Director of Public Prosecutions v Hamilton
[2021] VCC 881
•29 June 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02525
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ALEX HAMILTON |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 June 2021 |
DATE OF SENTENCE: | 29 June 2021 |
CASE MAY BE CITED AS: | DPP v Hamilton |
MEDIUM NEUTRAL CITATION: | [2021] VCC 881 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Sexual penetration of a child under 16
Legislation Cited: Sentencing Act 1991
Cases Cited:Clarkson v R (2011) 32 VR 361; Worboyes v The Queen [2021] VSCA 169
Sentence:2 years and 2 months imprisonment; non-parole period of 14 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr B. Sonnet | Office of Public Prosecutions |
For the Offender | Ms V. Drago | David Luscombe & Associates |
HER HONOUR:
1Alex Hamilton, you have pleaded guilty on indictment to a single rolled up charge of sexual penetration of a child under 16 years, your offending occurring on 28 October 2017.
2In sentencing you for your crime I must be guided by the maximum penalty. The maximum penalty for the offence of sexual penetration of a child under 16 years is one of 15 years imprisonment. That maximum penalty reflects the seriousness with which Parliament regards your offending.
3The circumstances of your offending were set out in a document entitled "Summary Prosecution Opening for Plea" dated 20 May 2021. This is an agreed document and reflects your acceptance of the elements of the offences to which you have entered your plea, as well as the factual basis on which you fall to be sentenced.
The offending
4At the relevant time you were 23 years of age and the victim, Chloe Barber[1], was 15 years and five months. You had been introduced by a mutual friend, Ellie McTavish[2], who was in an "on-again off-again" relationship with you and a close friend of Ms Barber. You did develop a close relationship with Ms Barber and you would communicate regularly. She viewed you as a "big brother".
[1] A pseudonym.
[2] A pseudonym.
5On the date of the offending you contacted the victim by telephone around midnight and asked her to come to your place to watch a movie. This was apparently not an unusual event.
6You picked up the victim from her address and drove back to your place in Wonthaggi, where you both went to your bedroom to watch a movie. You began touching the victim, at which time she told you "No, Alex, it's not happening".
7Undeterred, you grabbed the complainant's wrists and pulled down her pants. At this point you were on top Ms Barber and removed your shorts and underwear. You penetrated the victim's vagina with your penis. After about five minutes you withdrew your penis, turned the victim over, such that she was on her hands and knees and again penetrated her vagina with your penis.
8Ms Barber asked you to stop, and you did. By this point you had penetrated the victim twice, hence the rolled up charge.
9Ms Barber attempted to leave but you prevented her from so doing. You fell asleep but Ms Barber remained awake in your bed until the following morning when you then drove her home.
10The disclosures then made by Ms Barber are outlined in detail in the Crown opening. She spoke with police on 31 October 2018.
11You attended upon police by arrangement on 2 January 2019, at which time you were arrested and then interviewed.
12In that record of interview with police, you agreed that the sexual activity took place but said that you believed it was, firstly, consensual and, secondly, that Ms Barber was "16 at the time, or something like that". When asked whether you knew what year the complainant was in at school, you stated "I think probably Year 10 or Year 9. That would make her 15, wouldn't it?" When asked whether you considered that the victim was 15 years old at the relevant time, you stated "If she was it's a big fuck up, but yeah, she probably could have been".
Victim impact
13A victim impact statement of Chloe Barber dated 25 January 2021 has been tendered by the prosecution. Ms Barber read her victim impact statement to the court, such that the effect of your offending on her cannot be lost upon you.
14Her sleep has been affected, her relationships, her ability to trust others, and Ms Barber lives with the events of October 2017 still on a daily basis.
15It is accurate to describe the impact of your offending upon her as "profound".
16Whilst not to be overwhelmed by victim impact, sentences imposed for offending of this type must reflect the personal damage that is inflicted by such behaviour and the stark reality that rehabilitation of the victim can in fact be far more difficult to achieve than for those who perpetrate such wrongdoing. Accordingly, courts must, in order protect future victims, attempt to deter others through appropriate sentences, those who may be so inclined, from engaging in such activity.
Offence gravity
17It is well established that the absolute prohibition on sexual activity with a child is founded on a presumption of harm. In that sense, denunciation and general deterrence are important sentencing principles. Each case, however, must be assessed on its own facts.
18In terms of the gravity of your offending, I accept the prosecution submission that it obviously involves a betrayal of the friendship that you had with Ms Barber, who was made vulnerable by the fact that you had brought her to your home and it was late at night.
19Your offending occurred in the context of having been told "No, Alex, it's not happening", and then persisting to sexual penetration. During the events which then unfolded, force was used by you grabbing Ms Barber wrists and pulling her clothing down. During the first act of sexual penetration you held your victim down by her wrists and during the second she was held down by your shoulders. Once finished, you prevented Ms Barber from leaving.
