumstances.
20You are now 64 and were born in England, your family moving to Australia in 1996 when you were seven. This appears to have been prompted by your older brother's trouble with the law. He is more than 20 years older than you. You have little to do with him and it appears he was placed in a boys' home at one stage due to offending. You have very little by way of relationship with him.
21You described to psychologist, Courtney Steffens, whose report was tendered on the plea, a stable childhood but also described a very strict regime of punishment from your father who appears to have been motivated by the trouble that your older brother got into. You were regularly chastised and often physically beaten. You had a close relationship with your mother. You described your father as working a great deal as an engineer, stating 'He was just there for punishment.' The relationship improved as you grew older and the two of you could talk about engineering. You said you had no grudges.
22Both of your parents are now deceased, and you are estranged from your sisters as a result of the current legal proceedings.
23When you came to Australia and attended primary school you had a difficult time. You were bullied because of your English accent. You were diagnosed with attention deficit hyperactivity disorder and briefly took medication but struggled at school. You preferred to focus on special interests when you got home from school, such as fixing up motorbikes and fishing.
24You have always had difficulty making friends. You had one long-term friendship from Year 4 until the current legal proceedings. You told Ms Steffens it was difficult for you to make friends over the course of your childhood.
25You then went to technical school, training to be a maintenance engineer. You had been bullied at school and were also bullied at technical school but found more people with whom you could form friendships due to similar interests, but those friendships did not last.
26You left school to undertake and apprenticeship at a paper mill in 1976, describing work as your joy, and you went on to compile a very creditable work history where you stayed in jobs long-term.
27In 1992 you lost employment due to redundancy, quickly found a new job but it involved a rotating day/night shiftwork roster.
28You told the psychologist that while you socialised with others at work you found it difficult to talk about topics outside of common interests and those friendships rarely translated to contact outside the work environment. You are now retired.
29You reported what was described in the report as an unremarkable psychosexual history. Your first sexual experience occurred in an age-appropriate way when you were 16. You reported nil atypical adult sexuality or sexual interests. You reported what was described as 'conventional sexual interests and limited interests in pornography.' You said you had very few girlfriends, reporting three long-term relationships, they being a girlfriend before you were married, your first wife, and your current wife.
30You met your first wife when you were 21, describing a strong intellectual and romantic connection and three children were born of that relationship. You were 24 when the complainant was born. You describe this as a challenging time as you and your wife had just purchased a new home and your wife moved back in with her parents for assistance in taking care of the baby, which limited your contact between your daughter.
31There is a five-year gap between your two daughters. You reported enjoying being a parent and spoke in a very positive way about the qualities of your children.
32Your marriage ended in the mid-1990s after 14 years. You and your ex-wife had a close friendship until your daughter revealed the offending against her.
33You met your current wife in 2000 and married her 10 years ago. You reported her as being a significant protective factor and she continues to support you through these charges and the hearings related to them.
34It was clear from your history that you have never engaged with counselling/mental health services and you have no prior mental health diagnosis.
35Ms Steffens noted that you had reported periods throughout your life that she described as:
'Likely consistent with major depressive episodes at times when he was experiencing stress such as the separation from his first wife. He described low energy and energy-negative ruminations including suicide ideation, difficulties rising from bed, significant increase in alcohol use.'
36You also reported increased reckless behaviour such as driving recklessly which Ms Steffens said:
'Can be a sign of passive suicide ideation or para-suicidal ideation. He said this had happened several times during his life.'
37You reported a significant deterioration in your mental health since the start of the current legal proceedings, reporting high levels of anxiety, and testing by Ms Steffens revealed that you have developed symptoms of post-traumatic stress disorder. You described being terrified about coping with a custodial sentence and how you would be treated by other people and in gaol.
38Ms Steffens noted – and I am noting this and I am making a complete point of this because the complainant is in court, so the fact that I am referring to these factors is not by way of excuse but by way of explanation of your offending. Ms Steffens noted that between 1992 and 2001 you were experiencing a number of significant stressors and had developed an alcohol addiction at the same time. She described this as you losing your long-time job, noting:
'He reported that he was not aware of feeling stressed about this at the time as he resumed a new job the following week. Nevertheless, he was able to acknowledge that this was a significant change for him, particularly given that he is someone who takes his job seriously and invests much time and effort into it.'
39Your job contributed to causing stress in your marriage as you finished work at unpredictable times, saying that you would go to work and not know when you were getting home.
40Ms Steffens noted:
'He had difficulty reflecting on what this was like for his wife, who was looking after their young family, except in a general way, and despite expressing concern and ongoing warm regard for her.'
