Director of Public Prosecutions v Hamilton
[2015] VCC 1417
•15 October 2015
| `IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ARTHUR HAMILTON (A PSEUDONYM) |
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| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 7 October 2015 |
| DATE OF SENTENCE: | 15 October 2015 |
| CASE MAY BE CITED AS: | DPP v Hamilton |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 1417 |
REASONS FOR SENTENCE
---Subject: Criminal Law - sentence
Catchwords: Pleas of guilty to one charge of indecent assault on accused’s daughter and 12 charges of indecent act with a child, two granddaughters – offended over 40 year period – now aged 78 and in frail health - risk of dying in prison – limited remorse and no insight.
Legislation Cited: Crimes Act 1958
Cases Cited:R v Iles [2009] VSCA 197; R v Bazley (1993) 65 A Crim R 154
Sentence: Two years nine months’ imprisonment, 21 months suspended for three years.
NB Pseudonyms applied to the names of the accused, complainants and family members to protect the identity of the complainants.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Bourke | OPP |
| For the Accused | Mr D. Langton | WS Lawyers |
HER HONOUR:
1Arthur Hamilton[1], you have pleaded guilty to one charge of indecent assault and 12 charges of committing an indecent act with a child. The offending occurred between 1970 and 2010, a period of 40 years. The maximum penalties for these offences are five years' imprisonment and ten years for the other charges. They are serious examples of such offending, and in this case, they warrant a prison sentence.
[1] pseudonym
2The mitigating circumstances justify the partial suspension of the sentence, a course which is still open, despite recent changes, because of the times at which the offending occurred.
3You and your wife had five children, the eldest girl being Joanna[2], who was born in 1961. Between 1970 and 1971, when she was aged nine or ten, you took her to your bedroom and closed the door. You told her to lie on the bed and you pulled her underwear down and then your own. You moved her legs apart and then took your penis in your hand. Your daughter yelled out and pulled her underwear up and ran from the house. That is Charge 1.
[2] pseudonym
4You began to commit the other offences some 26 years later when you were a grandfather. Between 1997 and 2004, you committed indecent acts with your granddaughter, Paige[3], the daughter of your youngest daughter, Elizabeth[4]. Charge 2 occurred between 1997 and 1998, when Paige was aged four or five. In a shed at your property, you took the child on your knee and told her you would teach her how to kiss boys. Whilst holding her head and pushing it towards you, you kissed her on the mouth, inserting your tongue. You told her it was a secret and not to tell her grandmother.
[3] pseudonym
[4] pseudonym
5On another occasion, during the same period of time, the child was seated on a couch at your house with her sister and brother. The children had a doona over them. Seated next to Paige, you put your hand on her leg under the doona and moved it towards her vaginal area. You rubbed her vagina under her pyjama pants, but over the top of her underpants. You then took Paige's hand and placed it on your penis on top of your clothing. She took her hand away, but you returned it and held it there. That is Charge 3, comprised of two indecent acts during the same incident.
6You then took her to her parents' bedroom and told her to lie on the bed. You pulled her pants down, leaving her underpants on, and then pulled your own pants down, exposing your penis to her. You lay on top of her and rubbed your penis against her stomach. She started to cry and after a few minutes, you told her to go back to the lounge room. That is charge 4.
7Charge 5 occurred between 1999 and 2002, when Paige was aged six or seven and the extended family was on a holiday in Echuca. You took Paige into a spare bedroom and told her to lie on the bed, removing her pants and underwear. You told her this would be a lesson as to what boys would do to her when she was older. You then got on your knees and kissed and licked her vagina. You did the same thing on another occasion, also at Echuca. That is Charge 6.
8On a later holiday in Echuca, when Paige was aged eight or nine, she came into the unit where the family was staying and you told her to lock the door. You pulled your pants down and masturbated in front of her. That is Charge 7. You then put your penis inside her bathers and told her to move up and down, that is Charge 8.
9Between 2003 and 2004, when Paige was about ten and was visiting you at the caravan park where you were living, you tried to kiss her on the mouth, but she turned away. You then kissed her two or three times on the neck, with what she described as full on kisses. She pushed you away and said, "No," and she left the caravan. That is Charge 9.
10The remaining charges involved another granddaughter, Amelia[5], who is the child of your daughter, Vivien[6]. Between 2007 and 2008, when Amelia was aged six or seven, she was being looked after by you in your caravan. While she was watching TV, you started tickling her leg, then you pulled down her pants and your own. With Amelia sitting on your lap, you then kissed her neck and moved her up and down, rubbing your penis on her vagina. That is Charge 10.
