Director of Public Prosecutions v Hamer (a pseudonym)
[2024] VCC 1244
•13 August 2024
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DANIEL HAMER (A PSEUDONYM) |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 & 13 August 2024 |
DATE OF SENTENCE: | 13 August 2024 |
CASE MAY BE CITED AS: | DPP v Hamer (a pseudonym) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1244 |
REASONS FOR SENTENCE
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Subject:Trial - sentencing
Catchwords: Incest - sexual assault of child under 16
Legislation Cited:
Cases Cited:
Sentence:15 months' imprisonment plus 18-month CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms E. Johnson | Office of Public Prosecutions |
| For the Accused at hearing For the Accused at sentence | Mr J. Fitzgerald with Mr J. Fitzgerald | Victorian Legal Aid |
HIS HONOUR:
1We have had quite a discussion, Mr Hamer.[1] It will take me a little time to deal with the reasons for sentence. I am going to indicate to you now that I propose to impose a term of imprisonment of 15 months and a Community Correction Order which will require some community work and, particularly, rehabilitative programs aimed at, amongst other things, reducing your risk of reoffending.
[1] A pseudonym.
2I now proceed with my sentencing remarks.
3You have been found guilty by a jury of five offences of incest on what I will call the first Indictment. The first two involve offences against your sister Melissa York;[2] the latter three involve offences against your brother, Ryan Hamer.[3] The offences occurred between 1 June 2001 and 29 September 2004 during which period your age ranged from 15 to 18. The age of your sister at the time of Charge 1 was between 12 and 13 - she just turned 13 during the period during which the offending occurred. In relation to Charge 2, she was aged 15.
[2] A pseudonym.
[3] A pseudonym.
4In relation to the offences against your brother Ryan, his age in relation to Charge 3 was between 12 and 13, Charge 4 between 13 and 15, and Charge 5 between 13 and 15. Your age in relation to Charges 4 and 5, given the range of dates during which the offending occurred, was between 16 and 18.
5Each of those offences carries a maximum term of imprisonment of five years.
6You have also been convicted of two offences of sexual assault of a child under the age of 16 on what I will call the second Indictment. Those offences occurred against your niece who was then aged nine years, on a date between 1 November 2017 and 31 December 2017. They occurred on one occasion involving two separate incidents, one following the other. The maximum term of imprisonment for those offences is 10 years.
7You have no prior convictions, although you have been subsequently convicted on 18 September 2020 of an offence of knowingly possessing child abuse material, for which you received a term of imprisonment of five months and a two-year Community Correction Order.
8The prosecution case in relation to the first of the two indictments to which I referred concerned offences committed in your then family home where you were living with your grandparents and your mother. You and your brother Ryan shared a bedroom. Your sister Melissa had a separate bedroom. The offence the subject of Charge 1, briefly stated, involved you going into your sister's bedroom and shutting the door. She indicated that she did not want to participate in what you had suggested, namely penile/vaginal sexual intercourse. You threatened her that you would disclose her drinking. That had apparently been taking place behind the backs of grandparents and mother. You also threatened to hurt her if she didn't comply with your wishes. You then proceeded to engage in penile/vaginal intercourse with her, covering your erect penis with a plastic shopping bag.
9The second incident involving your sister occurred when the two of you were in your mother's bedroom. You removed your penis from your pants and told your sister that you wanted to insert it into her mouth. She indicated that she did not want to engage in that conduct. You then grabbed her by the hair and forced her face down onto your penis.
10The facts concerning the offences involving your brother can be stated briefly. The two of you were sharing a bedroom. Your brother's bunk was the top bunk in the two-bunk bedroom and you occupied the lower bunk. On one occasion when your brother was lying on the upper bunk naked you went up onto that bunk. After a struggle you put your hands between his shoulders and pushed him face down onto the bed and inserted your erect penis into his anus.
11The second incident involved an occasion when he was lying on the bottom bunk of your shared bedroom. Again, you penetrated his anus with your erect penis causing him considerable discomfort.
12The third incident involving your brother occurred when he was sitting on the lower bunk. You grabbed him by the head and pushed his head down onto your penis and forced your penis to the back of his throat.
