Director of Public Prosecutions v Hall (a pseudonym)

[2021] VCC 1672

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

EUGENE HALL (A PSEUDONYM)

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JUDGE:	Her Honour Judge Hassan
WHERE HELD:	Melbourne
DATE OF HEARING:	14 October 2021
DATE OF SENTENCE:	22 October 2021
CASE MAY BE CITED AS:	DPP v Hall (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1672

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence — indecent act with a child under 16 — trial — jury verdict — failing to comply with reporting obligations — plea of guilty — breach of trust — vulnerable victim — course of conduct — delay — change of plea — COVID-19 — victim impact statement — childhood abuse — sexual abuse — criminal record — criminal history — Sex Offender Register — SORA — depression — anxiety — asthma — family support — moral culpability — low risk of reoffending — prospects for rehabilitation — general deterrence — specific deterrence — denunciation — community protection — serious sexual offender

Legislation Cited:      Sentencing Act 1991 (Vic); Sex Offenders Registration Act 2004 (Vic)

Cases Cited:R v Verdins (2007) 16 VR 269

Sentence:                  Total effective sentence of four years and three months with non-parole period of three years

Section 6AAA declaration: total effective sentence of six months

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr C McConaghy	Solicitor for the Office of Public Prosecutions
For the Accused	Mr M Page (plea) Mr B Barratt (sentence)	James Dowsley & Associates

HER HONOUR:

1Eugene Hall,[1] a jury has found you guilty of two charges of indecent act with a child under 16. The maximum penalty is 10 years’ imprisonment.

[1] A pseudonym.

2You have pleaded guilty to a charge of failing to comply with your reporting obligations under the Sex Offenders Registration Act 2004 (Vic). The maximum penalty for this offence is five years’ imprisonment.

3I turn to the circumstances of your offending, beginning with the trial indictment.

4Charge 1 related to Seth Stewart.[2] Seth was born in 2007. At the time of the offending, he was aged between four and six. Seth’s mother is Diane Stewart.[3] You were in a relationship with Ms Stewart from around 2011–12 and had access to Seth at this time and, indeed, after your separation from Ms Stewart. Seth has been diagnosed with attention deficit hyperactivity disorder (‘ADHD’), oppositional defiance disorder and autism spectrum disorder. You developed a close relationship with Seth and were a father figure to him.

[2] A pseudonym.

[3] A pseudonym.

5Charge 2 related to Amy Brooks.[4] Amy was born in 2006. She was aged nine at the time of the offending. Amy’s mother is Sophia Brooks.[5] You had a familial connection to Amy’s mother and Amy called you ‘Uncle’. You would babysit Amy. Amy has been diagnosed with an intellectual disability and ADHD, as well as epilepsy.

[4] A pseudonym.

[5] A pseudonym.

6In respect of both Seth and Amy, you used the pretence of play in order to sexually abuse them. In Seth’s case, you would shower with him. You told police in your record of interview that you had his mother’s permission to do so. Ms Stewart denied this, and I am satisfied the jury accepted her evidence.

7On around 30 occasions, when showering with Seth, you rubbed your erect penis against Seth’s penis. You called this ‘sword fighting’. This is the factual basis of charge 1, which is a course of conduct charge. Seth made disclosures to his mother in around July 2016. Police conducted an interview with Seth on 9 November 2016. It was Ms Stewart’s evidence that Seth told her he had not realised what you had done to him was wrong until he began counselling at the Centre Against Sexual Assault (‘CASA’). You were interviewed by police on 28 December 2016. You told police that the ‘sword fights’ with Seth in the shower were innocent play.

8In Amy’s case, you would also shower or bathe her when she was in your care. You played a game which you called ‘the motorbike game’. Amy’s evidence is that after you had showered or bathed her, you would wrap her in a towel and then take her to the bed, where you would unfurl the towel, causing her to roll onto the bed naked. Sometime between January and March 2016, when Amy was around nine, she was in your care at your mother’s house. You grabbed her wrist and put her hand on your penis, which you described to her as your ‘ticklish spot’. She was unclear whether she touched your skin or your clothes. She said, ‘I can’t remember but I think it was his clothes’. I sentence you on the basis that Amy touched your penis over your clothing. This is the factual basis of charge 2, which is a single incident.

