R v. McDonald, Jude Garry
[2009] VCC 1367
•27 October 2009
IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
AT MELBOURNE CRIMINAL DIVISION
Case No.
THE QUEEN V
JUDE GARRY MCDONALD (A PSEUDONYM)
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JUDGE: Lawson
WHERE HELD: Melbourne
DATE OF HEARING: 25 September 2009
DATE OF SENTENCE: 27 October 2009
CASE MAY BE CITED AS: R v. McDonald, Jude Garry (a pseudonym)
MEDIUM NEUTRAL CITATION: [2009] VCC 1367
REASONS FOR SENTENCE
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Catchwords: Criminal law – sentencing – incest – indecent act with a child under 16 – make threat to kill – early plea of guilty – no prior criminal history.
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APPEARANCES: | Counsel | Solicitors |
For the Crown | Mr M.D. Hennessy | Mr C. Hyland, OPP |
For the Prisoner | Mr J.M. Toal | Victoria Legal Aid |
VICTORIAN GOVERNMENT REPORTING SERVICE
565 Lonsdale Street, Melbourne - Telephone: 9603 2403
125991
HER HONOUR:
1J, you have pleaded guilty before me to seven counts of incest, five counts of indecent act with or in the presence of a child under age 16 and making a threat to kill.
2These offences are all very serious. That is evidenced by the maximum penalty prescribed by Parliament. Incest has the highest statutory maximum,
25 years' imprisonment. Indecent act and threat to kill have a maximum penalty of 10 years' imprisonment.
3I shall proceed to sentence you now on the basis of the summary of the Prosecution opening which is marked Exhibit ‘1’ which was read by Mr Hennessy, there being no issue taken with that summary by your counsel Mr Toal at the plea hearing.
4The victim in the offending I shall refer to by the acronym TH, was your 12-year-old stepdaughter. Her date of birth is 14 October 1995.
5The offending occurred on a single date, 26 July 2008, at 125 Lyrebird Road, Carrum Downs. You were then aged 44, your date of birth being 21 November 1963.
6At the time you were living in a relationship with TH's mother and you had been living together for some five years. In addition your older son was also living together with you at those premises. You were a fully trusted person within that family unit. In effect you were the victim's stepfather.
7At the time of the offending both the victim's mother and your son were out for the evening and you had remained at home caring for the victim and another young child who was the daughter of a friend. During that day and into the evening you were drinking heavily with two friends. The victim and her friend went to bed in the same bedroom at about 10 p.m. In the early hours of the morning you removed the victim from her bed and took her to the lounge room
of the house where you proceeded to engage in a variety of sexual acts.
8There are three discrete episodes involved in the offending, the first offending occurring in the lounge room, the second in the master bedroom and the third in a second bedroom. You told the victim in the lounge room that you would kill her and her mother if she refused to comply or if she were to tell her mother what had happened. That constitutes the threat to kill Count 1.
9In the lounge room you sexually penetrated her mouth with your penis, her anus with your finger. That constitutes counts 2 and 3 the incest charges. In the master bedroom you sexually penetrated her mouth with your penis. That constitutes the facts of Count 4 the incest. You inserted your tongue into her mouth - Count 5 indecent act and sexually penetrated her vagina with your finger, that constitutes Count 6, incest, and her anus with your finger, that constitutes Count 7, incest.
10In the second bedroom you were touching, kissing and biting the victim's stomach and breasts, that constitutes Count 8, indecent act. You sexually penetrated her mouth with your penis, that constitutes Count 9, incest, touched and rubbed her vagina, Count 10, indecent act, touched and kissed and bit her stomach and breasts, Count 11 the indecent act, and you inserted your tongue into her mouth, Count 12, indecent act, and sexually penetrated her mouth with your penis, that constitutes the facts of Count 13 the incest.
11The victim did tell her mother what had happened on that day. The police were contacted immediately. You were arrested that day and interviewed. Importantly you made admissions to a number of the offences alleged by the victim, although you did deny penetrating her anus with your finger. To your credit you made those admissions notwithstanding the police were not fully appraised of all the allegations. It is apparent that you were being interviewed at the same time the police were conducting the video and audiotaped evidence statement interview with the victim.
