Director of Public Prosecutions v Hardy (a pseudonym)

[2022] VCC 1710

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

AT LATROBE VALLEY
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

VINCENT HARDY (a pseudonym)

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	29 September 2022
DATE OF SENTENCE:	6 October 2022
CASE MAY BE CITED AS:	DPP v Hardy (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2022] VCC 1710

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sexual penetration of a child under sixteen (course of conduct charge) – assault - serious examples of each offence – protection of the community important sentencing factor –– large age difference between victim and offender – not spontaneous offending – offences committed in a domestic setting – Bugmy considerations application

Legislation Cited:           Sentencing Act 1991; Sex Offenders Registration Act 2004

Cases Cited:Marah v R [2014] VSCA 119; Pasinas v R [2014] VSCA 97; Bugmy v R [2013] HCA 37; Worboyes v R [2021] VSCA 169; Sims v R [2022] VSCA 114, DPP v Nwigwe [2022] VSCA 14, DPP v Conos [2021] VSCA 367

Sentence:Total effective sentence of four and a half years imprisonment with a non-parole period of 2 years and 9 months imprisonment

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Pezzimenti	Office of Public Prosecutions
For the Accused	Ms K. Powell	Victoria Legal Aid

HIS HONOUR:

1Vincent Hardy[1], you have pleaded guilty to:

(a)   A charge of sexual penetration of a child under 16. This is a course of conduct charge where the offending occurred between 1 June 2010 and 26 December 2011; and,

(b)   Assault. This is a rolled-up charge comprising three occasions. 

[1] A pseudonym

2The circumstances underpinning these charges are set out in the document entitled 'Prosecution Opening for Plea Purposes', which is Exhibit A. Your counsel agreed with its contents.

Circumstances

3At the time of your offending, you were aged between 28 and 30 and the victim between 14 and 16.

4The victim first met you in early April 2010 at the Warragul[2] train station. She was there with a schoolfriend to collect you, your daughters and your friend. You are the uncle of the victim's schoolfriend.

[2] A pseudonym

5Over the Easter holiday that year, the victim visited where you were staying.  Afterwards, you kept in daily electronic contact with her.

6In May 2010, you took her and her friend from Warragul to Frankston and showed them around Frankston.

7After the victim's return to Warragul, you continued to contact her. So much so, she began to think you and she were in a relationship.

8Between June and July 2010, you moved to Warragul, first to your sister's home and then to your father's home. You and the victim were spending days and nights together, whether at your father's home or in motels. At this stage, there was no sexual activity.

9Between 1 June and 31 July 2010, you were in bed with the victim at your home. You inserted your penis into her vagina and thrust for a while before withdrawing. When asked why you had withdrawn, you said 'It's your age'. You used a condom but it broke. This is the first occasion of sexual penetration. In the days following, you had sexual intercourse with the victim on a 'couple of occasions'.

10In August 2010, the victim went to live in your father's house. You and she had sexual intercourse nightly.

11These are some of the occasions of your sexual penetration of a child under 16.

12Between 1 October 2010 and 1 October 2011, you and she argued over your drug use. She threatened to leave you. You pinned her against a wall and grabbed her around the throat. She could not breathe and agreed to return to the bedroom. This is the first occasion of the charge of assault.

13During 2010, you went to live in a hostel in Bentleigh[3] and the victim was told to leave her home because she would not report your activities to the police. She came to live with you at the hostel with your two daughters.

[3] A pseudonym

14In the period between 1 October 2010 and 1 October 2011, on one occasion, you jumped onto the bed where the victim was sitting and stomped on her stomach. You did this because you were worried she was pregnant and, if she was, intended her to miscarry. This is the second occasion of assault.

15On another occasion, you knocked the victim to the ground with a punch and then continued punching her, causing a cut to her head. You took her to the bathroom and rinsed her wound. Then you slammed her forehead into the bottom of the shower. This is the third occasion of assault.

16You and she remained in an ongoing sexual relationship for overall three years. She left you before she turned 17.

17The victim made an incomplete complaint to the Queensland police in 2016. On 16 June 2021, she formally complained to Victorian police.

18On 26 March 2022, you were arrested. You have remained in custody since then. On the day of your arrest, you were interviewed by police members. Although apparently a long interview, you denied having sexual intercourse with the victim and denied assaulting her.

Criminal history

19Between 12 September 2000 and 13 August 2021, you have appeared in criminal courts in three Australian jurisdictions on 15 occasions and were found guilty or convicted of 87 charges.

20You were sentenced to imprisonment on seven occasions. On three occasions, the sentence of imprisonment was either partly or wholly suspended. Your longest sentence of unsuspended imprisonment was six months, imposed on 22 August 2006, for 11 charges, including two charges of burglary and five charges of theft.

21The 87 charges are mainly concerned with offences of dishonesty, with the offences of burglary and theft figuring prominently. None of your previous offending involved sexual offences.

Victim impact statement

22Your victim made an impact statement on 22 September 2022. It was read out by the prosecutor.

