DPP v Jacob Clifton (a pseudonym) [2017] VCC 169 (27 February 2017)

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JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2017
DATE OF SENTENCE:	27 February 2017
CASE MAY BE CITED AS:	DPP v Jacob Clifton (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 169

Catchwords: Sentencing – historical sexual assaults by an uncle on his young nephews – historical offending occurred some 50 years previous – wholly suspended sentence imposed.

For the DPP Ms Malobabic John Cain, Solicitor for the Director of Public Prosecutions

acob Clifton,¹you have pleaded guilty to three charges of indecent assault upon a male, two of which are representative charges, one charge of buggery and one charge of attempted buggery.

he crimes are serious and that is evidenced by the maximum penalties prescribed by Parliament; namely 10 years’ imprisonment in respect to Charges 1, 3, 4 and 5; and 20 years’ imprisonment in respect to Charge 2.

ou are current aged 69, soon to be 70. Your date of birth is 9 April 1947. You are retired. There is no criminal history and there are no outstanding matters. You are otherwise a person of good character.

shall proceed to sentence you on the basis of the Crown opening that was read to the Court at the time of the plea hearing and is marked Exhibit 1.

he period of the offending took place between the years 1965 to 1967 and the offending involves three nephews: James Patterson,²who is now aged 57; Dominic Patterson,³who is now aged 60; and Samuel Patterson,⁴who is now aged 61. You are their maternal uncle. At the time of the offending you were living with your mother and resided in a bungalow at the rear of the family home. You were aged between 17 to 20 and the victims were aged between approximately seven to ten years old at the time of the offending.

he circumstances of Charge 1 are that you rubbed your penis between Samuel Patterson’s legs and around his anus until you ejaculated. The charge is representative of two occasions and it is said on another occasion there was offending of the same nature.

harge 2 also involved victim Samuel Patterson and on that occasion you rubbed your exposed penis on his anus and then penetrated him until ejaculation.

harge 3 is an indecent assault upon a male, the victim Dominic Patterson, and it is a representative charge. You rubbed your penis between his exposed buttocks until ejaculation. And there was another occasion when similar offending occurred and I have taken that into account.

harge 4 relates to the victim Dominic Patterson. You attempted to put your penis into his anus. He yelled at you and you stopped.

harge 5 relates to the victim James Patterson. You rubbed your penis up and down his back. He was unsure whether you ejaculated.

ome years after these events, in 1998, your nephews’ mother spoke with you about the offending, during which conversation you apologised to her for your behaviour.

he matter was not officially reported to the police until 2016. You were then arrested and interviewed on 25 June 2016, a period of more than 50 years had elapsed since the first of these events. At the time of your arrest you made full admissions. You told police you could not recall the particular circumstances of each of the offending, but you did not question the victims’ accounts.

he impact of your offending upon each of the victims has been devastating. I have had regard to their respective Victim Impact Statements that were read out to the Court. In those statements they speak of the significant impact upon their own individual development and their family relationships. James Patterson speaks of his childhood having been stolen. He is fragile and at times has been suicidal. He has turned to drug-addiction and used cannabis to assuage with his pain. He is angry and depressed and experiences self-

loathing. He has difficulties relating to young children and babies and it has seriously impacted on his ability to form trust relationships.

amuel Patterson states that it has also impacted upon his relationship with his family, and in particular with his small children. He expressed feelings about the abuse over many years and referred to mental health issues and his diagnosis of depression and anxiety. He too has on occasion tried to commit suicide. He is regularly seen by a psychiatrist and a general practitioner with respect to his mental health.

ominic Patterson states he is angry and depressed. He avoids being with little children. He says it has impacted – that is, the offending – upon on his relationship with his three children. He does not show affection towards them. Over the years he has used alcohol to cover up his feelings. He has been diagnosed with depression and Post-Traumatic Stress Disorder.

r Clifton, this is serious offending involving, as it does, a significant breach of trust between yourself and your three young nephews.

n your behalf, Mr Norton stated that you accept full responsibility for the offending, and that you admit that your actions constitute a real betrayal. He read to the court your letter of apology, wherein you state that you accept the harm that you have caused to each of the victims over the past 50 years.

ou acknowledge the pain and suffering of each of them, not knowing what to do when they were young, not knowing who to turn to, for fear that they would not be believed. You apologise fully for your actions, and say that you are deeply sorry for what has occurred. You do not, in any way, seek to minimise the effect of your actions, and admit that the impact upon each of the men’s lives has been significant.

accept all the matters put in mitigation. You entered a plea of guilty at the committal mention on 28 October 2016. This is at the earliest practicable stage.

