Director of Public Prosecutions v Hambledon (a pseudonym)
[2015] VCC 811
•15 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILL HAMBLEDON (a pseudonym) |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 February and 11 June 2015 |
| DATE OF SENTENCE: | 15 June 2015 |
| CASE MAY BE CITED AS: | DPP v Hambledon (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 811 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Plea of guilty – Indecent act with a child under 16 – Sexual offending by step-parent - Breach of trust – Aggravating features - Prospect of deportation – Family and financial hardship – No finding of exceptional hardship
Legislation Cited: Migration Act 1958 (Commonwealth); Se Offender Registration Act 2004
Cases Cited:Boulton v The Queen [2014] VSCA 342; Cole v The Queen [2015] VSCA 44
Sentence:Combined term of imprisonment ( 9 months) with 3 year Community Corrections Order – s.6AAA Sentencing Act 1991 – Ancillary orders – Disposal and Forensic sample order – Sex Offender registration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. O'Halloran | Solicitor for Public Prosecutions |
| For the Accused | Mr S. Gardner | Paul Vale Criminal Law |
The accused’s name has been substituted with a pseudonym to protect the anonymity of the complainants. The complainants have been referred to as Victim 1 and Victim 2 for the same reason.
HER HONOUR:
1Will Hambledon (a pseudonym), you have pleaded guilty to six charges of indecent act with a child under the age of 16. The offence carries a maximum penalty of ten years' imprisonment.
2You offended against your two stepdaughters. The first victim is now 15 years old and was aged between six and 14 at the time you offended against her. The second victim is now 14 years old and you offended against her when she was between the ages of ten and 13 years.
3
The basis for Charge 1 is that on a date between 23 September 2005 and
31 December 2007, when the first victim, was in Grade 1 or 2, you called her into your bedroom while the rest of the family were visiting a sick relative in hospital. You were sitting on the bed and told the first victim to sit on your lap. You then played a movie on your computer showing people having sex. You then rubbed the first complainant's vagina on the inside of her underpants. When you stopped you told her not to tell anyone or she would get into trouble.
4The basis for Charge 2 is that when the first victim was in Grade 4 or 5 and the family had moved to a different house, you entered the lounge room where the first victim was watching TV. You stood in front of the TV, blocking her view. The victim asked you to move and you obliged sitting behind the victim. You used your hands to rub her breasts over her clothing, then moved your hands down the front of her body and rubbed her vagina over the top of her clothes.
5The basis for Charge 3 is that on an occasion when the second victim was in Grade 5 or 6. She was asleep in bed. You entered her bedroom in the early morning and began licking and sucking her toes. The second victim woke up but then fell asleep again. You then started tickling the second victim's vagina which woke her up again. You then tried to roll the second victim onto her back.
6The basis for Charge 4 is that when the second victim was in Year 7, she was asleep in bed. You entered her bedroom and placed your hand under her pants and underwear, then rubbed her vagina. The second victim woke up and told you to leave her bedroom. She sat up and waited for you to go.
7The basis for Charge 5 is that on 12 June 2014, in the early hours of the morning, when the first victim was asleep in bed, she awoke to a noise which she attributed to you. On that occasion you kissed the first victim on the mouth, inserting your tongue and lifted her shirt and squeezed and pinched her breasts before licking and sucking her nipples. You then pulled the victim's pants and underwear and began forcibly rubbing the victim's vagina with your fingers. This caused pain and soreness to the victim. You then pulled up her pants and underwear and whispered in her ear, "I'm going to do it tomorrow," then left the room briefly. The first victim pretended to be asleep as she was afraid you might make her do something worse if you knew she was awake.
8You then returned to the bedroom and pulled a desk stool beside her bed, took hold of her hand and made her hold your exposed erect penis. You moved her hand up and down for a couple of minutes until you ejaculated onto her right hand and arm. This gives rise to Charge 6.
