Director of Public Prosecutions v Hampton

[2021] VCC 2101

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR-21-02087

DIRECTOR OF PUBLIC PROSECUTIONS

v

RODNEY HAMPTON

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	8 December 2021
DATE OF SENTENCE:	16 December 2021
CASE MAY BE CITED AS:	DPP v Hampton
MEDIUM NEUTRAL CITATION:	[2021] VCC 2101

REASONS FOR SENTENCE

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Subject: CRIMINAL LAW

Catchwords:  Rape contrary to common law – Two victims - Offending occurred in 1988 - Accused identified through DNA evidence - Early plea of guilty - High moral culpability - Limited evidence of remorse – Recent prior conviction for sexual assault - Moderate risk of re-offending - Specific deterrence - General deterrence - Childhood characterised by trauma and disadvantage

Legislation Cited: Crimes Act 1958; Sentencing Act 1991

Cases Cited: Bugmy v The Queen (2013) 249 CLR 571; Carter v The Queen [2018] VSCA 88

Sentence: Imprisonment of 11 years with a non-parole period of 7 years and 6 months -
s 6AAA Declaration - Imprisonment of 13 years with a non-parole period of 10 years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms F. Holmes	Office of Public Prosecutions
For the Accused	Mr T. Battersby	Victoria Legal Aid

HIS HONOUR: 

1Rodney Eric Hampton you have pleaded guilty to two charges of rape contrary to common law.  The maximum penalty for that offence at the time of your offending and for the purposes of this sentence is 10 years imprisonment.  The maximum penalty for the current offence of rape contrary to s 38 of the
Crimes Act1958 is 25 years imprisonment but that is not applicable in your case. 

2You pleaded guilty at committal mention following an application for an adjournment on your behalf to obtain an opinion in relation to the DNA evidence in your case. 

3Ultimately the matter proceeded by way of hand-up brief and no witnesses were called.  Accordingly, your plea may be properly characterised as occurring at an early stage in the proceedings and it has facilitated the administration of justice during the COVID-19 pandemic.  It is also of particular significance that the victims of your offending have been spared the trauma of giving evidence in criminal proceedings of this nature.

4I accept that your plea is also, to a limited degree, evidence of remorse for your crimes.  However, you now maintain that you have no memory of your offending and therefore it cannot be said that you are truly remorseful for what you have done.  Nevertheless, your guilty plea is significant for sentencing purposes in this case, and I have taken it into account in your favour in mitigation of sentence. 

5At the time of your offending in 1988 you did not have a criminal history, but you have admitted a number of subsequent court appearances since then.  Of significance for sentencing purposes in this case is your appearance before the Bendigo Magistrates' Court on 18 September 2018 in relation to one charge of sexual assault of a child under 16.  Your offending concerned you licking the vagina of your then four-year-old niece who you were babysitting.

6You were convicted of the charge and sentenced to two months imprisonment and a community correction order.  You were also placed on the sex offender's register.  This serious offence was committed by you opportunistically on a very young child while you were intoxicated, and you were aged 54 at the time.  In my opinion, this subsequent sexual offending is clearly of relevance to my assessment of your prospects for rehabilitation.

7A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

8On Saturday 16 January 1988, the 20-year-old victim of Charge 1 on the indictment was walking home from a night out with friends at approximately 12.30 am along View Street in Central Bendigo.  As she was passing St Mary's school she noticed that you were following her.  You then jogged past her before retuning and asking her if she knew what time it was.

9You then grabbed her and forced her into the front garden of a house in View Street.  You forced her onto her back, told her to remove her underwear, demanded that she put your penis in her vagina and you then raped her.  You were not wearing a condom and you ejaculated inside her.  You then ran off.  Your victim ran home, and the matter was then reported to police. 

10In my opinion, the gravity of this abhorrent crime cannot be overstated.  You preyed upon a defenceless young woman to satisfy your criminal urges and inflicted upon her an act of brutal sexual violence. 

11I have received in evidence a victim impact statement of your victim in relation to this charge.  The statement, which was read to the court by the prosecutor, details the profoundly traumatic effect your offending has had upon her. The victim also attended the hearing of this proceeding.