Importantly, by your plea, you have spared each of the victims the further trauma of having to come to court to give evidence at your trial, and that is a very significant thing in my view, having sat through many of these historical sex trials over the past 15 years. In addition, the State has been spared the expense and inconvenience of having to conduct a trial. There is real utility in your plea, and your sentence will be discounted accordingly.

s was discussed in the plea hearing, I consider that it is extraordinary that you are prepared to admit your wrongdoing for events that have occurred up to more than 50 years ago. Often in cases where historical sexual offending is alleged the matters are fully contested, each victim tested by rigorous cross- examination, with ultimately there being no guarantee that a finding of guilt will be the final outcome.

herefore the discount for your plea on this sentence must be real and not illusory.

ou have always lived in the knowledge that these offences may be reported to police. You have, when confronted, always taken responsibility for your wrongdoing. You were fully cooperative with the police when questioned by them, and accepted without challenge all that was said by each of the three victims, and you have never sought to diminish your responsibility. And again, in my experience, that is very unusual for matters of this nature.

ollowing your arrest you engaged in treatment by way of counselling with Mr Peter Hanley, provisional psychologist, under the supervision of Mr Patrick Newton. The focus of that counselling has been to assist you to increase your insight into the offending and to reduce the probability of reoffending. You have been forthright in acknowledging the harm that you have caused, and you accept that your actions constituted a real betrayal of trust.

ou are a person who is otherwise of good character with no prior criminal history and no other matters pending.

n the intervening period since this offending you have lived a law-abiding and decent life.

he considerable delay in the matter coming before the Courts is a significant and relevant sentencing consideration.

t is clear that you are now a different person to the young immature inexperienced male who was responsible for this offending. Had you been dealt with at that time you would have been considered a child for the serious offending that occurred when you were aged 17, and, for the other offending, you would have been dealt with as a young offender. In those circumstances your rehabilitation would have been of primary significance.

urthermore, it is unlikely that you would have been required to serve an immediate custodial sentence. At most, you would have been dealt with in the Juvenile Justice System, either you would have been sentenced to custody in a Youth Training Centre or given a non-custodial sentence, that is, a disposition to be completed in the community.

have had regard to the fact that had you been sentenced at the time the disposition would have been different. I also consider that your moral culpability would have been judged to be less, particularly in the cases where you were committing offences as a child.

IIIIn the decisions of the Court of Appeal in R v Nutter⁵and R v Better,⁶confirmed in R v PJB,⁷a decision of Nettle JA (who is now High Court Justice), agreed to by Ashley and Dodds-Streeton JJA, the principles were recognised that where

offences which have been committed while an offender is a child or immature, and are not prosecuted until many years after the event, there is good reason to mitigate penalty, or at least to do so where the offender has achieved a significant degree of rehabilitation and there has been no further offending. Although such an offender falls to be sentenced as an adult, common sense and fairness dictate that the assessment of the nature and gravity of the crime, and of the offender’s moral culpability, take into account that what was done as a child, or as a person of immature years, and not as an adult or a person of greater maturity. General deterrence ordinarily has a lesser role to play in the sentencing of children and immature young people than in the case of mature adults. Those principles apply in the circumstances of this case.

urther, it is significant that during the passage of more than 50 years there has been no other criminal offending. That, coupled with my assessment that you are genuinely remorseful and have excellent prospects of rehabilitation, with the likelihood that you will not offend in a like manner in the future, leads me to the conclusion that ultimately the disposition to be imposed will not be one of immediate imprisonment.

have had regard to the reference provided by your daughter, Imogen.⁸She has been shocked by these charges. She was not aware of them until you discussed them, in some limited detail, with her. Nonetheless, she says that you have always been an upstanding citizen in your community. You are described by her as being a loving and caring parent.