41You became aware during the early 1990s that your marriage was at risk, that your wife seemed to prefer the company of others. Ms Steffens noted that your account of the reasons for separation were relative vague, just that you knew it was coming.
42Following the separation you experienced a time of loneliness, increase in alcohol consumption and what Ms Steffens described as 'periods of rumination and negative thoughts about his marriage which would sometimes result in difficulty getting out of bed.'
43She stated that although you did not seek treatment at the time, those symptoms would likely have met the criteria for major depressive episodes. You reported significant isolation other than contact with your children when they would come to stay with you.
44Ms Steffens wrote:
'Mr [Thurmond] was unable to articulate why the particular sexual behaviour had occurred with the victim. He described that he felt a strong connection to the children, describing the victim as absolutely awesome and citing activities they would do together from a young age.'
45In relation to the offending behaviour you said you had no idea why you committed it, you wished you did, that you 'fucked up.' 'I did it, I made a mistake. I've been waiting for this, I've been scared.'
46Importantly, Ms Steffens noted that you had expressed a wish to understand why you had sexually abused your daughter and she noted what she described as your 'extreme shame and regret that he wished he had not.'
47You have paid dearly for this, I am satisfied, Mr Thurmond, your children remain estranged from you and you lost the ongoing friendship that you had been able to maintain with your first wife.
48Again, importantly, Ms Steffens noted: 'Mr [Thurmond] did not attempt to minimise his responsibility.'
49Ms Steffens conducted a number of tests upon you and drew the conclusion that you suffer from an avoidant personality pattern with compulsive and masochistic traits. She also found – although she did note this would require more testing – that you are possibly on the autism spectrum and she confirmed that you continue to suffer from ADHD.
50These findings are important, in my view, as they go some way to explaining why you behaved as you did. She noted that people with an avoidant personality pattern maintain distance, are on guard, which is an adaptive strategy to manage fear and mistrust of others. She wrote:
'They maintain constant vigilance to prevent their longing for affection resulting in risk of rejection from others. People with this pattern yearn for acceptance from others but are unwilling to take the risks associated with social connections unless certain to be liked, lest they be paralysed with shame or humiliation.'
51She noted that:
'They regard themselves as socially inept, inadequate or inferior. They tend to view themselves as alienated and isolated from others and personally unappealing.'
52Importantly she wrote:
'Due to the tendency to trust cautiously and parallel yearning for connection and approval, the avoidant personality pattern is associated with a vulnerability to decompensate in response to isolation or rejection from those whose trust has been bestowed.'
53Ms Steffens noted that:
'Essentially someone with those personality patterns have fewer resources to cope when experiencing interpersonal stressors.'
54The compulsive and masochistic traits play, according to Ms Steffens, in this way:
'That people with compulsive personality traits often have a history, either of true coercion or circumstance, of being required to meet the demands and judgments imposed by others.'
55And she quotes as an example of this as strict parenting by your father.
56She said that:
'The compulsive personality has a quality of rigid inflexibility to their thoughts and feelings being excessively disciplined and demonstrating a strong drive to keep their emotions in check, often relying on work commitments, responsibilities and schedules to achieve this.'
57She wrote:
'They are easily dysregulated by unfamiliar events or customs and have a discomfort of experiences where they are no longer able to control their emotions. People with masochistic personality traits can be preoccupied with shame and humiliation and come to expect this in social interactions which reinforces avoidant coping.'
58As I have said, Ms Steffens' view was that through the time of this offending you were drinking to an extent that you came within the clinical range for diagnosis of an alcohol use disorder.
59Overall, and I know I have gone into a great deal of detail here, but it seems to me that your personality makeup has had much to do with the offending on your daughter.
60Under the heading 'Psychological Opinion' it was Ms Steffens' view that the combination of the conditions I have described led to a situation of stress decompensation so that at the time of the offending you were in a situation where you had:
'Significant difficulties understanding his stress and emotional experience at the time of the offending, as well as his lapse in judgment during the period of the offending contributing to his increased alcohol use and offending behaviour, despite lacking any other history of offending.'
61I neglected to mention at the start of the plea that you have no prior convictions.
62Ms Steffens went on:
'While these conditions do not directly cause offending and not everyone with these conditions offend, the presence of these conditions is instrumental in understanding Mr [Thurmond’s] vulnerability at the time of the offending in view of the significant personal stressors he was facing and the unique impact this would have had on him due to his pre-existing mental health vulnerabilities. In particular, personality disorders significantly impact what triggers a person's emotional distress and how they react when distressed.'
63She noted the play-in of autism which can result in a lack of understanding for, and empathy for, another person's situation and the interplay also of ADHD which involves emotional deregulation.
