Director of Public Prosecutions v Hardin (a pseudonym)

[2018] VCC 1834

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

AT WARRNAMBOOL
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

TERESA HARDIN (A pseudonym)

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Warrnambool
DATE OF HEARING:	8 November 2018
DATE OF SENTENCE:	8 November 2018
CASE MAY BE CITED AS:	DPP v Hardin (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 1834

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr G. Hevey
For the Accused	Ms N. Smith

HIS HONOUR:

1The crime of incest is corrosive of families and of important social values.  This is always the case, even in those cases or rare cases, such as this, where the victim does not fully appreciate the criminality of the other family member involved.  The law must always strive to protect the young and the vulnerable.

2You, Teresa Hardin[1] had sex with your 16 year old stepson.  You and the victim's father met in 2005 in Alice Springs when you both worked in the hospitality industry.

[1] A pseudonym

3In 2006 you and your ex-husband went to Fiji to bring the victim, then five, to Australia to live with you both as a family.  You set up a home in Warrnambool where you were raised.  You and your ex-husband married in 2009, thereafter you had three children.

4You experienced marriage difficulties from 2015.  In November 2016 you moved to your own premises, along with the four children.  Your ex-husband would come to your new home to facilitate contact visits with the children as agreed.

5On the weekend of 11 and 12 March 2017, your ex-husband had the two younger boys.  However, one was unwell.  The next day your ex-husband returned to your house for an unscheduled visit to check on the sick boy's welfare.  The young boy let him in.  Your ex-husband asked where you were and was told in your bedroom.  Your ex-husband went to the bedroom and found you having sex with his son.  Your stepson.

6Upon being discovered you and the victim got up.  You apologised to your
ex-husband who was in shock.  After a couple of months your ex-husband reported what he had seen to the Child Protection Authorities.  The police were then informed.  You were arrested and interviewed on 6 July 2017.

7Ultimately you pleaded guilty prior to a contested committal commencing.  A number of days before it, indeed, the witnesses were not required to come to court at all.

8But as referred to, the victim has not participated in the prosecution of you and has made no victim impact statement.  Your ex-husband has and I have read his victim impact statement and taken into account what the amended Sentencing Act permits.  He has found this whole ordeal emotionally difficult.

9I must deal with you for this one incident of incest.  It remains serious, requiring denunciation and deterrence to others, of both genders, who may be minded to exploit circumstances of blended families, where the circumstances have led to family breakdown.

10As pointed out by your counsel; this single episode of incest does not have any of the array of usual, much less unusual aggravating circumstances attaching to it.  This example, of the always serious crime of incest, is not as grave as some other examples.  That said, your moral culpability is high.  You were the adult, the parent and you knew what you were heading towards was wrong, but you went ahead and had intercourse.  The context for it was the breakdown in your marriage.

11As you have no prior or subsequent convictions, there is little, if any, need for deterrence to you.  In my view, your involvement in the criminal justice system is warning enough to you.

12As to your person circumstances you are no 33.  You were raised in Warrnambool by your mother, who remains an important support to you.  Following school you trained in the hospitality industry.  You have worked in that field all your adult life as well as working in raising children.  You met your ex-husband at age 20.  As mentioned, you had three children with your
ex-husband.

13The victim lives with your mother and you do not have any contact with him, there being an intervention order taken out by the police on his behalf.

14Your two younger sons are now in the care of your ex-husband.  You have supervised contact and the reports provided to me about that contact speak of your appropriate engagement and attachment to them.  It also reveals how you have done what you can to minimise the impact on the children.

15Your younger daughter, now just two, was for a time with you, but now is in the care of your ex-husband.  Since the offending you and your ex-husband have managed the situation, insofar as the children are concerned, civilly and with the best interests of the children to the fore.

16You have no problems with drugs or alcohol.  Indeed, up until this offending your life was unremarkable, you being a law abiding, hardworking, busy mother.

17You have since your arrest sought and received psychological treatment for developing anxiety and depression.  You are now medicated with antidepressants.

18The report from the experienced forensic psychologist, Mr Joblin, includes the following.  It was his opinion that the offences for which you are before the court do not represent any chronic disorder and were not symptoms of a psychosexual disorder.  Rather, he said,

"I am of the opinion that the offences represent symptoms of the considerable difficulties that had developed in the relationship between the stepson and his father and you and your husband".

19He then set out a number of relevant matters, which I have taken into account.

20Taking into account this opinion and all other matters before and after this incident, I am confident you will not reoffend in like or any manner in the future.  Your prospects are to resume your previous lawful ways.

21The great tension here in the sentencing task is the seriousness of your offending as opposed to your previous good character and excellent prospects.

22Your counsel conceded that the punishment of last resort, gaol, was the only option.  The prosecution submitted that gaol had to be imposed.  It is always a grave step to send someone to gaol, especially for the first time and especially for someone whose likely path forward will be as a law abiding citizen.  However, in order to reassert proper values hard punishment must be metered out to those who commit the crime of incest.

23As the High Court has said many years ago,

"Deterrence is achieved by certainty of detection and by consistency in punishment and not necessarily by ever increasing penalties".

24Consistency in sentencing requires that my individualised sentencing of you does not veer so far off that it undermines the important sentencing purpose of deterrence.

