Director of Public Prosecutions v Hampson
[2015] VCC 916
•29 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TIMOTHY CHARLES HAMPSON |
---
JUDGE: | His Honour Judge Grant | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 May 2015 | |
DATE OF SENTENCE: | 29 June 2015 | |
CASE MAY BE CITED AS: | ||
MEDIUM NEUTRAL CITATION: | [2015] VCC 916 | |
REASONS FOR SENTENCE
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms M. Stylianou | OPP |
| For the Accused | Ms R. Shann | Tony Hargreaves & Partners |
HIS HONOUR:
1 Timothy Hampson, you have pleaded guilty to two charges of sexual penetration by a worker at a facility of a person with a cognitive impairment, one charge of indecent act by a worker at a facility of a person with a cognitive impairment and one charge of theft. The maximum penalty for the first two offences and for the offence of theft is ten years imprisonment. The remaining offence carries a maximum of five years imprisonment.
2 The offending occurred in these circumstances. On 16 May 2014, you were employed as the manager of Yooralla Disability Support Services in Drouin. You had been employed at the facility for 12 years. The victim, who was 29 years old at the time, was a client at the facility. She had been so since the age of 18.
3 The victim suffers from low functioning autism, has a reduced intellectual capacity and impaired cognitive function. Further, she has been assessed as lacking the capacity to make informed decisions regarding her lifestyle, including consenting to sexual activity. Her verbal responses are described as being ‘echolalic’.
4 You knew the victim. During 2013, you drove her home on most Friday afternoons. You knew her family and had spoken to her parents at their home.
5 The first three offences refer to your behaviour towards the victim on 16 May 2014. The victim came into your office in the afternoon and waited for you to finish your paperwork. Once you had finished, you asked her if she would like a hug. You asked her to turn off the lights. She queried why and you told her ‘so no one can see in’. The complainant complied. In your interview with the police you said “she came over and we had a hug, and then you know, it was the normal routine from then…. onto the desk.”
6 Video footage shows the victim lying on the desk with her underwear around her ankles and her legs in the air. Her top was pushed up exposing her breasts. Whilst she was in that position, you went and locked the door. She asked why you were doing that. You returned to the desk and removed your trousers and underwear. You stood beside the victim and put your penis in her mouth. You then wiped her vagina with a tissue and penetrated her with your tongue. You also rubbed your penis on the victim’s vagina. These acts constitute the first three charges. They are representative of your behaviour on four to five other occasions during 2014. As representative charges, they provide a context for the offending and enable me to understand that the offending was not an isolated event. However, the fact that the charges are representative may not be used to increase what would otherwise be a proper sentence.
7 There is video footage of your behaviour because of an incident on 28 February 2014. On that evening, a worker returned to the facility to discuss a matter with you. When she came to your office, she saw you adjusting your clothing and also saw the victim wearing a bra and pulling her top down. The worker became concerned and later discussed it with a colleague. On 2 April 2014, the victim disclosed some of the sexual activity between herself and her ‘special friend Tim’ to these workers and confirmed that on the earlier occasion “he and I had our pants down”. The camera was placed in your office on 16 May and it recorded your offending.
8 The recording also depicted you removing $400.00 cash from a security box of Yooralla funds. These funds were to be deposited into the Yooralla bank account. This conduct constitutes Charge 4. You admitted stealing money on three other occasions in 2014. Charge 4 is a rolled up charge and covers the total of $1,310.00 stolen by you from the facility. You repaid this amount to Yooralla on the day of the committal case conference on 3 February 2015.
9 Mr Hampson, the sexual offending is very serious offending. You were in a position of trust and you abused that trust in a shocking way. You put your own desires above your obligation to respect the victim’s rights, her autonomy and her personal dignity. The offending is simply inexcusable.
10 The victim’s sister has provided a victim impact statement in which she says this – “For Larissa[1], she has experienced sexual abuse by a person who has been a part of her daily life for ten years. This person has now been removed from her life and, as result of this crime, many staffing changes have taken place at the centre in Drouin. For a person with autism, change is frightening. Larissa throughout her life has relied on consistency and routine for comfort. Any change to this routine shakes her world profoundly. This change is beyond her understanding, and has affected her deeply for the last 12 months. Several times throughout the day, we see her anxious behaviours and witness her struggle to get through even the most simple of tasks like putting on her shoes or brushing her hair.”
