Director of Public Prosecutions v Hamilton

[2019] VCC 1621

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT BENDIGO
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

V

DONALD HAMILTON  (PSEUDONYM)

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Bendigo
DATE OF HEARING:	4 October 2019
DATE OF SENTENCE:	8 October 2019
CASE MAY BE CITED AS:	DPP v Hamilton
MEDIUM NEUTRAL CITATION:	[2019] VCC 1621

REASONS FOR SENTENCE

PSEUDONYMS USED TO PROTECT IDENTITY OF FAMILY MEMBERS

Subject: Criminal law - sentence        

Catchwords:    pleas of guilty to two charges of sexual assault of a child under 16 and one charge of possessing child abuse material – complainant aged 5 is natural child of accused - gross breach of trust – serious offending at higher end of range - profound impact on complainant and her mother - shame and remorse of offender but lack of insight – no previous convictions – excellent work history and work ethic – persuasive mitigating factors - standard sentencing provisions apply.

Legislation Cited: Sentencing Act 1991 ss5A & 5B; Sex Offender Registration Act 2004

Cases Cited:R v Brown [2018] VSCA 742, Soo v R [2014] VSCA 304

Sentence: 5 years’ imprisonment, with 3 year NPP. Section 6AAA – 7 years, 5 years NPP
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hayward	OPP
For the Accused	Mr S Gardner (Plea)	Docherty Legal

Mr Docherty (sentence)

HER HONOUR

1Donald  Hamilton[1]  you have pleaded guilty to two charges of sexual assault of a child under 16 and one charge of knowingly possessing child abuse material. 

THE OFFENDING

[1] A pseudonym

2The victim was your daughter, Hannah[2], who was aged five at the time.  You, Hannah and her mother, Andrea Moss[3], all lived together.  On Thursday 23 August 2018 Ms Moss had gone to the gym at about 6.30 am.  Hannah came into your bedroom and got into bed with you.  You removed her pyjama pants and licked her vagina with your tongue.  That is Charge 1.

[2] A pseudonym

[3] A pseudonym

3Then you showed her how to masturbate you, instructing her to move her hand along your penis.  That is Charge 2.

4Ms Moss returned home earlier than usual, soon after 7.15 am, and observed you to be in a flustered state.  You told her that Hannah was being rude, and you repeated it.  You then told Hannah to go and wash her hands.  She then told her mother in your presence that she had been playing with your noodle and that you had licked her fanny.  You denied that and gave an explanation of having made, 'A farting noise' on her stomach.  While getting dressed for kindergarten, Hannah asked her mother, 'Why did Daddy lick my fanny?'  You were standing nearby and said, 'No, I did a raspberry'.  Hannah responded, 'No, you licked my fanny'.

5Later that morning Ms Moss confronted you and you gave the same explanation, adding that Hannah had then crawled up your leg and sat on you.  You said you told Hannah that she was sitting on your noodle.  You said that she tried to pull your underpants down and you pushed her off.

6When Ms Moss collected Hannah from kindergarten that afternoon, Hannah again asked her mother, 'Why did Daddy lick my fanny?'  She told her mother that she had cried at the time and that it made her feel sick.  On Saturday 25 August 2018, Hannah began to cry and again asked her mother the same question.  Ms Moss drove to the Bendigo police station and Hannah made her video recorded statement.  Afterwards, she and Hannah went to stay with relatives. 

7The following day Ms Moss telephoned you with the call being recorded by the police.  You said in that call that you would never touch Hannah and you will never do it again.  You agreed in the call that you had had a fascination with child pornography videos and confirmed that a file which Ms Moss had previously discovered, contained about 200 such videos.  As to what Hannah had disclosed, you denied it but said you had licked her belly close to her vagina and that she had grabbed your penis but you told her not to, and to go and wash her hands.

8You were arrested on 28 August and your house was searched.  When interviewed, you provided denials and explanations similar to those you had already given to Ms Moss.  You said you thought Hannah was confused.  You were asked about having downloaded child abuse material five years earlier and you said it was accidental and you had deleted it and you denied accessing any other material since then.

9The summary which now follows relates to Charge 3, which is a rolled-up charge of knowingly possessing child abuse material.  It relates to a total of 51,692 images and 435 videos. 

10On 8 September your home was searched, and Ms Moss provided the police with DVDs and CDs she had found in your study.  You had handwritten titles on them indicating the contents such as, 'Teeny tits Perfect Teen 'Excuse me'. 

11During a further search on 28 September other DVDs, CDs and a Smart brand tower case were found and seized.  When analysed they were found to contain 50,099 child abuse images and 284 child abuse videos.  The images and videos were of Caucasian girls aged between about 12 to 16 years, posing naked and exposing or touching their vaginas.  The Smart brand tower case contained 1,593 child abuse images and 151 child abuse videos of pre-pubescent girls aged between six and 12 years.  They were in a range of poses and various states of undress, including standing naked, lying with their legs splayed, exposing or touching their vaginas and performing oral sex on adult males.

