Director of Public Prosecutions v Hahne
[2017] VCC 1796
•1 December 2017
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00475
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALLAN FREDERICK HAHNE |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Trial at Geelong 3 August – 22 August 2017 Plea Hearing at Melbourne 16 October 2017 | |
DATE OF SENTENCE: | 1 December 2017 | |
CASE MAY BE CITED AS: | DPP v Hahne | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1796 | |
REASONS FOR SENTENCE
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Subject:12 charges of rape and 3 charges of forcing a person into prostitution – Victim was defendant’s de-facto partner who had no prior sexual experience and was 32 years younger than the defendant – Offending occurred in controlling relationship over 4 ½ years.
Catchwords:
Legislation Cited:
Cases Cited:
Sentence: Total Effective Sentence 24 years and 1 month imprisonment with Non Parole Period 16 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Thomas | Office of the Director of Public Prosecutions |
| For the Accused | Ms J. Clark | Tony Hannebery Lawyers |
HER HONOUR:
1 Allan Frederick Hahne, following a trial you have been found guilty of twelve charges of rape, each of which carries a maximum penalty of 25 years’ imprisonment. You have also been found guilty of three charges of forcing a person into or to remain in prostitution. Each of these charges carries a maximum penalty of 10 years’ imprisonment.
2 The victim of all fifteen charges was a young woman who was in a de facto relationship with you during the period of 4½ years of offending between June 2008 and January 2013. You were over three decades older than your victim. She was born on 11 April 1985 and was aged twenty-three to twenty-seven years during the time of your offending. You were born on 15 May 1953 and were aged between fifty-five years and fifty-nine years during the period of offending.
3 In or about March 2007, shortly before your victim turned twenty-two years of age, she began chatting to you on a “Pen-pals” internet site. Her evidence before the jury was that, at that time, she was living at home with her parents and younger siblings and had never had a boyfriend or any sexual experience. She stated that, in accordance with your profile on the internet, she believed that you were then 30 years of age. I am satisfied of these matters beyond reasonable doubt. You were living in Florida in the United States and, over a period of some months there were increasing online chats, as well as telephone calls between the two of you. She stated in her evidence to the jury that she began to have feelings for you. She told the jury that she thought she was in love with you before she went to America.
4 In December 2007, your victim’s father took out a loan to enable her to travel to the United States to have a holiday to meet you. When she arrived in Florida she was surprised to find that you were so much older than she had expected, but told the jury that the two of you developed a sexual relationship. After some eight weeks’ holiday, your victim needed to return to Australia and you parted from each other at the airport in the United States. Her evidence to the jury was that she felt sad, and you were really upset.
5 After returning to Australia the two of you kept in touch via the internet, phone calls, and Skype, and you indicated that you would come to Australia in June 2008. Your victim was working in a gift shop, and paid for your flight. In preparation for your arrival in Australia, your victim moved out of home and obtained the lease on a flat in a locality fairly close to where her parents lived. The two of you lived in the flat together until April 2009, when you insisted that you should both leave the area in order to travel around Australia. I am satisfied of these matters beyond reasonable doubt.
6 I am satisfied beyond reasonable doubt that the fifteen offences of which the jury found you guilty, over the period of 4½ years from June 2008 to January 2013, occurred in the context of you behaving in an abusive, intimidating and controlling way towards your victim from very shortly after you arrived in Australia. Evidence was given by your victim before the jury of many uncharged acts of physical and sexual violence. It is unnecessary to recite them all, but I am satisfied beyond reasonable doubt that, from shortly after June 2008, your victim had an ambivalent attitude towards you. I am satisfied beyond reasonable doubt that, as your victim told the jury, you were “a threatening person”[1] and that “during the relationship it was a confusing time between love and hate”.[2] Indeed, your victim recorded the more concerning aspects of your behaviour in a diary which was tendered at the trial as Exhibit “A”. I am satisfied beyond reasonable doubt that the contents of that document are a true and accurate account of the events recorded in it. Further, although (as your victim stated in her evidence) there were some good times that you had together and consensual sex, you were sexually demanding, possessive and controlling of her, and treated her cruelly in both a physical and emotional sense.