13The offending involving your brother and sister was not reported at the time. It did not come to light until 2019. In each case I have no doubt that your conduct towards them was intimidatory, it involved at least an implied threat of force and some actual force. In no case did either of them consent to the acts with which you are charged.
14The offending involving your niece occurred on a day when she was being baby-sat by you and your then wife at your home. You had been entrusted, along with your wife, with her care. You took an opportunity, whilst your wife was outside having a smoke, to entice your niece to come and sit on your lap. There, under the guise of playing a tickling game you touched her over her clothes on her vagina. Then, when she got up to go to the toilet, you followed her into the toilet, knelt down in front of her and made to pull her pants down. She then took evasive action and you left the toilet.
15Although that offending was reported to her parents immediately afterwards and they remonstrated with you, you claimed that it was a total misunderstanding, that you had not engaged in the conduct your niece had described and that you were simply attempting to clean the toilet before she used it. Whether that explanation was entirely accepted or not, no action was taken at that time.
16Each of your sister, your niece, your mother and your former wife has made a victim impact statement. All of them, unsurprisingly, show the effect of your offending conduct upon them, both in the short term and the long term, including upon their psychological wellbeing.
17Turning to matters personal to you. Your counsel provided me with a comprehensive set of written submissions which drew my attention to a number of important factors. Considerable reliance was placed on the detailed report of Alison Mynard, clinical psychologist, dated 23 July 2024, in which she deals with details of your background history, including reference to your parenting, which in early years was inter-state. You suffered violence at the hands of your father. You were both verbally and physically abused by him.
18Your parents separated when you were around nine years of age. You stayed with your mother and you moved to Melbourne. You were sexually abused yourself, as was a close friend of yours, by an adult male over a period of about three years between the ages of nine and twelve.
19During the period of your offending you were living with your grandparents. Your mother was by that time suffering from substance abuse. She contributed little to your parenting, which was substantially provided by your grandparents.
20At the conclusion of the period of sexual abuse of you and your close friend to which I have referred, you became involved in a sexual relationship with that close friend. That lasted until he committed suicide aged 12 or 13. He was the same age as you. The report of Ms Mynard deals also with the symptoms that you reported to her of post-traumatic stress disorder arising from your treatment as a child, in particular, as a result of the sexual offending against you over the three-year period between nine and twelve. You also suffered depression as a result of that conduct. Perhaps not surprisingly, during the period leading up to and involving the offending against your siblings you had become somewhat of a recluse within the family. You didn't engage a great deal with your brother and sister, other than to commit the offending that has led to the five charges on the first indictment to which I have referred.
21Your counsel draws from that report in his submissions that the mental impairments arising from your deprived and abusive upbringing have tended to reduce the moral culpability for your offending. I am inclined to accept that that is the case in respect of all of the offending. It has not been disputed that the post-traumatic stress disorder in particular is relevant to reduction of moral culpability in relation to the incest charges, the subject of the first indictment, although it is disputed by the prosecution that there is a causal connection between that post-traumatic stress disorder and the offending against your niece.
22With some hesitation I am inclined to accept Mr Fitzgerald's submission that there is a continuing link between that and the offending against your niece, although not to the extent that that link is relevant to the offending against your siblings. That said, one has to balance the need for protection of persons who may be at risk of further sexual offending by you in the future, arising from those mental impairments.
23In the intervening period you have married. You have three children from that marriage. During the latter period of the marriage the relationship was somewhat unstable and you formed a relationship with another lady. During that period when the marriage was coming to an end, you had a child in that relationship.
24Once you and your wife had terminated your relationship, at or about the time your offending came to light, you renewed your relationship with the second lady. You have had a second child with her. I note that she and other members of her family have provided character references which are supportive of you and speak highly of you as a person.
25The offending came to light in 2019. You have been charged and convicted for the offence of knowingly possessing child abuse material. That matter came to light in the middle of 2019. Shortly afterwards the offending involving your sister and brother came to light, as well as the offending involving your niece. You served a term of imprisonment in 2020 as a result of your conviction for the child abuse material offence. You undertook and completed a two-year Community Correction Order following that sentence.