[1]Larissa Outerridge is a pseudonym
11 The victim’s sister also speaks of the devastating impact your offending has had upon the family and particularly on her parents. Understandably, she is distressed that her parents feel guilty for what has happened to their daughter. In her victim impact statement she says this about her parent’s feelings of guilt, “they don’t deserve this. They shouldn’t feel any guilt. The fault is not theirs.” I agree absolutely with those comments. The victim’s parents have acted with loving care and concern for their daughter throughout her life. They could not possibly have anticipated that she would have been abused in a respected facility, by a man who had, up until the time of this offending, appeared to be an honest and upstanding man.
12 Mr Hampson, the victim’s parents have also provided a victim impact statement. It is a moving account of the profound impact your offending has had on their lives and the lives of their family. Crucially, it has shaken their faith in their ability to trust others. It has left them sad and devastated. In the statement, the victim’s mother says this, “There is undeniable fear for the future. How will we cope emotionally as the years go by? Who can be trusted now? Where can we turn? How can we ensure that our child is cared for when we are gone, that she will never again be abused? Will her siblings be required to step into the breach when we are no longer able to be there for Larissa, to house and supervise her for the remainder of her life, because none of us can ever contemplate placing her in the care of a service provider again.”
13 Mr Hampson general deterrence, denunciation and just punishment are all highly relevant sentencing considerations in this case.
14 I turn now to those matters concerning your background and also those matters raised in mitigation.
15 You are 52 years old. You come from a good family. You have no prior criminal history. Indeed, up until the time of your apprehension for this offending, you were regarded as a man of good character and reputation.
16 A number of references were presented on your behalf. I was provided with detailed letters of support from various family members. I heard evidence from your cousin. Those who support you have expressed shock and bewilderment at your offending. Your sister, who resides in New South Wales, detailed the support you have provided to your elderly and frail parents over the last few years and how difficult it will be for them when you are in prison.
17 As a result of your offending your marriage has broken down, you have no contact with your stepchildren and only limited contact with your son. Of course you have lost your employment and you have suffered public shame.
18 In her report to the court Dr Belinda Jude, a clinical psychologist who treated you between July 2014 and April 2015, says this about the offending, “At the time of the offences, Tim reported significant financial stress in the context of needing to fund repairs and renovations to the family home and affording Christmas presents. He was also under pressure to provide money for family holidays. Compounding financial stress was managing his disease and chronic pain and also caring for his wife of 14 years who suffered from serious depression. Tim reported that at the time of the offending behaviour, his marriage was not going well and that his wife was often angry and negative in her outlook. Whilst Tim did not use these reasons as an excuse for his behaviour, Tim felt that the context made him vulnerable and influenced a lapse in judgement regarding the approaches toward him by the victim. He described knowing the victim for approximately ten years and that she was a gentle, caring and positive person to be around. Given that Tim was working so much at the time, he was in the presence of the victim a great deal at the time and this influenced an inappropriate feeling of being close to her.”
19 I quote these comments, not because they excuse your conduct in any way, but because they offer some explanation as to how a man who was previously of good character and reputation should at the age of 52, commit such serious offences.
20 Further to this point, Mr Newton, a forensic psychologist who examined you, stated – “A review of his relationship with the complainant indicates that the relationship gradually morphed from one of professional and client through a friendship of growing intimacy, to a sexual relationship. At each successive stage, and despite having received specific professional education about such matters, Mr Hampson failed to recognise the significance of the changes that were taking place in the relationship and rationalised that they were harmless or even beneficial to the complainant. In doing so, he was guided by his own needs for closeness at a time when his marriage was increasingly conflicted, rather than by appropriate standards of professional conduct.”
21 Mr Newton opined that when he first saw you, you had limited insight into the seriousness of your conduct. He suggested that your “cognitive distortions” would need to be addressed through participation in a sex offender program. I agree with that assessment.
22 It is to your credit that you have pleaded guilty to the offending. Through that plea, you express remorse and accept responsibility for the offending. The plea of guilty has saved the complainant from the trauma associated with giving evidence. You have also saved the community the cost and expense associated with a criminal trial. You will be given appropriate credit for all these matters.
23 In sentencing you, I take account of your significant health issues. They will make prison more onerous for you than it would be for someone without those health concerns. Your sentence should be moderated accordingly. You suffer from ‘Charcot Marie Tooth Syndrome’ (CMT). This is a form of peripheral neuropathy, in which the feeling and motor control of the limbs is gradually reduced. You have loss of feeling in both lower legs, which is progressive and causing pain. You also suffer chronic back pain with restricted movements due to spinal cord stenosis. You are prescribed analgesics and anti-inflammatory medications for this condition. In addition, you are on medication for high blood pressure. You underwent hip replacement surgery in November 2014 and March 2015. You developed a deep vein thrombosis after the last hip operation followed by Pulmonary Embolism and complications from pneumonia. You were hospitalised from 6 May to 13 May. Because of these medical issues, I deferred sentence until today to enable you to have follow up treatment. Finally, I accept Mr Newton’s assessment that it is likely that you will experience a resurgence of your depressive symptoms in custody.