[5] pseudonym
[6] pseudonym
11On an occasion between 2009 and 2010, when Amelia was about eight, you and your wife were looking after her while her mother went to work. You took Amelia for a drive in your car, then pulled over and told her to get in the back seat. You removed her shorts and then removed your pants, telling her you were going to have a cuddle. You then got her to sit on your penis and moved her up and down, saying her name over and over again, while rubbing your penis on her vagina. That is Charge 11.
12Charges 12 and 13 occurred during the same period of time on an occasion when you were looking after Amelia and you took her home to pick up her bathers, which she had forgotten. In her bedroom, you pulled your pants down, then pulled Amelia onto the bed and pulled her pants down. You then licked her vagina. That is Charge 12. You then got on top of her and rubbed your penis against her vagina, moving up and down, that is Charge 13.
13In about 1988, when your daughter, Joanna, was aged 27, she told one of her sisters about your abuse of her. The two sisters decided not to tell their mother for fear her health would break down. In 1997, when Joanna was 36 years old, she suffered an emotional breakdown and you were aware of this. She told you then that her problems had begun when you tried to have sex with her when she was a child. You refuted that, attributing her claims to her mental state being unsound.
14Your wife provided a victim impact statement, and in it, she referred to your daughter, Joanna, as a child, having made disclosures of sexual abuse by you, but nothing was done. It was from 1997 onwards that you abused your granddaughters, knowing that your daughter had openly complained about your previous conduct and therefore you offended in a particularly brazen manner.
15All of the offences you committed are serious examples of those crimes at the higher end of the range of seriousness. The victim impact statements provided by the complainants and by their close family members are eloquent and moving explanations of how your conduct has affected them. You heard five of the seven statements read out in court by the prosecutor and it is to be hoped that this will lead to you having some insight into your offending and appropriate remorse. The only evidence of remorse appears to be your expression to the police in your record of interview that you were ashamed and unable to forgive yourself and your pleas of guilty to the charges at an early stage.
16Mr Ball, in his report, states that in his recent assessment of you, you demonstrated no insight into your offending behaviour or into your general psychological functioning. He added that he had no way of confirming any historical details and so the possibility of exaggeration or minimisation could not be ignored. I refer to that because of your claim to Mr Ball that you let your actions get out of control and that you never had any sexual feeling in connection with the offending. However, in the recorded conversation you had with your daughter in June last year, you told her that you hadn't been able to control yourself. This appears to be an element of rationalisation that is inconsistent with genuine contrition and certainly indicates a lack of insight.
17You come from a hardworking family with no family history of dysfunction and you have no prior convictions. You left school at 15 to do farm work and later became a truck driver, retiring from that work at the age of 60. You were married for many years until the disclosure of the offending in June last year, when your wife left you. Together you have five children - four daughters and a son.
18You are now aged 78 and are in poor health. Your general practitioner, Dr Reddy, has provided a letter summarising the state of your physical and mental health. He appears to agree with Mr Ball that you do not suffer from any mental illness, but he diagnosed depression and anxiety, which he considers to be may be partly due to your present predicament.
19You physical ailments are more serious in that you have suffered from bowel cancer, which appears to be in remission, and you have Chronic Obstructive Airways Disease. You also have a significant degenerative disease of the cervical and lumbar spine with two past operations to treat spinal canal stenosis. You have poor mobility and are medicated for pain.
20Mr Langton referred me to the decision in the case of R v Iles[7] in which Lasry J., dealing with the sentence of an 83 year old man, cited with approval the decision in R v Bazley[8]. In that case, it was held that while advanced age is relevant, it cannot justify an unacceptably inappropriate sentence. Lasry J. went on to consider the relevance of age, poor health and the risk of dying in prison, particularly in circumstances where the offender had never been incarcerated before. He concluded that any person of advanced age with medical conditions faces the risk of not seeing life beyond prison and that risk, together with the effects of incarceration itself are important considerations for the sentencing judge to take into account.
[7] [2009] VSCA 197
[8] (1993) 65 A Crim R 154
21Mr Langton submitted that because of your health problems, you would have difficulty serving a sentence in prison and that special arrangements would have to be made. Your poor health is a matter I take into account insofar as it would make imprisonment a greater burden for you than for others in better health. The risk that you might not survive the sentence because of your age is also a matter I take into account by way of mitigation to avoid the sentence being a crushing one. These two matters carry significant weight and have the effect of reducing your sentence considerably.
