Director of Public Prosecutions v Andrews
[2025] VCC 377
•31 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01992
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KENNETH ANDREWS |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 & 25 March 2025 | |
DATE OF SENTENCE: | 31 March 2025 | |
CASE MAY BE CITED AS: | DPP v Andrews | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 377 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Found guilty at trial – Indecent act with a child under 16 – Sexual penetration of a child under 16 – No prior criminal history – High moral culpability – Historic offending – Mature aged offender – Very little insight into offending – Prospects of rehabilitation approached with a degree of caution – Serious offender.
Legislation Cited: Crimes Act 1958 ss 45(2)(b), 47(1); Sentencing Act 1981 ss 6D, 6E, 6F, 18; Sex Offenders Registration Act 2004 s 34(1)(c).
Cases Cited:Cheung v The Queen (2001) 209 CLR 1.
Sentence: Imprisonment for a period of 7 years and 3 months with a non parole period of 5 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Triandos | Office of Public Prosecutions |
| For the Accused | Ms A Cannon | James Dowsley & Associates |
HIS HONOUR:
Introduction
1Kenneth Andrews, you have been found guilty by jury of:
(a) six charges of indecent act with a child under 16 contrary to s 47(1) of the Crimes Act 1958 (‘Crimes Act’) which carries a maximum penalty of 10 years imprisonment (Charges 1, 2, 3, 4, 8 and 9); and
(b) one charge of sexual penetration of a child under 16 contrary to s 45(2)(b) of the Crimes Act which carries a maximum penalty of 15 years imprisonment (Charge 5).
2You have no prior criminal history.
Circumstances of the offending
3As you have been found guilty following a trial, I am required to sentence you in a way that is consistent with the verdicts of the jury.[1] The circumstances of the offending can be summarised as follows:
[1] Cheung v The Queen (2001) 209 CLR 1, [14], [162].
4You were a bus driver from 1994 until 2001, and between 1998 and 2004, you drove school buses in the Mornington Peninsula area.
5There are two victims in this matter: Cindy Hughes;[2] and Denise Sykes.[3]
[2] A pseudonym.
[3] A pseudonym.
Offending against Cindy Hughes
6At the beginning of 2002, the first victim, Cindy Hughes was in Grade 6. She began catching the school bus from her home to high school. She would often sit alone at the front of the bus and speak to you whilst you were driving. You spoke with the victim about her parents, schoolwork, and friends.
7In March 2002, you rang the victim’s parents and asked to take her along with yourself and your other children to Tyabb to see the Air Show. You attended the victim’s home to pick her up with your sons Duncan and Lachlan. You drove the children to Tyabb, where you all spent the day together.
8Throughout the day at the Tyabb Airshow, you and the victim spoke about swimming. She stated she was not comfortable in the water due to a near drowning experience and you told her you would teach her to be comfortable in the water again.
9In April 2002, you asked the victim’s mother Linda Hughes,[4] if you could take her daughter to the Melbourne Sports and Aquatic Centre (‘MSAC’) to swim. You told Linda Hughes that you would bring your own children.
[4] A pseudonym.
10You picked the victim up in an old white Volvo car at about 11am and drove to the MSAC. Your children were not in the car.
11At the MSAC, you and the victim got into the shallow heated pool and began playing games. You tried to touch the victim on her breasts or between her legs, and on the upper thigh area. You would touch the victim under the water and she would make an exaggerated yelp and swim off. You would touch the victim’s breasts on top of her bathers by pinching her breast which she thought was a game (Charge 1 – Indecent Act with a child under 16 years).
12Approximately a month after this first trip, you took the victim on her own again to the MSAC. On this occasion, you purchased a pair of goggles for her.
13In the car on the way home, you surprised the victim by revealing that you had some alcohol. You had it between the front seats in the car with a cloth over it. The victim had never had alcohol before and asked you if it was really alright for her to drink the alcohol. You told her ‘just don't tell your mother’.