9You then wiped the ejaculate off her with a towel and placed her hand back on the bed. The first victim had her eyes closed throughout this episode of offending. After you left the room, the first victim felt dirty. She told her sister, the second victim, about what you had done.
10Later that day the first victim disclosed your offending to a teacher who then notified the appropriate authorities. Police attended the victims’ school that day and they were spoken to by police. Subsequently they provided VARE statements. The first victim underwent a medical examination later that day and a swab taken from her hand contained spermatozoa.
11You were arrested on 12 June and interviewed with the assistance of a Mandarin interpreter. You denied inappropriately touching either of the victims. The following day you made admissions to your wife in respect of touching the first victim the previous day.
12Your offending is aggravated by the fact that you were in a position of trust towards your two stepdaughters and you grossly breached this trust. They were entitled to look to you for protection, comfort and moral guidance in life. Instead, you defiled each of them in the sanctity of their own home.
13Your offending toward the first victim is further aggravated by the fact that you swore her to secrecy after the first occasion of sexual abuse, telling her that she, not you, would get into trouble if she told anyone. It would appear that you frightened her into silence for a time before she summoned up the courage to tell a teacher. She did the right thing.
14I also factor in the ages of your stepchildren when you offended against them, commencing this offending against the first victim when she was only six and against the second victim when she was only ten. The age difference between them and you was significant. You are 16 years older than the first victim and 17 years older than the second victim. On my calculation you were 22 years old when you first offended against the first victim and 27 when you first offended against the second victim.
15You offended against the first victim on three discrete occasions and against the second victim on two discrete occasions. I make it clear that I sentence you on this basis rather than on the basis of continuing conduct, which has been rolled up into the charges, or on the basis of representative counts.
16Mr Hambledon, your offending is most serious and is deserving of a punishment which is just in all of the circumstances. Your conduct must also be strongly denounced.
17I take into account the impact on the victims which is set out in their victim impact statements. Both victims and their mother, although initially rejecting of you, say that they have come to forgive you and want you to come back to them. They speak about the fact that you have been a very good provider and have cared for them very well, which they wish to continue. Each of the victims say that separation from you has brought a great deal of sadness to them and that if you were to receive a gaol sentence this would cause even more sadness. The victims' mother speaks of the hardship that she suffers or would suffer without you to help out. She works very long hours in your butcher and seafood shop, and then goes home to take care of four children on her own. At the further plea hearing, she gave evidence to the same effect, as well as other matters to which I shall refer in due course.
18Whilst the sentiments expressed by victims are relevant in that they reflect the present impact of your offending upon them, their views as to the most appropriate sentence does not determine the matter. It is my task to impose sentence in this matter and I must do so after giving appropriate weight to all relevant sentencing principles.
19In your favour you pleaded guilty at a very early stage, saving the witnesses, especially your stepchildren and wife the time and trauma of giving evidence and you have saved the community the time and expense of contested proceedings. This entitles you to a significant discount on the sentence you would otherwise receive. Moreover, I accept that you have heartfelt remorse for your offending as reflected in your admissions to your wife and your remarks to Mr Cummins, psychologist.
20You have no prior convictions and no subsequent matters.
21I accept that you are of otherwise good character. You have a strong work ethic and have built up a business which employs two people. Your wife and father also work there. I was told that you are the indispensable driving force in your business and that without you it is likely to fail. I was told by your counsel that this would then lead to your stepchildren, your victims, being forced to leave the private school that they attend and would impact very badly on your wife and family generally. It was put to me that such hardship would amount to exceptional hardship for which I ought make appropriate allowance.
22I gave your counsel an opportunity to present some evidence in respect of this aspect. He called your wife at the further plea. he spoke of her stress and financial difficulties she and the family would suffer without your involvement in the business. Your wife said that you and she had tried to sell the business but the price was not right. She confirmed that it would be very difficult, if not impossible, for her to carry on the business without you.
