Director of Public Prosecutions v Haines (a pseudonym)
[2022] VCC 1107
•15 July 2022
| IN THE COUNTY COURT OF VICTORIA AT WARRNAMBOOL CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TYSON HAINES (A PSEUDONYM) |
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JUDGE: | HER HONOUR JUDGE HASSAN | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 15 July 2022 | |
DATE OF SENTENCE: | 15 July 2022 | |
CASE MAY BE CITED AS: | DPP v Haines (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 1107 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence — sexual penetration of a 16 or 17-year-old child — plea of guilty — COVID-19 — remorse — victim impact statement — moral culpability — no criminal record — no criminal history — prior good character — delay — denunciation — general deterrence — low risk of reoffending — prospects of rehabilitation — imprisonment — suspended sentence — class 1 offence — sex offender registration
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:Worboyes v The Queen [2021] VSCA 169
Sentence: Total effective sentence of two years’ imprisonment, wholly suspended
Section 6AAA declaration: total effective sentence of three years with non-parole period of two years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Brown | Office of Public Prosecutions |
| For the Accused | Mr M Brogden and Mr J Karitzis | O’Brien & Smith Lawyers |
HER HONOUR:
1Tyson Haines,[1] you have pleaded guilty to one charge of sexual penetration of a 16 or 17-year-old child (charge 1), for which the maximum penalty is a term of 10 years’ imprisonment.
[1] A pseudonym.
Circumstances of the Offending
2Tendered on the plea as exhibit 1 was a ‘Summary of Prosecution Opening’.
3In brief, the circumstances of your offending were as follows.
4The victim is Emily Carver.[2] Ms Carver is now 24 years old. At the time of the offending, she was 16 years of age and residing in Warrnambool with her family. She is your wife’s cousin. At the time of your offending, you had known Ms Carver for a number of years, and you considered each other family.
[2] A pseudonym.
5In 2012, you were living with your wife and your three children in Warrnambool. You were 30 years old. The three children were all under the age of four at the time. It was usual around this time for Ms Carver to babysit your children. She would often stay overnight and would sleep in the bed in the main bedroom. When this would happen, you and your wife would sleep upstairs in the house.
6Sometime between August and September 2012, you messaged Ms Carver to come over and have some drinks. She was 16 and she thought it would be cool to drink, so she came to your home. Your wife was away for the evening.
7Ms Carver was dropped at your home by her father at around 6:30pm. You were drinking in a shed with a friend. On her arrival, you asked Ms Carver if she would like a drink and she said she would. She drank two to three cans of Jim Beam bourbon in the shed with you and your friend.
8At about 9pm, you put your children to bed and returned to drinking in the shed. At around 10:30pm, you and Ms Carver went inside the house. Once inside, you offered Ms Carver some more to drink, some Passion Pop, and you told her to drink it from the bottle. She did not like it and so she only had a mouthful or two.
9Sometime not long after 11pm, Ms Carver got into your bed, which was usual for her whenever she was at the house to babysit the children. She was by herself when she got into bed and did not think that this was a strange thing to do, as she would ordinarily sleep in the main bed when she was in the house.
10Shortly after she had gone to bed, you got in the bed with her. Ms Carver did not think anything of it as she considered you were family and she felt safe with you. Ms Carver tried to go to sleep but you wanted her to roll over and talk to you. You kept asking her to do this.
11Eventually, she did roll over and face you and when she did, you leaned in and kissed her. She immediately pulled away and rolled back over to face away from you. You then kept asking her to roll over and kiss you again. In order to stop you asking and to get some sleep, Ms Carver rolled over towards you.
12You kissed her again and then she rolled back over and tried to go to sleep. You then began to rub her body. Ms Carver was clothed at the time with her leggings and a jumper on. It seemed to her that the rubbing lasted a while.
13You then rolled her onto her back and continued to touch and kiss her. Ms Carver began to shake uncontrollably because she was so frightened, but when asked by you why she was shaking, she said it was because it was cold. You then pulled her pants off and began to rub her vagina with your hand, then you penetrated her vagina with your fingers, and that is the basis of the charge.
14You continued to kiss Ms Carver. At this point, one of your children came into the room and you got up and took the child back to bed. Ms Carver took this opportunity to go to the bathroom and when she wiped her vagina, she noticed blood on the toilet paper. She got fully dressed again and got back into bed.
15When you came back to the bedroom, Ms Carver told you that when she wiped herself, there had been blood on the toilet paper. You asked her if that had been the first time that she had been ‘fingered’, to which she said, ‘Yes’.
16Ms Carver left the next day. She never babysat for you and your wife again.
