Director of Public Prosecutions v Hannam (a pseudonym)

[2017] VCC 1261

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

AT MELBOURNE
CRIMINAL JURISDICTION   

DIRECTOR OF PUBLIC PROSECUTIONS

V

MICHAEL ROBERT HANNAM
 (A Pseudonym)

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JUDGE:	HER HONOUR JUDGE W. WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	30 May 2017
DATE OF SENTENCE:	1 September 2017
CASE MAY BE CITED AS:	DPP v Hannam (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2017] VCC 1261

REASONS FOR SENTENCE

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A pseudonym was used for the Offender to protect the identity of the victim.

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Subject: Criminal law - sentence       

Catchwords:    Plea of guilty to one charge of persistent sexual abuse of a child – offender is brother of complainant – offender aged 24-29 and child aged 9-13 at time of offending- offender now aged 33 – particular events included penetration – took place over three and a half years – breach of trust – vulnerable young child - offender made voluntary disclosure to police – complainant had not reported or complained until then – admissions – remorse – apology to complainant in court – no relevant prior convictions – long-term drug and alcohol problems – possible schizoaffective disorder -      good work history – good prospects for rehabilitation – risk of reoffending low to moderate - Verdins principles apply in relation to experience of imprisonment – indigenous man – suicidal ideation with multiple hospital admissions in last twelve months.

Legislation Cited: Sex Offender Registration Act 2004   

Cases Cited:DPP v Dalgliesh (a pseudonym) [2016] VSCA 148, Roper v R [2016] VSCA 52, Cummins v. R (a pseudonym) [2013], DPP v Mitchell [2014] VCC, R v. Mukesh Negi [2009] VCC 1139, Neubecker v R [2012 VSCA 58

Sentence: 6 years’ imprisonment with non- parole period of 3 years and 9 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Di Pietrantonio	DPP
For the Accused	Mr B. Newton	VLA

HER HONOUR:

1Michael Robert Hannam[1], you have pleaded guilty to one charge of persistent sexual abuse of a child, your sister, between 2007 and 2010.  The maximum penalty of this offence is 25 years' imprisonment.  During those years, you were aged between 24 and 29 years and your sister, the complainant, was aged between nine and 13. 

[1] A Pseudonym

2The prosecution summary sets out the circumstances of three occasions when you had sexual activity with her.  The first was on a family camping trip when she was aged nine.  You grabbed her in some bushes and when her pants were down you penetrated her vagina with your penis.  You let her go when another sister called her.

3The second occasion relied upon two acts of penetration which occurred when the complainant was at home in her bedroom; she was aged 11.  You went in and placed a bed against the door to prevent anyone else from entering.  You told her to lie on her back and you touched her vagina and penetrated her with your finger.  You then inserted your penis but only partially penetrated her.  She told you she wanted to go.  Another brother tried to enter the room but you blocked the door again.

4The third occasion occurred when the complainant was aged 13.  She was lying on her back on the bed in your room.  You gave her a pornographic magazine to look at and she felt she had no choice but to look at it.  While she was doing so you licked her vagina, penetrating it with your tongue.  She got away by telling you she had to go to the toilet.  She locked the toilet door and you waited outside until you realised she was not coming out. 

5She also recalled that you had begun sexually abusing her when she was aged eight when you and the family lived in Queensland.  Another instance of digital penetration which is not the subject of a charge occurred on the camping trip already referred to when she was nine. 

6In relation to each instance of penetration, the complainant said it was not complete penetration, in that your penis or your finger "did not go all the way in" as she put it. 

7The circumstances of your arrest and the complainant’s disclosure are unusual, in that she only made a statement after you had made admissions to police.  The context was that in July 2016 you were living in Bendigo and you had reached a point of deciding you had to confess what you had done but you were unable to resolve how to do it.  You considered stabbing yourself but instead you were taken to hospital and admitted to the psychiatric unit.  You were treated with antipsychotic medication and discharged after ten days.

8Following discharge, you continued to have suicidal thoughts and a week later police took you back to hospital.  Constable Wilson was asked to sit in while you were medically examined as to your mental health and he heard you tell the doctor that some time ago you had sexually abused your younger sister.  Constable Wilson reported this to a detective.  The doctor contacted her older sister and told her of this disclosure; she  asked the complainant to confirm it, which she did.

9She made a statement to police two days later, following which you were arrested and interviewed.  You made some admissions to the police and stated you were sorry for what you had done and that you were going to have to pay for it.  You did not challenge the allegations put to you and accepted that you had done whatever the complainant had alleged. 

10You were then remanded in custody for 23 days, from 10 August to
2 September 2016, when you were released on bail.  You were remanded in custody on the date of the plea hearing for a period of 94 days, not including today.  The total pre-sentence detention is 117 days. 

11At the committal hearing on 13 December 2016 the matter resolved, meaning the case was able to progress quite quickly, more so by the fact that you moved to Melbourne and so the case is being heard here rather than in one of the regional courts where some delay is being experienced. 

