Director of Public Prosecutions v H v T
[2013] VCC 114
•14 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-12-02211
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| H V T |
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JUDGE: | HIS HONOUR JUDGE McINERNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 February 2013 | |
DATE OF SENTENCE: | 14 February 2013 | |
CASE MAY BE CITED AS: | DPP v H V T | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 114 | |
REASONS FOR SENTENCE
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Subject: Criminal law – plea – sentence
Catchwords: indecent assault – attempt to procure an act of gross indecency – representative counts – grave breach of trust – offending committed against daughter and granddaughter – principle of general deterrence applied – discussion of principle of delay – advanced age of the offender
Legislation Cited: s.51B of the Crimes Act 1958 – s.44(1) of the Crimes Act 1958 – s.6E of the Sentencing Act 1991 – s.18 of the Sentencing Act 1991 – s.6AAA of the Sentencing Act 1991
Cases Cited:DPP v Toomey [2006] VSCA 90 – Barbaro v R; Zirilli v R [2012] VSCA 288 – R v Hunter [2006] VSCA 9 – R v SBL [1998] VSCA 144 – R H McL v R (2002) 203 CLR 452 – R v R L P [2009] VSCA 271
Sentence: total effective sentence of 3 years imprisonment with a non parole period of 18 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms D. Hogan | Mr J. Domantay (Office of Public Prosecutions) |
| For the Accused | Mr S. Norton | Robert Stary Lawyers |
HIS HONOUR:
1 In this matter, Mr HVT pleaded guilty to six charges on Indictment C1237133. Charges 1, 2 and 3 are indecent assault counts, which involve his daughter, and are representative counts. In regard to Count 1, it relates to one other occasion; in regard to Count 2, two other occasions; in regard to Count 3, four other occasions.
2 Charge 4 is a count also of which there has been a plea guilty, is an attempt to procure an act of gross indecency, which was a breach of the then s.51B of the Crimes Act 1958, of which a maximum penalty imposed by the Parliament at the time was three years. Charge 5, which is not a representative charge, is another count of indecent assault.
3 All of the indecent assault charges are counts against the then s.44(1) of the Crimes Act 1958, for which the maximum penalty imposed at the time by Parliament was five years.
4 The offending against Mr HVT’s daughter took place from 1982 through to December of 1984, that is, the offending that this Court is dealing with. At that time, the victim was aged between twelve and fifteen. Mr HVT was aged between forty-three and forty-four.
5 It is very important to understand that even if there were more serious offences, there were time limits that are applicable insofar as action being taken in regard to such matters when these offences came to light many, many years later.
6 What is clear is that these offences have, as part of their circumstances, particular aggravating aspects. The first and most prominent is that these are offences committed against Mr HVT's own daughter, self evidently a grave breach of trust, concomitant with that, is the age difference.
7 It is important to summarise the crimes, as I said, the indecent assault charge in regard to Charge 1 related to circumstances in the shower. It is important to stress that I am not dealing with any aspect of penetration in that matter, and this is a representative count of another similar circumstance that occurred in the shower.
8 Charge 2 involves, again, an indecent assault. It involves circumstances where Mr HVT touched both the breasts and nipple of his daughter's breasts. As I said, it is a representative count. Such actions often occurred while the victim was asleep or pretending to be asleep, so that these matters would not occur.
9 Charge 3 is the gravest, or grossest, interference with his daughter, being that he would massage his daughter’s vagina. This charge is representative of four other occasions.
10 I find that such behaviour is aggravated indeed because it relates to an age of his daughter when this offence took place, that is between thirteen and fifteen, when a young female is otherwise developing sexually. Here we have her father performing on her acts of massage which are quite inappropriate and can obviously, without too much imagination, be seen to have had a dramatic effect on a young girl at that time.
11 Charge 4 related to a circumstance where one can only presume that in so placing the vibrator in the shower he was hoping that his daughter would use it. That count is one of attempt to procure an act of gross indecency.
12 Charge 5 again relates to massaging of his daughter's vagina. It is a single count, but in this instance it was done with the use of a vibrator.
13 If those matters were not bad enough, over twenty years later he committed the sixth charge. Charge 6 was an offence against his granddaughter, again, involving a breach of trust, and a substantial age differential. The relevant age at that stage was, the child was between eleven and twelve, Mr HVT was aged sixty-seven. It is also a representative charge, again it is necessary to go to the agreed summary to fully understand the crime.