14Approximately three or four weeks later in June 2002, you once again took the victim to the MSAC. You finished swimming and returned to the car where you folded the back seats down in the Volvo and gave the victim some food that you had brought with you.
15You hugged the victim from behind and rubbed her on the arms and legs. She did not resist. You said she was ‘so beautiful and that she had a beautiful body.’ You also rubbed the victim’s breasts and said ‘these are perfect, Tracy's are long and saggy.’ (Charge 2 – Indecent Act with a child under 16). This occurred on 3 or 4 other occasions (Charge 4 – Indecent Act with a child under 16, part of course of conduct).
16Between July and September 2002, you took the victim on another trip to the MSAC. After swimming in the pools, you gave her more alcohol and folded the seats back in the rear of the car. You had sandwiches which you told her your wife Tracey had made for you both to eat after swimming.
17You asked the victim if she wanted to take her top off. She agreed, and took her track-suit top off, and then you took off her t-shirt. She was not wearing a bra. You spoke about the victim’s breasts and rubbed her bare nipples (Charge 3 – Indecent Act with a child under 16). You then drove the victim home. This offending occurred multiple times (Charge 4 - Indecent Act with a child under 16, part of course of conduct).
18At the end of 2002, the victim’s parents got divorced and she began having difficulties with her schooling.
19At the beginning of 2003, you started taking the victim to the beach to swim after school. You picked her up from her home in your Volvo and drove to the beach, where you swam in the water for a couple of hours. After you finished swimming, you took the victim to get fish and chips from a shop nearby. After eating, you drove the victim home and pulled the car over on the side of the road. The victim took off her top and t-shirt and you would take off your top and hug and kiss her. You also rubbed her breasts (Charge 4 - Indecent Act with a child under 16, part of course of conduct), and her feet.
20Between March and April of 2003, your behaviour began to change towards the victim. You had asked her on several occasions to have sex with you, but she did not want to. She explained that she had been brought up with Christian beliefs and that sex was forbidden before marriage.
21In 2003 at the start of Term 2 (in about mid-April), you had taken the victim on another beach outing. On the way home, you pulled the car over as you had previously done and convinced her to have anal sex with you as it would not violate her religious beliefs.
22The victim reluctantly agreed as you told her it would be very enjoyable for her. You and the victim moved to the rear of the Volvo and folded the seats down to create more room. She pulled her pants down and lay down.
23You said, ‘this will be a bit cold’ and the victim felt cold around her bottom. You told her to, ‘just relax’. She then felt terrible pain as you penetrated her anus. She panicked because she was not expecting pain. You kept saying, ‘relax, relax’ and tried to hold her down (Charge 5 – sexual penetration of a child under 16 years).
24The victim got out of the car and you followed her and apologised saying, amongst other things, ‘Sorry, are you alright?’. You asked her if she wanted to go home which she did. You got dressed again and you drove the victim back to her home.
25In June 2003, following her 15th birthday, the victim became severely depressed. She was admitted into hospital in June 2003 where she remained for a period of three months. You attended the hospital on an occasion with the victim’s parents and left a soft teddy bear for her.
26In early 2005, you and the victim saw each other again and went to the MSAC. A neighbour, called Linda Hughes and asked why you were with the victim.
27The victim confessed that it was just you and her in the car but wouldn’t tell her mother that you had been abusive.
28You were interviewed by police on 25 August 2022 where you admitted taking the victim to the beach and to the MSAC however you denied giving her alcohol and you denied any sexual activity between you and the victim.
Offending against Denise Sykes
29In January 2004, the second victim, Denise Sykes lived with her mother Rachael Sykes.[5]
[5] A pseudonym.
30The victim began catching the public bus to and from home and her primary school. She only ever sat at the front of the bus and spoke with you every morning and afternoon.
31The victim thought of you as a father figure. You sometimes came to her house to visit but never came inside and the victim’s mother was usually home when you arrived.