24 Even though you need to further develop your insight into the seriousness of your offending, I accept it is unlikely that you will reoffend. Your insight has, according to Mr Newton, improved over time and will be further assisted by participation in a sex offender program. You have strong support from family members and you will never work in the care industry again. Given these facts, I do regard you as a good prospect for rehabilitation.
25 Mr Hampson, whilst there are a number of matters that mitigate sentence, the fact remains that this is a serious offence involving a gross breach of trust. As your counsel accepted, the offending requires the imposition of an immediate term of imprisonment. The seriousness of this offending does not permit the making of the sentence proposed by your counsel, namely, a term of imprisonment for up to two years followed by a lengthy community corrections order.
26 Mr Hampson, because you are being sentenced to terms of imprisonment on Charges 1 and 2, you are to be sentenced as a serious sexual offender in respect of Charge 3. As far as the second part of Section 6D of the Sentencing Act is concerned, I am satisfied that this case does not warrant the imposition of a disproportionate sentence.
27 Section 6E of the Sentencing Act is also relevant. This section requires the imprisonment term on Charge 3 to be served cumulatively unless otherwise directed. There is a tension between this section and the principle of totality that is not easy to resolve. In determining to only partially cumulate the sentence on Charge 3, I have been influenced by the following considerations. First, Charge 3 is not as serious as Charges 1 and 2. Secondly, although the first three offences occurred as part of the one episode, there should be a degree of cumulation between them because of the discreet acts involved. Thirdly, in considering your overall criminality, I must ensure that there is no disproportion between the totality of the criminality and the total effective sentence imposed.
28 Mr Hampson would you please stand.
29 On the first charge you are convicted and sentenced to three years imprisonment. On the second charge, you are convicted and sentenced to three years imprisonment. On the third charge, you are convicted and sentenced to 15 months imprisonment. On the theft charge, you are convicted and sentenced to 14 days imprisonment.
30 I order nine months of the sentence of Charge 2 and three months of the sentence on Charge 3 be served cumulatively upon each other and cumulatively upon the sentence imposed on Charge 1. This makes a total effective sentence of four years. I fix a minimum term before you will be eligible for release on parole of two and a half years.
31 Had you pleaded not guilty and been found guilty after trial, I would have imposed a total effective sentence of six years with a minimum of four years.
32 Pursuant to s464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from your mouth. If you fail to co-operate in the taking of the sample, the authorities will take a blood sample and may use reasonable force to obtain that sample. I make the order because of the seriousness of the offending and also because the making of the order is in the public interest.
33 Finally, I do not consider an order under the Sex Offenders Registration Act is warranted in this case. I note the prosecution did not press me to make such an order in this case. You can be seated there. Are there any other matters?
34 MS STYLIANON: No, Your Honour.
35 MS SHANN: Your Honour, just some custody management issues - - -
36 HIS HONOUR: Yes.
37 MS SHANN: - - - which we would ask that Your Honour perhaps enter on the system just to assist the Corrections authority.
38 HIS HONOUR: Prison authorities, yes.
39 MS SHANN: Your Honour, if I could hand up a sticky note which has just listed the four types of medication which Mr Hampson is taking into custody with him.
40 HIS HONOUR: Yes.
41 MS SHANN: One of these, Gabapentin, he actually - he's taken this morning but he has to take three times a day. So we would ask that Your Honour note on the system a request for him to be assessed by a doctor as soon as possible, so that they can take over management of his medications.
42 HIS HONOUR: Well I will note as a custody management issue that Mr Hampson has a number of health issues which will require him to be seen as soon as possible by a doctor. I will ask my associate to note the four medications that he is currently on and I will note that at the moment he is taking Gabapentin three times a day and that he has had one dose this morning.
43 MS SHANN: Thank you, Your Honour. Mr Hampson also has paperwork with his full medical history with him, so that can be accessed by a doctor or Corrections staff as soon as they're ready to do so.
44 HIS HONOUR: Yes thank you. All right, the prisoner can be removed, thank you.
- - -
0
0
0