64Essentially, it was her view that it was these personality factors, combined with the separation, your subsequent loneliness and the development of an alcohol addiction that led to you behaving in the way that you did.
65Again, I stress, this is not put forward as a way of an excuse but by way of an explanation as to how this occurred.
66Ms Steffens also noted that:
'Other characteristics of impulsivity, emotion impulse and mood instability and low self-control are core symptoms of ADHD which can predispose people who suffer from it to criminal offending.'
67It was her assessment that your risk of re-offending was low, you had not offended before, you have not offended since. It would appear that, although you did not express it well, you did, of your own volition cease this offending, little comfort though that may have been to your daughter.
68I have gone into your psychological make-up at more than usual detail. Partly this is because often the courts do not have this opportunity. Unfortunately, all too often persons who offend against children sexually deny it until they are almost dragged to a plea hearing after having been found guilty by a jury of the offending.
69I am satisfied, as I have said, that this was a plea entered at the earliest opportunity, you have not sought to resist the allegations. I regard this as not only being an indication of remorse but I accept that Ms Steffens' observation that you are deeply ashamed, humiliated and remorseful for your actions on your daughter.
70I should refer at this point to the victim impact statement which was read out by the complainant at the hearing, it was an extremely moving and a very well written document.
71She described the enormous fear and anxiety she felt in visiting you, given that she did not know what would happen. The resultant emotional distress has continued to bedevil her for the whole of her life, it affected her capacity at school. She has been regularly re-traumatised both in having to recount what occurred when seeking psychological attention in revealing what happened to her family, in coping with the aftermath. It is a subject which has clearly dominated her thinking for many years, which is entirely familiar to these courts in situations where children are betrayed by the people who are entrusted with the greatest power to care for them, and simply do not do so.
72It is quite clear your daughter is a very intelligent woman who has struggled very hard to overcome the devastating effects of your sexual abuse upon her. And again, I repeat; what she has described, the emotional reaction, the struggles, the effect and impact on so many parts of her life, is utterly familiar to these courts when dealing with cases of this kind.
73The situation for you, Mr Thurmond, is that you ultimately present as a very isolated man with few friends, who I accept, even though it is entirely your own fault, bitterly regrets your estrangement from your children.
74Your main support is your second wife, Lisa[2], who wrote a very supportive and moving reference in support of you. She described a kind, caring partner who was sufficiently supportive of her so that she was able to undertake qualifications as a teacher, although she is now retired. And she described an undoubtedly content but very confined social life with you and her.
[2] A pseudonym.
75I note that both you and your wife have supported several schools in Bali, raising funds, ensuring computer equipment is sent over, and I have no doubt that this does typify the sort of man, generally speaking, that you are when you are not placed in a situation of stress.
76While I accept that there were a multitude of stressors and factors in operation at the time of your offending against your daughter, it nevertheless remains extremely serious offending, and it is accepted by the defence that the only way I can deal with you is by way of the imposition of a term of imprisonment.
77Your case, in my view, is somewhat unique. It is always very helpful when someone who has offended as you have is entirely upfront or honest about the offending. It means that the court is able to have recourse to an in-depth and helpful psychological evaluation of what led to the offending and what sort of person the offender is. The concern always in cases of this kind is that the offender is paedophilic. It is quite clear that Ms Steffens does not regard you in this way, and indeed, apart from the offending against your daughter, you have never offended against children in any other way.
78I am satisfied that the offending took place as a completely inappropriate response to the aftermath of the separation from you wife which enlivened all the personality and mental health difficulties that I have described, and which combined with an excessive use of alcohol over a period of years, led to, not just a lack of mis-judgment because offending against your child in this way is more than that, but led to what I am satisfied was uncharacteristic behaviour by you, albeit of a most serious kind.
79Your counsel informed me that following the last incident of offending you became extremely concerned at what you had done and took steps to attend to the alcohol disorder that had plagued you for many years, and in fact informed me that over a number of years you managed to reduce your alcohol intake. I note that since being charged with these offences it appears your consumption has increased and you are back in problematic territory again.
80I also note that ever since your daughter revealed the offending against you in 2012, you have expected to be charged. No doubt as the years went by this fear became less, nevertheless, I do accept that there has been some anxiety by you over a long period of time.
81There has been delay in this matter, as I noted in my description of the offending. Although the complaint was made in 2022 you were not charged until June 2023. By 21 September 2023 you had pleaded guilty to the charges, but the plea was then not heard until March 2024.