23It was submitted at the further plea that another source of hardship, if you were to be imprisoned, would be your inevitable deportation in view of changes to the Migration Act 1958 (Commonwealth). At the further plea, your wife said that if you were deported she would pack up and follow you to China with all of the children including the victims. She also said, however, that although it would be a struggle she would be able to pay for the victims to stay at their school, although they might have to give up music lessons. She also spoke of the family's wish to travel overseas together in the future.
24In all of the circumstances, although I am most sympathetic to your family's plight, I am unable to find that there is exceptional hardship in your case, even if deportation is something that occurs. Unfortunately many families are impacted, as yours is, when fathers or mothers decide to commit criminal offences. I must say that when giving her evidence your wife did not seem to be focusing on the welfare of the victims when expressing her wish to stay with you no matter what, in circumstances where her girls have had one session of counselling to deal with your offending. She should know that this is not a simple matter for victims to deal with and it is to be hoped that she, and you for that matter, put the victims' long term psychological and emotional well-being before all else. It is also to be hoped that your wife obtains expert guidance as to what will be best for the victims in the future as they have a long way to go, in my view, as does she.
25Having said this, it appears that your wife had some insightful things to say when speaking with Mr Cummins. I understand that you are very anxious to resume cohabiting with your wife and that you have resumed a sexual relationship with her. I also understand that the Department of Human Services have intervened to ensure that you did not see your own children or the victims. You can now see your own children, a factor in this hardship to you, even though it is of your own making.
26I also factor in that there is a good deal of certainty attached to your deportation if you were to be imprisoned in view of recent changes to the Migration Act 1958, specifically s.501(3A) paragraph (a)(ii) and 501(3A) paragraph (b). Having said this, it is speculative as to whether ultimately a review or appeal from any decision the Minister might make may result in you being able to stay on in Australia. However, in sentencing you, I have taken into account that this would be an additional hardship or punishment for you and the prospect of deportation would make any period in gaol more difficult.
27I give very limited weight to the fact that since the original plea hearing and before this, your ultimate fate has been hanging over your head. No doubt this has caused you a good deal of anxiety.
28I also take into account that time in gaol would be harder for you because it would be your first time in gaol; because of your separation from your wife and children; your language barrier and your concern for your family's financial survival without you.
29I take into account your background. You are now 32 years old and come from a province in North China. You are a product of the one child policy. You came to Australia on a study visa when you were 18 years old. You repeated Year 11 here as you had already undertaken the equivalent year in China, then passed Year 12. While at school here you also worked part time in Springvale as a cleaner. You then attended William Angliss for a year doing a pastry cook course but left this and commenced working as a butcher.
30With financial assistance from your parents, you bought your own butchery and seafood business in early 2005 and the business is still going well. You work ten or 11 hour days, seven days a week. You do not drink alcohol or take drugs; nor do you have any psychiatric history. You married in 2005 and have two very young children of the marriage, as well as the victims, your stepchildren.
31I have also allowed for the fact that because of symptoms of depression and anxiety, although somewhat alleviated in more recent times, that time in gaol would be harder for you than for others without these difficulties. I take into account your background and the fact that you have worked hard to support your family.
32Mr Cummins provided a report in this matter, having seen you on 14 January 2015 year. You initially told him that you did not know why you offended against the victims, but when questioned further you admitted you received sexual gratification from committing the offences. Mr Cummins performed some formal assessments on you, one of which put your risk of sexual reoffending at zero. Mr Cummins said that he thought this test underestimated the risk.
33After considering the results of another test that he administered, Mr Cummins was of the view that you presented a low-moderate risk of re-offending.
Mr Cummins said that you had a specific sexual problem in terms of being sexually attracted to your stepdaughters. This much seemed to be evident from your offending, I would have thought.34You and your wife told Mr Cummins that you had a healthy sexual relationship with one another, which you said was the case at the time you committed the offences. Mr Cummins observed that because of your poor command of English any offence specific treatment would have to involve a Mandarin speaking psychologist, which would not be available in any standard group based program. Mr Cummins did not find that you had any mental health or psychological difficulties which might help explain your offending.
