Director of Public Prosecutions v Haining
[2013] VCC 922
•14 June 2013
P
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00082
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STUART RONALD HAINING |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 14 June 2013 | |
CASE MAY BE CITED AS: | DPP v. Haining | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 922 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Pace | |
| For the Accused | Mr C. Metcalfe |
HER HONOUR:
1 Stuart Ronald Haining, you have pleaded guilty to two charges of sexual penetration of a child between ten and 16 years and one charge of indecent assault. The offences took place between September 1982 and April 1983. The maximum penalty for sexual penetration of a child between ten and 16 years is, in this case, ten years' imprisonment. The maximum penalty for indecent assault is, in this case, five years' imprisonment.
2 In 2000 you were convicted of six sexual offences: indecent act with a child under 16 years, production of child pornography and possession of child pornography, and sentenced to a term of imprisonment on each to be served by way of intensive correction order. Accordingly, you are to be sentenced as a serious sexual offender in relation to the charges on the current indictment.
3 This means that the court must regard the protection of the community as the principal purpose of sentencing and may, in order to achieve that purpose, impose a longer sentence than that which is proportionate to the gravity of the offences considered in the light of their objective circumstances. I note, however, that the Crown is not seeking a disproportionate sentence in this matter.
4 At the time of the offences you were 24 years old and living with your brother in the same suburb as the victim, who was then ten years old and living with his parents and sister. You knew the victim and his family.
5 More detailed particulars of the offending are set out in the prosecution summary which was tendered on the plea as Exhibit 2. Your counsel has accepted that summary as an accurate statement of facts for the purposes of sentencing. I accept and adopt those facts as part of the factual base of the sentence.
6 The prosecution has also tendered your prior convictions, which is Exhibit 1. You have admitted these previous convictions. Ms Dipietrantonio, for the prosecution, also tendered a victim impact statement, which is Exhibit 2, which she read out in full.
7 You are now 55 years old. The victim is now 40 years old. He was 38 years old when he made his statement to police. The offending occurred in the summer of 1982 in the bathroom of your home. There were three incidents between September 1982 and April 1983.
8 In the first incident, which is the subject of Charge 1, you told the victim to change out of his bathers in the bathroom. You went to the bathroom while he was naked, touched his buttocks and penis, put his penis into your mouth and performed oral sex on him for a few minutes. The victim felt scared. You told him not to tell anyone or you would hurt his sister and the victim would get into big, big trouble. When his mother picked him up that day, the victim was scared and upset and afraid of telling anyone.
9 The second incident, which is the subject of Charge 2, occurred a few weeks later in similar circumstances. You told the victim to get changed, so he went to the bathroom. You went to the bathroom, pulled down his bathers, touched him on the penis, knelt in front of him, put his penis in your mouth and performed oral sex on him for a few minutes. You then told him not to tell anyone. He then got dressed and watched television. His mother picked him up and took him home.
10 The third incident, which is the subject of Charge 3, occurred about a month after the second occasion. The victim's sister was present in the house and was watching television. The victim was in the bathroom and you went in and shut the door. He was scared. You made small talk with him. You forcefully pulled his shorts and underpants off and touched his penis, pulling his foreskin back and forth for a few minutes. He pulled back and said, "Nah." You stopped and left the bathroom. The victim's mother picked him and his sister up later that day.
11
The victim first spoke to his father about the offending about six years ago and reported the matter to police on 10 August 2011. You were interviewed on
26 March 2012and made a number of comments. You recalled the victim's family and where they lived. You did not recall your contact with the family because of the passage of time and the fact that you have difficulty remembering so far back due to your medical conditions, which include depression, anxiety, high blood pressure, gastric reflux and Type 2 diabetes.