23She reported your offending to the police for two reasons: to end this chapter in her life; and to prevent you offending against any other girl.

24She was trapped by you, estranged from her mother and threatened by you.

25She retains a scar and bump on her head due to your assaults. She attributes a cyst in her head and headaches to your assaults.

26For a time she dreamt about you. These dreams went but have resurfaced due to this proceeding.

27Her relationship with her parents, siblings and friends has either ended or been disrupted mostly due to the knowledge of your relationship with her.

28She no longer trusts people. Of her relationship with her present partner, she says:[4]

'My partner and I have had a tough time. I've definitely got some baggage that he finds hard to understand'.

[4] Victim Impact Statement dated 22 September 2022 at page 5

29She worries about her daughter and the existence of people like you.

30In the past, she has received counselling for recognised psychological disorders. Working in child protection has been a blessing for her. Being busy keeps her mind off everything. But she wonders about the future, for herself and her daughter.  

Personal

31You are 40 now.

Family

32You are the youngest of three children. You have three stepbrothers.

33You were raised in Warragul. Your parents separated when you were 5. Your father is now, and was, an alcoholic. He was violent to your mother, and you believe this caused the separation. He was violent towards you. You and your older sister went with your mother to live in Sydney for several years. After your mother returned to Victoria, she left you and your sister in the care of your father.

34Your mother was addicted to heroin. She overcame the addiction and was training as a nurse when, tragically, she died of a heart attack. You were then 7. Not unnaturally, her death affected you profoundly.

35Meanwhile, your father placed you and your sister into foster care. You had a dreadful time in foster care, having, on your estimation, 120 different foster homes.

36At 18, you left foster care. This was not your choice and, for some time, you were homeless.

Education

37Your formal education ceased after you completed Year 8. Your secondary school years were tumultuous, having been suspended about thirty times. No one entrusted with your care encouraged you to proceed further in your education.

Employment 

38Your working life seems to have been in the unskilled and semi-skilled occupations. After working for a caravan manufacturer, you worked in scaffolding. The effect of the death of your partner upon you was so great it caused six years of unemployment. On your release from custody, you expect to obtain work in scaffolding and labouring. 

Relationships

39You are the father of five children, aged between six and 22. You have a good relationship with two of them, Melanie[5], aged 16, and Damien[6], aged 6. 

[5] A pseudonym

[6] A pseudonym

40The mother of your two youngest daughters died in 2011. Her death affected you significantly. 

Substance abuse

41You started using cannabis at 11 and heroin at 13. Your use of both drugs has continued on and off. At the time of your offending, you were using both heroin and morphine. You have ceased using heroin over the last three years.

42About eight years ago, you started using methamphetamine. You have found difficulty in abstaining from the drug and restarted using it prior to entering custody.

43You are currently taking Seroquel to help with your withdrawal from cannabis. You are receiving intravenous buprenorphine. On about 13 June 2022, you started on a Suboxone programme.

44While in custody, you have attended meetings of Narcotics Anonymous.

45Your usage of drugs have merited diagnoses of two recognised disorders – Opiate Use Disorder and Stimulant Use Disorder. For you, each is a severe disorder. The former is in remission, the latter presumably is not even though the psychologist, Simon Candlish, notes you are in a controlled environment in prison.    

Future

46Upon release from custody, apart from gaining employment, you hope to obtain accommodation and the care of two of your daughters.

Psychologist

47Simon Candlish is a forensic psychologist. At the request of your solicitors, he interviewed you on 31 August and 1 September 2022. His report dated 7 September 2022, is Exhibit 1.

48Apart from interviewing you, Mr Candlish administered a series of tools or tests. As a result, he considered you had at the time of offending:

(a)   a mild personality impairment; and

(b)   a moderately severe substance use disorder.

49Your personality impairment meant you lacked empathy with the victim and you disregarded the harm and risk of your actions. The effect of your drug use, through destabilisation and disinhibition, increased your willingness to engage in sexual activity with the victim.

50Sustained imprisonment would undermine your plans for the future. You already have problems with planning your life. It will not worsen your personality impairment. It will help you withdraw from drugs.

51As to the effect of your upbringing, Mr Candlish says[7]:

‘Mr [Hardy’s] childhood adversity is quite pronounced. It begins to explain his personality impairment. His social and emotional development was compromised and his premature exit from the educational system had resulted in social disadvantage. His treatment in care has likely led to entrenched mistrust.’

[7] Report of Mr Simon Candlish dated 7 September 2022 at paragraph 98

52Mr Candlish considered you are a low risk of sexual reoffending in relation to forming a sexual relationship with a post-pubescent female under the age of 16.

Discussion

Purposes

53Section 5(1) of the Sentencing Act 1991 (‘the Sentencing Act’) sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or a similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

54Each of the offences to which you have pleaded guilty are commonplace. General deterrence and denunciation are important sentencing considerations.