32On 10 January 2007, you went to her house in the morning. The victim woke up because her dog was barking, and because she heard the door open. The victim’s mother was asleep in her bedroom.
33You went into the victim’s bedroom and sat on her bed. She was under the doona, wearing a t-shirt. You spoke with the victim about your wife, your seven children, and how holidays were going.
34Whilst talking, you gave the victim a back massage because she was sore after falling off her horse the day before. She lay on her front, and you massaged her back, neck and shoulders.
35You then said, ‘let me rub your belly’. The doona was over the victim from the waist down, with the t-shirt covering the top half of her. You started massaging the victim’s stomach under the t-shirt, then moved your hands up her t-shirt and rubbed her breasts in a circle (Charge 8 – Indecent Act with a child under 16).
36You then also touched the victim’s vagina by rubbing it with your hand (Charge 9 – Indecent Act with a child under 16). The victim stated in evidence that you then asked her if she would like to touch you, to which she said no.
37The victim heard someone coming into the property, who she assumed was Tina Nugent,[6] a neighbour. You then got off the victim and went to your car.
[6] A pseudonym.
38Once you left, the victim got out of bed and got dressed. She then went outside and watched you drive away in your car.
39As soon as you left, the victim walked over to Terry[7] and Tina Nugent’s house. She was about to call her friend when she started crying in front of the Nugents’. The victim was crying and shaking and told Tina Nugent that you touched her.
[7] A pseudonym.
40Ms Nugent called Rachael Sykes and told her to come home. Ms Nugent then ran a bath for the victim because she was so upset. When Rachael Sykes arrived, the victim told her what you did.
41On 14 January 2007, you were interviewed at the police station. You denied any inappropriate behaviour towards the victim.
Nature and gravity of offending
42In relation to each victim the evidence discloses that you engaged in a process of grooming where, after building trust with the victims and their respective parents, you ultimately were able to be alone with the victims when you offended against them. In each case the victims were vulnerable and isolated when you befriended them. In the case of Cindy Hughes, you were alone with her on repeated occasions and for extended periods. In that regard I note that Charge 4 is a course of conduct charge.
43While the indecent act charges are serious, clearly Charge 5 is the most serious charge to which you have been found guilty. It is an inherently serious charge carrying a maximum penalty of 15 years imprisonment. At the time of this offence, you had already taken the victim on many trips and had asked her for sex on several occasions. In this instance you were alone with the victim in your car when you persuaded her that anal intercourse would not breach her religious beliefs, telling her it would be enjoyable. You then proceeded to penetrate her in the way described causing her considerable pain. She was in a state of panic as you tried to hold her down. In my view in all the circumstances your conduct represents a relatively serious example of this offence.
44Turning to your moral culpability, when considering the nature and totality of your offending against both victims, including the gross breach of trust in each case, in my view your moral culpability is high.
Victim impact statements
45Both victims prepared victim impact statements which I have read and taken into account.
46Your offending against Cindy Hughes has caused a profound and long-term psychological impact. As was disclosed in evidence during the trial, the victim was admitted to psychiatric care shorty following your offending. She also notes that your later attempts to contact her by leaving hampers at her family’s door caused major setbacks in her emotional recovery. She has been unable to return to education or employed work. She has experienced flashbacks, intrusive memories and distress. While the victim accepts that she suffers from diagnosed psychiatric conditions, she states that her mental health issues were made much worse by your conduct. She states that for many years she blamed herself for the situation she was put in, believing her actions caused the abuse.
47Denise Sykes states that your conduct has had a significant impact on her life and her relationships. She suffers flashbacks and struggled for many years to sleep. The victim states that the court process was a very difficult time as it reignited the trauma of your abuse. Ultimately, she feels reassured by the fact that after many years she has been believed.
Personal circumstances
48You were raised by your mother and step-father in a household with your older sister and three younger siblings. You never knew your biological father.
49In later life you discovered that you had three older half-siblings on your mother’s side whose existence had remained completely unknown to you throughout your childhood.