12 In relation to Charges 1 and 2, you said that you did not remember the incidents but "If the kid said I've done it, well, I did it." In relation to Charge 3, you said you did not recall it happening. When asked why you would have done something like this, you told police that you had been raped and abused and believed that "Something like this was the right thing to do, normal thing to do, and sometimes I'd have flashbacks, I don't know." You also stated that since you offended in 2000 you had been seeing a psychiatrist, and you said, "Parts of my life are blacked out, they sicken me. The thought that I could do something like, especially after what I went through." When asked if you were aware that it was illegal for a 21 year-old to perform oral sex on a young child, you said, "It's disgusting, yes." You also said, "After I offended in 2000, I started rebuilding my life again. You rang, it just all came crashing back down again." You also said, "I am very sorry for what happened and if I've caused the poor guy stress, I know exactly what he has gone through, and for that I am deeply regrettable and sorry."
13 A victim impact statement was tendered on the plea and read out in full. In it the victim states how the offences affected him. He became withdrawn, did not trust any adult and did not want to be alone with any adult nor undress in front of anyone. He was bullied at school, his grades suffered, and he left school early at the age of 16. As an adult he did not trust people. When he had his own children he was hyper vigilant in relation to protecting them and would not leave them with anyone. Since his children have started to grow up, he experienced psychological problems including anger, anxiety attacks and mood swings and does require counselling. His inability to leave his children in the care of others at any time has meant that he and his wife have never been able to work outside the family home at the same time. This has had a very negative affect on the family's finances.
14 It took the victim a lot of counselling to summon the courage to tell police the details of what happened, but he still requires counselling and still worries that if he takes his eyes off his children they will be hounded in the same way.
15 Your personal circumstances were set out in a psychological report of Elizabeth Warren dated 31 May 2013, which is Exhibit C.
16 As I have said, you are now aged 55. You were the victim of sexual abuse as a child from the age of seven to 12. Your parents are deceased. You have five brothers and three sisters. You left school in Year 10 and worked with an electrical floor heating company, a wire conveyer belt manufacturer, then with the Railways for 17 years until 1987, then as a courier. You married in April 1983 and had two children, now aged 26 and 22. Your wife divorced you as a result of the charges you faced in September 2000 and for some time you were estranged from your children, but you have since reconciled with them.
17 As at the time of the plea, you were living with your former wife and your daughter in two-bedroom Housing Commission accommodation along with a sister and a brother-in-law.
18 I note that you have been on a disability support pension since 2001 due to depression and anxiety. You suffer from chronic back pain as the result of a transport accident. You are on medication for a number of medical conditions including depression, anxiety, hypertension, gastric reflux, Type 2 diabetes and constipation.
19 You told Ms Warren that you had a reorientation to homosexuality after your marriage breakdown because you were hurt by your wife's rejection. You told Ms Warren about two failed relationships with male partners. You ended the first relationship when your partner told you of travelling overseas to procure sex with young boys. You ended the second relationship when you discovered that your partner was accessing child pornography. You informed police and charges followed which resulted in his incarceration. You are currently single.
20 You told Ms Warren that you remembered the victim and his family but did not recall the incidents complained of and that you wanted to be by yourself in court. She noted at p.4 of her report that you told her that when you heard about the charges "it made my stomach crawl. I've had 14 months of hell since the police officer called me." You told her you felt sick about the charges because you were a victim of childhood sexual abuse by an adult male.
21 She noted at p.5 of her report, "While he denies any recall, he stated that the reason he must have conducted the indecent behaviour against the child was that he was under extreme stress at the time and must have reverted to thinking that it was the right and normal thing to do."
22
You told Ms Warren that the 1999 offence occurred during a long period of marital disharmony when you were highly stressed and anxious. You did not recall the event, but acknowledged guilt and pleaded guilty to that offence. After being dealt with for the 1999 offence, you suffered a major depressive episode and attempted suicide by taking an overdose of tablets. You were found unconscious and were hospitalised. You told Ms Warren that you were sorry that you survived this attempt. However, you completed the required
35 week sex offender program in 2000 and found it very helpful in providing you with practical support as well as enabling you to disclose your experience as a victim. You told her that if you had received that assistance after committing your first sexual offence in 1982, you would not have offended again in 1999.