25Your counsel provide a sentence of another County Court judge where a stepmother was found guilty of historic sex offences, including incest.  The offending in that case was over a significant period of time, nearly two years, and the victim was younger than in this case, being 13 to 15.  There was evidence of adverse effect on the victim.  Personal circumstances and ill health of the accused in the case were different two those here.  The sentence imposed of six years and six months, with a minimum term of three years and three months is very much a sentence that was crafted for the circumstances of that matter.

26Here, you pleaded guilty and did so at an early point.  The plea of guilty is of real value, in that you did not require the prosecution to call the reluctant victim and your plea relieved the victim of the ordeal of giving evidence and likewise relieved other witnesses, including your ex-husband, of giving evidence in public.

27Importantly, you took responsibility for the offence.  It is an expression of remorse.  It leads me to the view that your remorse is genuine.  You are contrite and only wish the best for your stepson.

28It is my view that you will do prison hard, because of your concerns about your children, notwithstanding the care that is being provided by your ex-husband.  It is not small matter to separate young children from their mother.  It is a factor very uncommon in incest cases.  I have factored it in to the synthesis.

29Your counsel argued that this was a case where mercy would allow for the fixing of a low non-parole period, relative to the head sentence and other incest sentences.  There are no fixed formulas.  The sentence I set is calculated, mindful that you may have to do every day of the head sentence that I imposed.

30However, I have fixed a non-parole period that is lower because, in my view, it is the time - no more and no less - that justice requires that you be incarcerated for this crime.

31Can you please stand, Ms Hardin.

32For committing the crime if incest, you are sentenced to be imprisoned for three years.  I order that you serve 12 months before being eligible for parole.

33Had you pleaded not guilty to these offences and been found guilty of them I would have imposed a sentence of five years with a minimum term of three years.

34I am required by law to indicate to you that you must register on the sex offender's register.  The period of time for that is mandatorily set at 15 years.  There is nothing I can say further about it.

35Other orders that are sought is that you provide a forensic sample, that is also a matter is mandatory.  And in respect of that, you will be required to provide a forensic sample, a scrapping from your mouth.  I make the order because it is in the interests of justice that you provide a sample.  When the authorities come to take the sample, if you do not cooperate than they are authorised to use reasonable force to get the sample.  The way through it, of course, is just cooperate with the taking of a swab.

36Is there any other orders required?

37MS SMITH:  Nothing else.

38MR HEVEY:  Nothing further, thank you, Your Honour.

39HIS HONOUR:  Thank you.  You can be seated, Ms Hardin, there is a process that has to be undertaken where I have got to sign a document that says that I gave you a document and you have to sign a document that says that you received it.  The document itself is the responsibilities that you have to register and comply with the sex offenders registration.

40The requirements are quite onerous and the consequences of not complying with it are serious.  So it is the content of the document which you will take with you to read through, so that when you are released you register as you are required to do.

41If you would, Ms Smith, go to the back or your instructor go to the back of the court and have Ms Hardin sign that.

42Received back the signed acknowledgement that you have been provided with the notification of reporting obligations and notification of the reporting period and that will be forwarded to the chief commissioner of police.

43There is nothing further?

44MS SMITH:  Nothing further.

45MR HEVEY:  Thank you, Your Honour.

46HIS HONOUR:  I thank counsel very much for their assistance in this unusual case.  Ms Hardin, the court's not setup for you to spend any time now with those that care for you.  If I allowed it for you, and I am sure you would do the right thing, I have to allow it for others who would not and they would carry on.  So you just have to go with the policeman now.  Ms Smith will advise you and your family of how it is you will get in touch with them in the next short while.  Thank you.

47That's the matters for today, Mr Hevey?

48MR HEVEY:  It is, Your Honour.

49HIS HONOUR:  Have you had - Ms Smith, thank you very much.

50MS SMITH:  Thank you, Your Honour.

51HIS HONOUR:  You're returning, no doubt, in due course for other things, I know.

52MS SMITH:  That's my last matter for this circuit, Your Honour.

53HIS HONOUR:  I'm not sure that it is, we might find more.

54MS SMITH:  Maybe.

55HIS HONOUR:  If it is, Ms Smith, then can I just have it said, as I will at the very end of the circuit to all the lawyers, that your efforts have been outstanding.  If we can have this sort of approach, generally, in other circuits we would be able to do the level of work that we have been able to do.  Many of those that you represented had periods of time in custody before their sentences were imposed of over 500 days.  It just shouldn't happen.  So we've been able to get through a number of outstanding, old pleas and these sorts of matters and appeals because of the efforts that you've made and the court's in your debt.

56MS SMITH:  Thank you, Your Honour.

57HIS HONOUR:  Thank you.  Has there been any discussion with Ms Brown?

58MR HEVEY:  Yes, Your Honour, I discussed the matter with Ms Brown this morning, in the hope that there might be some way we could shorten proceedings for next week.  Her intimation was that while she was still speaking with the accused she did not hold out much hope.  So I'm preparing the matter as if it's ‑ ‑ ‑

59HIS HONOUR:  Yes.

60MR HEVEY:  ‑ ‑ ‑ going to run its full course.

61HIS HONOUR:  Yes.

62MR HEVEY:  We've -- -

63HIS HONOUR:  Feel free to leave the Bar table and consult with your ‑ ‑ ‑

64MS SMITH:  Thank you, Your Honour.

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