12That plea of guilty means you are entitled to a discount on your sentence, not only because your plea has facilitated the system of justice but also because the avoidance of a trial has saved your sister and other witnesses from having to give evidence and be cross-examined.  The plea is also an indication of remorse and of your acceptance of responsibility for your wrongdoing, which you have expressed unreservedly. 

13The only factor missing from that acceptance was an adequate explanation of why you committed the crimes.  You told the police that you were sick but offered nothing more in that regard and that you were using heroin at the time.  You stated initially that you are not sexually interested in children.  Accordingly, at that time, there was no indication as to why you behaved as you did. 

14The manner in which you disclosed your offending to the doctor with the policeman in the room and in full hearing of what you said is most unusual.  It seems to have occurred in the context of a crisis in your mental state when you could no longer continue to avoid disclosure but had found an indirect way of reporting it to the authorities and dealing with your guilt in that way. 

15Indeed, you were examined by a forensic psychiatrist, Dr Pandurangi.  In April this year you told him that you had wanted to end your suffering and on your second admission to hospital, with the police present, you decided it was an appropriate time to confess. 

16That is a mitigating factor of considerable force.  Some four years had passed since the last offence and the complainant had not made a report or complaint to anyone.  It was by your own admission that the offending came to light and that deserves considerable weight as an indication of good prospects for rehabilitation.  It also adds to the utilitarian advantages of the plea of guilty. 

17Your personal background and current circumstances bring to light further mitigating circumstances.  You are an indigenous man, born in Alice Springs, and one of 12 children.  You and the complainant have the same father but your mother died when you are aged two or three and your father had other children with different mothers.  You recall a childhood that was not unhappy, with the family travelling around a lot.  You got on well with your stepmother and with your siblings in your early life. 

18You left school early, after Year 8, having found it difficult, and thereafter you were in regular employment for many years.  But when aged only 18 you injured your back very badly while riding a motorbike, performing jumps.  You suffered a fractured spine and after a month in hospital, you underwent rehabilitation, learning to walk again. 

19At the time of the plea hearing you were unemployed and had been in receipt of a disability pension for some years.  You are single and were living apart from your partner and son, in supported residential accommodation in a Melbourne suburb.  You had a long relationship with your first girlfriend from the age of 19, then your second relationship lasting nine years saw the birth of a son who is now aged two.

20You have used alcohol heavily from early adolescent years and various drugs including cannabis, heroin and amphetamines throughout your teenage years and in more recent times.

21Dr Pandurangi assessed you and provided a report dated 4 April 2017.  You told him that just before the disclosure to the police you had believed you were being followed by strangers and you heard disturbing sounds in your head, such as voices speaking to you, trying to force you to confess.  This improved once you were prescribed appropriate medication.

22After the second hospitalisation to which I have already referred, you were again hospitalised twice, the first admission being in November 2016 for three weeks.  You had been using illicit drugs and had become paranoid, hearing voices again, and experiencing suicidal thoughts.

23I was told at the plea hearing in May that you had reduced your use of drugs and according to what you told Dr Pandurangi in April, you had ceased drinking alcohol.  You were then being supported, and I think this continues, by Mr Wally Harrison from an Aboriginal men's group.  

24Significantly, you told Dr Pandurangi that you could not explain why you had committed the offences, suggesting only that you must have been intoxicated with drugs or alcohol.  You denied any particular interest in children, as I said before, and you were disgusted at what you had done.  You understood the traumatic effects it would have on your son and your sister and the coming generations of your family. 

25Dr Pandurangi considered that you do not have a personality disorder, nor any gross cognitive impairment.  He considers you suffer from a depressive disorder, the exact duration of which is difficult to determine.  The florid psychotic symptoms you were experiencing briefly from time to time, seem to be related to illicit drug use, but the doctor considered that an alternative diagnosis is schizoaffective disorder, perhaps precipitated by illicit drugs or the drug use, may have contributed to it.

26Dr Pandurangi did not conduct a risk assessment in relation to possible recidivism and the plea hearing was adjourned for that to take place.  He conducted that risk assessment on 28 July,  and has provided a report.  You told him that your mood was better although you still presented as depressed, that you had ceased taking antipsychotic medication because you had not heard voices for a while, and you believed those symptoms were related to trauma, guilt and depression, all of which had eased since you had apologised to your sister.  I take it that is a reference to the apology you made directly to your sister, with her permission, in court at the plea hearing.

27Dr Pandurangi said he found you to be more open in discussion with him than previously and you stated that you had had sexual thoughts about children in the months before the offending and those thoughts continued afterwards sometimes, until your son was born and you realised then what you had done to your sister. 

28You recognised your actions as a sickness but said you believed you were now cured and not had such thoughts about children for many years.  You told
Dr Pandurangi that you were sorry for what you had done and you wondered how you would feel if something like that were done to your own child. 

29In summary, Dr Pandurangi was of the opinion that your offending behaviour was triggered by paedophilic orientation, relationship difficulties and heavy use of illicit drugs and alcohol.  You acknowledged having had a sexual attraction towards children, which you had denied before, and you now deny any existing paedophilic thoughts. 