[1]Trial Transcript (TT) 527–528
[2]TT 646
7 I accept the evidence given by members of her family that your victim had been suffering problems with low self-esteem before she met you. I am satisfied beyond reasonable doubt that she could not stand up to your overbearing, brutal conduct. At various times, this included limiting the amount of sleep she was permitted to have, and dictating that she sleep without clothes on, walk around the house naked, go to the gym or go on a starvation diet of yogurt and water because you said she was too fat. Your controlling behaviour and aggression rendered her very vulnerable. I am satisfied beyond reasonable doubt that in this state of vulnerability, she was generally compliant with your regime of instigating sex each morning and night and that you told her that this was necessary “to build up [your] stamina”.[3] This resulted in your victim being trapped in the grip of your threats and control, which were interspersed with manipulative behaviour. The latter included making her feel obligated towards you because you had told her that you had nobody in Australia and nobody to go back to in the United States either.[4]
[3]TT 266, lines 20-25
[4]TT 276–277
8 Various members of your victim’s family gave evidence that they did not like you from the outset. I am satisfied beyond reasonable doubt that you limited her contact with her family and, ultimately, you compelled her to cease working in the gift shop, where one of her aunts also worked, and to take up prostitution work. The description by one of her aunts of your victim’s change of appearance while she was living with you, from the “everyday next-door girl – jeans and trackie pants” to having “bleached blonde hair with hair extensions, makeup and nails immaculate” together with her having “lost a lot of weight” was very poignant and compelling.[5]
[5]TT 866
9 As previously stated, by April 2009, you unilaterally determined that you were taking her on a trip around Australia. It was over two years before you permitted your victim to return to the locality where her parents lived. This was in or about June 2011. By that stage, your victim had given birth to your baby on 10 March 2011, although there were periods in between these dates when your victim did see her family.
10 I am satisfied beyond reasonable doubt that you had such emotional control over your victim that, when she did see her family, she felt unable to tell them of the abuse that you were inflicting upon her. As she told the jury, although she knew that her parents would have helped and protected her, she felt scared and embarrassed. She stated “I felt like he would just hunt me down and that he wouldn’t let me go. I felt like that – I felt like I just couldn’t do it.” Also, she said “I felt sorry for him and I wanted to show him that he didn’t have to be angry all the time, that he could be loved and have a family.”[6]
[6]TT 649–650
11 Whilst I have and will make mention of some of the many uncharged acts of which evidence was given by your victim to the jury, I make it plain that I have regard to them solely as putting the crimes for which you have been convicted in context, so that they cannot be said to be isolated events. Obviously, you are in no way to be punished for matters which are not the subject of a particular charge.
12 Charge 1 is a vaginal rape which occurred on 20 June 2008. Consistent with the jury verdict, I am satisfied beyond reasonable doubt of the following matters: Your victim had come home tired from her work at the gift shop, and wanted to just watch TV and go to bed. You wanted to have sex with her, but she stated that she did not want to. She went to bed and was under the covers, without any clothes on, which she had told the jury was your preference for the way she should sleep. You came into the bedroom and accused her of not loving you because she never initiated sex with you. You took the bedcovers off and lay on top of her. You held her down by her hands and put your penis into her vagina. Your victim stated that it felt very uncomfortable, and you ejaculated.
13 After it was over, you went to have a shower and your victim made her first entry in her diary:
“I can’t believe what has just happened. I’m scared so I am writing this down in case something happens to me. I’m scared. Allan raped me tonight ...”
14 Charge 2 is a charge of vaginal rape which occurred on 27 September 2008. Consistent with the jury verdict, I am satisfied beyond reasonable doubt of the following matters: It was Grand Final day, and you and your victim had been to a beach where you were struck in the face with a boogie board. This caused you to lose your top denture in the surf. You struck her to the face because you said it was her fault for distracting you and, when the two of you got home, you made her do a strip-show for you and forced her to give you oral sex. These are uncharged acts. I am satisfied beyond reasonable doubt that they were the prelude to your conduct constituting Charge 2. Your victim had been kneeling on the floor whilst you compelled her to give you oral sex. You then stated “I’ll just fuck you instead”, and made her get on all fours by pulling her hips towards you, and you had sex with her from behind by inserting your penis into her vagina, even though she tried to pull away. Your offending on Charge 2 was also recorded in your victim’s diary. I accept beyond reasonable doubt your victim’s evidence that she did not feel safe to leave the house. She stated that, on one occasion she had done so, and you had come after her and walked her back. She stated that she thought that you could get out of the shower at any minute and stop her.[7]
[7]TT 654
15 Charge 3 is a charge of forcing your victim into, or to remain in, prostitution. This occurred between 1 October 2008 and 7 November 2008. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offending were as follows:
16 Your victim stated that you would regularly come to where she worked at the gift shop. You took to walking her there and back and often turning up at the shop while she was working. She had saved $1,800 in a box in a chest of drawers. This was to fund your return ticket to the United States in January 2009. She discovered that you had spent all but $200 of it, and you told her that she could make a lot of money by being a “hooker”. She stated that she was repulsed by the idea, and had no experience, because she had only ever been with you, and you told her that it would get her out of her shell sexually. You compelled her to quit her job at the gift shop, and stood in the entrance of the shop near the counter while she told the owner that she was quitting.
17 You had researched brothels, and selected one called “The Grosvenor” in Melbourne, and told your victim that you were driving her to it. She said that she did not want to go. You then took off from the carpark of the gift shop and sped down the street, and engaged in erratic driving, such as speeding up to cars in front and not putting on the brakes until the last minute and swerving. After a period of such driving by you, she gave in and said that she would work in Melbourne. You drove to Melbourne and parked the car outside the Grosvenor brothel. Your victim said that she did not want to go in, but you told her that you were just going to keep driving around to different brothels until she got a job, so she went in, and commenced work as a prostitute on 7 November 2008.
