Director of Public Prosecutions v Hancock (anonymised)
[2014] VCC 438
•10 April 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL HANCOCK (anonymised) |
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| JUDGE: | HER HONOUR JUDGE DAVIS |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 10 April 2014 |
| CASE MAY BE CITED AS: | DPP v Hancock (anonymised) |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 438 |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – three charges of indecent and unlawful assault of a female – historical offences
Sentence: Total Effective Sentence of 2 years, wholly suspended
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APPEARANCES: | Counsel | Solicitors |
| For the Accused | Mr Phillip Dunn QC (plea) Mr J Taafe (sentence) | Doogue O’Brien George |
| For the Director of Public Prosecutions | Ms K. Churchill | Office of Public Prosecutions |
HER HONOUR:
1Good morning. I just wanted to advise you that I am proposing to anonymise the names of the complainant and the accused in this case because of the familial connection.
2MR TAAFE: Yes, Your Honour.
3HER HONOUR: Michael Hancock, you have pleaded guilty to three charges of indecent and unlawful assault of a female. Each of the charges is a representative charge in relation to conduct which occurred between 1 January 1980 and 31 December 1980, when you were aged 17 and the complainant, your younger sister, was aged 12. Each of the charges carries a maximum penalty of five years' imprisonment.
4At the relevant time you and the complainant lived with your parents and three siblings. The complainant shared a bedroom with her sister. Charge 1 concerns conduct which occurred a few times per month over the relevant period, when you entered the complainant's bedroom at night when she was in bed, would expose yourself to her, and, guiding her hands with your own, make her masturbate you to the point of ejaculation.
5Charge 2 concerns two occasions during the relevant period when you entered the complainant's bedroom, French kissed her and put your penis into her mouth. Charge 3 concerns multiple occasions during the relevant period when you were home alone with the complainant, would take her into the bathroom, lock the door, grab her, fondle her breasts and force her to masturbate you to the point of ejaculation. More detailed particulars are set out in the prosecution summary, which was tendered on the plea as Exhibit 1.
6You are now 52-years-old and the complainant is 47-years-old. You are married with two adult children and for many years have been in full-time employment as an IT specialist. You have no prior convictions and no history or diagnosis of psychological illness. You are the eldest of six children. Both your parents worked. Your father drank and was violent at home, often abusing you physically as a child. Your mother encouraged you all to study and you completed your secondary education.
7In 1979 you started tertiary computer studies. You started work in the computer industry in 1982 and in 1986 married your first and only girlfriend. Your wife was in court to support you. Prior to marrying your wife you told her about having sexually abused your sister but you never discussed these matters with the complainant. You have been working for the same company since 1988. Your mother died of cancer in 1999. The complainant married in 1990 and has two adult daughters. Your extended families attended family occasions together for many years.
8The complainant disclosed your offending to a psychologist she was seeing in early 2012, in relation to some difficulties she had adjusting to her daughter's move interstate. In late September 2012 you and your wife went to the complainant's home at her request and met with her and her husband. At the meeting the complainant disclosed that you had sexually abused her as a child. You admitted doing so and offered to support her financially with counselling or to do whatever else you could.
9About two months after this meeting, you discussed with your wife the possibility of divorcing to spare her the embarrassment flowing from disclosure. In late November the complainant wrote to you asking for an explanation for the abuse. Within days you wrote her a long letter in reply. You accepted full responsibility for your actions, stated that you knew that what you were doing was wrong but that you were in a "bad place", trying to adjust to university but having very little human connection with anyone. You said that your needs at the time overrode your conscience.
10You stopped attending family gatherings at the complainant's request. The complainant asked you to go to the police about the offending and on 30 January 2013 you went voluntarily to the police station and confessed that you had abused the complainant. Police then contacted the complainant who indicated that she did not want charges to proceed against you. Police interviewed you again in March 2013 on the basis of the statement made by the complainant. You were charged in August 2013 and pleaded guilty at the committal mention on 28 October 2013. The matter proceeded by way of straight hand-up plea to this court.
11The complainant appeared by remote witness facility and read out portions of her victim impact statement, which was tendered as Exhibit 2 on the plea. I have read the statement in its entirety. In it, she relates how since your offending she has lived with fear all her life, has deeply feared being alone with men, particularly those aged between 15 and 20, and has carried guilt and shame for the incidents, to the extent of asking police when being interviewed whether she needed a lawyer, and to the extent of considering running away or committing suicide.