35I sought further assistance in terms of diagnosis and perhaps motivations for offending through Forensicare and have now received a report from a Chris Drake, Senior Clinical Psychologist, dated 5 June 2015. That report says that you do not have any mental illness or psychological issues which might help explain your offending. Mr Drake said that even though you experienced a satisfactory sexual relationship with your wife during the period of offending, that this appeared to be insufficient, leading you to seek out other sources of sexual activity, being your stepdaughters. He said that you fell within a group which had a low recidivism rate when compared with other offender groups. He said that your risk was even lower because you had no criminal history and you only offended against family members.
36Subsequently, he said that in view of your wish to return home where your own children were, your risk of recidivism would increase to moderate. However, he also said that your appreciation of the negative impacts of your offending would be a protective factor. In short, you had a deviant sexual arousal in respect of your stepchildren, notwithstanding that you had a normal sex life with your wife. Rather than seek sexual gratification with other adult females, you turned to your stepdaughters.
37Even though you appreciated the wrongfulness of your actions after each episode of offending, you were unable to control your desire for sexual stimulation from your stepchildren. This gives me some cause for concern, especially seeing you wish to re-engage with your family. On the other hand, I understand that you are willing to engage in appropriate programs to address your offending and provide you with strategies to control any urges of sexual deviance.
38You have strong family support from your own family and that of your wife's. Your wife has told you that if you ever interfere with the children again, she would end the marriage. The prospect of a gaol term and a substantial community corrections order would also have a deterrent effect upon you.
39In all the circumstances, I find that your prospects of rehabilitation are quite good.
40I place fairly minimal weight on specific deterrence. I place strong weight however on general deterrence in a bid to deter others from offending as you have.
41Your counsel referred me to the recent case of Boultonv The Queen [2014] VSCA 342 and submitted that I ought impose a community corrections order, as all relevant sentencing factors could be achieved by such a disposition.
42The prosecutor indicated that he was instructed that a community corrections order was appropriate in your case, or at least within the range, and confirmed these instructions at the further plea hearing.
43I understand that Boulton has dramatically changed the sentencing landscape and that even matters of medium seriousness might now be accommodated by a community corrections order. I have also considered the recent decision of Cole (a pseudonym) v The Queen [2015] VSCA 44 but it does not provide me with much guidance in terms of current sentencing practice.
44I have considered the report prepared by Community Corrections Services, but when I asked for that report to be prepared I made it clear that this did not mean that a community corrections order alone would be appropriate in your case.
45I am afraid that this case is too serious to impose a community corrections order on its own. In my view this is not a case where a community corrections order on its own can do justice to all relevant sentencing considerations. I must say that I was somewhat surprised with the prosecution stance in this regard. You offended against your two stepchildren on more than one occasion and there are the aggravating features of your offending to which I have previously referred.
46I do not understand Boulton to have wiped away the many authoritative statements that the Court of Appeal has made over the years about the seriousness of offending against children, especially of tender years, and the need to send a strong message that such offending will not be tolerated. I regard your offending as too serious and I regard the weight required to be placed on punishment, general deterrence and denunciation as too great to impose anything less than a term of imprisonment, albeit that in all the circumstances it will be in conjunction with a community corrections order.
47In view of Boulton and in view of the mitigating matters in your case however, I have decided that a gaol term, which is a good deal shorter than what would otherwise have been imposed, in conjunction with a community corrections order is appropriate.
48Mr Hambledon, please stand.
49In respect of each of the offences you are convicted. I make a disposal order in the terms set out in the document provided to me by the Crown, which is not opposed by you.
50I make a forensic sample order for the taking of a sample of saliva. I make the order because of the seriousness of the offending; because it is in the public interest to make such an order and because it is not opposed. I warn you that if you do not co-operate in the taking of the sample, an officer may use reasonable force for the sample to be taken from you.