IIIYou have married twice, and in both instances you have cared for your wives, that is Imogen’s mother and her stepmother, until their untimely deaths due to cancer. Each of those women experienced their illnesses for over five years. You have also worked as a volunteer firefighter in the community, and in the past, you have actively supported elderly members of the community to assist them to remain in their homes. You have regularly donated to charities, and I

Faccept her description of you as being otherwise a person who decent, hardworking and trustworthy.

ou do have chronic illness, namely polycythemia rubra vera and that is a disorder where too many red blood cells are produced in the bone marrow without any identifiable cause. Those cells accumulate in the bone marrow and in the blood stream, where they increase the blood volume and cause the blood to become thicker than usual.

ou are managed by a chronic disease management team in the community, under the care of Dr Kirsten Van Haaster at Monbulk Family Clinic, and Dr Philip James, medical oncologist, Ringwood and the gastroenterology liver unit at Maroondah Hospital.

ou were diagnosed in 1992 and you have had major treatment at various times. In 2009 you had a portal vein thrombosis, and a superior mesenteric vein thrombosis, leading to portal hypertension, and that in turn caused complications, namely splenomegaly and oesophageal and gastric varices. You take regular warfarin and also hydroxyurea, and have regular haematological and gastroenterological surveillance. Your prognosis is good. It is described by your oncologist, Dr James, as being very good. You require regular blood tests and venesections every three months, and you are the subject to long-term surveillance by your medical team.

have had regard further to the fact that another consequence of the delay is that you have been able to demonstrate your very real rehabilitation over that time, and that is another factor that has been taken into account.

t is accepted that since the time of the commission of your offending, there has been significant changes in the sentencing approaches to sexual offending. Pursuant to Stalio v The Queen,⁹which is a decision of the Court of Appeal in

IVictoria, current sentencing practices mean practices in place at the time of sentence. However, consistent with Stalio (at paragraph 53) ─

“The principle of equal justice requires that regard be had to sentencing practices at the date of the offence when sentencing occurs after a substantial lapse of time”.

And in this case, the lapse of time, being one of some 50 years, has been taken into account. As was stated in Stalio (at paragraph 54) ─

“It would be wrong for a prisoner to be sentenced to a substantially higher sentence than an offender who committed like offences at or about the time of the offences in issue, simply because of the lapse of time”.

eneral deterrence is always a relevant and important sentencing consideration when dealing with sexual offences. However, I accept, having regard to your age at the time of the offending and your age currently, together with the very real evidence of your rehabilitation since the cessation of offending, together with the extraordinary delay in the prosecution of these proceedings, that it is of less significance than it would otherwise be.

ettle JA, as he then was known, in R v PJB,¹⁰acknowledged that ordinarily, where an adult offender is to be sentenced for offences involving the sexual abuse of a young person, the principles of general deterrence and denunciation remain at the forefront of the sentencing process no matter how long ago the offences may have been committed. But for the reasons he explained, it is different where the offender was a young offender at the time of the offending and has been rehabilitated in the meantime. Prima facie general deterrence and denunciation do not play the same role in the sentencing process and, he stated, and in my view, it would be illogical and unfair to lose sight of that when it comes years later to sentencing an offender as an adult.

n all the circumstances, having regard to the powerful mitigating factors that I have outlined and balancing the principles of sentencing that I must consider, I have formed the view that it is both a just and appropriate consideration that a

have had regard to the views that were outlined to me by Ms Malobabic this morning in respect to each of the three victims, each of whom have indicated that they consider it to be appropriate to support the Crown position, which is that a term imprisonment, some of which ought be served, ought to be imposed.