12You declined to be interviewed in relation to the child abuse material.  A summary of the images in relation to the material seized on 28 September was prepared, based on sample images using categories known as ANVIL, which assigns descriptions of the images to categories in terms of the depravity of the material.  Ten samples were taken from the DVDs and CDs and from the Smart brand tower case, disclosing that most of the images were in Category 1, which is the least serious of all the categories ranging from one to five.  There were no images in Category 5.

13Eight videos were found on the tower case, last accessed on 21 December 2016, having been created on an earlier date.  These videos bore titles that referred to fathers sexually abusing their young daughters aged from four to nine years.

PERSONAL CIRCUMSTACNES AND BACKGROUND

14At the time of the offending you were aged 43 and you are now aged 45.  You grew up as the eldest of three children of your parents in a stable and loving family.  Since being charged and released on bail you have lived with your parents who were in court for your plea hearing and continued to provide support for you.  Indeed, you have been working with your father.  At school you completed Year 12 and then an Advanced Certificate in Information Technology at TAFE.

15With your parents and brother, you established and ran a computer sales and repair business in Bendigo.  You had a relationship with a woman who gave birth to your first child in 1994, when you were about 19.  The relationship ended and the child's mother went to live interstate, but you contributed to the child's maintenance throughout her childhood.

16You met Ms Moss in 2012 having known her slightly at high school and your relationship with her commenced.  Hannah was born in 2013.  Whilst continuing to work in a call centre, you completed a further TAFE course part time over four years, a Diploma in Power Systems Design.  For about two years you worked as a trouble shooter in the communications and power industry, earning a good income.  Meanwhile, Ms Moss developed her own real estate business and you reduced your work commitments to part time, in order to be Hannah's primary carer while her mother worked.

GRAVITY OF THE OFFENDING

17The maximum penalties for each of the offences is 10 years' imprisonment which partly indicates the seriousness with which this type of offending is regarded.  The abuse of children is regarded with enormous contempt by the community and it is accepted that a sentence should reflect that.  Therefore, general deterrence is of great importance in such sentencing, together with the stern denunciation of the court.  The degree to which specific deterrence is reflected in the sentence, depends on the offender's particular circumstances and I shall return to that later.

18The gravity of the offending is to be assessed taking into account that in this case it occurred on one occasion as part of one episode in a spontaneous and opportunistic manner, as opposed to being planned or having occurred on multiple occasions. The two charges of sexual assault are subject to the standard sentencing scheme set out in ss.5A and 5B of the Sentencing Act.  The standard sentence of four years is applicable as a nominal sentence for an offence which is in the mid-range of seriousness.  Therefore, I must determine the gravity of the offence.

19Under s.5A(3), the objective gravity is to be assessed by the nature of the offending without reference to matters personal to the offender and wholly by reference to the nature of the offending.

20Section 5B provides that the standard sentence must be taken into account as one of the factors relevant to sentencing and does not limit the matters that the court is otherwise required or permitted to take into account in determining the appropriate sentence. Further, the standard sentence is not intended to affect the approach to sentencing known as instinctive synthesis and is intended as a legislative guidepost to sentencing[4]. 

[4]R v Brown [2018] VSC 742

21It was submitted by the prosecution and conceded by your counsel, Mr Gardner, that a term of imprisonment to be served immediately is warranted and that the sentence should be constructed as a head sentence with a non-parole period.  In the course of submissions, counsel for the prosecution referred me to the sentence in Soo v R[5], a case involving not dissimilar offending.  The Court of Appeal held that a total effective sentence of five years and a non-parole period of three years was not manifestly excessive.  The court was at pains to emphasise the care needed in relying on so-called comparable cases, given that no two cases are alike, but at the same time acknowledging that like cases should be treated alike.

[5] [2014] VSCA 304

22Both instances of offending the subject of Charges 1 and 2 are serious examples at the higher end of the range of seriousness.  A father assaulting his child in this way is a gross breach of trust and exploitation of power, and instead of protecting your daughter you exposed her to harm. 

23The effects upon her and her mother are profound.  The child was immediately upset and questioned her mother about it repeatedly.  In her victim impact statement, she said she had been worried that she would be in trouble and she was scared you would do something else.  She later had frightening dreams.  Her mother has stated that Hannah's whole family life has been ruined and she has continued to ask questions, including as to why she cannot see her paternal grandparents and she struggles to make sense of the adult world.  Ms Moss cannot answer Hannah's questions as to why this was done to her. 

24Ms Moss's victim impact statement also describes the extreme anguish she suffered at the time of the disclosure and afterwards, and the need for her and for Hannah to start a new life.  The impact on her working life as a single parent with very much reduced support is difficult, and she has had to be responsible for all the appointments for herself and Hannah, necessitated by the nature of the offending and the consequent criminal proceedings. 