12A Victim Impact Statement has been filed on behalf of the victim and completed by her mother. It notes that the victim received a scratch to her vagina which bothered her for about a week. Her mother reports that the family had to move and suffered a lot of stress as a consequence of that disruption. She also reports the victim is worried and distressed about what had happened and that telling her mother about it and her reaction has had a huge impact. The examination at the Monash Medical Centre was very stressful.
13It is apparent that these events have been severely disruptive to the family unit. The victim and her mother have had to adjust to new accommodation. The victim has sleep difficulties and nightmares. She has had some counselling but is having difficulty coping even with the counselling. She has suffered severe bullying and torment from another child, whom I believe is your niece, at her school. She has lost all trust in men and has experienced difficulties at school because of lack of concentration. She is fearful of seeing you again and feels that you betrayed her trust in the worst possible way. I restate her words:
"The only thing I want to say is I loved him like a dad for five years and trusted him. He hurt me and now I hate him."
14The disclosure has had an emotional impact on the victim's mother as well.
She too has problems sleeping and feels partially responsible for the situation.
15I have taken into account the considerable effects of your offending on the victim and her mother. It is obvious from the reading of the victim impact statements and the note of the victim that the repercussions from your actions on that one single night have gone far beyond the immediate physical response and will scar the victim and her family for life.
16Your offending is grave and repulsive involving as it does a gross breach of trust on your part. There was absolutely no explanation for the offending other than your excessive level of intoxication. Whilst providing a context for
your offending it does in no way excuse your offending. The fact that the offending extended over a period of time on the same night in three separate locations in your home and during the course of which you rang the victim's mother and then sent her a text message at 1.55 a.m. to reassure her all was well suggests that you were fully aware that what you were doing was wrong and that you were using your stepdaughter for your own personal sexual gratification.
17You threatened to kill TH and your threat overlayed the offending behaviour and made it worse for the victim. It would have been a terrifying and perplexing experience for the young victim, that the very person whom she trusted and loved and thought was protecting her was doing these acts.
18These crimes are viewed by the community as very serious. The principles of general and specific deterrence are important considerations in sentencing. Also such offending must be denounced. It is important to emphasise the protection of a community in any sentence. The words of His Honour Marks J in R v. Sposito are apposite -
"A society which fails to protect its children from sexual abuse by adults, particularly those entrusted with their care is degenerate. The offence of incest is particularly erosive of human relations and cast doubts on the assumptions that parents are 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, of 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."
19The Court of Appeal in this State has frequently said that those who engage in the sexual abuse of young persons who are in their trust can expect to receive condign punishment. In this case your actions have resulted in the destruction of the family unit, have eroded the young victim's confidence in relationships with you and men, in particular, and her words speak of the serious and significant betrayal that has occurred.
20As has been pointed out by Mr Toal there are, however, mitigating factors.
You have pleaded guilty at an early stage and you are entitled to have that fact taken into account and I do so. By your plea of guilty you have spared both the victim and the mother the inconvenience and ordeal of giving evidence upon your trial and the community has been spared the cost of a trial. You have thereby facilitated the course of justice. There is real utility in this plea of guilty. You are entitled to a significant discount on the sentence to be imposed.
21When apprehended you readily admitted your involvement in the crimes. In the circumstances I accept that the plea does indicate true remorse for your actions. It is of particular significance that you made full and frank admissions to the police and volunteered to your offending. This is important in cases such as this in particular given that the investigating officers were not aware of the precise nature and extent of the offending.
22I have been told something of your personal history and circumstances. You have no prior convictions and I sentence you as a person of previous good character. I have read the report from Mr Jeffrey Cummins dated 9 September 2009 that was tendered by consent. He assessed you on 28 August 2009. At that time you were living at your mother's address. Your father died of natural causes approximately three years ago. Your mother is in her late 60s and is involved in home duties. You have three sisters and have disclosed your offending to them. As a direct consequence your younger sister is no longer talking with you and none of your sisters, nor your parents have ever been in any trouble with the law. It is said that you were raised in a loving and caring family in which discipline was strict. You have never been the victim of any sexual assault.