17Ms Carver disclosed to family members in 2018.
Arrest and Interview
18You were interviewed at the police station on Friday 7 August 2020, in which you admitted that you had digitally penetrated Ms Carver. You said this was consensual. You admitted that this should not have happened, but you said Ms Carver was 16 and so was able to consent.
Plea of Guilty
19You pleaded guilty just before a jury was due to be empanelled in this matter this week. This is not an early plea but nevertheless it has saved the community the cost of a trial and has spared Ms Carver giving evidence. It therefore carries significant utilitarian weight, heightened in the context of the ongoing delays in the administration of criminal justice in this State caused by the COVID-19 pandemic. I take your plea of guilty into account in sentencing you and I give it the full mitigatory weight which attaches to it, as discussed in the case of Worboyes v The Queen.[3]
[3] [2021] VSCA 169.
20I am also prepared to accept that your plea, in conjunction with your apology to Ms Carver’s mother, and your expressions of remorse to your family members are all indicative of remorse on your part and a full acceptance of criminal responsibility for your actions.
Victim Impact
21Ms Carver has made a victim impact statement. She says that your offending against her has caused her ongoing suffering. She says she has needed countless hours of therapy. She says she finds it incredibly difficult to form intimate relationships with men and she no longer trusts men. She says your offending against her has caused the breakdown of family relationships.
22Ms Carver’s statement is a reminder of the profoundly damaging consequences of premature sexual experience which lie at the very heart of the law’s prohibition on sexual activity with children. The consequences of childhood sexual abuse and the lasting damage it causes are well understood by the courts. Harm, including future harm, is presumed when children are exposed to sexual abuse.
Objective Gravity
23Your offending involved the sexual violation of a 16-year-old who trusted you and regarded you as a family member.
24I accept that while you may have reasonably believed Ms Carver was consenting because of her submission, she was not in fact consenting. This must have been a traumatic and humiliating experience for your young victim, which occurred in a setting where she was entitled to feel safe and protected.
25On the other hand, I accept that your offending was opportunistic rather than premeditated and was of short duration.
26It remains, however, serious offending and your moral culpability is high.
Personal Circumstances
27You are presently 40. You have no prior convictions nor any matters pending. You are otherwise a person of good character and of good standing in the community.
28You and your wife have recently separated. You have five children. References tendered by family members including your wife, your mother and your sister all say you are a loving and dedicated father to all your children, one of whom has autism, and that you are a loving and supportive son to your mother.
29Your family has experienced significant family trauma with your brother dying in an accident and your father dying unexpectedly at the age of only 54.
30You have a solid work history. You and your wife run two businesses together. As a result of your offending, you lost a very valuable contract with Australia Post.
Submissions of the Parties
31On your behalf, it was submitted that having regard to your plea of guilty and your remorse, your good character, and the delay in this matter being reported and coming to Court, a sentence of imprisonment wholly suspended was an appropriate sentencing disposition.
32The prosecution submitted that this was within range in all the circumstances, notwithstanding the seriousness of your offending.
Conclusions
33The sexual abuse of children by those entrusted with their care is very serious offending. The sentence I impose must denounce your conduct in clear and unequivocal terms. It must also act as a deterrent to those who would behave as you did by sending a clear message that such behaviour will not be tolerated and will be punished.
34I accept that there are powerful mitigatory considerations here, including your plea of guilty, the delay, your lack of prior convictions and your hitherto good character.
35I accept ultimately that this was a one-off aberrant act involving a lapse of judgement on your part, albeit a very serious one. I regard your risk of reoffending as low and your prospects of rehabilitation as good.
Sentence
36Having regard to all the matters I am required under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows.
37On charge 1, you are convicted and sentenced to two years’ imprisonment, wholly suspended for two years.
38Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had you pleaded not guilty, you would have been sentenced to a total effective sentence of three years with a non-parole period of two years.
39Pursuant to s 18(4) of the Sentencing Act 1991 (Vic), I declare that you have served nil days of the sentence I have passed upon you and I direct that this be entered into the records of the Court.
40You pleaded guilty to a single class 1 offence. You will be a registered sex offender for 15 years.
41Mr Haines, the effect of the sentence is that you have been sentenced to two years’ imprisonment, but I have wholly suspended it. That means you are not going to gaol today, but what it means is that sentence hangs over your head for an operational period of two years. If you commit any other offences, it is activated, and any other offences does not necessarily mean something as serious as this offence. So, you must be of good behaviour for two years, otherwise that sentence can come crashing down on you and you will go to gaol for two years.
42You are also a registered sex offender for 15 years.
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