23 She noted that you continue to take antidepressants but still suffer from symptoms. She noted that since your court appearance in 2000 you have developed severe social anxiety and still only shop when accompanied by someone else and then only at night when there are a few people around.
24
Ms Warren conducted a sexual violence risk assessment of you using the SCR20 assessment tool. She found that your offending reveals the presence of some risk factors including depression involving suicidal ideation as well as post-traumatic stress disorder from your own sexual abuse history, problems resulting from child abuse, psychological coercion in your offending and problems with intimate relationships. On the other hand, she identified a number of positive features. You do not lack empathy, you do not have a negative attitude towards interventions, you do not have substance abuse problems, you do not have a lack of social or professional supports and you do not have problems with supervision. Each time you have been sentenced to any order, you have completed it without difficulty. This includes your
12 months probation in 1982, the sex offender program in 2000 and your compliance with the Sex Offenders Register.
25
You were able to recall and account to Ms Warren many of the practical principles you learned in the sex offender program if you ever felt at risk of
re-offending. You told her that you have not needed to use these strategies as you have never felt any desire to re-offend. You told her that you got on very well with your therapist and enjoyed community work so much when you assisted a chef in a nursing home and participated in other daily activities with residents, that you had hoped to stay on as a volunteer and were disappointed when you learnt that this would not be possible due to your registration as a sex offender.
26 She noted that you have continued your engagement with Dr Livingstone since 2002 on a regular basis, with occasional breaks of around a month.
27 Ms Warren concluded that you present a very low risk of sexually offending against children and do not need any further treatment in this regard. She noted that you would probably cope with a prison sentence because you feel very ashamed about your conduct and would accept any outcome decided by the court.
28 Dr Angela Livingstone, psychiatrist, has been treating you for major depression since August 2002. She reported on 22 February 2013 (Exhibit A) that you sought treatment after your conviction for sexually assaulting a minor, which resulted in the break-up of your marriage and a loss of contact with your children. Although she noted that this conviction occurred in 2002, I understand from other material that it was in fact in 2000.
29 She noted that you told her at first that you could not remember the incident, but during the sex offenders program you started to have what you believed were partial memories of the assault. She reported that you have responded to a combination of psychodynamic therapy, cognitive behavioural therapy and medication which you have been taking for the past ten years. She stated that you are suffering from major depression with anxiety features, which is in partial remission, as well as from agoraphobia with panic attacks, which is in remission. In addition, you suffer from a chronic pain syndrome. She reported that you do not drink, but smoke too much and have difficulty maintaining a healthy diet and adequate exercise. You suffer from medical problems, including Type 2 diabetes, hypertension, constipation and chronic back pain.
30 Again, Dr Livingstone's report appears to be addressed largely to the issues surrounding the conviction in 2000 and she reported at p.1, "His main struggle has been with his feelings of guilt and remorse for the assault he committed as well as with states of anxiety, at times amounting to agoraphobia with panic attacks. He has chronically poor sleep, partly due to chronic back pain but contributed to by anxiety, and his mood fluctuates around the mildly depressed baseline with occasional suicidal preoccupations which he resists due to the effect this would have on his family. It is likely that he will continue at this functional level for the foreseeable future. However, he has a number of strengths. He has been able to repair his relationship with his children and family of origin, and one of his priorities is helping them in practical ways. He has realised that his primary sexual orientation is homosexual and has maintained a stable relationship with another man for several years."
31 You have one prior conviction for two counts of indecent act with a child under 16 for which you were sentenced on 3 September 1982 at the Melbourne Magistrates' Court to 12 months probation, to see and attend a psychiatrist as directed by your probation officer.