14 It essentially involved inappropriate touchings. When one tries to understand the impact of such social abuse, by that I mean abusive in a social relationship which normally gives stability and protection, which this has not. I think it is important to remember the comments that this young girl made in her victim impact statements, that her grandfather, because of his actions and the manner in which he favoured and used to see her, made her feel uncomfortable and embarrassed.
15 I am not too certain at what stage, and there is no evidence in regard to this, but the crimes themselves involved a touching of the inside of her chest. I do not know whether she had developed breasts at that stage, but at any rate, according to a statement from Mr HVT, she had not. Suffice to say such actions were totally inappropriate and circumstances which made his granddaughter feel very uncomfortable and embarrassed. The learned prosecutor indicated that the serious sexual offender legislation applies in this sentence.
16 The victim impact statements were tendered, firstly that of his daughter, Ms KZ, who I referred to earlier. That was Exhibit B. As I said during the plea, I found this victim impact statement to be particularly realistic. I thought it was very sensitive, intelligent, I would go so far as to say it was charitable. It makes a great change, I might say, from many such victim impact statements this Court has to read. In saying that, it is quite clear from the last paragraph, that it was not in any way taking away from the need for appropriate punishment for the grave abuse, but it was, as I say, a very intelligent and sensitive victim impact statement which assisted the Court very much, and I thank you for that.
17 Insofar as the victim impact statements in regard to Charge 6, by the granddaughter Ms DVT and her mother and father, it seems to me they were very realistic and they indicate the reactions and impact when such basic family relationships are so grossly destroyed and/or interfered with. Both parents express in their statements guilt. It is quite inappropriate and nothing to do with them nor should they feel guilt. It is totally unexpected in our society that a grandfather would act in this way. However, in contemplating your daughter having been assaulted, no doubt, it is a natural feeling that you have failed to protect your daughter, even from her grandfather. As I said to the parents during the plea, in my view and society's view I am sure, no blame can be attached to them. That is not to say that they do not feel it personally.
18 As to Ms DVT's statement, as I said earlier, because of the manner of her feelings about the way in which her grandfather treated her, her comments about her revulsion and her feelings of being uncomfortable with her grandfather, seems to me quite realistic. However, it is only when you have the perspective attained in this Court that I was able to make the comment, and I hope it was not taken in the wrong way, that the reality is that the offences committed against her were at very much the lower end of these type of offences. This Court unfortunately has far graver offences before it, often involving graver abuses of family trust such as this, where violence and gross penetration is involved.
19 Ms DVT's statement was, in the circumstances, somewhat concerning to me, and it seems that she does need some assistance in dealing with this. In saying that, I do not in any way suggest, even where it is lower level criminality, that the breach of such relationship cannot have a quite devastating effect on persons. Such is what happened in this case. As I say, I am no professional, but my observation of it is that Ms DVT needs some assistance. I did say that when the plea was heard and her parents were here, but I do not think they are here today, are they?
20 The prosecution in submission to me stressed the grave breach of trust involved in this offending. The threats and presents used, and so far as the daughter was concerned, and indeed the granddaughter, and the use of the favouritism as against other children and other grandchildren. In particular, the prosecution pointed out with the assaults upon his daughter, the threat as to the impact if she had told her mother and a divorce and the impact upon the family.
21 The prosecution stressed to the Court that it is necessary to remember in regard to Charges 1, 2, 3 and 6, that they are representative counts. In this instance, it is important to take into account the need for general deterrence and I take, in particular, into account the matters that I have referred to in the victim impact statement. I need refer only to the comments of Vincent JA, as he then was, in DPP v Toomey [2006] VSCA 90, where he said:
"Ordinarily, where an adult offender is to be sentenced for offences involving sexual abuse of a young child, the principles of general deterrence and denunciation remain at the forefront of the sentencing process".
22 Insofar as the serious sexual offender legislation, there was no submission by the prosecution of the need for a disproportionate sentence.
23 It is of course important to stress that despite the relationship and the breaches in the relationship, we are not dealing in this instance with incest charges.