18 You drove her to and from her first couple of shifts. Your victim stated that she believed she had no choice because you were not going to let her not do it, and she thought you would hurt her. She stated that you liked her to re‑enact what she had done at work with her clients and what she would say to them, and wanted to know how many clients she had slept with. You would tell her different things that turned men on, accompanied her to buy items of apparel to wear in the brothel, and encouraged her to get a fake tan and put her hair up. She stated that she made an average of about $500 per night and, when she got home, you required her to put the money on the kitchen table and leave it there. She told the jury that she never saw the money again, unless you gave her money for such things as food or to get her hair done.
19 Charge 4. This is a charge of anal rape which took place on 21 December 2008. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt of the following matters: Your victim had come home from work at the Grosvenor brothel and had only made $80, which she put on the table, as she was instructed to do. You were unimpressed that she had earned so little and told her that she should start offering anal sex because it would help make more money. She said that she did not want to. You also suggested that she should start offering sex without a condom because that would probably make more money too. Your victim told you that it was illegal and she would catch a disease, and you were angry, and standing close to her and being overbearing, and told her that you would have to “break her in anally” so that she could offer anal sex at work in order to earn more money. She said that she did not want to do that, but you pushed her down on the bed and stood behind her. You pushed your penis into her anus. She believed she screamed because it hurt, but you pushed her face down so that she would not make a noise and continued to have sex with her, and ejaculated onto her back. She said she was pinned down onto the bed and could not move, and she cried. The next day she found there was some blood on the sheets. Your victim also recorded this in the diary, stating “I bled but not as much as I thought I would from the pain”.
20 Charge 5. This is a charge of oral rape which occurred on 17 April 2009.
21 Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: You had used the money that your victim had earned as a prostitute to buy maps, camping gear, an inflatable boat, and a trailer, and told her that you were taking her on a long trip because you wanted to see family members and go fishing. She stated that she did not want to go. However, she complied and the two of you left the locality where her family lived on 17 April 2009. You stayed that night at a motel in Bairnsdale, and she told you that it had been a wrong decision to leave and the two of you should just turn back and go home. You said, “Suck my dick. It will make you feel better.” She did not want to do it, but you grabbed her by the hair and forced her mouth onto your penis and you ejaculated. This, too, was recorded in your victim’s diary.
22 Charge 6 is a charge of forcing your victim into or to remain in prostitution between 1 November 2009 and 25 December 2009. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: You had taken your victim to far North Queensland, where you lived at Mount Isa for a time. You then returned to Victoria to live in a caravan park at Shepparton in about November 2009. You told your victim that you wanted to be a pro-fisherman, and the only way you could afford to do that was for her to go back to work in Melbourne to work as a prostitute at “The Grosvenor”. She stated that she did not want to do that, and you threatened to tell her parents that she had worked as a prostitute. You were very angry and aggressive and, so, she went back to work at “The Grosvenor”. She was afraid not to, as she thought she would have been beaten or raped by you if she did not do so, and she did not want her parents to know that she was working as a prostitute. She would travel by train to Melbourne on a Thursday and remain working there as a prostitute, and return on Monday.
23 Charge 7 involves an anal rape on 2 December 2010. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: On 6 June 2010, your victim had found out she was pregnant, and you stopped physically assaulting her because she had to attend antenatal appointments at the hospital. However, she was forced into a lot more sex by you. On 2 December 2010, while living at the caravan park at Shepparton and when she was approximately six months’ pregnant, you told her that you wanted to have anal sex. She said “No”, because she was too pregnant and hot and uncomfortable. You pushed her down onto the floor of the annexe of the caravan and had anal sex with her. It hurt a lot and was uncomfortable, and you then ejaculated into hair, and she went to have a shower. She made an entry into her diary about this, stating:
“He wants anal sex but I think it’s dirty and it hurts. I said no last night and he pushed me to the floor on my belly and did it anyway like he always does. He came in my hair. I had to go have another shower. I feel like I’ve pulled a muscle in my bump.”
24 Charge 8 is a charge of vaginal rape which occurred on the same day as Charge 7, namely, 2 December 2010. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: Your victim had returned from having a shower following the anal rape. She lay down on the bed and you produced a wooden spoon, which you put into her vagina. She was lying on her back, and you had your hand on her stomach. She said that it was extremely painful and she yelled out in pain, but you did not stop. This was recorded in her diary.
25 Charge 9 is a charge of vaginal rape which occurred on the same day as charges 7 and 8, namely, 2 December 2010. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: immediately after you penetrated your victim’s vagina with a wooden spoon, you told her that she liked to have big things put inside her and put a can of body spray into her vagina. She tried yelling out, but did not continue because she was too scared. She felt as though damage had been done because it was so painful. She recorded this in her diary, including “I thought he tore something down there. I yelled and cried but he put his hand on my mouth.”