23You left school after completing form 3 at Monterey Technical School at age
15. You then worked as an apprentice jockey for about two years and then had a good work history working in the R&D division of ACI Fibreglass Dandenong for 10 years where you were promoted to the level of afternoon
shift foreman. You have worked in other fibreglass factories and you have undertaken work on the production line, Nylex factory Frankston. You married and after having your two children you moved to Shepparton for about eight years with your wife and family where you worked with Shepparton Fibreglass.
24Following the break-down of that marriage you relocated to Melbourne. Your former wife now lives in Queensland with your two sons. Following your return to Melbourne you worked successfully for two years installing security screens and doors. You obtained a position with Savers Frankston after that and then worked there for about five years, being promoted to the position of assistant production supervisor. That is where you met your former partner who also worked at Savers. Following your arrest and release on bail you ceased that employment and have not worked since.
25Mr Cummins undertook some testing which indicated conclusively that you are a problem drinker and at risk of becoming an alcoholic. You explained to him that the offending occurred in the context of having been drinking heavily that day at the hotel and then going home and drinking further with friends. You expressed shame, remorse and shock to him in relation to this offending. You told him that you want to participate in the Sexual Offenders Treatment Program in order to understand why when intoxicated you behaved in this manner.
26Mr Cummins did not consider that you have any personality disorder. He considers you present as a person of normal and of average, low intelligence. He assesses you as having a very severe alcohol dependence problem and being on the verge of alcoholism. He considers the offending behaviour was situational motivated in the sense that whilst very intoxicated you exploited the situation. He did not consider your offending was reflective of predatory behaviour on your behalf. He considers alcohol as definitely a risk factor in terms of further offending and it is crucial that you identify and thoroughly
scrutinise any repressed feelings of sexual attraction towards underaged females in the course of participating in a Sexual Offenders Treatment Program and only then can your risk of reoffending be comprehensively addressed.
27He says that you answered in the negative to all questions pertinent to the diagnosis of paedophilia and hebephilia, (that is sexual attraction to someone who is post pubescent but under the legal age), nevertheless he said that you did accept at interview your offending behaviour would formally be diagnosed as reflective of hebephilia; the victim being post pubescent.
28Of significance it is now evident that you have insight into the effects of your offending on the young victim. You clearly appreciate the nature of your despicable act and you are thoroughly ashamed of what you have done to the victim.
29Pursuant to Part 2A of the Sentencing Act where a conviction is recorded for two or more sexual offences for each of which you have been sentenced to a term of imprisonment I am required to sentence you as a serious sexual offender.
30I must regard the protection of the community from you as the principle purpose for which the sentence is imposed and am empowered, if required, in order to achieve that purpose to impose a sentence greater than is proportionate to the gravity of the offences.
31In the circumstances of this case I consider that those objectives can be achieved without imposing a sentence longer than that which is proportionate to the gravity of the offence considered in the light of objective circumstances.
32I am also required by s.6E of the Sentencing Act, where a term of imprisonment is imposed on a serious sexual offender for a relevant offence, to order that the sentence be served cumulatively unless otherwise directed
by the court. In your case I propose to direct otherwise.
33I am further required pursuant to s.6F of the Sentencing Act to record in the record of the court that you are sentenced as a serious offender.
34I accept that prior to the incident giving rise to this offending that your general reputation was good and that you had through your participation in the workforce made significant contributions to our community. You do have good prospects of rehabilitation provided that you successfully complete the Sexual Offenders Treatment Program.
35I have obtained from Dr Gratstein a Pre-Sentence Clinical Assessment Report dated 16 October 2009. She considers that you are likely to be at moderate risk of sexual reoffending and thus she recommends that you complete offence specific treatment whilst on a corrections order. I agree with her assessment and I emphasise that it is important that you do undergo such a program.
36It is important that she notes that you do not appear to demonstrate any deficit in the area of cognitive function and therefore you are considered suitable for a mainstream program.