9In Amy’s case, the game playing was not the offending itself, but set up the opportunity to offend by normalising sexualised conduct between you and her. Amy made disclosures in around July or August 2016. Amy’s mother contacted police; however, Amy did not make a police statement until 23 August 2017. You were interviewed in relation to Amy’s allegations on 4 September 2017. You admitted you would play ‘the motorbike game’. You denied the allegation.

10The jury clearly rejected your denials and accepted the evidence of Seth and Amy beyond reasonable doubt.

11Turning now to the plea indictment, on 17 March 2016, you were placed on the Sex Offender Register with a reporting period of 15 years after pleading guilty to charges of using a carriage service to access child pornography and knowingly possessing child pornography. On 28 December 2016, police executed a search warrant at your address. You lived in a bungalow at the back of the property. Police seized your mobile phone. Analysis of the phone revealed a login page for an email address. In accordance with your reporting obligations, you had failed to provide this email address to police. When interviewed in relation to this matter on 25 January 2017, you admitted you had not advised police of the email address, saying the address was created in around January or February 2016 at the shop where you purchased the phone so that you could download apps, that you did not use it, and that you had forgotten all about it.

12This matter has a lengthy procedural history. There was a filing hearing on 14 December 2017, when the matter was uplifted into the indictable stream. There was a contested committal on 3 July 2018. Special hearings for Seth and Amy both took place on 4 October 2018. On 30 April 2019, a trial began before his Honour Judge Ryan, but the trial was aborted when you entered a plea of guilty to the charges. Your bail was revoked, and a plea hearing was scheduled on 22 July 2019, but this hearing was aborted when the Court was informed you were considering changing your plea. You confirmed your intention to no longer plead guilty on 29 August 2019. You were granted bail on 11 September 2019. Pre-trial argument was scheduled to take place about whether the prosecution could lead your plea of guilty in a future trial. This hearing was abandoned when it was agreed between the prosecution and the defence that there had been a miscommunication or misunderstanding about the terms of the plea resolution and that, as a consequence, you were not bound by your plea of guilty. It was agreed that there was no need for a change of plea application by you and that a trial would take place.

13A trial was listed to commence on 17 February 2020 in the Ballarat circuit. Tragically, Seth Stewart took his life on 13 January 2020. It was decided that the trial should not proceed. The trial was rescheduled on 29 June 2020. This date had to be vacated because of the COVID-19 pandemic. The trial was not reached in the Ballarat circuit of 17 May 2021. It finally commenced before me on 21 June 2021.

14The delay has been significant. It is largely attributable to your change of plea, but given that it was accepted by the prosecution that this was a course you were entitled to take, it cannot be said you are blameworthy for the course that you took. The upshot of all of this is that you have lost the significant mitigatory discount that would have accompanied a plea of guilty to charges involving vulnerable child victims, and that you now face a term of imprisonment in a matter that could have been resolved years ago.

15The delay has also taken a toll on your victims and their families, who have suffered considerable stress and anguish occasioned by the length and uncertain progress of this matter. I am sure at times they struggled to understand what was happening.

16I turn now to the victim impact statements. I begin with the victim impact statements of Amy and her mother, Sophia Brooks. Amy says that she has been doing fine since you have been out of her life. Ms Brooks says she is devastated by your offending. You were a family member and she trusted you. She says Amy has anxiety, and she has what Ms Brooks describes as ‘severe trust issues’. Ms Brooks says Amy is one of four sisters. She says her other daughters are also exhibiting signs of anxiety around males and that she worries about the impact on all her daughters into the future.

17Turning now to Seth’s statement and those of his mother and grandmother. Seth made a statement on 19 July 2019. He said you were like his dad and he believed that you loved him and would protect him, but he now understood that you hurt him. He said he now feels really bad anxiety and depression, and fears that you will hurt him or his mother or his brother. Seth said he used to never be afraid and slept and ate well. He said at the time of making his statement that he just wanted to stay in his room and remain in bed. Tragically and horribly prophetically, Seth said,

[I’m] scared that I will never be ok, my mum worries too and tells me that she loves me, and I need to remember that I am wanted on this earth but sometimes I think that things would be easier if I wasn’t here that she wouldn’t be hurting and the pain would go away.

I really [can’t] stand this court case for much longer, [it’s] really affecting my mental health and emotions. Everyone tells me it will get better one day and I will be ok, but I don’t think I ever will be ok.