20The sexual activity which occurred was unprotected, exposing Ms Barber to the risk of pregnancy and/or disease
21Whilst consent is not an element of this particular charge, the decision of Clarkson v R (2011) 32 VR 361 states that "proven absence of consent, on the other hand, significantly increases the seriousness of the offending and the culpability of the offender". The accepted circumstance in the summary of prosecution opening puts the circumstance of your offending in a higher category.
22To assist me in the assessment of the gravity of the offending, your counsel points to the other relevant factors which include :
a.the relatively short-lived nature of the events;
b.it not being suggested that there was planning or grooming, that what transpired was likely to be spontaneous. The Crown concede that your offending was "somewhat opportunistic";
c.that the gap in age between you and Ms Barber was not a substantial one compared to other cases; and
d.that the offending represents immature and reckless behaviour, somewhat reducing your moral culpability.
23I also accept each of these submissions.
24However, given the circumstances overall and the proven lack of consent, I do reject the submission that your offending falls at the "low range" for this type of offence.
Delay
25Whilst the offending took place in October of 2017, it was complained of to police in October of the following year, you were not interviewed until
February 2019 and not charged until August 2019. A trial listed in October 2020 was vacated due to the COVID-19 pandemic.26The matter resolved to a plea after sentence indication was given on
1 February 2021, a matter to which I will return.27In effect though, the period between at least being interviewed by police and your sentence has been a period during which the final outcome would have been weighing upon you, as it might well have for your victim. It does represent a more than adequate period to test your prospects for rehabilitation, a topic to which I will also return.
Plea of guilty
28The Sentencing Act obliges me to take into account the stage at which you entered your plea.
29Your counsel submits that although your plea was not at the earliest stage, it is indicative of remorse and is of significant utility. I accept this submission.
30I firstly accept that there is significant value in saving the victim the need to give evidence at trial, particularly having been apprised of the contents of her victim impact statement. There is also the utilitarian value in saving the community the time and expense of contested proceedings.
31Your plea of guilty in the context of the COVID-19 pandemic also has additional utilitarian value, as it provides certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.
32In the recent decision of Worboyes v The Queen [2021] VSCA 169 at paragraph [39], the Court of Appeal said:
"For these reasons, we consider that — all other things being equal — a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time…"
33All of these factors will be taken into account in your favour.
34In addition, and as referred to earlier, your plea was entered after sentence indication, a process which permits a judicial officer to give a defendant a general indication of the sentence that would be likely to be imposed if that person pleaded guilty at that stage of the proceedings. A sentence indication process can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or, alternatively, electing to proceed to trial.
35The indication given by me on 11 February 2021 was that I would impose a sentence of imprisonment that commences immediately from the time of any sentence occurring. This was taking into account a range of matters that had been raised in both oral and written submissions, including the nature of other plea material that would be available.
36Aware that you were facing certain gaol, you resolved to enter a plea of guilty to a single rolled-up charge as per the current indictment and were arraigned accordingly. Observationally, this is not a common occurrence and represents a clear indication that you wish this chapter of your life to be closed for both you and your victim, as well as those that support each of you. I view it as a clear indicator of remorse and a positive reflection of the man you have now become and of your burgeoning maturity.
Personal circumstances
37Whilst you accept the prior criminal history alleged against you, it does not reflect one of serious offending nor of relevant offending. To be precise, you appeared at the Korumburra Magistrates' Court on 29 January 2015 in relation to assault-based offending, for which you received an adjourned undertaking for a period of 12 months. This order was made without conviction, and I observe you would have been around 20 or 21 at the time.
38You next appeared at the Korumburra Magistrates' Court on 18 June 2015 in relation to a charge of criminal damage. On that occasion you also received an adjourned undertaking, without conviction, for a period of 12 months - and again would have been aged around 20/21 years of age. On 20 April 2017 you were dealt with at the Korumburra Magistrates' Court for contravening your adjourned undertaking. That contravention was found proven and you were resentenced on the original offence of criminal damage to a fine of $750.
39Given that history and, more significantly, the fact that there have been no matters since your offending of 28 October 2017, it would appear that the offending the subject of the indictment is both out of character and particular to that moment in time.
40You are now aged 26 years.
41You were born in the Bass Coast Shire region and have predominantly lived in Wonthaggi. You were raised by parents, Christine and Patrick, who separated when you were aged around 12 years. Each of your parents have re-partnered. Your family remain extremely supportive of you. Whilst there have been challenges in your relationship with your younger brother, Joshua, that relationship is now one which is back on track. You have a younger sister, Shayla, aged five years.
42You were educated to Year 11 level and in 2001 commenced an apprenticeship at a local butchery. After completing three years of that apprenticeship, you were employed as a painter, then in an abattoir and then on the family farm.
43You then commenced work as a bricklayer for Bass Valley Bricklaying and Paving, where you remained employed for a period of some five years.
44After clearly trying a number of fields, your ultimate employment goal was to work as a carpenter. In late January 2021 you achieved this goal and are now employed on a full-time basis in your preferred field. Your current employer, Matthew Shaw, has provided two references in which he writes that you told him about the court proceedings at the time that you were offered a position. This is also a positive reflection of your character. You have been employed as an apprentice and it is anticipated that your training will take a period of some four years. In the work context, Mr Shaw describes you as performing very well and as working hard. You are a reliable employee. He is prepared to hold a position open for you as long as he is able if you are sentenced to gaol.