26 Charge 10. This is a charge of oral rape which occurred on 11 March 2011. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: On 10 March 2011, at five minutes to midnight, your victim had given birth to a baby, the child of herself and yourself. You came to the hospital at 8.00am on 11 March 2011. The nurses had just removed the catheter which had been in place while your victim was in labour and asked that she urinate into a cardboard bowl in order to ensure that her bladder was working. Your victim was sitting on the hospital bed and you told her that you wanted sex because you had missed out during the pregnancy. She told you that it would be impossible because she had just given birth. She walked to the bathroom, and you followed her in there, as though you were going to help her. She was sitting on the toilet and you came up to her with your penis in your hand and wanted her to give you oral sex. She told you that she did not want to do it and you grabbed her by the back of the head and forced her mouth onto your penis. It made her vomit straight away. After you left the hospital, she recorded the incident in her diary
27 Charge 11 is a charge of oral sex which occurred between 11 and 15 March 2011. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: It occurred in the first few days after you victim had been discharged following the birth of your baby. She was sitting on the bed in the caravan trying to express breast milk for the baby by using a pump. She saw you approaching her, and as you got closer, she saw that you had your penis in your hand. She said, “Not now. I’m expressing milk.” However, you did not take any notice and forced her head onto your penis anyway.
28 Charge 12 is a charge of anal rape, it occurred on or about 15 March 2011. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: This occurred shortly after your victim had been discharged from hospital following the birth of your baby. After she was discharged from hospital, you became a lot more aggressive and would badger her to have sex with you. She told you that it was not recommended to resume normal sexual relations until six weeks after the baby had been born and a doctor had given the all clear. She was in bed lying on her stomach, wearing underwear and a maternity pad, as she was still bleeding following the birth. The baby was in the bassinet next to the bed. She felt your weight on top of her and could feel that you had an erection. She could smell a sickly strawberry-type of smell, which she believes was lubricant. Before she could protest, you put your penis into her anus. She told you that she did not want to do that because it hurt. You moved your penis in and out of her anus until you ejaculated. This, too, was recorded in your victim’s diary.
29 Charge 13. This is a charge of forcing a person into or to remain in prostitution between 1 June 2011 and 31 October 2011. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: In June 2011, when the baby was approximately three months’ old, you and your victim returned to the locality where her parents were living. Your victim told the jury that the baby was a very high-needs baby and she was having difficulty coping, so she told you that it would be better if she moved in with her parents for a while. She found a place for you to stay not far away. She had stopped working as a prostitute once she became pregnant, but you told her that you now wanted her to go back to prostitution and she told you that she did not want to do that as she was a mother now, and it would be difficult to leave the baby. You repeatedly threatened to take the baby and run if she refused to go back to work as a prostitute. You stated that you had found a brothel at Werribee, which was probably the closest one. Your victim began work there in October 2011, seven months after she had given birth to your baby. She told her mother that she was working as a cleaner so that her mother would look after the baby during the day. She recorded these matters in her diary and noted how she hated lying to her mother.
30 Charge 14. This is a charge of anal rape, committed between 1 June 2011 and 25 December 2012. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: This occurred not long after your victim had commenced working at the Werribee brothel in October 2011. You produced a knife and threatened to “fuck her with the handle of it” if she did not do anal sex. She agreed to do so, and you put the knife on the bedside table. She was on all fours on the bed and you forced your penis inside her anus. Your victim told the jury it was very, very painful and she permitted it to happen because she thought that you would actually hurt her with that knife.
31 After your victim ultimately separated from you in late-January 2013, she found the knife with which you had threatened her in a storage unit which you had been using. A photograph of it was tendered as Exhibit “B” at the trial. It is a nasty-looking black hunting or throwing knife. The handle appears to have raised ridges on it and it has a cylindrical metal protrusion from the end of the handle at the polar extreme to the tip of the blade. I am satisfied beyond reasonable doubt that this was the weapon with which you threatened your victim when committing Charge 14.
32 Charge 15 is a charge of vaginal rape on 20 January 2013. Consistent with the jury’s verdict, I am satisfied beyond reasonable doubt that the circumstances of this offence were as follows: After you and your victim had moved from Shepparton to near the home of your victim’s parents, she had been spending some nights at her parents’ home to get help with the baby, but one of the conditions of moving back to the area was that she had to stay with you three or four nights a week. She told the jury that on Christmas day 2012 you had threatened to kill yourself if she did not move back into the house full-time with you. She had determined that she must escape from you and had recorded this in her diary. After Christmas, she reduced the amount of time that she was spending at the address where you were living and would take the baby there to visit you on only a Saturday or Sunday.
33 On 20 January 2013, the baby, who was 20 months old, was watching television. You wanted to have sex with your victim and she refused. You used your body to push her towards the back of one of the armchairs. She was wearing a skirt and underwear and you pulled her skirt up, pulled her underwear down, and forced your penis into her vagina and ejaculated. Your victim recorded this incident in her diary, along with her vow that she was never going back there to you.