18He went on, ‘You could have said guilty 3 years ago but you didn’t, you made me have to relive it last year, you made me have to go through it again, have to answer those questions over and over and over again’. Seth concluded by saying, ‘You hurt me, you were the one male apart from my grandpa I thought wouldn’t ever hurt me but you did and now I have to work out a way to be ok again’.

19Diane Stewart has made two victim impact statements. The first preceded Seth’s death. In it, she says that Seth had been a happy boy. She says you told her that you loved Seth like a son. She says Seth began to display disturbing behaviour and she was concerned, as was his school principal, that someone had hurt him. She says that after Seth told the police that it was you who had abused him, he changed, and Ms Stewart says he was never the same since. He was anxious and fearful. She says your offending destroyed her trust in people. She says she was fearful about Seth’s future.

20In her subsequent statement, she says after you changed your plea in August/September 2019 and were bailed, you lived close to her family’s home. She says Seth became angry and she became extremely concerned for his welfare, spending nights awake with him, as he had begun to tell people he was going to end his life and he was cutting himself.

21Tragically, in January 2020, Ms Stewart found her son dead in his room. This has devastated her, Seth’s brother and his grandmother, who says in her statement that the pain caused to the whole family is huge.

22The sentence I will impose is not a measure of the worth of Seth’s life. No sentence I impose can restore him to his family and friends and undo the tragedy of his death or alleviate the grief of his family.

23It is my duty in sentencing you to take into account the effects of your crimes upon your victims. You have caused distress to two families who trusted you. In Seth’s case, I take into account the very profound suffering he described in his victim impact statement, and also that of his mother. I make it clear though, I stop short of making any direct causal link between your offending and Seth’s death. Both prosecution and defence agreed that that link cannot be established.

24I turn now to your personal circumstances. You are presently 52 years old. Your background is set out in the psychological report of Dr Dion Gee dated 8 June 2019, which was tendered at your plea. You were born in Sydney. You have an older sister. Your father and mother separated when you were very young, and you were brought up by your mother. You remained close to your mother throughout your life. She died this year in July when you were in custody. You were only able to watch her funeral on a video link.

25You told Dr Gee that your mother and you were physically abused by your stepfather. You left home at 16 because you could not get along with him. You told Dr Gee that you were sexually abused by a group of older boys when you were about six or seven.

26You left school in year 10 and have been employed as a truck driver and taxi driver.

27You have been in two intimate relationships in which you fathered children. You have four daughters, two of whom are adopted. Your daughters are aged between 24 and 31 years old. All your daughters remain supportive of you. You have three granddaughters.

28You have no history of drug or alcohol abuse.

29You told Dr Gee that you had not sought any treatment in respect of your own childhood sexual abuse.

30You have a criminal record. On 17 March 2016, you were sentenced in this Court to nine months’ imprisonment for accessing child pornography and possessing child pornography, as well as for possession of a drug of dependence. You were sentenced to nine months’ imprisonment, to be released after three months on a good behaviour bond for two years. The summary of that offending is contained in Dr Gee’s report. A warrant was executed on your home on 23 October 2013, and you were found in possession of a number of images and videos of child pornography. When you were sentenced for this offending in 2016, after your period in custody, you were required to participate in courses and treatment to address your sexual offending.

31Dr Gee gives the opinion that you do not fully appreciate the causes of your own aberrant behaviour and that you simply stated that you do not know why you committed the offences. Dr Gee has assessed you as a moderate risk of reoffending sexually.

32You have been attending Sandra Lorensini, clinical psychologist, since November 2013, and have attended a total of 69 sessions over the years. Your referral to her related to your own stress and anxiety occasioned by court proceedings. Ms Lorensini says she last saw you on 18 June 2021, when she found you to be chronically depressed and anxious and extremely stressed at the prospect of being separated from your mother, with whom you had a strong attachment and with whom you were living.

33Also tendered was a letter from your general practitioner, Dr Heather McCallum. Dr McCallum says she has treated you for 12 years. She says you have always suffered anxiety. It was she who referred you to Ms Lorensini. You have been taking an antidepressant for many years. She says you have asthma and are at a higher risk of adverse consequences if you were to get COVID-19.

34Finally, a letter was tendered from a family friend. She says she has known you for 43 years. She says you were devoted to your mother. She says your family are devastated by you having been found guilty and remanded into custody.

