Director of Public Prosecutions v Trundle (a pseudonym)

[2016] VCC 1705

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BROCK TRUNDLE (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Warrnambool
DATE OF HEARING:
DATE OF SENTENCE:	15 November 2016
CASE MAY BE CITED AS:	DPP v Trundle (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2016] VCC 1705

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 J.J. Lavery	Office of Public Prosecutions
For the Offender	Ms A. Hassan	VLA

HIS HONOUR: 

1Brock Trundle,[1] you have pleaded guilty to four charges of indecent act and two charges of attempted incest.  Those crimes carry maximum penalties of ten years and 20 years respectively. 

[1] A pseudonym.

2Charges 4 and 6 are representative and I am aware that simply means that that they are not to be treated in isolation.  In this particular matter, there is a great deal of material of other improper conduct for which there is no charge and I simply acknowledge that none of these matters could really be treated in isolation and your counsel did not suggest that I should do so. 

3You pleaded guilty at a reasonably early opportunity and you have ultimately at least expressed appropriate remorse.  You must get the utilitarian benefit of that plea of guilty and in your circumstances where you could have if you had chosen, run a trial, you have saved the victims a very significant amount of trauma and the system a very significant amount of cost.  There must be a demonstrable benefit for such an action on your part.  Also one of the charges is based solely upon admissions and in general terms, you made admissions to the misconduct.

4Firstly, pursuant to s.464Z of the Crimes Act, I 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, the police may use reasonable force to take it from you.  That order is made and handed down. 

5Secondly, because of the nature of the offending, you will be placed on the sex offenders register and I advise you that the reporting period will be for life and I ask you to acknowledge receipt of the documents now.  If you would not mind going down with my Associate please, Mr Lavery. 

6Next, pursuant to the Serious Sex Offender legislation, you are to be sentenced on Charges 3 to 6 inclusive as a serious sex offender.  I am aware that provides that a sentence that should be cumulative unless otherwise ordered and I do propose to so otherwise order.  That community protection is the principal sentencing concern. In your situation,  I consider that the offending was situational and opportunistic and accordingly, that does not carry as much weight as it sometimes does and the Crown do not ask that a disproportionate sentence be imposed. 

7There has been a significant delay in the laying of the charges.  You have been aware of the allegations now for some eight years and I take into account that you have spent that period of time under the apprehension that such an event as this may take place.  You have only one prior conviction of relevance and it is very difficult to work out exactly what the relevance of it all is but you do have a prior conviction for bestiality of a horse in 2005 which, as I understand it, was a situation that occurred between the cessation of the offending on your elder daughter and the commencement of your offending on your younger daughter. 

8In any event, a summary of the offending is as follows:  You are the biological father of the two victims, Rachel[2] and Laura.[3]  They were born in June 1994 and June 1996 respectively. You and their mother had been in a relationship for a number of years.  There would appear to have been one or two separations but in any event, the children ended up living from time to time with you.  I understand also that part of that time living with your mother. 

[2] A pseudonym.

[3] A pseudonym.

9Insofar as your daughter Rachel is concerned, the history of the offending is that she began living with you when she was nine years of age, turning ten in June of 2004.  Although she had her own bedroom, she would often sleep with you in the caravan outside the house.  She would usually sleep on a single bed in the caravan but sometimes would sleep in the bed with you.  Shortly after she had moved in with you, you began to touch her sexually and as I have indicated there is a significant amount of sexual misconduct here that does not carry a charge and I am well aware of the principles relating to that.  I simply find that it did occur beyond reasonable doubt. 

10On an occasion after she began living with you, she was with you in the caravan and she was in the bed.  You began to massage her back and then put your hands under her clothing and touched her breasts.  She did not have developed breasts at that stage.  On another occasion during 2004, she was sitting on your bed in the caravan.  You asked her if she knew what sexual intercourse was and she said "no".  You asked her to lie down and she did.  You took her pyjamas off and spread her legs and you then started to lick her vagina.  You did that for some period of time.  You said to her, "That's the way your mum used to like it", or something similar.  She did not understand what you were talking about and thought it was normal.  That gives rise to Charge 1 of indecent act, that is licking her vagina.