34 Following your offending behaviour on Charge 15, your victim separated from you. Subsequently, she discovered that she was pregnant. The second child of your victim and yourself was born on 4 October 2013. For a time, your victim made arrangements for you to see the children. However, in July 2014 she ceased making the children available to see you and obtained a Family Violence Intervention Order. Apparently this was related to alleged concerns that you would run off with the children or hurt the children or herself. You then commenced proceedings under the Family Law Act to obtain access to the children. In the meantime, your victim had made contact with the Centre Against Sexual Assault and, ultimately, made a complaint about your offending to police on 26 February 2015.
35 On 28 August 2015, you were arrested and made a “no comment” record of interview, as is your legal entitlement. The contested committal was conducted in March 2016 during which your victim was cross-examined. Following pre-trial argument, your trial commenced on 3 August 2017. Your victim gave her evidence-in-chief on 4 and 7 August 2017 and was cross-examined by your counsel extensively over a period of three days. During that cross-examination she was accused of being deceitful, telling outright lies and having made up all of the allegations of your criminal conduct and having fabricated the diary. You did not give evidence at the trial, which, again, is your legal entitlement. At the plea hearing, your counsel, Ms Clark, made it clear that you continue to deny all allegations made by your victim and maintain that your are innocent of the charges of which the jury has found you guilty.
36 You are presently aged 64 years. In written plea submissions Ms Clark recorded that you had been born in Hay, New South Wales, the older of two children. Your younger brother is deceased. You were raised by your paternal grandmother in Sydney until you were 13 years of age and then taken to the USA, where you lived with a paternal uncle. You graduated from Texas Agriculture and Military College in 1976 and lived in the USA until you came to Australia to live with your victim in June 2008. You are said to have worked as a general ranch hand in Texas, done some boat cleaning in Florida and some personal training work in Dallas. You come before the Court with no prior or subsequent convictions.
37 Tendered at the plea hearing as Exhibit “1” was a report from Mr Stephen Blackburn, clinical psychologist, dated 27 September 2017. After you had been committed to stand trial on 22 March 2016, your general practitioner referred you on 30 November 2016 to Mr Blackburn for assistance with mood disorders, said to be Bipolar 1 and Major Depression. Mr Blackburn noted that “([your] symptoms had worsened due to stressful life circumstances related to forced separation from [your] children, conflict with [your] ex-partner and impending court case.” You attended Mr Blackburn on five occasions between 8 December 2016 and 5 April 2017. He noted that you asked that the sessions focus on assisting you with emotional “pain” regarding being separated from your two children and explained that you felt angry about the claims of sexual assault, which you denied.
38 Mr Blackburn stated that you explained that you had a diagnosis of Bipolar Disorder. However, he did not record when this diagnosis had been made or by whom and whether you had ever been on medication for it. You told Mr Blackburn that, at that time, you were taking medicine for depression and anxiety. Mr Blackburn noted that the referral from your general practitioner indicated that you had been prescribed an SSRI, which was sometimes helpful in treating depression. In an unexpansive report, Mr Blackburn stated that he conducted a “semi structured interview”. He went on to state: “Guided by the M.I.N.I. 500, Allan described features of Bi-polar mood disorder and current episode of Major Depression mood disorder.” Symptoms were said to include “Unable to access pleasure, feeling worthless, feelings of (public) shame, withdrawal from life, rumination, hypervigilance, poor sleep, unresolved anger, tangential thinking, mild hyper-mania, increased amount of speech.”
39 Mr Blackburn stated that he provided you with “a working diagnosis” namely, Bi-Polar 2, mild symptoms and a major depressive episode, severe symptoms. He also noted moderate symptoms of anxiety and severe levels of stress. He considered that your psychological condition inhibits your ability to perform vocational, social, domestic, recreational and self-care roles and that the extent of this impact was significant. He stated that you have a permanent mental disability, albeit mild. He also noted that, although Bi-Polar Mood Disorder does not have a cure, medicines and therapies are often useful in ameliorating adverse impact, but during times of stress (such as the current situation), your symptoms would likely worsen and increased emotional turmoil, impulsiveness and DSH/suicide are risks associated with your disorder. He opined that your mental state is likely to affect your ability to appropriately advocate for yourself. He noted that reduced concentration and tangential thinking and increased amount of speech were effects which you would not notice unless they were brought to your attention. He considered that your underlying disability, although relatively mild, was unlikely to improve over the long term but, with appropriate medicine and therapy, you could expect to manage your mental wellbeing, but this would not translate to permanent gains.
40 Ms Clark, on your behalf, did not rely on Mr Blackburn’s report in support of the application of the principles in R v Verdins,[8] other than asking the Court to find that, because of your mental-health condition, imprisonment would be more burdensome for you than for someone without such condition and that imprisonment would be likely to have an adverse effect on your mental health. In response to a question from myself, Ms Clark stated that she had no instructions about when you had first been diagnosed with a Bi-Polar Disorder or whether you had taken medication for it in the past. She stated that you were not presently taking any medication at all for either a Bi-Polar Disorder or depression.