35I turn now to the submissions of the parties. It was not disputed that your offending calls for a term of imprisonment consisting of a head sentence and a non-parole period. Mr Page, who appeared on your behalf, submitted that I should regard the offending against Seth as about mid-range of objective seriousness, and against Amy as at the lower end of seriousness for offending of this type. Mr McConaghy, who prosecuted, agreed with the correctness of this characterisation.

36Mr Page relied upon the delay and its effects upon you. He relied upon the difficult conditions in prison necessitated by the COVID-19 pandemic. He submitted that you will likely be a protection prisoner, and this will render your time in custody more onerous. There was no submission made that Verdins principles were engaged in sentencing you.[6] He did, however, submit that, in accordance with general sentencing principles, I should take into account your mental and physical health difficulties. He submitted that your prospects for rehabilitation were good, as you have shown a preparedness to access services and seek treatment. He also relied upon the ongoing support you have from your daughters, which will facilitate your rehabilitation.

[6] R v Verdins (2007) 16 VR 269 (‘Verdins’).

37Mr McConaghy in response submitted that you were without remorse and, according to Dr Gee, had limited insight into your offending. He pointed out that Dr Gee recommended significant interventions to address your risk of reoffending. He submitted your prospects of rehabilitation should be assessed as something less than positive. Mr McConaghy submitted that the principles of general and specific deterrence and denunciation were engaged in sentencing you.

38Mr McConaghy submitted that you fell to be sentenced as a serious sexual offender on charge 2 if you were sentenced to a term of imprisonment on charge 1. The prosecution did not submit that a disproportionate sentence was warranted. Protection of the community must be regarded as the principal purpose for which a sentence is imposed and a presumption of cumulation applies, although the principle of totality is not displaced.

39Turning now to my conclusions, your offending was undoubtedly serious. It involved a gross breach of trust involving not only the children in your care but of their mothers and their families. I regard both Seth and Amy as vulnerable victims. Both children have a degree of cognitive impairment — in particular, Amy — and both were young children; Seth was aged only between four and six, a mere infant. Your offending against Seth comprises around 30 incidents. I accept the characterisation of the parties that in respect of Seth, your offending is around mid-range seriousness, and in respect of Amy, it is a low-range example of the offence. Your moral culpability is, however, high; these children were in your care and, in Seth’s case, there was an emotional bond which you exploited. You are without remorse, which does not aggravate your sentence, but, as has been discussed, precludes you from the significant mitigatory discount that pleas of guilty would have attracted.

40On the questions of your risk of reoffending and your rehabilitation, Dr Gee assessed you as a moderate risk of reoffending. I do note, however, his report is somewhat dated, and you have not reoffended, save and except for the breach of your Sex Offender Registration obligations. On that charge, I accept your explanation that your offending was an oversight and was not connected with any further attempts to access child abuse material. You now face a significant custodial sentence and surely this will have a salutary effect upon you. In all the circumstances, I regard your risk of reoffending as low and your prospects of rehabilitation as good.

41I take into account the current difficult conditions in prisons and your poor mental and physical health.

42The sentencing principles of general and specific deterrence, denunciation, and community protection are all engaged in sentencing you. The Court must send a clear message that the sexual abuse of children will not be tolerated, and the Court will impose substantial sentences of imprisonment to denounce such conduct and in aid of protecting children.

43Weighing up all matters that I am required to under the Sentencing Act 1991 (Vic) and matters personal to you, I intend to sentence you as follows.

44You are convicted on all charges. You are sentenced as a serious sexual offender on charge 2.

45On charge 1, you are sentenced to three years and 10 months’ imprisonment.

46On charge 2, you are sentenced to 12 months’ imprisonment.

47On the plea indictment, you are sentenced to three months’ imprisonment.

48Charge 1 is the base charge. I order four months of the sentence on charge 2 and one month of the sentence on the plea charge be served cumulatively.

49That makes a total effective sentence of four years and three months. I set a non-parole period of three years.

50I declare the pre-sentence detention to be 251 days.

51I make the Sentencing Act 1991 (Vic) s 6AAA declaration in respect of the plea indictment that, had you not pleaded guilty, I would have sentenced you to a term of imprisonment of six months, a straight sentence of six months.

52You are caught by the provisions of the Sex Offenders Registration Act 2004 (Vic), and pursuant to s 34(1)(c)(iii), your reporting period will be for life.

53There are no further ancillary orders.

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