11The same night, she woke up with you on top of her.  You had removed your pants and were attempting to push your penis into her vagina.  It really hurt and she tried to move away.  She tried to roll over and you stopped.  She put her pants on and you went outside to go to the toilet.  She recalls the next morning she had blood in her underwear.  You did not say anything either after or during that act of attempted incest. 

12She could not recall if you touched her on the vagina as well however you admitted to police that you had touched her vagina and said that it happened on approximately about ten occasions.  There is one charge of that, based on your own admissions though clearly there is also admitted other misconduct in relation to it.  She said that you always did the same thing.  After about a year of it, she confronted you and asked you why you were doing it.  She told you to stop and you just simply said, "Shush, nana might hear".  It was around that time though that you did stop touching her.

13Insofar as your other daughter Laura is concerned, she would visit on the weekend and she would stay in the caravan.  She remembers that she was ten when you first touched her sexually.  That occurred on several occasions when she would be sleeping with you in the van.  On an occasion in 2006 when she was sleeping with you in your bed in the caravan, you began rubbing your leg up and down her leg and then put your hand on her shoulder and down to her chest.  You moved your hand down and rubbed her vagina over her pyjamas.  That gives rise to Charge 4 which I have indicated is a representative charge of touching her vagina on three occasions.

14You then took her pyjama pants and underwear off and started rubbing her vagina with your fingers, apparently “sort of sticking them in without penetrating.”  You did not say anything and she did not know what you were doing.  You then moved down and began licking her vagina.  You were doing that for quite a while.  She did not say anything, just remembers feeling disgusted.  That is Charge 5, a single indecent act.

15You then took your pants off and lay on top of her, put your penis between her legs and spread her legs.  You pushed your penis against her vagina.  You were moving it up and down, rubbing it against her vagina while lying on top of her.  When you got off, she recalls feeling wetness against her vagina, that is representative of Charge 6.  After that you acted as if nothing had happened.  On another occasion, she remembered you waking, crawling on top of her, she could smell alcohol on your breath, you touched her on the chest and again the vagina, Charge 4 again and you then endeavoured to put your penis into her vagina.  She could feel wetness between her legs afterwards.  You just simply rolled off and went to sleep, that again relates to Charge 6. 

16On New Year's Eve in 2007, she was sleeping on a mattress in your room in a different premises.  You were in the bed, she could feel your feet rubbing her from the bed.  You did that for a while and then came over to her bed.  She was sleeping on a mattress in your room.  You did that for a while, you came over to her bed and you started to kiss her.  You took her pyjama pants off, rubbed her chest and then rubbed her vagina, Charge 4 and then lay on top of her again, endeavouring to put your penis or rubbing your penis against her vagina, which is Charge 6.  While you were on top of her, you could hear her sisters coming.  You quickly jumped off, back into your bed and the sisters came in yelling, "Happy New Year".

17You, when interviewed, admitted that you touched her a number of times, I will come to that in a moment.  You said you would frequently touch her in that way.  Insofar as alcohol is concerned, your counsel put that it may have been of significance in this. That may be so insofar as the older of the two children is concerned and certainly insofar as the bestiality charge was concerned, it would seem to have played some sort of role.  However you have indicated you reduced your drinking dramatically after that event so insofar as your younger daughter is concerned, it does not seem to be of real significance. 

18In any event, you were confronted by all this in 2008.  Complaints were made but the two victims were not prepared to go to the police.  You were interviewed in January of 2015, after statements had been made.  You essentially admitted that you had been sexually abusing them.  You, as so often is the case with these matters, claimed that there was no penetration.  You seemed to infer on occasions that they liked it or encouraged it or whatever.  But the fact of the matter is that you have made admissions to in general terms, misconduct and clearly you must get the benefit of doing that.  You also indicated that it had occurred on a not insignificant number of occasions.  As I have indicated, you pleaded at a reasonably early date and I take all those matters into account. 