45Your domestic life is also very much settled. You have been in a relationship with your fiancée, Danielle Peters, for some years, having known her since your childhood. You have a son together, Elijah, who is currently aged two years. The three of you reside with Ms Peters' father. She has also provided two references and describes your deep-felt remorse, which I do accept as genuine. She describes how you have helped her overcome her own personal obstacles. She is currently studying to be a nurse but is aware that the responsibilities of motherhood, her studies and being in effect a sole parent whilst you are imprisoned will be a difficult role for her to perform. I accept that the stress of knowing about her circumstances will add to the pressures of your imprisonment in a general sense.
46References were also tendered from your mother, Kristine Hamilton, Joseph Hales, who has known you some 15 years through the local cricket club, and Mitchell Cochrane, a previous employer. It would appear, in combination, that you are a dedicated family man, hard worker and make genuine contributions to your local community. Whilst each of these persons have clearly known you in different capacities, I have taken their references into account in my assessment of the genuineness of your remorse and as to your future prospects.
47Each of your parents and Ms Peters has attended your court appearances where able to do so, and I accept that you are well supported by them.
48You do suffer from renal colic which causes the recurrence of kidney stones. A report from Dr Anita Clarke dated 4 June 2021 confirms that this condition has seen you require multiple procedures to remove kidney stones, the most recent in the last few weeks.
49You have no drug and alcohol issues and no mental health difficulties. Given the time that has passed since your offending, your obvious maturing and the significant supports you have through family and employment, I am satisfied that your prospects of rehabilitation are excellent. In this sense, there is limited need to give weight in sentence to either specific deterrence or, indeed, protection of the community.
Sex Offenders Registration
50The charge to which you have pleaded guilty is a class 1 offence. This means I am required to place you on the sex offenders register for a period of 15 years, and I do so. You will be provided with documents that you will need to sign which set out your obligations under this legislative scheme. At an appropriate time, I will give you the opportunity to speak to Ms Drago about those documents. But ultimately, you will be subject to a regime of supervision for the time period just announced
Sentencing
51The charge to which you have pleaded guilty carried a maximum penalty of 10 years imprisonment until around July 2017. The increase in maximum penalty to one of 15 years imprisonment is a clear reflection of the legislature's view that sexual penetration of a child under 16 years should be treated as a more serious offence in the criminal calendar.
52Your offending also occurred prior to 1 February 2018, such that the standard sentencing scheme, requiring a court to have regard to a standard sentence of six years imprisonment for the charge of sexual penetration of a child under 16 years, has no application.
53I have had regard to current sentencing practices. Understandably, a charge of sexual penetration of a child under 16 years is a charge which presents with a wide range of factual circumstances. Your counsel has helpfully referred me to a range of sentences for a similar charge but neither counsel were able to point to a case where the maximum penalty which applied was one 15 years imprisonment, yet did not fit in with the introduction of the standard sentencing scheme.
54The basic purposes for which a court may impose a sentence include punishment, general deterrence and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I am required to have regard to a range of factors, which include the seriousness of the offending, your culpability for it, your personal circumstances and those of your victim.
55This requires balance with the interest of the community in denouncing criminal conduct and the clear interest of the community in seeking to ensure, as far as is possible, that offenders are rehabilitated and are reintegrated into society.
56I have taken into account the sentencing guidelines referred to in s.5 of the Sentencing Act1991 where relevant to your case. I have taken into account current sentencing practices for the offences to which you have pleaded guilty, as well as the principles of both totality and proportionality, and I include parsimony.
57On the single count on the indictment, Mr Hamilton, you are convicted and sentenced to two years and two months imprisonment.
58I accept the Crown submission that I can afford weight to the mitigatory factors in where I locate a non-parole period, and I see genuine merit in a supported transition to the community through the supervision of parole. I therefore fix a period of 14 months before you are eligible for parole.
59Twenty days will be reckoned as having already been served pursuant to s.18 of the Sentencing Act.
60Section 6AAA of the Sentencing Act requires me to state the sentence that I would have imposed had you not pleaded guilty to the charge. If not for your pleas of guilty, you would have been sentenced to a total effective sentence of four years and two months with a minimum of two years and eight months before being eligible for parole.
61I am about to check with each member of counsel whether there are any matters they wish to raise before giving you the opportunity to speak with Ms Drago in private. Mr Sonnet?
62MR SONNET: No, Your Honour. The pre-sentence detention of 20 days is confirmed as correct.
63HER HONOUR: Thank you very much, Mr Sonnet. Ms Drago?
64MS DRAGO: Nothing from my end, thank you.
65HER HONOUR: All right. Well, I will stand down till 10.30 and, Ms Drago, give you the opportunity to speak with your client and his family.
66MS DRAGO: I am grateful, Your Honour.
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