26You qualified as an aged care worker and worked for a number of years in the aged care field. As your counsel points out, that work will not be available to you. You lack qualifications in other fields. When you gain your freedom you will be seeking work, and you will have the capacity to work in another field.
27The relationship with your current partner and other members of her family show that there will be support available to you at the conclusion of your sentence. It is to be expected that you will resume that relationship and continue as a partner and father to the children from that relationship.
28You cannot pray in aid any remorse or any credit for admitting your offending, for acknowledging your criminal conduct flowing from pleas of guilty to the offences for which I have to sentence you. As the prosecution points out, that can be a very important factor in reducing the effect upon victims. You have challenged the charges against you, put the prosecution to their proof and had your victims cross-examined on the basis that the offending did not occur. That is not to your credit but entirely within your right. You are not to be sentenced for having pleaded not guilty but as I have indicated, I cannot give you any credit for acknowledgement of criminal responsibility.
29The incest offences are aggravated by a lack of consent on the part of your siblings and the degree of intimidation and threat of violence if not actual violence. There was a degree of forcefulness in the way in which you carried out the offending which contributes to the serious nature of that offending. It is to be noted that you were still a child during that period in that you had not reached the age of 18 by the time the offending occurred. I cannot sentence you on the basis that you had committed any of those offences as an adult. Had you been dealt with at that time for your offending you would have come under the sentencing regime of the Children's Court, which places rehabilitation at the forefront of sentencing considerations. You are to be sentenced therefore as an adult and do not have the benefit of the terms of the Children and Young Persons Act.
30The offending against your siblings occurred when you were young and the effects of the sexual abuse that you had been subjected to were relatively fresh. The offending involving your niece does not have the same proximity to that abuse. It is aggravated by the fact that you were in a position of trust. You took advantage of a still very young child for your own sexual gratification. That said, there is a wide spectrum of offending involving the offences of sexual assault of a child under the age 16. Your offending seems to me to fall towards the lower end of the spectrum of such offences. I am bound to take into account the effect on your victims, and I do so.
31Doing the best I can to marry up the various sentencing considerations and taking into account the submissions of your counsel and the responses of the prosecution, and doing the best I can to discern a current sentencing practice in relation to each of these offences, I now proceed to sentence you.
32I am satisfied that there should be some reduction of sentence, particularly in relation to the incest offences, arising from the diagnosis of post-traumatic stress disorder and depression to which I have referred. I also take that into account in assessing your moral culpability in relation to the offending against your niece, although it seems to me that the causal link is considerably weaker when it comes to assessing the degree to which your moral culpability is reduced as a result of those mental impairments.
33There has been quite significant delay between the discovery of the offending in the latter part of 2019 and today. That needs to be taken into account. The prospect of imprisonment has been hanging over your head for a long time. Although the delay has been caused or contributed to very substantially by the COVID pandemic, that the delay is not your fault. It has led to some extra-curial punishment from the stress and strain of the matters hanging over your head for that lengthy period of time.
34Doing the best I can to give proper weight to each of the sentencing considerations I sentence you as follows.
35In relation to the first Indictment involving the offences of incest:
- On Charge 1 you are convicted and sentenced to imprisonment for 6 months.
- On Charge 2 you are convicted and sentenced to imprisonment for 7 months.
- On Charge 3 you are convicted and sentenced to imprisonment for 7 months.
- On Charge 4 you are convicted and sentenced to imprisonment for 8 months.
- On Charge 5 you are convicted and sentenced to imprisonment for 8 months.
36I treat the sentence of eight months on Charge 4 as the base sentence. I order one month of the sentence on Charge 2, one month of the sentence on Charge 3 and one month of the sentence on Charge 5 to be served cumulatively upon each other and upon the sentence of eight months on Charge 4, making a total effective sentence on that indictment of 11 months.
37In relation to the second Indictment involving sexual assault of a child under the age of 16 involving your niece:
- On Charge 1 you are convicted and sentenced to imprisonment for 10 months.
- On Charge 2 you are convicted and sentenced to imprisonment for 10 months.
38I order one month of the sentence on Charge 2 to be served cumulatively upon the sentence on Charge 1, making a total effective sentence of 11 months.