55At least in relation to the assault charge, your criminal history emphasises the need to deter you from committing these or similar offences. It points to the need to protect the community from you. 

56Section 5(2) of the Sentencing Act sets out matters, where relevant, which should be taken into account in sentencing you.

Maximum penalties

57The maximum penalties for the charges are:

(a)   sexual penetration of a child under 16 – 10 years' imprisonment;

(b)   assault – 5 years' imprisonment.

Gravity of the offences

58The offences contained in both charges are serious examples. The sexual penetration occurred over a period of about 18 months. Although consensual, there were many instances of sexual penetration. The evidence does not allow me to find how many. The fact of the victim's consent does not mitigate the penalty.[8] There was a marked difference in your respective ages, about 14 years. You were a young adult and she was in her early teenage years. Throughout your offending, you knew of the wrongfulness of your actions. 

[8]Sims v R [2022] VSCA 114 at [45]

59Your pre-penetration behaviour with the victim shows a degree of planning or predatory behaviour. There was nothing spontaneous about your approach to the victim.

60Charge 2 is a rolled-up charge comprising three occasions of assault. Generally speaking, a rolled-up charge benefits a person in your position. You answer one charge rather than three. Whether the sentence on the rolled-up charge is the sum of the appropriate sentence for each occasion or some lesser amount depends on the circumstances[9]. 

[9]DPP v Conos [2021] VSCA 367 at [74] and [75]

61Your assaults upon the victim occurred in a domestic setting. The courts have seen this as an aggravating factor. As the Court said in Marrah v R[10]:

‘…Offending of this nature is too often perpetrated by men whose response to difficulties in a relationship is one of possessive, violent rage.  It goes without saying that such a response, to what is a common human situation, is utterly unacceptable.  The sentences must convey the unmistakeable message that male partners have no right to subject their female partners to threats or violence.  The sentences must be of such an order as to strongly denounce violence within a domestic relationship.’

[10][2014] VSCA 119 at [25]

62Again, in Pasinas v R[11], the Court said:

‘General deterrence is of fundamental importance in cases of domestic violence. The victims of such violence are often so enveloped by fear that they are incapable of either escaping the violence or reporting it to the authorities. The key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.’

[11][2014] VSCA 97 at [57]

63As to your moral responsibility, your counsel submits the factor identified by the High Court in Bugmy v R[12] applies in your case:

‘Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving "full weight" to an offender's deprived background in every sentencing decision…’

[12][2013] HCA 37 at [44]

64In the same paragraph, the Court noted the conflicting purposes of punishment may mean a deprived background does not have the same or any mitigatory effect in relation to other purposes of sentencing.

65I consider you suffered very significant childhood deprivation. It is a mitigatory factor in relation to both charges by, at least, lowering your moral responsibility for both offences.  

Guilty pleas

66In relation to the charges, in terms of the timing of your pleas of guilty, they were entered at an early opportunity. They are evidence of your remorse for the offending.

67By pleading guilty to the charges, you have avoided a trial. You have saved the time and expense of a trial. You have allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial. Giving evidence is never easy. This would be especially so for the victim.    

68At the present time, pleas of guilty deserve a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[13], where the Court said:

‘As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested.  Unacceptable delay in the disposition of criminal cases is endemic.  Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts.  We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice.  Given the unhappy state of the courts’ lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead.  Such encouragement must come from an actual and palpable amelioration of sentence.’

[13][2021] VSCA 169 at [35]

69In your case, apart from the considerations identified in Worboyes case, I consider also that you are remorseful for your offending.

Current sentencing practices

70Counsel for the Director referred to five judgments of the Court of Appeal. Her main purpose was to draw statements of principle from those cases or judgments rather than as comparable cases although some of them are instructive.[14]  

[14]Sims v R [2022] VSCA 114, DPP v Nwigwe [2022] VSCA 14, DPP v Conos [2021] VSCA 367, Marah v R [2014] VSCA 119 and Pasinas v R [2014] VSCA 97

Sentences

71On Charge 1, I sentence you to 4 years' imprisonment.

72On Charge 2, I sentence you one year and four months' imprisonment.

73The sentence on Charge 1 is the base sentence. Six months of the sentence on Charge 2 will be served cumulatively on the base sentence. The total effective sentence is 4 and a half years' imprisonment. I will set a non-parole period of 2 years and 9 months' imprisonment. 

Pre-sentence detention

74Excluding today, you have been on remand for 194 days. I declare those 194 days as time served under my sentences. 

Section 6AAA

75In the absence of your pleas of guilty, I would have sentenced you to a total effective sentence of 6 and a half years' imprisonment with a non-parole period of 4 years' imprisonment.

Sex Offenders Registration Act 2004

76Charge 1, sexual penetration of a child under 16, is a Class 1 offence under the Sex Offenders Registration Act 2004. It is also a registrable offence. Upon a finding of guilt for this offence, you become a registrable offender. Accordingly, you must comply with the reporting obligations under that Act for fifteen years.

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