[8](2007) 16 VR 269
41 Mr Blackburn’s report does not comply with the Practice Note relating to Expert Reports on Mental Functioning of Offenders.[9] It does not specify the clinical criteria for a Bi-Polar 2 or a Major Depressive Episode diagnosis or state which of those criteria are met by you. Other than stating that you were referred by your GP for assistance with mood disorders, Bi-Polar 1 and Major Depression, and that your symptoms worsened because of a forced separation from your children, conflict with your ex-partner and the impeding court case, there is a total absence of any earlier personal or medical or psychiatric history. Mr Blackburn does not explain the difference between a diagnosis of Bi-Polar 1 and Bi-Polar 2. In particular, he does not specifically address any of the matters in paragraph 7.4 of the Practice Note. Your symptoms necessitating the referral to Mr Blackburn seem to me to be primarily reactive to your legal situation following the separation from your victim. This factor, together with your not being on any ongoing regime of medication for your symptoms cause me to give the report little weight. However, I do take into account as part of your personal circumstances that you are socially isolated and have no one to visit you in prison and that serving a first prison sentence at your age, with some mental health issues is likely to be difficult, and it may be that the stress of prison life may exacerbate your symptoms.
[9]Supreme Court of Victoria Practice Note SC CR 7, 30 March 2017.
42 Whilst acknowledging that the offending was such that the only appropriate sentence was a term of imprisonment, Ms Clark urged the Court to note your lack of prior or subsequent convictions as well as paying heed to the principle of totality.
43 Mr Hahne, the cruel, brutal and humiliating behaviour of which the jury has found you guilty is truly deplorable. It was inflicted upon your victim with whom you were in a de facto relationship and who is the mother of your two children (although the second child was born after you separated). Unhappily, domestic violence is a very prevalent and serious problem in our community. It needs to be made abundantly clear that the rape of a victim with whom the perpetrator is in a relationship is no less serious than the rape of any other person. Indeed, it is a violation of the loving bond that should exist between people who are in a relationship. Not only have you offended in the very serious ways in which the jury have found you guilty, but you have put your victim through cross-examination at a committal, as well as very extensive cross-examination during the trial, where she had to re-live your brutal, controlling conduct towards her and suffer being called a liar on your behalf. You have shown absolutely no remorse for the insidious, dominating and demeaning behaviour towards an innocent young woman who was 32 years younger than you and who had only ever lived with her family and never known a sexual relationship before she met you.
44 The psychological grip that you held upon her enabled you to be confident that she would not complain whilst she was still under your control. You continued to use her in a depraved, selfish manner effectively as your sexual slave, to be penetrated in whatever orifice pleased you, whenever you felt like it, in whatever humiliating circumstances took your fancy. The long-term impact upon your victim has been profound and is eloquently expressed in her Victim Impact Statement, Exhibit “A” on the plea. She states that she has only just realised how exhausted she is after living in a near constant state of flight or fight for so long. It was only after she got away from you that she could see how dangerous you were and how you controlled and manipulated her in a greedy and selfish way. She was only 22 when she first spoke to you and describes how you took her hopes, dreams and youth and left her full of fear and self-loathing and helplessness. She says she has often felt like the one on trial. She found the Court process humiliating, terrifying and prolonged and, at times, felt that she could not continue. It was as though you were making her feel as though she was responsible for the way you had raped, threatened, psychologically tortured her and forced her into prostitution. She has flash backs to the vile way you treated her, experiences nightmares and suffers anxiety, particularly at night. She hates feeling so vulnerable and feels that she will never connect with another man on an emotional level for fear of history repeating itself. These are deeply distressing and terrible daily consequences which this mild mannered, gentle young woman still suffers from your long-term terrible abuse of her. I here note that I do not propose to dwell upon or take into account any matters referable to the children mentioned in the Victim Impact Statement.
45 The plea on your behalf was remarkable for the lack of detail about your earlier life. It comprised the scant biographical details in your counsel’s written submissions comprising a few lines, to which I have already referred in these sentencing remarks. I take into account that you become before the Court with no prior convictions. However, the conduct of which the jury has found you guilty is very disturbing. As I have said, you maintain your innocence and have no remorse. Your offending conduct shows you to be a profoundly selfish person who has a sense of entitlement, is manipulative, lacks empathy and demonstrates a failure to take responsibility for your behaviour and its consequences. These traits and your continued denial of offending and lack of remorse cause me to seriously doubt that you are capable of rehabilitation at this stage of your life, notwithstanding your lack of prior offending.