19Filed were victim impact statements from your former wife who is the mother of the children, the two children themselves and their sister, she being the younger sister.  She said, "I feel sad most of the time.  This comes from the hurt my father has caused me and my sisters.  He let us down and now I don't have a dad who can support me through life.  The sadness is triggered when I see my friends with their dads.  If they are talking about them, everything relates back to the loss of my dad".  "I feel anxious and afraid that he might find me and I don't know what he will do because he hurt my sisters".  "I don't feel good enough for anyone as I wasn't good enough for my father".  "I don't trust males". 

20The mother, in her victim impact statement, which I don't propose to quote from just simply describes adequately the dreadful consequences that this sort of offending has on a family.  The two actual victims themselves, Rachel said that she had issues of self-harming when she feels stress or anxiety.  She said it puts strain on her relationships.  She struggles, "I struggle to trust and let anyone in.  I find it hard to leave my house sometimes".  "I found my relationships also touch and go, not having a relationship lasting over a week.  I didn't have sex as it scares me and I hate any physical contact and when I do, it usually results in a panic attack", and this is a comment from me, it is so frequent in these matters.  "I end up hating myself, feeling embarrassed even though it's meant to be perfectly normal". 

21She worries about making mistakes and in other ways describes the dreadful consequences of offending such as this.  The next daughter Laura in her victim impact statement says very similar things.  "I find it hard to trust my relationship or any men in my life.  It has impacted my current relationship with my partner.  When we have sex, I need to cover my face or close my eyes.  In the past I've coped by having a lot of sex, making me feel really guilty and disgusted afterwards.  It has impacted my physical health.  Some days I binge eat, other days I can't eat because there's too much on my mind".  She said that, "Sometimes I get blurred vision from stress", "I have a constant worry that I'll be let down by someone close to me.  I'm scared that I'll get abandoned or that my family will give up on me.  This stems from the trial from my father and his side of the family, especially from my grandma.  It hurts because I lost my nan in that side of the family".  "I get scared and anxious, I feel like my self-esteem has been cut apart". 

22They are the frequent, dreadful consequences of offending such as this and it is why people are sentenced to and should be sentenced to significant periods of imprisonment for inflicting that sort of consequences on their own children.  In the frequently now quoted works of Marks J in R v Esposito;

"A society which fails to protect its children from sexual abuse by adults particularly by those entrusted with their care, is degenerate.  The offence of incest is particularly erosive of human relations and it casts doubts upon the assumption that parents are the natural trustees of the welfare of their 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 and the weaker will of the child; the physical 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".

23A gaol sentence of significant proportions is inevitable and your counsel did not demur from that proposition.  Obviously in situations such as this, it calls for the application of general deterrence, to a certain extent, specific deterrence, denunciation and appropriate punishment.  Because I would accept that this is situational, albeit over an extended period of time.  I am not so concerned about community protection; it is more of the general deterrence that plays a part.

24I then turn to matters personal to you in determining the length of that sentence.  You are the carer of your mother.  I have before me medical reports about her condition and she is certainly not a well woman.  It is not sufficient to give rise to exceptional circumstances and therefore mercy, but I do take into account that the sentence of imprisonment that you will have to undergo will be more onerous upon you because you will be concerned about the situation in which you have left your mother and will be unable to do anything about it.

25Tendered on your behalf was a report from Mr Joblin which sets out your background.  You are now of an age where childhood has got very little to do with it in the normal course of events.  He refers to you being the carer of your mother.  Your situation at school was that claimed, and I have no reason to doubt it, that you were sexually molested over a period of time.  That resulted in you having a hatred for school.  As Mr Joblin has pointed out, it does not seem to explain why this sort of offending would occur against your own daughters but it certainly indicates why you left school at a very early age, that being 14 and why you had a poor preparation for adult life.  You also appear to be intellectually below average.  There is no material before me to suggest an acquired brain injury or any of those principles but I do take those matters into account.

26That experience as a child has clearly had an effect upon you in your adult years but it certainly does not in my view give rise to, and it was not suggested that it did, any of the principles outlined in Verdins. 