39I order that four months of the sentence on that indictment be served cumulatively upon the sentence of 11 months that I have imposed on the other indictment involving the offences of incest, making a total effective sentence overall of imprisonment for 15 months.
40I declare 123 days of pre-sentence detention as time to be reckoned as served on the sentence that I have imposed.
41In relation to the offences of sexual assault of a child under 16, I also order that you be the subject of a Community Correction Order for a period of 18 months, provided you consent. That would commence at the conclusion of the sentence that I have imposed upon you and continue for a period of 18 months.
42In order for you to determine whether you do consent to that proposed Community Correction Order, I need to deal with the terms that I propose would be included. The Community Correction Order would be administered by the Sunshine Community Correctional Services at Sunshine Court Complex, 499 Ballarat Road, Sunshine. There are a number of terms which are relevant to all Community Correction Orders, and they are that:
·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 the Sentencing Regulations, and that includes, not turning up to appointments drunk or drug-affected, that kind of thing;
·you must report to and receive visits from the Secretary of the Department of Justice or his/her delegate;
·you must report to a community corrections officer within two clear working days of the order starting;
·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 of the Department of Justice or his/her delegate; and
·you must obey all lawful instructions from, and directions of, the Secretary of the Department of Justice or his/her delegate.
43The order would commence upon the completion of the term of imprisonment which I have imposed and continue for a period of 18 months from that date.
44In addition to the mandatory conditions that I have just read out, you would be required to perform 150 hours of unpaid community work over a period of 18 months as directed by the regional manager. I would order that 75 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition. If you fail to comply with this order, the Secretary of the Department of Justice or his/her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
45In addition to that condition:
· you must be under the supervision of a community corrections officer for the period of 18 months during which the order is in force;
· you must undergo any mental health assessment and treatment that may include psychological, neuropsychological, psychiatric treatment in a hospital or residential facility as directed by the regional manager; and
· you must participate in programs and/or courses that address factors relating to the offending as directed by the regional manager.
46I note that, because these matters were pending whilst you were on your previous Community Correction Order, you were not eligible to take part in a sex offenders program rehabilitation program. That is unfortunate. Hopefully this time you will be eligible for and able to participate in such a program.
47You should understand that if during the period that the Order is in force you commit another offence punishable by imprisonment, you may be brought back before this court and perhaps before me. You would be liable for re-sentencing on these matters, which may well involve an additional term of imprisonment. You would also be the subject of breach proceedings for the breach of the Community Correction Order. That in itself would carry a maximum term of imprisonment of three months.
48If during the period of the order it becomes necessary for you to seek to have the order amended or adjusted in some way, then you should contact a solicitor and seek to approach the court with a view to agitating that issue.
49Daniel Hamer do you understand the terms of the order that I propose?
50OFFENDER: I do, Your Honour, yes.
51HIS HONOUR: Are you willing to comply with those terms?
52OFFENDER: I am, Your Honour, yes.
53HIS HONOUR: Are you willing to consent to the order being made today?
54OFFENDER: I am, Your Honour, yes.
55HIS HONOUR: I treat your indication as agreement and therefore I propose to sign the order that I have just read out and explained.
56You will, as a result of your being sentenced on these matters, be subject to the reporting restrictions imposed by the Sex Offenders Registration Act. The length of your reporting period will be for life. You will receive a copy of a document explaining those obligations today.
57In respect of your sentencing for each of Charges 2, 3, 4 and 5 on the first Indictment and in respect of the two offences of sexual assault of a child under the age 16 on the second Indictment, I sentence you as a serious sex offender. The prosecution has not sought to have me impose a disproportionate sentence, and for the reasons I have endeavoured to explain, both in the sentencing remarks and in argument, it would not be appropriate to impose a different sentence than the one I have imposed upon you as a result of those provisions.
58It is necessary for me to pay regard to your prospects of rehabilitation. They must be guarded at present; hopefully your period of engagement in the Community Correction Order at the conclusion of your sentence will assist you to further your prospects of rehabilitation. Are there any other matters that I need to deal with?
59MS JOHNSON: No, Your Honour, not from the prosecution’s point of view.
60MR FITZGERALD: No, Your Honour.
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