46 Since you met your victim, you have barely worked save for a fleeting attempt to set up a boat cleaning business, which your victim told the jury involved you doing one job, and some other short-lived employment as a driver of a bus. As best I can glean from the evidence before the jury, your primary preoccupations were your own sexual gratification and physical fitness and fishing. I am satisfied beyond reasonable doubt that you boasted to you victim’s younger sister about your relationship with your victim, as though she was some form of trophy of yours, in effect stating “look at me, I’m with this young girl”.[10] You also boasted to a neighbour about how your victim was “earning awesome money” as a prostitute. [11] Having forced your victim into prostitution, you also humiliated her by telling others that she was a prostitute.[12]
[10]TT 797 L4-18
[11]TT769 L5-13
[12]TT334, L20-24 and TT350 L8-7
47 In the evidence put before the jury, your behaviour seems to be that of a person solely concerned with gratifying your own desires, and having no particular work ethic, in that you relied upon your victim’s earnings from prostitution into which you bullied her. Indeed, I am satisfied beyond reasonable doubt that you dictated to your victim that she should continue to receive Centrelink benefits even whilst she was earning income as a prostitute. Ironically, this was relied upon in cross-examination of your victim to attack her character. I am satisfied beyond reasonable doubt that your victim did not declare her Centrelink benefits, when she was working as a prostitute because you would not let her, as you still wanted her to get Centrelink because it was “like back up money”.[13]
[13]TT 656, L26 – 657, L1
48 You appear to have no respect or concern for your victim and treated her as your property. The gravity of your offending consists not only in the number of offences, but the fact that you cruelly dominated your victim over 4 ½ years. You took advantage of your de facto relationship, her naivety and the great disparity of power and life experience between you. In doing so, you eroded her sense of identity and isolated her from her loving family.
49 The law does not distinguish between types of penetration, but I find a number of the rapes have aggravating features which warrant a higher sentence than others, even setting aside the fact that for those offences of rape from Charge 2 onwards, you fall to be sentenced as a serious sexual offender.
50 Charge 4, the first occasion on which you anally raped your victim, was particularly painful and humiliating. Your victim had never before had such an experience and she was pinned down on the bed and crying and she bled from her anal area. It is all the more disgusting for you having told her that you were “breaking her in anally”, so she could earn more money – money of which you took control. When she told you she did not like it and that it hurt, you told her that you would “save it for special occasions”, indicating that you liked it and that it was a “turn on”.[14]
[14]TT 312, L18-23
51 Charges 7, 8 and 9 involve aggravating factors. Not only was your victim six months pregnant and enduring the summer heat whilst living in a caravan park at Shepparton, but she had just had a shower before Charge 7 was committed and another shower after that, before Charges 8 and 9 were committed. I am satisfied beyond reasonable doubt that she had told you that she despised anal sex and she specifically told you in relation to Charge 7 that she did not want to have anal sex because she was too pregnant and hot and uncomfortable. Yet, you pushed her down onto the floor of the annex to the caravan, hurt her a great deal and then ejaculated into her hair. Your offending on Charges 8 and 9 followed soon thereafter and were of a deeply humiliating and painful nature, where you inserted objects into her vagina. Not only did she cry out in pain and you would not stop in relation to Charge 8, but you creepily told her that she liked big things in her vagina as you inserted the can of body spray and placed your hand over her mouth to stifle her cries. You showed complete disregard for any dignity of your victim, particularly given that she was carrying your child. Notwithstanding that your offending on Charges 7, 8 and 9 happened on the same day and were closely linked in time, I find that some cumulation is warranted by the serious aggravating features related to each discreet offence.
52 Charge 10, the oral rape within eight hours of your victim giving birth to her first child, is obscene in its depravity and lack of empathy. The joy of your victim having given birth to her first baby was sullied by your grossly abhorrent behaviour. Charges 11 and 12 also have aggravating features. Your victim was struggling to come to terms with being a mother and to look after a newborn baby. You forced her to give you oral sex while she was expressing milk (Charge 11) and anally raped her in the early post-partum period when she was still recovering from the birth and wearing a maternity pad because she was still bleeding from the birth (Charge 12).
53 Charge 14 carries a serious aggravating feature by you threatening to “fuck” your victim with the very ugly looking handle of the hunting/throwing knife if she did not cooperate with your demand for anal sex. I am satisfied beyond reasonable doubt that she cooperated because she genuinely thought that you would hurt her with that knife, and she found the anal sex very, very painful.
54 Your offending on Charge 13, forcing your victim into prostitution, has a particularly aggravating factor in that the baby was only seven months old. I am satisfied beyond reasonable doubt that you threatened your victim that, if she did not go back to work as a prostitute, you would take the child and run. This is a disturbing threat to a young mother who loved her baby and had recorded in her diary that the birth of the baby was the best thing that ever happened to her.