30Dr Pandurangi considers the risk of any further similar offending by you to be low to moderate, because despite what you did in the past, you have not attempted to minimise your offending, you do not have attitudes supporting sexual violence and you understand the impact of your actions on your sister and on yourself.  You do not have any ongoing sexual beliefs about children, as Dr Pandurangi expressed it, and your substance abuse is in remission.

31Indeed, you instructions to your legal representatives are that you are avoiding drug use completely in prison and are making good use of your time, working as a welder and helping to instruct other prisoners.  You are also attending Aboriginal art classes and have produced a painting inspired by your country and home.

32In considering the gravity of the offending, the familial aspect of the relationship between brother and sister here is equally as important as the fact that the complainant was a very young girl, at the age of nine, that you were much older, in your mid-20s, and that you were in a position of relative power over her.  You were also in a trusted position as her older brother.  She was vulnerable and lacked the power to prevent what you did other than to resist when possible.

33Two of the occasions of offending occurred in her own home where she was entitled to feel safe.  It occurred over a long time, about three and a half years.  It involved penetration which would have been humiliating for the child, and the presumption of harm to children in these cases applies in this case no less than in others. 

34Indeed, the complainant's victim impact statement describes her stress and her isolation from her family because she has not been believed.  She believes that the long-term emotional effects have caused physical problems in the form of heart issues, with palpitations and what was described as a recent mini stroke.

35The prosecution submission was that the circumstances place this offending in the mid-range of seriousness, but your counsel submitted that its gravity was less than this.  It is not unreasonable to describe the offending as being in the mid-range of seriousness.  It is certainly not low.  The offence itself is very serious, as is evident from the maximum penalty and the nature of the offending. 

36In all the circumstances of this case, your offending is deserving of a significant custodial sentence to be served immediately.  The need for a custodial penalty is conceded by the defence. 

37Your prior history is very limited, all from interstate some years ago, consisting of some traffic offences and possessing suspected stolen items, with nothing similar to this offending.  You have not been in any trouble recently, with no suggestion of any anti-social behaviour.  That augurs well for you prospects of rehabilitation, together with the positive matters noted by Dr Pandurangi in his recent assessment of you.

38As to imprisonment, this is your first experience of it and it is conceded by the prosecution that because of your very recent mental health history, you will find it more burdensome than others would  You have had no contact with the outside world since you were remanded and you will continue to be somewhat isolated, with your former partner and son living in Queensland, and you being estranged from your family. 

39I understand that you have ceased taking antipsychotic medication since being in custody and the wisdom of this has been queried by Dr Pandurangi.  In any event, it has been prompted partly by your wish to live without medication or drugs and to commit yourself to Christianity and to a humble and simple life. 

40The difficulties of prison life and the burden for a man with a very recent history of mental illness are matters to be taken into account together with the other mitigating factors I have mentioned.  Those difficulties may be somewhat ameliorated by the positive attitude you appear to have developed which will likely serve you well in your efforts toward rehabilitation.

41In the course of the plea hearing, I was referred to several cases, each of which bears some similarity to this case but with important distinguishing factors, such that the decisions are, for the most part, not directly helpful.  They are the decisions in DPP v Dalgliesh[2], David Roper v R[3], Cummins v R[4], DPP v Mitchell[5], R v Mukesh Negi[6].  The decision in the case of  Neubecker v R[7] is, however, of more assistance. 

[2] (a pseudonym) [2016] VSCA 148

[3] [2016] VSCA 52

[4] (a pseudonym) [2013] VSCA 352

[5] [2014] VCC

[6] [2009] VCC 1139

[7] [2012] VSCA 58

42The sentence I impose must reflect the need for general deterrence because it is important to signal to the community that children must be protected from sexual exploitation and from people whose actions can only be described as degenerate.  It is known that children often suffer great harm from this exploitation, as I said before, which can affect them, in some cases, for the whole of their lives.

43The sentence I impose should also deter you from further offending.  You appear, as I said before, to have developed some insight into the gravity and wrongfulness of what you did and you explained to Dr Pandurangi that you felt better after having been to court and apologised to your sister.  Insight and remorse are important prerequisites for rehabilitation and they will improve your prospects, together with the other positive attitudes I have already mentioned. 

44Taking all those matters into account, I sentence you to six years' imprisonment and order that you serve a minimum period of three years and nine months before being eligible for parole. 

45If you had pleaded not guilty to this charge, I would have sentenced you to eight years imprisonment with a non-parole period of five years.  I declare that you have spent 117 days in pre-sentence detention - that does not include today - and that is to be reckoned as already served and will be noted on the court record. 

46Through your counsel, you have consented to the prosecution application for an order for a forensic sample of saliva to be obtained.  I make that order and must advise you that the police have the power to use reasonable force to obtain the sample but I trust that will not be necessary.

47Under the provision of the Sex Offender Registration Act 2004, you must provide your details to the police every year for the rest of your life once you are released from prison. 

48I will just see if there is anything that I have omitted or neglected.

49COUNSEL:  No, Your Honour.

50HER HONOUR:   You will be given that form to sign right away, Mr Hannam.  Anything further?

51COUNSEL:  No, Your Honour.

52HER HONOUR:  Thank you for your assistance during the course of the plea hearings.

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