12Over the years she has frequently been moved to tears without understanding why. She has felt worthless and uncomfortable being touched, even when cleaning herself, and these feelings have adversely affected her physical relationship with her husband. She has been angry at the reaction of some family members who have not been understanding or supportive, particularly her sister, and has felt alone and isolated. She has, however, been grateful for the support and understanding of your wife. She has had suicidal thoughts and has needed the support of her general practitioner and her psychologist.
13She stated that she felt stuck in her world as a teenager, even though she is nearing 50, and that your offending has hung over her head every day of her life since it occurred, making her feel as though she is a bad person, not deserving of worth or love, carrying a secret that has caused her so much shame and guilt.
14Your counsel emphasised that this is an unusual case with unusual and extensive mitigating circumstances. In particular, he relied on your youth at the time of the offending, the absence of prior convictions or subsequent matters, your verbal expression of remorse to your sister and offer of assistance to her, months before police were involved; your long-written apology to her, the fact that you went to police at the complainant's request because she was feeling conflicted about going herself; that you confessed to police and then pleaded guilty to representative charges at the earliest opportunity.
15In these circumstances, it was submitted, you have done all you can to right the wrong by your offending. In addition, he submitted that you have raised a family and have no prior convictions and no subsequent offending. You have behaved as a law abiding citizen for the vast majority of your life and that it is highly unlikely that you will ever be in trouble again. He submitted that there was no need for specific deterrence in this case, in that your conduct was the product of immature thinking while you were an adolescent.
16I note from the psychological report tendered on your behalf that you suffer no mental or psychological disorders, are considered a low risk of future offending, are very remorseful and have adapted to your life in a positive and pro-social manner. Your counsel submitted that in light of the unusual circumstances of this case, the kinds of penalties imposed in the 1980's for these offences did not automatically involve the imposition of a custodial sentence.
17When considered, in addition to the lengthy delay between the commission of the offences and sentencing, he submitted that the unusual circumstances made it appropriate for the court to consider the alternatives to an immediate custodial sentence.
18The prosecution accepted the mitigating factors relied upon by your counsel but submitted that an immediate custodial sentence was the appropriate disposition for three reasons;
19The offending constituted a gross breach of trust by a 17-year-old brother of a younger 12-year-old sister, when ordinarily a younger sister would rely on an older brother for protection;
20Her vulnerability and inability to resist you physically;
21And the devastating consequences for her of the abuse.
22Your plea of guilty is to a single Class 1 offence and two Class 2 offences. You will therefore be subject to the mandatory registration provisions for life. The prosecution applied for a forensic sample order, which you do not oppose.
23It is reprehensible that you offended in the way you did against your own younger sister, repeatedly over a 12 month period, and your conduct is to be denounced. The anguish your offending has caused her is set out fully in her victim impact statement.
24There was no statistical material put before me to inform me of sentencing practices in comparable cases in 1980 or 1981. It is therefore appropriate that I take the non-statistical approach and to consider the nature of your criminal conduct, and the maximum penalty applicable to the offence, in undertaking the synthesis which leads to the determination of the sentence to be imposed upon you.
25I acknowledge Mr Dunne's submission, based on his experience, that had you be sentenced as a youthful offender in 1980 you might not have received a custodial sentence. I also acknowledge the prosecution's submission that a custodial sentence is appropriate in this case.
26The offence for which you are being sentenced is that of a three representative counts of indecent and unlawful assault, the prescribed maximum penalty for which is five years' imprisonment. I take into account that these are representative charges relating to conduct over 12 months, from January 1980, with Charge 1 involving about 24 episodes of the conduct, Charge 2 involving two occasions of the conduct, and Charge 3 involving multiple occasions of the conduct. I consider that the conduct involved in Charge 2, which involved you putting your penis into the complainant's mouth, is more serious than that involved in Counts 1 and 3, even though there were few instances of it.
27I acknowledge that your sentence must reflect denunciation and just punishment. However, I consider that the circumstances of this case are indeed very unusual. The offending occurred while you were an adolescent and undergoing some personal turmoil. Prior to your offending, and over the years since that time, you have lived a blameless life and have, since acknowledging your offending to your sister in 2012, done a great deal to make up for what you did to her in 1980, including acknowledging your offending, apologising to her for it, writing to her to explain your actions, going voluntarily to police to confess your offending and pleading guilty at the earliest opportunity to the offences once you were charged. You have also used your own IT knowledge to make yourself able to be tracked.