32 As I have already mentioned, you, in 2000, were convicted of four counts of indecent acts with a child under 16 and two child pornography offences, and you were sentenced by way of aggregate sentence to 12 months' imprisonment to be served by way of an intensive corrections order. You complied with all the conditions imposed and participated in the required programs, including the sex offenders programs.
33 As I have already indicated, in the light of your conviction for the sexual offences in 2000, you fall to be sentenced as a serious sexual offender in relation to each of the charges on the current indictment, but I already note the Crown's concession that it does not seek a disproportionate sentence in this case.
34 I turn to the submissions made.
35
The prosecution was unable to provide me with any recent cases dealing with offences that occurred in the early 1980s which revealed current sentencing practice in relation to offences committed at that time. The prosecution conceded that having regard to the fact that these offences occurred 30 years ago and that your last court appearance was in 2000, the punitive aspects of a sentencing discretion should not prevail and accordingly no disproportionate sentence was sought. The prosecution conceded that a Community Corrections Order and a suspended sentence were open, but submitted that an immediate custodial sentence was appropriate due to the gravity of the offences, the breach of trust involved, the need for specific and general deterrence and the fact that the offences occurred while you were on probation for matters of a similar nature. It was submitted that the appropriate sentencing range is one of a total effective sentence of between 15 and
25 months' imprisonment with a non-parole period of between six and
12 months.
36 In his plea in mitigation, your counsel relied heavily on your immediate acknowledgement of guilt notwithstanding your poor memory of the events in question, on your remorse and empathy for the victim expressed in your record of interview and to Ms Warren and Dr Livingstone, on your early plea of guilty prior to the committal mention, on your regular treatment and rehabilitation at least since 2000, in particular with no court appearances since that time, and on your re-engagement with family members. Finally, he relied on the assessment of Ms Warren that you pose a very low risk of re-offending against children. Your counsel submitted that it was open to the court in the circumstances to impose a Community Corrections Order and pressed for such an order to be imposed in preference to a suspended sentence.
37 You were assessed on 7 May 2013 as suitable for a Community Corrections Order of 12 months with conditions of medical assessment and treatment, mental health assessment and treatment and offence-specific program.
38 In sentencing you, I must consider just punishment, deterrence, both specific and general, your prospect of rehabilitation, denunciation, condemnation of the protection of the community. I must also have regard to a range of matters, such as a the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
39
On the authorities, those who engage in sexual abuse of young children who are in their trust can expect to receive condign punishment because it is
well-known that such conduct has the capacity to destroy for its young victims their chances of enjoying a natural and healthy lifestyle. I acknowledge the importance of the principle of social rehabilitation of the victim, that the imposition of a sentence constitutes a practical and ritual completion of a protracted painful period. It signifies that the recognition by society of the nature and significance of the wrong that has been done to the victim, the assertion of the society's values and the public attribution of responsibility for the wrongdoing to the perpetrator.
40 I turn to the matters in your favour which were relied on by your counsel in the plea and which I accept.
41 First, your plea of guilty. You pleaded guilty on 17 January 2013, prior to the committal mention, notwithstanding your poor memory of the events in question. I accept that your plea indicates remorse on your part. I also accept that your record of interview, as well as the psychological and psychiatric evidence, indicates that you are remorseful for your conduct and have empathy for the victim.
42 Your plea warrants a substantial discount, not just because it indicates remorse, but also because you are entitled to a statutory discount for that plea. I acknowledge that your plea is of social utility and that the community has been spared the cost of a trial. No witnesses were required to give evidence against you.
43
Secondly, your prospects of rehabilitation. You have completed a sex offenders program and have not had any court appearances since 2000.