12As I have previously observed, you have finally been brought to justice for this grave crime of sexual violence.  Yet that fact cannot in any way undo the trauma your offending caused to your victim. 

13Two months later, on 19 March 1988, the gravity of your offending escalated.  That evening, the 16-year-old victim of your offending was walking home from her boyfriend's house.  She took off her shoes and accidentally stepped on some glass as she was walking along and was then limping.  You saw her whilst driving along, stopped your car, and offered her a lift home.  She trustingly accepted your offer.  Instead of driving her home, you drove her to a secluded location near Kangaroo Flat.  She was terrified and crying uncontrollably.

14After stopping the car in the bush you grabbed her.  She was struggling and you told her ‘not to make things worse for yourself'.  You pulled off her underwear, told her to put your penis into her vagina and you then raped her.  You were not wearing a condom and you ejaculated on or inside her.  You then drove her to Kangaroo Flat and left her there.  Two men saw her in a distressed and shocked condition.  She told them she had been raped and they took her home and the police were notified.

15In my opinion, this is a more serious example of the offence of rape than
Charge 1, although I wish to emphasise that Charge 1 remains a serious example of the offence.  In this instance, you held your victim in your car and drove her to a secluded location where she thought you might murder her.  The terror this 16-year-old girl must have experienced at your hands cannot be overstated. 

16I have also received in evidence a victim impact statement of the victim in relation to Charge 2 which was read to the court by a support worker.  This statement details the lasting and deeply traumatic effect your crimes have had upon her.  As with your other victim, your brutal rape devastatingly altered the course of her life when she was only 16. 

17The sentence that I impose for these abhorrent, predatory and cowardly crimes must send an unequivocal message to the community that a conviction for offending of this nature will be met with the imposition of a very substantial term of imprisonment.  Specific deterrence is also a significant consideration in this case, having regard to your subsequent offending and your statement that you have no memory of these crimes, a statement which, in my opinion, is false.  
I will return to your claim that you have no memory of your offending in due course. 

18For reasons which have not been explained in any way to the court, you committed two opportunistic crimes of sexual violence at a time when you were married with young children.  No explanation for this other than alcohol and drug abuse has been advanced on your behalf.  Accordingly, it is plain that your moral culpability for these crimes is high and in turn you must be punished for what you did.  The passage of 33 years since this offending does not moderate its gravity and nor does it diminish your moral culpability.

19I now turn to your personal circumstances -

20You were born in Melbourne on 25 August 1963 and are now aged 58.  You were one of 12 children parented by your mother and father, although it is not clear if all of your siblings share the same parents.  Your mother is of Aboriginal heritage but you have not identified personally or culturally with that heritage and your counsel places no emphasis on this on your behalf.  Nevertheless, in my opinion it is a significant factor in your background.

21Your early formative years were disrupted by your father's alcoholism and violence towards your mother and siblings.  Your parents were unable to care for you and you were placed in state care at the age of four.  Thereafter you had little contact with your family until the age of 13 when you moved to Bendigo and were raised by an aunt and uncle for five years.  During this time, you were sexually abused by your uncle.  You left school in Year 10 after attending Kangaroo Flat secondary school.

22I accept that the principles enunciated by the High Court of Australia in
Bugmy v The Queen (2013) 249 CLR 571 are engaged in your case in the sense that your serious childhood deprivation moderates your moral culpability for your offending. However, given the grave nature of that offending, the extent of that moderation is modest.

23After leaving school you worked at an Ice Works but suffered a serious back injury in your late 30s.  Following a period on WorkCover you were placed on a disability pension and have not worked for about 20 years.  Since your late teens you have heavily abused alcohol and, for a time, illegal drugs, although since your release from prison in 2018 you have not consumed alcohol on a regular basis.

24You were married at the age of 18 and have three children.  You were divorced in 1996 and have had no contact with your children for some years.  Two of your sisters continue to support you.  At the time of your arrest for these offences you were living alone in a Ministry of Housing unit in Strathdale. 

25I have received in evidence a psychological report of Ms Alison Mynard detailing your psychological profile and personal circumstances.  I accept that your childhood trauma has led to complex and enduring post-traumatic stress disorder and that you require ongoing psychological treatment to address this.