24 The plea was conducted by Mr Norton, solicitor of Robert Stary Lawyers. Mr Norton tendered firstly proffered letters of apology to the prosecution. They make up Exhibits 1 and 2. As I say, I used the word "proffered" because they have never actually been delivered, but clearly, insofar as appreciating the current mindset of Mr HVT, they record appropriate sentiments of remorse.
25 Equally, in regard to Exhibit 3, there are a umber of character references tendered. I take those into account in particular, as Mr Norton said, his client’s community contribution. However, the impact of those has to be tempered by the fact that none of those persons would have been aware of this long-standing criminality and its repetition twenty years later.
26 As to the early plea, Mr HVT is entitled to an appropriate discount, in particular for its utilitarian benefit. Such a plea has saved both his daughter, and in particular his granddaughter, from having to give evidence and be cross-examined in this Court. Further, it is correct to say that he made full admissions, in the sense that he did not dispute any of the allegations made against him.
27 Insofar as the issue of delay, I would reject the proposition that in any way Mr HVT should get any discount for the effect of delay. He has not at any stage taken any step until these offences were revealed as a result of Ms DVT's complaints.
28 It is characteristic of these type of offences that they often do not come to light until many, many years later. It can be a positive, where a person has been in a circumstance where they have been waiting a lengthy period for justice to take its course, and have conducted themselves in an appropriate manner. However, this is not so in this case, because, not only did Mr HVT commit the initial matters, but far from rehabilitating, he committed a similar offence against his granddaughter later. So I would reject the proposition put to me as to the impact of delay in this case.
29 I accept the evidence before the Court that Mr HVT has certainly sought appropriate assistance since, and such steps that he has taken seem genuine. I was also particularly impressed by the report tendered of Mr Patrick Newton, forensic and clinical psychologist, dated 4 February 2013, that is Exhibit 4.
30 It is difficult to understand why people breach such fundamental familial obligations. This particular report delves into that issue and, in particular on page 6, identifies the two attitudes which Mr HVT had; the most important being the appeal of young children to him and those two attitudes are identified as underpinning this offending. Mr Newton's report also confirms the matters put to me as to treatment and I also note the confirmation of that treatment in the report of Counsellor Barth, set out in Exhibit 5.
31 I accept the comments of Mr Newton that there is a very low future risk of any further criminality being committed by Mr HVT. That comes about for two reasons, one, his age, and two, because obviously, the crimes that he has committed were particularly situational. In that instance, I do not see the need for a sentence which specifically concentrates on specific deterrence.
32 I also note in Mr Newton's report at page 8, that because of his age, social skills and the particular type of crime, that Mr HVT will be particularly vulnerable in prison and I have taken that into account in sentencing, as best I can.
33 I do apologise. The factor about delay, I meant the other factor that was raised by Mr Norton was that Mr HVT had demonstrated true remorse. It is a difficult concept. While I am accepting, and take into account the utilitarian benefit of this plea, I do not accept that he has demonstrated true remorse prior to these crimes being detected. The time factor goes very much against such acceptance of that.
34 I accept that Mr HVT has been remorseful since being found out, no doubt is remorseful for what is about to happen to him, and remorseful for these crimes being disclosed in the public arena. However, in the sense as most recently spoken about by the Court of Appeal in Barbaro v R; Zirilli v R [2012] VSCA 288, I do not accept this as remorse over and above that associated with his utilitarian plea and with the genuine treatment that he has undertaken since that time.
35 Clearly Mr HVT's age is a matter that has to be taken into account. I appreciate in the plea that neither the prisoner nor Mr Norton in any way exaggerated this particular position. Mr HVT enjoys for his age quite good health. However, clearly, as Mr Newton has said, Mr HVT will be vulnerable in prison and I accept that, at his age, as against the rest of the population, the service of gaol at this time will be much harder on him.
36 Mr Norton submitted to me that in the circumstances the defence has no issue with the need for immediate imprisonment, as called for by the prosecution, and asked the Court to ensure that the sentence was not crushing.
37 Insofar as the first five charges are concerned, it is obviously necessary for the Court to take into account as best it can the relevant sentencing range in the period in 1982 to 1984. Unfortunately, I am able to say that I was about then and can remember those times. Often persons involved in indecent assaults and matters of this sort, at that time, did not necessarily get immediate gaol. However, where those circumstances involved a breach of trust of this sort, that is between father and daughter and father and granddaughter and there was such an age discrepancy, gaol was imposed, especially, as I say, with those aggravating factors. The differences in sentencing, ultimately, I suppose are reflected in the different maximum penalties and, of course, the statutory limitations that operate in this case.