37I have already made other remarks about some of the content of Dr Gratstein's report in my earlier discussion with your counsel and I do not propose to take that any further at this stage.
38Mr McDonald, as well as the matters personal to you to which I have referred, I must emphasise both general and specific deterrence. I must consider the question of the protection of the members of the community and I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose just punishment.
39These are without doubt serious offences involving a gross breach of trust. In all the circumstances I have no alternative other than the imposition of a
custodial sentence to be immediately served. I have had regard to the principles of totality and proportionality.
40Mr Hennessy, on behalf of the Crown, submitted the appropriate sentencing range was 11 to 14 years for the head sentence and nine to 11 years for the non parole period. Mr Toal has made submissions that the sentencing range in the circumstances are too high having regard to the particular circumstances of your offending and he urged the court not to work upon that range. He emphasised that it was offending over a single discrete period and not over an extended period.
41I have reviewed the recent decisions of the Court of Appeal in this state in relation to incest and also the sentencing trends for incest in higher courts of Victoria 2002/2003 to 2006/2007 provided by the Sentencing Advisory Counsel. Imprisonment terms for incest range from five months to eight years where the median length of imprisonment was four years.
42The median total effective imprisonment length was six years and six months while the median principle imprisonment length was four years. Total effective imprisonment lengths range from one year with a non parole period of six months to 15 years with a non parole period of 11 years. The most common sentence was six years with a four year non parole period.
43Of those matters where the sentence reflected the higher end of the spectrum of sentences that have been imposed in this state for this type of offending it usually occurred where the offending was over an extended period of years, involved multiple victims, representative counts and often repeated offending on the same victim over many years. Those features were absent from this case.
44I consider the Crown sentencing range submission is pitched too high and does not properly reflect the nature of the offending that occurred on this occasion nor the appropriate sentencing discount for Mr McDonald plea of guilty.
45Mr McDonald, I propose to sentence you now, if you could please stand.
46In the circumstances of your case I propose to record convictions on all counts and sentence you to be imprisoned as follows: Count 1, making a threat to kill, two years; Count 2, incest, four years; Count 3, incest, four years; Count 4, incest, four years; Count 5, indecent act with a child under the age of 16, 12 months; Count 6, incest, four years; Count 7, incest, four years; Count 8, indecent act with a child under the age of 16, two years; Count 9, incest, four years; Count 10, indecent act with a child under the age of 16, two years; Count 11, indecent act with a child under the age of 16, two years; Count 12, indecent act with a child under the age of 16, 12 months; and Count 13, incest, four years.
47I have made Count 2 the head sentence and I make the following orders in relation to cumulation: 12 months of the sentences imposed on Counts 1, 4, 6,
9 and 13 are cumulative upon each other and the sentence imposed on Count 2 making a total effective sentence of nine years imprisonment. I direct that you serve a minimum of six years imprisonment before becoming eligible for parole.
48As prescribed by s.18(4) of the Sentencing Act I declare the period of time you have already spent in custody is 34 days and I direct that that be noted in the records of the court.
49I also direct that pursuant to s.6F of the Sentencing Act it be entered in the records of the court that I have sentenced you in respect of Count 3 to 13 inclusive as a serious offender within the meaning of the act.
50I make the following declaration pursuant to s.6AAA of the Sentencing Act: but for your plea of guilty I would have imposed a sentence of 11 years and a minimum non parole period of seven years and six months.
51Pursuant to s.34(3)(b) and s.5(1) of the Sex Offenders Registration Act you
are deemed to have committed a single Class 1 offence, all charges occurring over a 24 hour period involving the one person and therefore the relevant period of registration under the Sex Offenders Registration Act is 15 years.
52I make the retention order sought pursuant to s.464ZF(b)(1) of the Crimes Act in relation to the forensic sample obtained at the time of your arrest having regard to the seriousness of the circumstances of the offending, the fact that the order is not opposed and the granting of the order is in the public interest.
53Now, I'll ask my associate, if you could approach with Mr Toal to get the “Notice of Reporting Obligations” acknowledgment signed.
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