26Your counsel did not submit that there is a link between your offending and this condition but did submit that it will increase the burden of imprisonment upon you.  This submission was accepted by the prosecution.  I have taken this into account in arriving at the appropriate, proportionate sentence in your case. 

27As I have already stated, you told Ms Mynard you did not remember raping your victims.  I do not accept that this is true for the following reasons:

i.Your offending on each occasion was opportunistic and you targeted a vulnerable young woman late at night.

ii.You offended twice.

iii.On the second occasion you were driving your car and drove to an isolated location and gave your victim an excuse for doing so, indicating a degree of planning.

iv.You spoke to your victims in clear terms, demanding that they comply with your directions.

v.There is nothing in the description of your offending by your victims to suggest that you were so intoxicated as to be likely to suffer memory loss.

vi.There is nothing in Ms Mynard's report to suggest that you suffer from any cognitive impairment.

28In a letter dated 28 November 2021 and forwarded to the court by your legal representatives five days after the conclusion of the plea hearing, you repeated your claim that you do not remember your offending due to drugs and alcohol consumption.  In my opinion your false claim regarding your lack of memory of your crimes reveals that you lack insight into your offending and displays a corresponding lack of remorse for what you did.

29Ms Mynard concludes that you are a moderate risk of reoffending and this finding, together with your lack of insight, has led me to conclude that your prospects for rehabilitation are to be approached with caution. Your offending in relation to your four-year-old niece is also relevant to this assessment. Pursuant to s 6B(2) of the Sentencing Act 1991, you fall to be sentenced as a serious sexual offender in relation to Charge 2 on the indictment. For this reason, the protection of the community is the principal purpose for the sentence that I will impose on that charge and I have applied this provision in the formulation of the sentence that I will impose on it.

30In Carter v The Queen [2018] VSCA 88, the Court of Appeal considered the interrelationship between a judge's duty to have regard to current sentencing practises and the relevance of sentencing practises at the time of the offending when there has been a delay in the case coming to court, such as in this case. The court concluded that a sentencing judge is required to consider sentencing practises at the time of the offending for the purpose of ascertaining the just punishment in accordance with principles of equal justice.

31In this context your counsel tendered Victorian sentencing statistics for 1988, indicating that in relation to 42 counts of rape dealt with that year, the average sentence passed was 4 years, 5 months and 17 days.  One sentence of 9 years was passed.  The 75th percentile was five years; in 25 per cent of cases, a sentence of five years or more was passed.

32In relation to current sentencing practises, I am permitted to have regard to the changes in community attitudes to particular types of offending and its impact on the victims of such crimes.  These considerations form part of the factors that I have considered in arriving at the appropriate sentence in your case.  Your counsel also accepted that I am required to arrive at a sentence which is appropriate and proportionate in respect of each individual offence, offences committed in this case two months apart from one another.

33It was also accepted that it would be open to me to fully cumulate one sentence upon another if, in arriving at a total effective sentence in this matter, the principle of totality was not contravened.  Whilst there has been a very considerable delay in these charges coming before the court, you have reoffended during that time and in my opinion the passage of time is of little relevance in this case; it cannot be said that you have rehabilitated yourself since 1988.

34Finally, you are now aged 58 and I accept that the hardship of imprisonment will increase for you over the course of this sentence and while the COVID-19 restrictions remain on foot. 

35In the result, the sentence of the court is as follows -

36On Charge 1 you are convicted and sentenced to be imprisoned for 5 years.

37On Charge 2 you are convicted and sentenced to be imprisoned for 6 years.

38Charge 2 is the base sentence.  I direct that the entirety of the sentence on Charge 1 be served cumulatively on the sentence imposed on Charge 2. 

39This makes for a total effective term of imprisonment of 11 years. 

40I direct that you serve 7 years and 6 months before becoming eligible for release on parole. 

41I declare you have served 148 days by way of pre-sentence detention not including today. 

42But for your plea of guilty, I would have imposed a total effective term of imprisonment of 13 years with a non-parole period of 10 years.

43You will be placed on the sex offender register for life.

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