27You would appear to have worked most of your life.  You were married, you have got the three children.  The mother of the victims here has been now for some time married to another man and your children as they indicated clearly in their victim impact statements have nothing to do with you.  Mr Joblin talks about the alcohol use.  You have no drug use and the alcohol abuse is as I have described it. 

28I am not going to go into detail through the record of interview.  I have pointed out the aspects of that that matter.  He goes on to say that you would appear to have significantly reduced, if not stopped drinking after the incident with the horse.  He says that you would appear to be remorseful and for these sentencing purposes I am prepared to accept that.

29In essence, he said that he did not accept that there was no sexual gratification from the offending and in my view it would be an insult to a person's intelligence to not find that there was sexual gratification involved.  At least one of the victims complains of wetness after these attempted penetrations and it was clearly done for a sexual purpose, in my view.  However, you are a man of limited intellect and limited cognitive abilities.  He again confirms what I have said about your considerable difficulties at school and consequent limited literacy skills.  He then talks about the record of interview which I do not need to go into here.  He says that you would have been fit to attend court on the day he interviewed you and he said there was no doubt that incarceration would have an adverse effect on you because of those limitations.  I do not know quite what he means by that but I am prepared to sentence on the basis that it will be harder for you in gaol than for a person who did not have those limitations.  I suspect deeply there are not many people in gaol who do not have them.  However, that is the state of the law.

30Insofar as the abuse at the hands of the teachers is concerned and apparently also you told him, some other family member when you were in primary school, Mr Joblin says that as a relevant causative issue in relation to those offences, it is a very vexed question and he then just simply goes on to confirm what I said about the development of the hatred of school and the consequent impact upon your learning.

31Since you have been charged with these matters, you have not done much apparently.  Mr Joblin says you have had little, if any, social life.  You have basically just sat watching television, looking after your mother.  It is a sad conclusion to all this, Mr Trundle, but the prospects of your rehabilitation ultimately are going to be up to you.  The risk of you reoffending in this way, where you have no contact with the children would have to be regarded as low and I do sentence on that basis.

32However, as the Court of Appeal in the case of Dalgleish pointed out recently, there must be an appropriate punishment.  Your counsel mentioned figures in relation to it and pointed out that of course I have to sentence taking into account not only current sentencing practice but sentencing practice at the time and after discussion with him, it clearly has to be less of a sentence than for actual incest and I take all that into account.

33For reasons of totality, I am not going to try and draw some artificial distinction between each of the offences other than I am going to draw a distinction between the two victims.  I am going to make the bulk of your charges concurrent, giving an appropriate sentence for each but taking in mind totality and the situation in which you find yourself. 

34Accordingly, taking all those matters into account as best I can, on Charge 1, you are sentenced to be imprisoned for a period of two years.  On Charge 2, four years.  On Charge 3, six months.  On Charge 4, 12 months.  On Charge 5, two years and on Charge 6, four years.  For reasons of ease and for reasons of totality, I direct that two years of the sentence imposed upon Charge 2 be served cumulatively upon the sentence imposed upon Charge 6, giving a total effective sentence of six years.  I direct that you serve a minimum term of four years before becoming eligible for parole.  I order that all the sentences other than the two years I have ordered to be cumulative, are to be concurrent with each other and with the sentence imposed upon Charge 6.  I say that simply for reasons of clarification.

35In this sort of situation where at least in the end you have conducted yourself in a way which has saved your family the dreadful trauma of a trial in such a matter in circumstances where you could have fought it and in my view on some of the counts, may well have had "a chance", if it can be described that way. Just so you clearly understand the benefit that you have received from your conduct in this plea of guilty, pursuant to s.6AAA of the Crimes Act, I say that but for your plea of guilty, I am of course conscious that you cannot plead not guilty to a representative count but leaving that aside, I would have given you ten with a seven.  There has to be a demonstrable benefit for such conduct. 

36Any other orders I need to make?  No, all right, you can remove the prisoner, thank you. 

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