38 I intend in the sentence I pronounce to take into account all of those matters put to me by both parties. In particular, I refer to the issue of the representative counts and the proper manner of sentencing, as set out by the Court of Appeal in R v Hunter [2006] VSCA 9, and R v SBL [1998] VSCA 144, at [69]. A representative count does not mean that you are sentenced for all other occasions. However, for the crime that you are sentenced for, you are sentenced in the context of an understanding that this is not a solitary crime, but is aggravated, as is the comment in SBL, by the representative matters and such provides context.
39 Mr HVT, if you would stand, please.
Sentence
40 In regard to your offences, I sentence you as follows.
41 On Charge 1, I sentence you to a period of imprisonment of nine months.
42 On Charge 2, a sentence of imprisonment also of nine months. That makes you, pursuant to the legislation, a person who, as to the balance of the charges, must be sentenced as a serious sexual offender.
43 It is necessary for this Court to record for the sentences for Charges 3, 4, 5 and 6, that you are sentenced as a serious sexual offender. Further, the purpose of sentencing had been decreed by Parliament in regard to those crimes as being the protection of the community and, in order to protect the community, a disproportionate sentence which does not necessarily reflect the criminality in the matter can be passed. However, there is no submission, as I have already remarked, by the Crown, that such is necessary, nor do I think it is necessary.
44 The provisions of s.6E of the Sentencing Act 1991 also apply in the sense that each of the offences are decreed by Parliament to be sentences that should be cumulative. I will come to that in due course.
45 Understanding that regime, on Charge 3, you are sentenced to a period of imprisonment of two years.
46 On Charge 4, I sentence you to a period of imprisonment of six months.
47 On Charge 5, I sentence you to a period of imprisonment of fourteen months.
48 On Charge 6, I sentence you to a period of imprisonment of one year.
49 Insofar as the aggregation of sentence is concerned, taking the two years of Charge 3 as the base sentence, I order that one month of Charge 2, four months of Charge 5 and seven months of Charge 6, of the sentences imposed, be served cumulatively upon the two years, making a total effective sentence of imprisonment of three years.
50 I have determined the appropriate period for you to serve by way of minimum is a period of eighteen months imprisonment.
51 I declare that insofar as the cumulation imposed, I in no way seek to or disregard the intent of Parliament as to these matters. However, one must balance against that intent, the issue of totality, and I take into account the comments of the High Court in regard to this issue in R H McL v R (2002) 203 CLR 452, 476 to 477, and further, the references of the Court of Appeal of this State in R v R L P [2009] VSCA 271.
52 I have already recorded that in regard to Charges 3 to 6, you are sentenced as a serious sexual offender.
53 I declare, pursuant to s. 6AAA of the Sentencing Act 1991, that had you not pleaded guilty, Mr HVT, you would have been sentenced to a maximum sentence of four years imprisonment with a minimum period to serve of three years imprisonment.
54 I declare, pursuant to s.18 of the Sentencing Act 1991, that the days that you have been on remand, which is eight, shall be days deemed as served of this sentence, and a declaration to that effect be recorded in this Court.
55 I have determined to accept the proposition of the prosecution that a forensic order be made insofar as you are concerned. I am required to tell you that should you not consent to giving that forensic sample, an order can be sought from this Court, so I would hope that such does not happen.
56 Mr HVT, just in layman's language, the end result is that for your crimes you are sentenced to a period of imprisonment of three years, and the minimum period that you have to serve before being eligible for parole is a period of eighteen months imprisonment.
57 Mr HVT, you have already been served with a document which tells you the consequences of Parliament's determination as to what is to happen to you by way of obligations for reporting, but that is nothing to do with this Court. The reporting obligation prescribed by Parliament to be appropriate for you is for the rest of your life.
58 Are there any other matters that I have not attended to.
59 MR DOMANTAY: No, Your Honour..
60 MR NORTON: No, Your Honour..
61 HIS HONOUR: Would you take Mr HVT away, please.
62 MR NORTON: If Your Honour pleases.
63 HIS HONOUR: I thank the family for their attendance and assistance.
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