55 As your counsel rightly conceded, there can be no sentence appropriate other than a term of imprisonment. As I propose to sentence you to a term of imprisonment on Charge 1 and Charge 2, you fall to be sentenced as a serious sexual offender on Charges 4, 5, 7, 8, 9, 10, 11, 12, 14 and 15 pursuant to the provisions of Part 2A of the Sentencing Act. This means that in sentencing on these charges, I must regard the protection of the community from you as the principal purpose for which the sentence is imposed. In order to achieve that purpose, I have power to impose a sentence disproportionate to the gravity of the offence. However, the prosecution has conceded that such a course is not appropriate in your case. In addition, s6E of the Sentencing Act requires terms of imprisonment imposed on a serious offender for a relevant offence to be served cumulatively unless otherwise directed. Clearly, sentences cannot be made totally cumulative in your case, given the large number of offences, because the sentence would be manifestly excessive and offend against the principle of totality.
56 The sentencing task which involves imposing penalties which provide for just punishment and adequate denunciation, reflect the need for general and specific deterrence and provide for protection of the community. However, I must also ensure that the sentences are proportional to the overall criminality and give effect to the principle of totality. Thus, it is necessary for me to arrive at a combination of the sentences to ensure a final outcome which is just.
57 Save for the fact that you have no prior criminal history and have some mental health issues to which I have earlier referred, there is little else by way of mitigating factors in your favour. The dearth of material put before the Court about your life prior to the time at which you met your victim makes it difficult to take other personal circumstances into account. For example, the Court has not been appraised of such factors as why you were raised by a paternal grandmother to age 13 and then taken by an uncle to live in America. Nor has the Court been told what took place in your life in the decades that you lived in the United States, or even whether you had any personal relationships, marriages or family. In any event, your behaviour towards your victim is so serious that it would dwarf the impact of prior good character in the sentencing process. I do take into account that, since your last offence against the victim in January 2013, there has been no further offending. However, I also note that, since mid-2014, an intervention order was in place.
58 Would you stand up, please, Mr Hahne. I sentence you as follows:
On Charge 1, rape, you are convicted and sentenced to be imprisoned for a period of 8 years;
On Charge 2, rape, you are convicted and sentenced to be imprisoned for a period of 8 years’
On Charge 3, forcing a person into prostitution, you are convicted and sentenced to be imprisoned for a period of 3 years;
On Charge 4, rape, you are convicted and sentenced to be imprisoned for a period of 10 years;
On Charge 5, rape, you are convicted and sentenced to be imprisoned for a period of 8 years;
On Charge 6, forcing a person into prostitution, you are convicted and sentenced to be imprisoned for a period of 3 years;
On Charge 7, rape, you are convicted and sentenced to be imprisoned for a period of 10 years;
On Charge 8, rape, you are convicted and sentenced to be imprisoned for a period of 10 years;
On Charge 9, rape, you are convicted and sentenced to be imprisoned for a period of 10 years;
On Charge 10, rape, you are convicted and sentenced to be imprisoned for a period of 10 years;
On Charge 11, rape, you are convicted and sentenced to be imprisoned for a period of 9 years;
On Charge 12, rape, you are convicted and sentenced to be imprisoned for a period of 10 years;
On Charge 13, forcing a person into prostitution, you are convicted and sentenced to be imprisoned for a period of 4 years;
On Charge 14, rape, you are convicted and sentenced to be imprisoned for a period of 10 years;
On Charge 15, rape, you are convicted and sentenced to be imprisoned for a period of 8 years.
59 The base sentence is that of 10 years imposed on Charge 4. I direct that 6 months of the sentence on Charge 1, 6 months of the sentence on Charge 2, 4 months of the sentence on Charge 3, 6 months of the sentence on Charge 5, 4 months of the sentence on Charge 6, 2 years of the sentence on Charge 7, 1 year of the sentence on Charge 8, 1 year of the sentence on Charge 9, 2 years of the sentence on Charge 10, 1 year of the sentence on Charge 11, 2 years of the sentence on Charge 12, 5 months of the sentence on Charge 13, 2 years of the sentence on Charge 14, and 6 months of the sentence on Charge 15 be served cumulatively upon the base sentence and upon each other.
60 The total effective sentence is 24 years and 1 month’s imprisonment.
61 I direct that you serve a period of 16 years’ imprisonment before becoming eligible for parole.
62 I declare a period of 101 days’ pre‑sentence detention to be time reckoned as already served under the sentences imposed this day.
63 I cause to be entered in the records of the Court the fact that you have been sentenced as a serious offender in relation to Charges 4, 5, 7, 8, 9, 10, 11, 12, 14 and 15.
64 By reason of being convicted upon the charges of rape, you attract the provisions of the Sex Offenders Registration Act 2004. Your counsel has conceded that your registration under such Act is mandatory and that your period of reporting under those provisions will be for the remainder of your life.
65 Mr Hahne, I will have my associate hand to you a document setting out your obligations under the Sex Offenders Registration Act 2004. I ask that you acknowledge receipt of it by signing your signature.
66 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of one black hunting knife and three throwing knives and I further direct that those items be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date or the conclusion of any appeal proceedings where they may be tested and/or analysed and then destroyed.
67 Pursuant to s464ZF(2) of the Crimes Act 1958, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-Division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of your offending.
68 Mr Hahne, you need to be aware that if you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then police may use reasonable force to enable that procedure to be conducted.
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