50Despite not knowing your biological father, you describe your childhood as ‘brilliant’ and one in which you and your siblings were always happy and provided for.
51Your household was presided over by your great aunt Jessie who was a strict proponent of the Methodist faith.
52You were a below average student throughout your schooling, repeating your Higher School Certificate. You had an ambition to become a journalist but did not achieve the marks to pursue that career.
53In 1985 you married your wife Tracey with whom you are recently separated. You had seven children with your wife and you are proud of the fact that although you were not a high earner, you were able to put the eldest five children through an independent Christian school. At present you are estranged from your children.
54Until recently, you maintained a solid and consistent work life in various employment including as a teller in a bank, at a timber company, as a truck driver and ultimately as a bus driver from 1994 to 2021. Prior to being remanded you were living on a pension.
55At trial, character evidence was called from a former work colleague and from one of your sisters. Your work colleague gave evidence that you had a reputation of being a trustworthy and caring person. Your sister said you have always been a kind and honest man always making time for others.
Sentencing considerations
56Ms Cannon who appeared on your behalf, submitted that you present as a low risk of reoffending due to your age, your lack of prior convictions and otherwise good character, that there has been no subsequent offending in the 17 years since committing these offences, that you would be subject to parole conditions, and that you will be placed on the sex offenders register for life. I accept that these matters are protective factors.
57General deterrence and denunciation of your conduct are prominent sentencing considerations. You offended against two vulnerable children befriending them and building a level of trust before sexually abusing them. Conduct such as yours must be deterred and a strong message must be conveyed that such conduct will result in harsh prison sentences. In the circumstances in my view specific deterrence and protection of the community must also carry some weight in the sentencing calculus.
58Following the plea hearing, the prosecution provided a letter written by you and sent to the victim Cindy Hughes. You wrote the letter from prison after you were remanded following the jury verdict. In that letter you remind the victim about the times you had taken her to various places and the activities you had engaged in, during the period of the offending. You also seek to persuade the victim to write to you in prison. The letter is very disturbing. In her evidence at trial it was clear that the victim was significantly adversely impacted by your offending. You listened to that evidence. Further, as noted above, the victim impact statement makes plain that any reminders of you or your offending are triggering and traumatic. Writing to the victim demonstrates that you have very little insight into your offending and the impact it has on your victims. In the circumstances I take the letter into account when assessing the weight to be given to specific deterrence and your prosects of rehabilitation which, in my view on the current material, can only be approached with a degree of caution.
59Pursuant to s 6F of the Sentencing Act 1991 (‘Sentencing Act’), you fall to be sentenced as a serious offender on Charges 3, 4, 5, 8 and 9. As such, any sentence of imprisonment imposed on those charges attracts a presumption of cumulation in relation pursuant s 6E, requiring the court to consider protection of the community as the principal sentencing purpose, pursuant to s 6D. However, the prosecution does not seek a disproportionate sentence to achieve these ends, and the overarching principle of totality therefore continues to apply.
Sentence
60Mr Andrews, would you please stand.
61Kenneth Andrews, On Charge 1, 2, 3, 8 and 9, indecent act with or in the presence of a child, you are convicted and sentenced to 18 months imprisonment on each charge. On Charge 4, indecent act with or in the presence of a child (course of conduct), you are convicted and sentenced to 2 years imprisonment. On Charge 5, sexual penetration of a child under 16, you are convicted and sentenced to 6 years imprisonment.
62I direct that 6 months of the sentence on Charge 4 and 9 months of the sentence on Charge 9 be served cumulatively on each other and on Charge 5 making for a total effective sentence of 7 years and 3 months. I direct that you serve 5 years before becoming eligible for parole.
63Pursuant to s 18 of the Sentencing Act, I declare that 40 days be reckoned as the period of imprisonment already served under the sentence I have imposed. That does not include today.
64Pursuant to s 34(1)(c) of the Sex Offenders Registration Act 2004, you will be subject to reporting conditions for the remainder of your life.
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