82Given what I accept has been an extremely traumatic response to the laying of the charges and a fear of the future, I accept that there has been some extra curial punishment caused as a result of this delay, which could not be said to have been contributed to by you in any way, in terms of the fear and anxiety you have felt in that period of years until resolution of this matter despite the best efforts on your part to ensure the matter was resolved as speedily as possible.
83I also note that somehow word has got out amongst your neighbours about this offending and you were physically attacked by a neighbour while putting out the rubbish one night.
84It is clear also that your wife is going to live a somewhat lonely life as a result of the offence that I must impose in a neighbourhood where she has lived for many years but where you and she are the subject of animosity and hostility as a result of this offending.
85The offending, of course, took place more than 20 years ago. This is not an uncommon situation for sentencing courts such as this to grapple with. Delay as a mitigating factor in cases of this kind has less weight, but it still has some weight, and the authorities make this clear, however diminished.
86I am satisfied that you present no danger to the community by way of future offending.
87I accept Ms Steffens' view that you suffer from mental health difficulties which are likely to be exacerbated by a term of imprisonment and which will make service of a term of imprisonment more difficult for you than for the normal prisoner who suffers no such conditions.
88I accept that you are extremely remorseful for your offending. I accept that offending was due to a cluster of personality difficulties for which you had never sought attention and which had a significant part to play in you departing from the otherwise pro-social life you had always lived and then went on to live.
89You are entitled to a particular discount in sentencing because of the way in which you have conducted the hearings, resulting in an early plea by you and not necessitating the giving of evidence by the complainant, the expense of a trial and a committal, and in particular, not involving the traumatic experience by the complainant of being cross-examined. You have never denied your offending and as a result the court has had access to much material explaining that offending in a way it often does not.
90In terms of the remorse that you have shown, I am having regard to the case of Phillips v R, a decision of the Victorian Court of Appeal [2012] VSCA 140, in particular a statement by His Honour Mr Justice Harper which appears at p621 of that report at paragraph 101. His Honour stated:
'If there is evidence of remorse, and if that remorse is genuine, it is a very important element in the exercise of the sentencing discretion. Remorse of this kind indicates realistic prospects of rehabilitation and a reduced need for specific deterrence.'
91I depart here to say that I do find that the issue and the principle of specific deterrence is not one which requires attention in this sentencing exercise. Returning to the remarks by His Honour:
'An offender who pleads guilty because he or she has an accurate appreciation of the wrongfulness of his or her offending and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience, is someone to whom mercy in the form of a very substantial reduction in what would otherwise be an appropriate sentence is very likely due.'
92Having regard to His Honour's comments and having regard to the factors that I have outlined it is my view that I should deal with you by way of a partially suspended sentence.
93This is not because I do not regard your offending as serious, in particular, the charge of incest is conceded by the defence to be a very serious act against a child of sexual offending. However, given what I find to be your very sincere remorse, your excellent prospects of rehabilitation, the fact that you do not present a danger to the community, your considerable co-operation, the delay in this matter, more so in terms of you being charged once the complaint was made, have led me to the view that this is a course which is warranted in your case, and I therefore sentence you as follows:
94On Charge 1, you are sentenced to nine months' imprisonment.
95On Charge 2, you are sentenced to nine months' imprisonment.
96On Charge 3, you are sentenced to two years' imprisonment.
97I order that six months of the sentence imposed on Charge 1 and on Charge 2 be served cumulatively to the sentence imposed on Charge 3, giving a total effective sentence of three years.
98I order that two years of that sentence be suspended for a period of three years.
99What that means, Mr Thurmond, is that you will serve one year imprisonment and for the following two years, should you commit any offence punishable by imprisonment, you will be brought back in front of this court, and unless there are exceptional reasons for you committing that offence you will be ordered to serve the two years that I have suspended.
100What is the PSD please?
101MR DONAGHY: Twenty-six days, Your Honour.
102HER HONOUR: I declare that 26 days of that sentence has been served by way of pre-sentence detention.
103Pursuant to s6AAA, I declare that had you not pleaded guilty I would have sentenced you to a term of imprisonment of four years and ordered that you serve a minimum term of three years.
104Is there anything else that I need to attend to?
105MR DONAGHY: Serious offender declaration.
106HER HONOUR: Yes, I declare that you are a serious sexual offender and you will be placed on the Sex Offenders Register for life.
107Is that all I need to attend to?
108MS ROODENBURG: Yes, thank you, Your Honour.
109HER HONOUR: I thank counsel for their assistance. I thank the complainant for attending once more and assisting the court with such an eloquent and helpful victim impact statement. Thank you so much. Yes, thank you, we will stand down to 10.30. Thank you very much.
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