22A further mitigating factor is the plea of guilty, both as to its facilitation of the criminal justice system and as an indication of remorse, as I said earlier. You admitted to the police the offending in relation to your grandchildren, but not as to your daughter. You then pleaded guilty at the committal mention after negotiations had taken place and so there was never any need for the complainants or other family members to have to come to court. Importantly, the possibility of two trials has been avoided. That is a significant benefit and the early stage of the plea and its benefits entitles you to a discount on your sentence.
23A further important sentencing principle is the need to restrict the length of the sentence to that which is necessary to achieve the relevant sentencing requirements.
24In sentencing an offender for the sexual abuse of children, it is important that the sentence should reflect the community's abhorrence of such crimes and that it should aim to deter others from committing them. It should also punish the offender appropriately and justly, taking all relevant sentencing principles and the particular circumstances into account as I have just outlined.
25Not only are these crimes objectively abhorrent and regarded with disgust, they often involve very serious breaches of trust. In this case, your daughter and granddaughters and the mothers of those children who are also your daughters were entitled to trust that you would do them no harm. You breached that trust very profoundly in ways which have caused great sorrow and pain to many people, not least the children themselves.
26You persisted with the offending over a long period and inflicted it on three small girls in two generations of your family. Your marriage ended immediately and you remain permanently estranged from your family, except for your son who offers support to some extent and your one surviving brother. As a result, you are now a lonely and isolated man with a great burden of shame and guilt.
27As to the need for specific deterrence, that is very much reduced by your age, poor health and the limited opportunity you would have for reoffending. Mr Ball assessed you as being at a low risk of reoffending and while this would enable some punishment to take place in the community, you would likely encounter significant difficulty in complying with any such order as you live in Mortlake, a considerable distance from any branch of Correctional Services.
28Alternatively, the low risk of reoffending combined with the mitigating factors suggesting good prospects for rehabilitation also mean that a partially suspended term of imprisonment would be appropriate in this case.
29Accordingly, I sentence you to the following terms of imprisonment.
30For Charge 1, eight months.
31For each of Charges 2 and 9, four months.
32For Charge 3, fifteen months.
33For each of Charges 4, 5, 6, 8, 10, 11, 12 and 13, twelve months.
34For Charge 7, six months.
35The sentence for Charge 3 is the base sentence for purposes of cumulation.
36The fact of multiple complainants calls for some cumulation and so I order that four months of each of the sentences for Charges 1 and 10 be served in cumulation upon the base sentence. In addition, one month of each of the other sentences will also be served in cumulation upon the base sentence. That results in a total effective sentence of two years and nine months.
37I order that 21 months be suspended, which means that you will be required to serve 12 months before being released. The operational period of the suspension will be three years.
38It is mandatory that you will be placed on the Sex Offenders Register, which means that from the date of your release, you must inform the police of your details annually for the rest of your life. Shortly, you will be given a form to sign in that regard.
39You are sentenced as a serious sex offender in relation to all charges from Charge 3 onwards and that shall be noted on the court record. The prosecution has not sought a sentence disproportionate to the gravity of the offending, having regard to the need for the protection of the community, which can be achieved by the sentencing power otherwise available to me.
40You have spent eight days in pre-sentence detention not including today and that time will be noted on the court record to be reckoned as already served.
41The prosecution seeks an order for a forensic sample of saliva to be obtained from you under s.464ZF of the Crimes Act and I have not heard from Mr Langton as to whether you consent to that.
42Mr Langton, do you have those instructions?
43MR LANGTON: May I approach the dock briefly please, Your Honour?
44HER HONOUR: Certainly.
45If you had pleaded not guilty to these charges, I would have sentenced you to three years and eight months' imprisonment with a non-parole period of two years and six months.
46Mr Bourke, while those instructions are being obtained, is there anything I have omitted?
47MR BOURKE: No, Your Honour.
48HER HONOUR: Thank you.
49MR LANGTON: It is not opposed, Your Honour.
50HER HONOUR: Not opposed. I make that order and I simply have to inform Mr Hamilton that the police have the power to use reasonable force to obtain that sample but I trust that that will not be necessary.
51Are there any other matters, Mr Langton?
52MR LANGTON: No, Your Honour.
53HER HONOUR: Would you take Mr Hamilton please, officer?
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