51Under the Sex Offenders Registration Act 2004, by reason of your convictions of these offences, you are to be recorded as a registrable offender for life. You must report your personal details to the Chief Commissioner of Police annually for the rest of your life. You must first do so, that is report, within seven days after your release from custody. Details in writing of these reporting conditions will be served upon you shortly by my associate and I will ask your counsel to attend to an acknowledgment of that notice and have you sign it.
52You are sentenced as follows:
53In relation to each of the charges, I intend to impose a community corrections order which is to be served in conjunction with a sentence of imprisonment. I can only impose a community corrections order if I have your consent to do so, so please listen carefully to the community corrections order that I propose.
54The order would run for a period of three years and would commence after your release from gaol. The mandatory terms that apply to all community corrections order are: You must not commit another offence for which you could be imprisoned during the time that the order is in force. You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations 2011. You must report to and receive visits from the Secretary to the Department of Justice or his or her delegate. You must report to the Dandenong Community Corrections Centre before 4 pm within two clear working days of your release from gaol. You must let a Community Corrections officer know within two clear working days of you changing your address or job. You must not leave Victoria without first getting permission to do so from the Secretary to the Department of Justice or his or her delegate. You must obey all lawful instructions from and directions of the Secretary to the Department of Justice or delegate.
55The conditions that apply in addition to the mandatory terms listed are: You must be under the supervision of a Community Corrections officer for a period of three years. You must undergo mental health assessment and treatment which may involve you being treated in a hospital or residential facility as directed by the regional manager. You must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager, including the sex offender's program.
56Do you consent to the terms and conditions of the order?
57OFFENDER: (Through Interpreter) Yes, I do.
58HER HONOUR: I should tell you, Mr Hambledon, that if you do not comply with all of the requirements of this community corrections order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, in which case you may well be sentenced to a further period of gaol. I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order. Do you understand this?
59OFFENDER: I do.
60HER HONOUR: Do you still consent to the order?
61OFFENDER: Yes, I do.
62HER HONOUR: Therefore, in relation to the charges, you are convicted and you will be sentenced to a community corrections order in the terms and conditions that I have just set out, but as I said this is to be undertaken after a term of imprisonment which I will refer to shortly. At this stage I will have your counsel attend to assist you signing the community corrections order and the sex offenders register document please, Mr Gardner.
63In addition to the community corrections order, you are sentenced as follows:
64Charge 1, eight months' imprisonment.
65Charges 2, 3 and 4, seven months' imprisonment in respect of each of those charges.
66Charge 5, eight months' imprisonment.
67Charge 6, seven months' imprisonment.
68
You are to be sentenced as a serious sexual offender after the sentence on Charge 2, which will be noted on the records and there is a presumption of cumulation after this. However, because I intend to sentence you to gaol in combination with a community corrections order, I have determined that the terms of imprisonment will be served concurrently, save that one month from the sentence on Charge 5 will served cumulatively on the sentence on
Charge 1, giving a total effective sentence of nine months' imprisonment. So you have nine months' imprisonment to serve in conjunction with the community corrections order of three years' duration.
69If not for your pleas of guilty, I would have sentenced you to a total effective sentence of five years' imprisonment with a non-parole period of three years.
70(Disposal order signed and acknowledged.)
71(Section 464ZF order signed and acknowledged.)
72(Sex offenders registration signed and acknowledged.)
73(Community corrections order signed and acknowledged.)
74Is there anything arising, counsel?
75MR O'HALLORAN: No, Your Honour.
76MR GARDNER: Not that I can think of, Your Honour.
77HER HONOUR: Yes, thank you. You can remove Mr Hambledon, thank you. If the sentencing remarks can be returned please. Does he have those? Just one moment please. Just one moment please. Sorry, I thought Mr Hambledon did. Yes, thank you very much. Yes, you may remove Mr Hambledon, thank you.
78Thank you, Madam Interpreter. We will now adjourn.
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