have had regard to the submissions made by Mr Norton and in particular, I have had regard to the principles of law that apply in respect to the imposition of suspended sentences of imprisonment, and the principles set out in DPP v Buhagiar & Heathcote¹¹and the oft cited passage that was referred to in the plea hearing.

suspended sentence of imprisonment can serve the needs of emphasising both general and specific deterrence. In DPP v Buhagiar & Heathcote,¹²Batt and Buchanan JJA commented:

“Whilst the purpose of the criminal law is to bring wrongdoers to justice for the protection of the community and whilst that protection must be borne in mind as primary and paramount, there are cases where a judge may reach the view that suspension of a sentence is appropriate, not because it would be less unpleasant for the offender, but because it may be productive of reformation, which offers the greatest protection to society.”

“A suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending... In deciding whether to suspend in whole or in part a term of imprisonment a judge is deciding whether, in all the circumstances, the offender should have the benefit of a special opportunity for reform, to rebuild his own life, or to make some recompense for the wrong done, or should have the benefit of the mercy to which King, C.J. referred in R. v. Osenkowski (1982) 32 S.A.S.R. 212 at 212-3, or for some other sufficient reason should have this particular avenue open to him, provided the conditions of the suspension are observed.”

AAAWhat I am about to do, Mr Clifton, is to impose a jail term that is not to be immediately served, and by virtue of s27(3) of the Sentencing Act 1991, I cannot suspend a sentence of imprisonment unless I first explain to you what it means

am required to inform you, before I make the order suspending the term of imprisonment, about the purpose and effect of such an order and the consequences that would flow if you were convicted of an offence punishable by imprisonment, either in Victoria or interstate, during the period of operation.

n your case the operational period will be for three years’ and you must understand that the sentence I am about to impose is not to be served immediately, but if you do commit a further offence punishable by imprisonment during the next three years, either in Victoria or elsewhere, you will be required to serve the term of imprisonment which I am about to impose, unless you demonstrate exceptional circumstances.

o do you understand how that works and you are prepared to consent to such a sentence? All right. Could I ask you, please, to stand, Mr Clifton?

Charge 1, indecent assault – convicted and sentenced to six months’ imprisonment.

Charge 3, indecent assault upon a male (representative) – convicted and sentenced to 12 months’ imprisonment.

Charge 4, attempted buggery (representative) – convicted and sentenced to 12 months’ imprisonment.

Charge 5, indecent assault upon a male – convicted and sentenced to 12 months’ imprisonment.

harge 2 is the base sentence, that is two years’. I make the following orders for cumulation. Two months’ in respect to Charge 1 and five months’ in respect

to Charges 3 and 5 respectively, making a total effective sentence of three years’ imprisonment. I direct pursuant to s27(2B) of the Sentencing Act 1991, the sentence of imprisonment will be wholly suspended for a period of three years.

ursuant to s6AAA I make the following declaration, but for your plea of guilty I would have imposed a term of imprisonment of five years’ to serve two and a half years’.

he Sex Offenders Registration Act 2004 applies and the reporting period is for life and my Associate will approach you shortly to provide you with the notification under that legislation with the request that you acknowledge receipt of that.

obligations pursuant to the Sex Offenders Registration Act 2004. These are quite onerous obligations and there are significant penalties that apply if you do not adhere to the reporting obligations. I will just bring that to your attention. It is all set out in the material, but also I will ask Mr Norton just to go through with you those reporting requirements, but also please explain again the imposition of a wholly suspended sentence and how that operates, and what happens in the event that there is a breach. Thank you.

ER HONOUR: Very well. And I will just note for the sake of certainty that I was provided this morning with the two decisions of DPP v Kenneth John Aitken¹³and DPP v Brian Reid,¹⁴both of which are from this court and relate to historical sex offences of a not dissimilar nature.

s was stated in the plea hearing, there are some similarities and some differences, and some significant differences between the matter that I am dealing with here today with Mr Clifton. In both those circumstances wholly suspended sentences of imprisonment were imposed by the judges. So I just thought I would include that in my remarks.

County Court of Victoria

DPP v Jacob Clifton (a pseudonym) [2017] VCC 169 (27 February 2017)