28It is difficult to see what more you could have done to demonstrate remorse. I accept that the remorse that you have expressed in a variety of ways is genuine and deeply felt. Had it not been for your coming forward, it is uncertain whether your offending would have come to the attention of police at all. In pleading guilty you have spared the community the cost and inconvenience of a trial, and importantly have spared the victim the added stress and anxiety of having to publicly recall and recount highly stressful events and endure cross-examination.
29Given the compelling evidence of genuine remorse in this case, you deserve a very substantial reduction in what would otherwise be an appropriate sentence. I further take into account the delay in time from the period of your offending, your blameless life both before and since the offending, the absence of any prior convictions of subsequent matters and the absence of any indications of a psycho-sexual disorder or any risk of re-offending.
30In all the circumstances I consider it appropriate to convict you and sentence you as follows: Would you please stand?
31On Charge 1, you are sentenced to 15 months' imprisonment;
32On Charge 2, you are sentenced to 18 months' imprisonment;
33On Charge 3, you are sentenced to 15 months' imprisonment.
34The sentence on Charge 2 is the base sentence. I order that three months of the term of 15 months, in respect of Charge 1, and three months of the term of 15 months in respect of Charge 3, be served cumulatively upon each other and upon the sentence of 18 months imposed in respect of Charge 2. This results in a total effective sentence of two years' imprisonment.
35I consider it appropriate in the very unusual circumstances of this case to wholly suspend this sentence for a period of two years. I am obliged to tell you that should you breach the law by committing an offence during the next two years, punishable by a term of imprisonment, even though the court may not imprison you for that offence, you would be brought back before me and, on the face of it, would be in breach of the suspended sentence which I have imposed today.
36That would mean this: If you breach your suspended sentence during the next two years, you will be back before this court with the overwhelming probability that you will go to gaol to serve your two year sentence of imprisonment.
37Doing the best I can in circumstances where it is difficult to ascertain what sentence would have been imposed had this matter run to trial in 1980 or 1981, I declare that pursuant to s.6AAA of the Sentencing Act, that but for your pleas of guilty, had you stood trial and been convicted, I would have sentenced you to a term of three years' imprisonment, with a non-parole period of two years.
38I order pursuant to s.464ZF, Paragraph 2 of The Crimes Act 1958, that you undergo a forensic procedure for the taking of a sample by scraping the inside of the mouth. I warn you, as I must, that if you resist the taking of the sample police will be authorised to use reasonable force to take it from you. I make this order because it is not opposed because of the seriousness of the offending and because the making of the order is in the public interest.
39You will be required to report to Oakleigh Police Station during the period of four weeks commencing 28 days after today.
40Your offending attracts the provisions of The Sex Offenders Registration Act 2004. You have been convicted of a single Class 1 offence and two Class 2 offences, and as a result you have become a registrable offender for life and must comply with the reporting conditions of that Act. A document specifying your obligations will be given to you by my Associate. I have signed the s.464 orders and I will now sign the Sex Registration form which my Associate will take to you.
41Madam Prosecutor, is there anything that I have missed or needs to be corrected?
42MS CHURCHILL: Just two matters, Your Honour.
43HER HONOUR: Yes.
44MS CHURCHILL: The three charges were representative in nature, not rolled up counts.
45HER HONOUR: I'm sorry. Representative in nature, all right.
46MS CHURCHILL: It might be just a matter of terminology.
47HER HONOUR: Thank you.
48MS CHURCHILL: And I think Your Honour announced that Charge 1 was the base sentence but I think Your Honour ‑ ‑ ‑
49HER HONOUR: Two.
50MS CHURCHILL: ‑ ‑ ‑ perhaps meant two, yes.
51HER HONOUR: Yes, Charge 2, sorry.
52MS CHURCHILL: Thank you.
53HER HONOUR: I will make sure that that's reflected in the revised sentence. All right. We're just going to retrieve the orders from Chambers.
54MR TAAFE: Sure.
55HER HONOUR: So bear with me for a moment. We'll just adjourn and I'll just go and retrieve the Orders, thank you.
56MS CHURCHILL: Yes, Your Honour.
57(Short adjournment.)
58(Upon resuming.)
59HER HONOUR: Are there any other matters?
60MR TAAFE: No, Your Honour.
61MS CHURCHILL: No, Your Honour.
62HER HONOUR: We'll adjourn, thank you.
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