25The offending the subject of Charge 3 is also at the higher end of the range of seriousness, given the large number of images.  It is only ameliorated somewhat by the fact that most of the images fall within Category 1 at the lower end of the category and there are none in Category 5.  There is an absence of aggravating features such as distribution or any commercial aspects. 

26Although it is also true that this was a collection you kept privately for your own personal use, you had told Ms Moss when she found them, that their possession was accidental, and you would delete them.  Neither statement was true, and you were on notice to do something about it, but you retained them and continued to have access to them.  That fact undermines your assertion that you never had a sexual interest in your daughter and contributes to your greater moral culpability.  Your daughter was the same age as the children in many of the exploitative images. 

MITIGATING FACTORS

27As I said before, although the standard sentencing scheme requires the gravity of the offending to be assessed in isolation from other factors pertinent to the sentencing task, any mitigating factors must be brought into account in order to determine the appropriate sentence and I turn to those factors now.

28You have instructed Mr Gardner of your shame and remorse and said that you are sorry for the pain you have caused.  Recently you were assessed by the psychologist, Mr Jeffrey Cummins, who stated that while you have accepted responsibility for your wrongdoing, you were having difficulty in a psychological sense accepting comprehensively the wrongfulness of your offending.  He thinks that you are at a relatively early stage in developing insight into the consequences of your offending for both your daughter and her mother.

29He considers that overall you are at a moderate to high risk of reoffending and that it is imperative that you participate in offence specific treatment, which you are willing to do.  Mr Cummins ruled out any psychological disorders although he does consider that you are either consciously or unconsciously coping with your situation by means of repression and some degree of minimisation and rationalisation. 

30Your plea of guilty was entered at a relatively early stage and you were determined that Hannah would not have to face a trial.  That is a matter of great importance not only for Hannah, but for Ms Moss and other witnesses as well.  The avoidance of a trial is of benefit to the criminal justice system and the plea is also an indication that your prospects for rehabilitation are likely to be enhanced.  For all these reasons you are entitled to a meaningful discount on your sentence and I take that into account.

31As to your rehabilitation, you have no prior convictions and neither you nor anyone in your family has had any experience of the criminal justice system before.  You have always worked hard and have improved your qualifications.  You are willing to engage in treatment and that is extremely important, taking into account the need for protection of the community from such offending.

32Your brief incarceration when arrested, followed by the progress of the case since then, are likely to have already provided considerable deterrence.  Subject to the efficacy of the treatment program you will be required to take part in, your prospects for rehabilitation are probably good.  Would you stand now please, Mr Hamilton?

SENTENCE

33I sentence you to four years imprisonment for each of Charges 1 and 2 and three years for Charge 3.

34The sentence for Charge 1 is the base sentence for purposes of cumulation.

35I order that six months of each of the sentences for Charges 2 and 3 be served in cumulation upon the base sentence.  That results in a total effective sentence of five years. 

36The next consideration is the application of a standard sentence in the fixing of a non-parole period. Section 11A(4) of the Sentencing Act relevantly provides:

'Unless the court considers that it is in the interests of justice not to do so, the court must fix a non-parole period of at least 60 per cent of the relevant term, if that term is a term of less than 20 years'.

37For this purpose, the relevant term is defined as being the total effective sentence which is imposed, and which includes the sentence for Charge 3.

38I order that you serve three years before being eligible for parole, in compliance with the standard sentencing scheme.

39Pursuant to s.6AAA of the Sentencing Act I note that if you had pleaded not guilty to these charges I would have sentenced you to seven years' imprisonment with a non-parole period of five years.

40I declare that you have spent six days in pre-sentence detention which are to be reckoned as already served and I shall note that on the court record.

41Under the Sex Offenders Registration Act you will be required to provide your contact details and other details to the police every year for 15 years. 

42The prosecution seeks an order for the disposal of items listed on the schedule. 

43Also sought is an order for a forensic sample of saliva to be obtained, and I make that order.  You have consented to both those orders through your counsel.  I must advise you that the police have the power to use reasonable force to obtain the sample, but I am sure that will not be necessary.

44Now are there any other matters, Mr Hayward?

45MR HAYWARD:  Just in terms of the expression of the periods of cumulation.  Your Honour ordered six months on Charge 2 and six months on Charge 3 to be cumulative upon Charge 1. 

46HER HONOUR:  Six years.  That is fine.  That is fine, is it not?

47MR HAYWARD:  Yes.  There is no difficulty with that.  It is whether that should be expressed as, 'Those sentences of six months should be cumulative upon the base and upon each other'.

48HER HONOUR:  That is the standard way of saying it, yes.  It has the same effect.  Thank you, Mr Hayward.  I can adjust that as needed. 

49Any other matters?

50MR DOCHERTY:  No, Your Honour.

51HER HONOUR:  All right.  Now the Sex Offender Registration Act document, I am just signing now, and you might like to accompany my associate to the dock in a moment.

52MR DOCHERTY:  I will, Your Honour, yes.

53HER HONOUR:  Mr Hamilton may be taken now, thank you, officers.

54(At this stage the accused left the court.)

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