Ms Warren assessed you as posing a very low risk of re-offending against children. Since 2000 you have been receiving regular psychiatric treatment, have re-engaged with your family, are living with your ex wife and daughter as well as other family members, including your brother-in-law, who was your carer. You have terminated relationships with men who have demonstrated proclivities to offend. Thus, at least since 2000 you have been demonstrating your rehabilitation and that society does not need protection from you. This reduces the need for specific deterrence. On the other hand, the fact that you have led a blame-free life since 2000 needs to be balanced against the type of crime you have committed, as sexual abuse crimes against young children produce fear and shame in the victim and it often takes a long time for the victim to find the strength to come forward and report the matter. Thus, the sentencing objectives of just punishment, general deterrence and denunciation are not totally eclipsed by rehabilitation during the interval between the commission of the offence and the time of sentence or, as is the case here, between 2000 and the present time. Moreover, you had a prior conviction in 1982 for committing an indecent act with a child under 16.
44 There are, in addition, a number of aggravating features of your offending. Firstly, the offending occurred while you were on probation in relation to an earlier offence of committing an indecent act with a child under 16. Secondly, the victim was only ten years old at the time. You were 24 years old. There was a significant disparity in ages between yourself and the victim. Thirdly, there were two instances of penetration and one of indecent assault over a possible seven month period. Finally, the victim was a very young family friend. There is no evidence that the offences were orchestrated or planned, but it is clear that on each occasion you took advantage of the fact that the victim was left by his mother in your sole care. Your conduct was a gross violation of trust in the circumstances. On each occasion when sexual penetration occurred, you told the victim not to tell anyone. On the first occasion you threatened to hurt his sister and that he would get into big, big trouble. On the second occasion you told the victim not to tell anyone. On the occasion of the indecent assault the victim's sister was in the house at the time.
45 It is necessary to assess the criminality of your conduct. For the reasons outlined in the previous paragraph, I consider that your criminality was not at the lowest end of the range. Your victim was very young. Had he been just a little younger, under ten years of age, you would have faced a much greater maximum penalty on Charges 1 and 2. There was a large gap in age between you. You were in a position of trust. You were a family friend. Charges 1 and 2 involved penetration, and you frightened the victim by making threats to get him into trouble or to hurt his sister. I have also summarised in paragraph 12 above the significant impact that your conduct has had on the victim.
46 Given the seriousness of these matters, I do not consider it appropriate to impose a Community Corrections Order or a suspended sentence. The sexual abuse of young children by persons in a position of trust is intolerable and sentencing in such a case must reflect denunciation of the grossness of your crimes and the abuse of this child, the role of general deterrence and the need for punishment.
47 Would you please stand.
48 On Count 1, you are sentenced to a period of imprisonment of 12 months. This is the base sentence. On Count 2, you are sentenced to a period of imprisonment of 12 months. I order that three months of the period of imprisonment imposed on Count 2 be served cumulatively on the sentence imposed on Count 1. On Count 3, you are sentenced to a period of imprisonment of three months. I order that one month of the period of imprisonment imposed on Count 3 be served cumulatively on the sentence imposed on Count 1. The total effective period of imprisonment is that of
16 months.
49 I intend to fix a shorter minimum non-parole period than usual, because while I recognise that there is a punitive element to the non-parole period, I intend to credit you for the efforts you have made to rehabilitate yourself since 2000. I order that the minimum period you must serve before becoming eligible for parole is a period of eight months.
50 Under s.6AAA of the Sentencing Act, I am required to declare the period that I would have sentenced you to had you not pleaded guilty to these matters. I declare that but for your plea of guilty, I would have sentenced you to an aggregate period of imprisonment of three years with a non-parole period of two years.
51 Further, according to the mandatory provisions of the Sex Offenders Registration Act, you are to be registered as a sex offender and are required to report for life. I will draft orders to reflect these conclusions.
52 Are there any other matters?
53 MS PACE: No, Your Honour.
54 MR METCALFE: No, Your Honour.
55 HER HONOUR: In the final version which finds its way onto the system, I will correct the dates.
56 MR METCALFE: All right.
57 HER HONOUR: I will just get you to cast your eye over the orders. Thank you.
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